Citation Nr: 20008074 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 16-34 726 DATE: January 30, 2020 ORDER The application to reopen the previously denied service connection claim for an acquired psychiatric disorder, also claimed as posttraumatic stress disorder (PTSD) and bipolar disorder, is granted. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder, is granted. The application to reopen the previously denied service connection claim for hepatitis C is granted. Entitlement to a nonservice-connected pension benefits is denied. REMANDED The application to reopen the previously denied service connection claim for hyperthyroidism is remanded. Entitlement to service connection for hepatitis C is remanded. FINDINGS OF FACT 1. In a September 2009 decision, the Board reopened and denied the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. 2. Evidence received concerning an acquired psychiatric disability since the September 2009 Board decision relates to the basis for the prior denial and raises a reasonable possibility of substantiating the service connection claim for this disability. 3. The evidence is at least evenly balanced as to whether the Veteran's currently diagnosed major depressive disorder is related to service. 4. In a January 2006 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for hepatitis C. The Veteran did not appeal and new and material evidence was not received within the one-year appeal period. 5. The Veteran's period of active military service from March 1987 to February 1988 was not during a period of war, and he did not have any other period of active service. CONCLUSIONS OF LAW 1. The September 2009 Board decision is final. 38 U.S.C. §§ 7104, 7266; 38 C.F.R. § 20.1100. 2. Evidence received concerning an acquired psychiatric disability since the September 2009 Board decision is related to the basis for the prior denial and raises a reasonable possibility of substantiating the service connection claim. 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, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The January 2006 rating decision that denied the claim of service connection for hepatitis C is final. 38 U.S.C. § 7105(d); 38 C.F.R. §§ 3.104, 3.156(a)-(c), 20.200, 20.302. 5. The criteria for entitlement to nonservice-connection pension are not met. 38 U.S.C. §§ 101, 1521; 38 C.F.R. §§ 3.2, 3.3. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1987 to February 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 Regional Office (RO) rating decision. In October 2019, the Veteran had a Board videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. The Board has recharacterized the service connection claims for PTSD and bipolar disorder as a single disability for an acquired psychiatric disorder. This single psychiatric disability characterization is appropriate because of the overlapping nature of the claimed psychiatric symptoms. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). I. Petition to reopen previously denied service connection claims for an acquired psychiatric disorder, also claimed as PTSD and bipolar disorder, and hepatitis C 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). A Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C. §§ 7103(a), 7104(a); see also 38 C.F.R. § 20.1100(a) (a Board decision is final on the date stamped on the face of the decision). The exception to these general rules 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). (a) Acquired psychiatric disability, also claimed as PTSD and bipolar disorder In September 2009, the Board granted the petition to reopen a previously denied service connection claim for PTSD and depressive disorder and denied the underlying service connection claims for PTSD and an acquired psychiatric disorder, claimed as depression, major depression and bipolar disorder. The Veteran did not seek and the Chairman did not order reconsideration. Consequently, the September 2009 Board decision became final. The Board denied the PTSD service connection claim due to the absence of credible evidence that the Veteran experienced a military stressor. The Board denied the acquired psychiatric disability claim due to absence of credible evidence of a military nexus for the current psychiatric diagnoses. Specifically, the medical evidence outweighed the Veteran’s reports about continuous symptoms starting in service. Since the September 2009 Board decision, the Veteran provided a supporting July 2016 letter from his treating VA psychologist, Dr. D. Dr. D reported treating the Veteran since 2000 and reviewing the clinical records and service treatment records. He opined that the Veteran’s psychiatric symptoms started in service. He cited the hardship discharge as evidence of significant military stressors and indicated that the military failed to offer appropriate mental health treatment. The July 2016 VA treating psychologist’s letter tends to substantiate a military nexus for the Veteran’s psychiatric disability. The Board deemed this element to be missing in the September 2009 denial. The Board thus considers the additionally received evidence to include new and material evidence for this claim. Reopening of the service connection claim for an acquired psychiatric disability is therefore warranted. (b) Hepatitis C In this case, the RO initially denied service connection for hepatitis C in a January 2006 rating decision. The Veteran did not appeal this decision and new and material evidence was not received within the remaining appeal period. The Board notes that additional VA treatment records were received in May 2006 but that they are cumulative and redundant of the previously considered VA treatment records. The January 2006 rating decision considered service treatment records (STRs) and June 2005 to September 2005 VA treatment records. The medical evidence showed that the Veteran had a hepatitis C diagnosis. There is also a November 2005 statement from the Veteran denying any military hepatitis C risk factors. The RO determined that the evidence did not show a nexus to military service for the hepatitis C diagnosis. The newly received evidence raises the issue of secondary service connection to an acquired psychiatric disorder. As explained below, the Veteran is now service-connected for an acquired psychiatric disorder. The medical evidence indicates that substance abuse is the Veteran’s primary hepatitis C risk factor. The additionally received medical evidence also suggests that the Veteran’s substance abuse is related to the now service-connected psychiatric disorder and may qualify for the limited exception for drug abuse as willful misconduct. It raises a new theory of entitlement with a reasonable possibility of substantiating the claim. The Board thus considers the additionally received evidence to include new and material evidence for this claim. Reopening of the service connection claim for hepatitis C is therefore warranted. The underlying service connection claim is addressed in the Remand section following the decision. II. Service connection for an acquired psychiatric disorder 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. § 1131; 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). This claim has also been developed as a PTSD claim. There are supplementary regulations governing PTSD claims imposing additional evidentiary requirements. 38 C.F.R. § 3.304(f). Service connection for PTSD requires: (1) a medical diagnosis of PTSD utilizing, in this case, the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-V) criteria, in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). Service treatment records (STRs) do not show any psychiatric treatment. However, the December 1987 Report of Medical History, noted the Veteran’s reports about depression or excessive worry and nervous trouble. The Veteran detailed anxiety over domestic problems, which consisted of his wife having a drug problem. Service department records confirm the Veteran served in Germany from June 1987 to February 1988. In January 1988, the Veteran requested a hardship discharge due to dependency, which was later approved. February 1988 Report of Mental Status Evaluation deemed the Veteran competent. The Veteran waived his right to a separation evaluation and received a hardship separation in February 1988. In April 1988, the Veteran’s wife died. The death certificate reported that she was found unresponsive under a hotel bed. The cause of death was strangulation, and her death was characterized as a homicide. The Veteran reports that his stressful military experiences consist of domestic stressors, which ultimately led to his first wife’s death shortly after service. He contends these domestic problems were compounded while he served in Germany with his family remaining back at home and lack of access to appropriate psychiatric treatment. (See generally VA treatment records from September 2001, August 2005; Veteran’s reports from October 2001, August 2005; Board hearing transcripts from May 2009 and October 2019). September 2001 VA treatment records showed that the Veteran had substance abuse and depression treatment. As relevant, he related his depression to guilty feelings over his deceased wife and not being able to help her. The clinician remarked that the Veteran appeared preoccupied by her death and it was related to his depressive symptoms. October 2001 VA treatment records noted the Veteran’s complaints about nightmares concerning his first wife. Specifically, the dreams consisted of his deceased wife pleading for him to leave the military and return to live with her. August 2004 VA treatment records reflected that the Veteran had an approximately week-long hospitalization for major depressive disorder and substance abuse. August 2005 VA treatment records showed that the Veteran complained about increased depression following a detoxification program. For prior psychiatric history, he reported depression following his first wife’s 1988 murder. He had two overdose attempts. At a May 2009 Board hearing in connection with a previous appeal, the Veteran detailed that during service his wife had psychological and substance abuse problems. He was stationed in Germany and could not help her. He was approved for a hardship separation. When he returned from service, his wife went missing and his mother was caring for their baby. His wife was murdered shortly thereafter. He denied having any psychiatric problems prior to service. In August 2014, a treating VA psychologist submitted a PTSD Disability Benefits Questionnaire (DBQ) in support of the claim. He listed the Veteran’s current diagnoses as PTSD, Major Depressive Disorder, and Opioid Dependency in sustained remission. He related the Veteran’s PTSD symptoms to his deceased wife’s murder and difficulty arranging her burial. He summarized the relevant history, notably that the Veteran had behavioral problems associated with PTSD symptoms since leaving military service. The military stressor surrounded his command’s interference with his leave request to attend his wife’s burial. The Veteran continued to ruminate over these events. In July 2016, the treating VA psychologist issued another letter in support of the claim. He reported treating the Veteran since 2000. He opined that the Veteran’s current PTSD, anxiety and mood disorder symptoms were related to military service stressors. He noted that STRs did not include a psychological evaluation. However, the Veteran’s psychological problems should have been noted from the circumstances surrounding his hardship separation. The Veteran reported that he was transferred from his battery due to his mental state and he was only offered pastoral counseling instead of psychiatric medical treatment. During the October 2019 Board hearing, the Veteran stated that during service his wife developed drug problems. A non-profit and local child protective service agency contacted the military about his wife’s problems. His command changed his barrack assignment and had him undergo counseling. He ultimately received a hardship separation. He started having formal mental health treatment around 1992 at VA. He had his treating VA psychologist issue letters in support of the claim. He confirmed that his psychiatric problems started in service and have continued ever since. Based upon the above, the Board finds that service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder, is warranted. A current disability is clearly shown from the available VA treatment records and the August 2014 and July 2016 treating VA psychologist’s reports. The disputed service connection elements are a military event and nexus. As to a military event, some of the details surrounding the reported domestic stressor vary and STRs do not include mental health treatment. However, the available contemporaneous evidence strongly supports a finding that the Veteran had significant domestic stressors or hardship due to dependency during service. Such evidence includes the January 1988 hardship discharge request for dependency reasons, December 1987 reports of depression and nervous trouble which were described to the clinician as concern over his then wife’s domestic problem, as well as the Veteran’s first wife’s death certificate. Although there are later reports that erroneously date the first wife’s death as occurring during active service, the death certificate on its face strongly suggests that she had significant domestic problems during the Veteran’s service as her death was characterized as a homicide and occurred approximately two months following his separation. There is no indication that any clinician deemed the Veteran to be an unreliable historian. A credibility issue is not otherwise raised by the record. The Veteran’s reports are plausible and generally consistent with his verified assignment history in Germany. Thus, the Board finds the Veteran’s military stressors reports, as well as the August 2014 and July 2016 treating VA psychologist’s reports probative to establish an in-service event. The Board notes that non-PTSD psychiatric disorders are not subject to the evidentiary requirements for in-service stressors found in 38 C.F.R. § 3.304(f). In the August 2014 VA DBQ, the treating VA psychologist diagnosed major depressive disorder and indicated it was indistinguishable from PTSD. He related the current psychiatric symptoms to service. This medical opinion is plausible, and there is no conflicting medical opinion. Thus, the treating VA psychologist’s opinion is probative to show a nexus for major depressive disorder. For the foregoing reasons, the basic service connection elements for major depressive disorder are met. Service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder, is therefore warranted. The Board notes that the benefit granted herein is service connection for an acquired psychiatric disorder diagnosed as major depressive disorder and not PTSD as claimed by the Veteran. Although the Federal Circuit "recognize[d] that bipolar disorder and PTSD could have different symptoms and it could therefore be improper in some circumstances for VA to treat these separately diagnosed conditions as producing only the same disability," Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009), that is not the situation here with regard to the Veteran's psychiatric diagnoses. See id. (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). Rather, the evidence above does not reflect that the Veteran's psychiatric symptoms can be separated or clearly attributed to one or another of his psychiatric disorders, and they must be considered as a single psychiatric disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998)(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). Consequently, the Board need not remand any portion of the claim in order to separately address the issues of entitlement to service connection for PTSD. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("[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"). III. Entitlement to a nonservice-connected pension (NSCP) The Veteran contends that he is entitled to nonservice-connected pension (NSCP) benefits. For the reasons below, the Board finds that entitlement to NSCP benefits is not established. VA law authorizes the payment of NSCP benefits to a wartime Veteran who has the requisite service and who is permanently and totally disabled. Basic entitlement exists if a Veteran: (1) served in the active military, naval or air service for ninety (90) days or more during a period of war; (2) is permanently and totally disabled from nonservice-connected disability not due to his/her own willful misconduct; and (3) meets the net worth requirements under 38 C.F.R. § 3.274, and does not have an annual income in excess of the applicable maximum annual pension rate (MAPR) specified in 38 C.F.R. §§ 3.3, 3.23. 38 U.S.C. §§ 1502, 1521; 38 C.F.R. § 3.3. The term "period of war" includes the Vietnam era, dating from February 28, 1961 to May 7, 1975, for veterans serving in Vietnam, and from August 5, 1964 to May 7, 1975, for all other cases. After the Vietnam era, the next period of war began August 2, 1990 with the Persian Gulf War period. See 38 U.S.C. § 101; 38 C.F.R. § 3.2. VA's determination of whether a claimant's service meets the threshold statutory requirements is dependent upon service department records verifying the character of a claimant's service. See 38 C.F.R. § 3.203. A claim for nonservice-connected pension benefits by a claimant whose service department records fail to show the threshold eligibility lacks legal merit or legal entitlement and the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In this case, the Veteran's DD Form 214 establishes that he served from March 11, 1987 to February 23, 1988. This period falls outside of any "period of war." See 38 U.S.C. §§ 101(29), (33), 1501(4); 38 C.F.R. § 3.2. Service department records do not show that the Veteran had any other period of active military service. Accordingly, the Veteran is not eligible, by statute, for nonservice-connected pension benefits, because he did not serve at least one day during a period of war as defined in 38 C.F.R. § 3.2. As the basic eligibility requirements are not satisfied, entitlement to nonservice-connected pension benefits must be denied as a matter of law. See Sabonis v. West, 6 Vet. App. 426, 430 (1994). While the Board is sympathetic to the Veteran, it is bound by the laws and regulations that apply to veterans claims. 38 U.S.C. § 7104(c) (2012); 38 C.F.R. §§ 19.5, 20.101(a) (2018). REASONS FOR REMAND 1. The application to reopen the previously denied service connection claim for hyperthyroidism is remanded. This claim must be remanded to obtain VA treatment records identified by the Veteran. In his April 2011 petition to reopen, the Veteran cited updated medical treatment records as the basis to reopen the previously denied hyperthyroidism claim. The rating decision and June 2016 statement of the case listed considered evidence to include review of Chicago VA Medical Center (VAMC) treatment records spanning from 1995 to 2013. However, a complete review of the electronic folders, including Legacy Content Manager documents, do not include any VA treatment records following November 2007. The available evidence reflects that the most recent VA treatment records were requested in November 2007. Since the Board cannot view the updated VA treatment records, an additional records request for them is necessary. 2. Entitlement to service connection for hepatitis C is remanded. A medical opinion is needed for this claim due to the complex factual background. The record indicates that the Veteran has hepatitis C due to post service substance abuse. See also November 2005 Veteran hepatitis C risk factor report. He is now service-connected for an acquired psychiatric disability, and the record reasonably raises the issue of whether his substance abuse hepatitis C risk factor is related to the newly service-connected psychiatric disability. The Board notes that substance abuse is generally considered willful misconduct and is not an event for service connection purposes. See 38 U.S.C. § 105; 38 C.F.R. §§ 3.1(m), 3.301(d); see also VAOPGCPREC 7-99, 64 Fed. Reg. 52,375 (June 9, 1999). However, there is a limited exception for any substance abuse disability acquired as secondary to, or as a symptom of, a Veteran's service-connected disability. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has also indicated that a claimant could only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." The Federal Circuit stated that such compensation would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Id. at 1381-82. A medical opinion is needed to determine whether the Veteran’s substance abuse risk factor qualifies for the limited exception to willful misconduct. These matters are REMANDED for the following action: 1. Obtain Chicago VAMC treatment records from November 2007 to the present. Request that the Veteran identify any other medical records he would like considered with his petition to reopen the previously denied service connection claim for hyperthyroidism and take appropriate action based upon his response. 2. Contact an appropriate clinician for a medical opinion to determine the nature and etiology of his Hepatitis C disability. The entire electronic claims file, including a copy of this remand, must be made available to the examiner, and the clinician should confirm that such records were reviewed. Only schedule a physical examination if deemed necessary by the clinician designated to furnish the medical opinion. Following a complete review of the record, the clinician should provide the following medical opinion: Is it at least as likely as not (50 percent or higher degree of probability) that the drug abuse risk factor associated with currently diagnosed hepatitis C is caused or aggravated by the Veteran's service-connected major depressive disorder? The clinician is advised that causation and aggravation are considered separate elements and the opinion must specifically reflect consideration to both the (i) causation element and (ii) aggravation element. The clinician is also advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. D. Simpson, 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.