Citation Nr: 20004046 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 19-18 801 DATE: January 16, 2020 ORDER Application to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, including anxiety and depression, is granted. Entitlement to service connection for an acquired psychiatric disorder, including anxiety and depression, diagnosed as an unspecified trauma and stressor related disorder is granted. FINDINGS OF FACT 1. A February 2016 rating decision denied the Veteran’s claim of service connection for an acquired psychiatric disorder, including anxiety and depression; he did not thereafter submit new and material evidence within the one-year appeal period; and VA did not subsequently obtain and associate with the claim’s file VA treatment records generated within the one-year appeal period. 2. Evidence received since the February 2016 rating decision is new, it is related to an unestablished fact necessary to substantiate the claim of service connection for an acquired psychiatric disorder, including anxiety and depression, and it raises a reasonable possibility of substantiating the claim. 3. An acquired psychiatric disorder, including anxiety and depression, diagnosed as an unspecified trauma and stressor related disorder had its’ onset in service. CONCLUSIONS OF LAW 1. The February 2016 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence submitted to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, including anxiety and depression, is new and material and therefore the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for service connection for an acquired psychiatric disorder, including anxiety and depression, diagnosed as an unspecified trauma and stressor related disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the United States Marine Corps from August 1998 to August 2002. Initially, the Board of Veterans’ Appeal (Board) notes that additional evidence was added to the record since the regional office (RO) issued the March 2019 statement of the case. However, the Board finds that the Veteran is not prejudiced by adjudicating the claim at this time given the below decision which is granting the appeal. The Application to Reopen As to reopening a prior final decision, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to consider all the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The Court in Turner v. Shulkin, 29 Vet. App. 207 (2018), also recently held that for purposes of finality VA treatment records dated during the appeal period are consider in VA’s possession even if these records are not physically associated with the claims file until many years after the RO issued a rating decision if the RO had sufficient knowledge of the existence of the records within the one-year appeal period. The Court also held that these VA treatment records will thereafter only trigger VA’s duty under 38 C.F.R. § 3.156(b) if they are new and material evidence. With the above criteria in mind, the record shows that a February 2016 rating decision denied the Veteran’s claim of service connection for an acquired psychiatric disorder, including anxiety and depression. The decision denied his claim because, in substance, there was no link between a post-service acquired psychiatric disorder and military service. The Veteran did not appeal the February 2016 rating decision. The Board also finds that no new and material evidence was received by the RO in the first year following the issuance of the February 2016 rating decision. See 38 C.F.R. § 3.156(b). In addition, the Board finds that VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period of the February 2016 rating decision that it new existed and were new and material evidence. See Turner, super. Accordingly, the Board finds that the February 2016 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since this final February 2016 rating decision, the Veteran and/or VA obtained and associated with the claims file additional medical records including a January 2018 examination opinion from Dr. Perris Monrow as well as statements in support of claim from the Veteran. Dr. Monrow’s January 2018 examination includes for the first time an opinion that the Veteran’s current acquired psychiatric disorder is due to his military service. Therefore, because a nexus opinion is a condition precedent for establishing service connection (see Hickson v. West, 12 Vet. App. 247, 253 (1999)) and because in determining whether the evidence is new and material the credibility of the newly presented evidence is to be presumed (see Justus, supra.), the Board finds that this medical evidence constitutes new and material evidence and this claim is reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. The Service Connection Claim The Veteran claims, in substance, that he is entitled to service connection for an acquired psychiatric disorder because it is due to his time in-service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). With the above criteria in mind, the record shows the Veteran’s acquired psychiatric disorder being diagnosed as, among other things, an unspecified trauma and stressor related disorder. See, e.g., Dr. Monrow’s examination dated in January 2018. Moreover, the Board finds that the Veteran is both competent and credible to report on the events he experienced while on active duty and the observable symptoms of his acquired psychiatric disorder (i.e., feeling anxious and stressed on September 11, 2001, and since that time while serving with the United States Marine Corps). See Davidson, supra. Therefore, the next question for the Board to consider is whether the Veteran’s current acquired psychiatric disorder, diagnosed as an unspecified trauma and stressor related disorder, is due to his military service. See Hickson, supra. Initially, the Board notes that claims of service connection for acquired psychiatric disorders under 38 C.F.R. § 3.303 do not required a confirmed in-service stressor for non-combat/fear of enemy action stressors unlike claims of service connection for PTSD under 38 C.F.R. § 3.304. In this regard, and as noted above, Dr. Monrow in January 2018 opined that the Veteran’s unspecified trauma and stressor related disorder was due to his military service. Moreover, the Board finds this opinion the most probative evidence of record because it was provided after a review of the record on appeal, an examination of the Veteran, supported by citation to evidence found in the record, and is not contradicted by any other medical evidence of record. See Owen, supra; Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The Board also finds that, not only is it against VA policy to remand to shop for a negative opinion, but it would not obtain a better etiology opinion if it remanded the appeal to request such an opinion. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Given the above facts and granting the Veteran the benefit of any doubt in this matter, the Board concludes an acquired psychiatric disorder diagnosed as an unspecified trauma and stressor related disorder, is due to his military service. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, the Board concludes service connection is warranted for an acquired psychiatric disorder, including anxiety and depression, diagnosed as an unspecified trauma and stressor related disorder. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.