Citation Nr: 20006487 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 17-67 145 DATE: January 27, 2020 ORDER New and material evidence having been submitted, the claim for service connection for a nervous condition is reopened. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), previously claimed as to include PTSD is denied. FINDINGS OF FACT 1. A May 1997 rating decision denied the Veteran’s claim for service connection for a nervous condition. The Veteran did not perfect an appeal or submit new and material evidence within the appeal period and that decision is final. 2. Some of the evidence received since the May 1997 final denial is new and raises a reasonable possibility of substantiating the Veteran’s claim for service connection for a nervous disorder. 3. A psychiatric disability did not manifest during his military service or for many years thereafter, and there is no competent evidence linking a current psychiatric disability to service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for a nervous condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for acquired psychiatric disability, to include PTSD have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 15, 1979 to February 7, 1979. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). New and Material 1. Whether new and material evidence having been submitted to reopen the claim for service connection for a nervous disorder The Veteran’s claim for service connection for a nervous condition was initially denied in a May 1997 rating decision, where the RO denied the claim as not well grounded because there was no evidence the Veteran’s claimed nervous condition was incurred in or caused by service. The Veteran did not perfect an appeal or submit new and material evidence during the appeal period, and the decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011).   In September 2014, the Veteran filed the present claim for service connection for an acquired psychiatric disability, to include PTSD. In a February 2015 rating decision, the RO reopened the Veteran’s claim, but denied it on the merits. Regardless of the RO’s actions, the Board has a jurisdictional responsibility to consider whether it is proper for that claim to be reopened before addressing the merits of the claim. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156(a). 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. Id. The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence received since the May 1997 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. Since the May 1997 rating decision, the evidence of record includes updated VA treatment records which show diagnosis of depressive disorder. Additionally, in lay and written statements, the Veteran asserts that he was subjected to mental stress when he was placed in legal hold with mentally ill and violent persons while being discharged from service. Such evidence is new and must be presumed credible for purposes of determining whether new and material evidence has been received. As this evidence contributes to a more complete picture of the circumstances surrounding the origin of the claimed disability, the Board finds it is new and material. Accordingly, the claim is reopened and will be considered on the merits. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade, 24 Vet. App. at 117-20. Service Connection 2. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) The Veteran seeks service connection for an acquired psychiatric disorder, claimed as PTSD, which he asserts is a result of being placed in legal hold prior to his discharge from service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Generally, to prove service connection there must be: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). Upon review of the record, the Board finds the most probative evidence of record is against finding the Veteran’s claimed psychiatric disability was incurred in or caused by service. The Veteran’s service treatment records are silent for complaints, treatment, or a diagnosis of a psychiatric disability. A September 1987 private treatment record reveals that the Veteran was diagnosed with major depression.   As there is no evidence of a psychiatric disability during service, competent evidence linking the Veteran’s claimed psychiatric disability to service is needed to substantiate the claim. However, the Board finds there is no competent and probative evidence of record that links his acquired psychiatric disability to service. The Veteran underwent a VA PTSD examination in October 2017, at which time he reported seeing a number of things that upset him after being placed in jail for sleep walking in service and being taken to his commanding officer naked. The examiner found that the Veteran did not have a diagnosis of PTSD because his symptoms did not meet the diagnostic criteria for that diagnosis. The examiner also noted that a review of the Veteran’s treatment records do not indicate support for a PTSD diagnosis. Furthermore, the examiner reported that the evidence suggests the Veteran was a victim of abuse as a child and support a diagnosis of either psychosis or personality disorder with histrionic features. As such, the examiner found that he could not link any of these diagnoses to the Veteran’s military service, nor find evidence that any pre-existing condition was exacerbated by his time in the military. In sum, there is no competent and probative evidence establishing that the Veteran currently suffers from an acquired psychiatric disability that is related to service. Moreover, to the extent the Veteran has been diagnosed with a personality disorder, such disorders are not disabilities for purposes of VA compensation benefits. See 38 C.F.R. § 3.303(c) ("personality disorders . . . are not diseases or injuries within the meaning of applicable legislation"); 38 C.F.R. §§ 4.9, 4.127 ("personality disorders are not diseases or injuries for compensation purposes"). Accordingly, the claim for service connection for an acquired psychiatric disability, to include PTSD, is denied. (Continued on the next page)   In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lance, Law Clerk 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.