Citation Nr: 19115271 Decision Date: 03/04/19 Archive Date: 03/01/19 DOCKET NO. 17-31 581 DATE: March 4, 2019 ORDER The application to reopen the previously denied service connection claim for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder and panic disorder, is granted. FINDINGS OF FACT 1. In a July 2012 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for PTSD. The Veteran did not appeal and new and material evidence was not received within a year of this rating decision. 2. Evidence received concerning sinusitis since the July 2012 rating decision is related to the basis for the prior denial and raises a reasonable possibility of substantiating the service connection claim for PTSD. 3. The evidence is at least evenly balanced as to whether the Veteran’s diagnosed major depressive disorder and panic disorder are related to service. CONCLUSIONS OF LAW 1. The July 2012 rating decision that denied the claim of service connection for PTSD is final. 38 U.S.C. § 7105(d); 38 C.F.R. §§ 3.104, 3.156(a)-(c), 20.200, 20.302. 2. The additional evidence received since the July 2012 rating decision is new and material with respect to PTSD, and reopening of the claim of service connection for PTSD is warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder and panic disorder, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1999 to January 2003 and October 2003 to March 2005, including service as part of Operation Iraqi Freedom. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision. In regard to the disability characterization, the record indicates that the alleged PTSD symptoms substantially overlap with depression and panic disorder. The Board has recharacterized the reopened claim as a single claim for an acquired psychiatric disability, to include major depressive disorder and panic disorder, claimed as PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). I. Petition to reopen previously denied PTSD claim Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purposes of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the RO denied service connection for PTSD in a July 2012 rating decision because a current PTSD diagnosis was not found and there was no evidence of disability in service. It considered service treatment records (STRs), various lay statements and the December 2011 VA examination report, among other items. These records did not show a current PTSD or psychiatric diagnosis. The additional evidence includes March 2016 lay statements from fellow service members confirming that the Veteran witnessed traumatic events during his Iraq deployment and exhibited signs of stress at that time. It also includes a March 2015 private medical evaluation by Dr. J confirming current diagnoses of PTSD, major depressive disorder and panic disorder. In sum, the additionally received evidence suggests that the Veteran had in-service psychiatric symptoms and a current psychiatric disorder, which was the basis for the previously denied service connection claim. Thus, the additional evidence relates to the basis of the prior denial and raises a reasonable possibility of substantiating the claim. The Board thus considers it to be new and material. Reopening of the service connection claim for PTSD is therefore warranted. II. Service connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). At the outset, the Board notes this claim has been developed as a PTSD claim. There are supplementary regulations governing PTSD claims imposing additional evidentiary requirements. 38 C.F.R. § 3.304(f). Since the Veteran’s stressor pertains to fear of hostile military or terrorist activity, a VA psychiatrist or psychologist or one contracted with VA must furnish the PTSD diagnosis. 38 C.F.R. § 3.304(f)(3). The only PTSD diagnosis of record is from Dr. J. He is qualified as a psychiatrist. However, since he is not employed or under contract with VA, his PTSD diagnosis cannot satisfy the criteria for a grant of service connection pursuant to 38 C.F.R. § 3.304(f)(3). Nonetheless, the symptoms of the major depressive disorder and panic disorder diagnosed by Dr. J. overlap with the PTSD symptoms. Separate adjudication of a PTSD claim would not result in additional benefit to the Veteran. Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (considering the possibility that bipolar disorder and PTSD did not constitute the same disability, but rejecting this argument based on the facts of that case); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 61 Fed. Reg. 52698 (Oct. 8, 1996)) (when it is not possible to separate the effects of the service-connected and non-service-connected disabilities, the benefit of the doubt doctrine described in 38 C.F.R. § 3.102 dictates that such signs and symptoms be attributed to the service-connected disability or disabilities); see also Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (noting that "[a] veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution"). Hence, further consideration of a separate PTSD claim is not required in this particular case. Service treatment records (STRs) do not show any specific psychiatric treatment or report of symptoms. Service department records confirm that the Veteran was deployed to Iraq from February 2004 to December 2004. His occupational specialty was wheel vehicle repair. In December 2011, the Veteran underwent a VA PTSD examination. The examiner found that the Veteran did not have any psychiatric disorder. She noted that the military stressors reported by the Veteran were significant. However, the overall severity of the described symptoms was insufficient to warrant a psychiatric diagnosis. Notably, quantitative testing suggested moderate combat exposure and was at the cut-off for a PTSD diagnosis. In March 2015, the Veteran had a private psychiatric evaluation with Dr. J. Dr. J. extensively recounted the Veteran’s entire social and occupational history. He noted the Veteran’s current anxiety and panic type symptoms that appeared following his Iraq deployment. Mental status examination was conducted. Dr. J noted generally increased tension and restlessness from the Veteran. He reported mood disorders of anxiety, depression and hyper arousal symptoms. Thought content was remarkable for obsessive thoughts about safety. Dr. J diagnosed PTSD, major depressive disorder, moderate, panic disorder with agoraphobia. He recommended a treatment regimen. In March 2016, J.W. submitted a statement. He served with the Veteran in Iraq. He confirmed that they both witnessed improvised explosive device (IED) attacks and were at serious risk of injury or death from their military occupational duties. He recalled that the Veteran had a crying spell when they learned a unit trailing them hit an IED. He also noted the Veteran developed severe nose bleeds over the course of the deployment. In March 2016, J.O. submitted a statement. He also served with the Veteran in Iraq. The Veteran was in a vehicle near his when an IED detonated. He recalled that the Veteran was almost paralyzed with anxiety during the aftermath. He recalled that the Veteran appeared to have sleep problems and anxiety following the incident as well as uncontrollable nose bleeds. In June 2016, the Veteran was afforded another VA examination. The examiner reported that the Veteran did not have a diagnosis conforming to the applicable criteria. 38 C.F.R. § 4.130. The examiner detailed the pertinent social and occupational history. He noted that the Veteran’s reports of working in convoys and witnessing a IED were sufficient stressors to support a PTSD diagnosis. However, the additional PTSD criteria were not met. Behavioral observations did not show the presence of any psychiatric symptoms. The examiner detailed how the Veteran did not meet PTSD criterions B-H. He noted the prior December 2011 VA examination report and March 2015 private evaluation with Dr. J. In May 2017, the Veteran enrolled in VA primary care. No anxiety or depressive symptoms were reported. For the following reasons, service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder and panic disorder, is warranted. The Veteran is competent to report his psychiatric symptoms and military history. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). Service department records indicate that the Veteran participated in Operation Iraq Freedom and are generally consistent with the reported military stressors. He submitted lay statements from two friends attesting to his exposure to IED attacks and manifestations of anxiety type symptoms in service. The Board finds the Veteran’s reports of stressful military experiences wholly credible. However, the issue of whether his symptoms warrant a psychiatric diagnosis is a complex medical question. This is because VA regulations require a diagnosis in accordance with the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). 38 C.F.R. § 4.130. The Veteran does not have expertise to apply these clinical standards to his symptoms. Thus, his reports and other lay reports on his behalf are not competent to establish a current psychiatric diagnosis. Jandreau, 492 F.3d at 1377, n. 4. There are conflicting medical opinions on whether the Veteran has a current psychiatric diagnosis. The Board must weigh the medical opinions. The Board notes that the March 2015 private evaluation was received prior to the instant claim. However, the VA definition of current disability is broad and includes intermittent disability manifestations as well as consideration of evidence prior to the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). Thus, Dr. J’s March 2015 private evaluation is for consideration despite taking place before the instant claim was filed. In this case, the Board finds the March 2015 private medical opinion by Dr. J. persuasive enough to bring the evidence into a state of relative equipoise. He conducted a detailed interview of the Veteran entire social, occupational and military history as well as a mental status examination. His diagnoses of major depressive disorder and panic disorder are clearly identified, but do not reference the applicable DSM-5 criteria. The Board observes that the DSM-5 is the principle authority for psychiatric diagnosis and it reasonable to presume that as a practicing psychiatrist, Dr. J.’s major depressive disorder and panic disorder diagnoses were made in light of the DSM-5 standards. (See American Psychiatric Association, https://www.psychiatry.org/psychiatrists/practice/dsm/feedback-and-questions/frequently-asked-questions). A review of Dr. J’s report in its entirety confirms that these diagnoses relate to stressful military events. Although Dr. J. does not provide a detailed explanation for each diagnosis, it is reasonable to infer his diagnoses were supported by the interview and his clinical experience. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Cf. Cohen v. Brown, 10 Vet. App. 128, 139, 140 (1997) (mental health professionals “are presumed to know the DSM requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis”). The evidence weighing against the claim is the June 2016 VA examination report and to a lesser extent, May 2017 VA primary care records. The June 2016 VA examiner considered the Veteran’s history. He noted Dr. J’s report, but did not provide a specific explanation as to why his major depressive disorder and panic disorder diagnoses were inaccurate. It appears the June 2016 VA examiner and Dr. J simply interpret the severity of the Veteran’s psychiatric symptoms differently. The Board also observes that the quantitative test results from the December 2011 VA examination tend to suggest clinically significant psychiatric symptoms and support Dr. J’s opinion. For the May 2017 VA primary care records, a failure to report symptoms that would be expected to be reported may be construed as negative evidence in certain cases. The Board declines to do so here since it is plausible that the symptoms are intermittent or the Veteran does not want to pursue treatment. His reluctance for treatment may easily be inferred from his full-time employment and hesitation to miss work. (Continued on the next page)   For the foregoing reasons, the evidence for this claim is at least in a state of relative equipoise for each service connection element and service connection for an acquired psychiatric disability, diagnosed as major depressive disorder and panic disorder, is therefore warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. D. Simpson, Counsel