Citation Nr: 20022034 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 17-15 002 DATE: March 30, 2020 ORDER 1. As new and material evidence has been received, the previously denied claim for service connection for major depression is reopened. 2. Entitlement to service connection for a psychiatric disorder, to include post-trauma stress disorder (PTSD), anxiety, and depression, is denied. FINDINGS OF FACT 1. In an unappealed June 2014 rating decision, the Regional office (RO) denied reopening the claim for service connection for major depression based on a finding that new and material evidence had not been submitted to reopen the claim for service connection because there was no competent evidence of a current psychiatric disorder. 2. Evidence submitted subsequent to the June 2014 rating decision that denied reopening the claim for service connection for major depression is not cumulative or redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for major depression. 3. The Veteran’s claimed in-service PTSD stressor has not been corroborated by credible supporting evidence. 4. The preponderance of the evidence is against finding that a psychiatric disorder, to include PTSD, anxiety, and depression, began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The June 2014 rating decision denying reopening the claim for service connection for major depression is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim for major depression on the basis of new and material evidence have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for a psychiatric disorder, to include PTSD, anxiety, and depression, have not been met. 38 U.S.C. §§ 1110, 1131, 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 September 1979 to November 1979. The Veteran had a video conference hearing before the undersigned Veterans Law Judge in December 2019. New and Material Evidence If a claim for 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 is defined as existing evidence not previously submitted to agency decisionmakers, while material evidence is defined as 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. Only evidence presented since the last final denial on any basis (whether by the Board or RO, and whether upon the merits of the case or upon a previous adjudication that no new and material evidence had been presented) will be evaluated in the context of the entire record. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Regardless of the RO's actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108 and 7105 to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. 1. New and material evidence to reopen the previously-denied claim for service connection for a psychiatric disorder. At the outset, the Board notes that the Veteran’s service personnel and service treatment records, except his DD Form 214, are unavailable. The Board is aware that when service records are unavailable through no fault of the Veteran it has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. In a May 2012 letter to the Veteran, he was informed that VA did not have his service treatment and personnel records because they could not be found. This letter informed the Veteran of the steps VA took to locate these records and referenced a May 1, 2012 letter where the Veteran was offered 10 days to provide any service treatment or personnel records he might have in his possession before a decision was made on his claim. For background purposes, in February 2012, the Veteran filed a claim for service connection for major depression. In May 2012, the RO denied the claim based on a finding that there was no in-service disease or injury involving a psychiatric disorder and no current disability. The Veteran filed a timely notice of disagreement, and a statement of the case was issued in January 2013. The Veteran did not perfect the appeal, and the May 2012 rating decision is final. In April 2014, the Veteran filed an application to reopen the claim for service connection for a psychiatric disorder. In June 2014, the RO denied reopening the claim because it found that the evidence submitted was not new and material such that it did not show a current diagnosed psychiatric disorder. The RO notified the Veteran of this decision in a June 2014 letter, which included his appellate rights. The Veteran did not appeal the decision, nor did he submit new and material evidence within one year of the June 2014 notification letter. Thus, this decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran now seeks to reopen his claim of service connection for a psychiatric disorder on the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in June 2014. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156. For example, the evidence shows a diagnosis of depressive disorder. This evidence is new because it has not been previously submitted. This evidence is also material because it pertains to the basis for the prior denial, that is, that the evidence did not show a current psychiatric disorder. This evidence raises a reasonable possibility of substantiating the claim, as there was no competent evidence of a current psychiatric disorder at the time of the June 2014 rating decision. For these reasons, the Board finds that new and material evidence has been received to reopen service connection for major depression. See 38 C.F.R. § 3.156(a). As an aside, the Board notes that the Veteran had not claimed service connection for PTSD previously. Thus, the claim for service connection for PTSD is a new claim, as a claim for service connection for PTSD has its own criteria. Thus, the reopened claim is for service connection for a psychiatric disorder other than PTSD, and the Board will now consider service connection for a psychiatric disorder, to include PTSD, anxiety, and depression. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD specifically requires the presence of three particular elements: (1) a current medical diagnosis of PTSD; (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). For the purposes of establishing service connection for PTSD, medical evidence diagnosing PTSD must be in accordance with the Diagnostic and Statistical Manual of Mental Disorders 5th Edition (DSM-5) as the source of criteria for the diagnosis of claimed psychiatric disorders. Regarding the in-service stressor element of a claim of service connection for PTSD, the United States Court of Appeals for Veterans Claims (Court) has held that credible supporting evidence means that the Veteran’s testimony cannot, by itself, as a matter of law, establish the occurrence of a non-combat stressor; nor can credible supporting evidence of the actual occurrence of an in-service stressor consist solely of after-the-fact medical nexus evidence. See 38 C.F.R. § 3.304 (f)(3); see also Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996); Patton v. West, 12 Vet. App. 272, 277 (1999). Instead, the record must contain service records or other independent credible evidence corroborating the Veteran’s testimony as to the alleged stressor. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Those service records that are available must support and not contradict the Veteran’s lay testimony concerning stressors. Doran v. Brown, 6 Vet. App. 283, 289 (1994). 2. Entitlement to service connection for a psychiatric disorder, to include PTSD, anxiety, and depression. The Veteran testified that he was sexually assaulted by fellow soldiers, which he believes is the cause of the current psychiatric disorder. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a psychiatric disorder, to include PTSD and depression. As PTSD has its own criteria, the Board will address that diagnosis first and then anxiety and depression. As to evidence of a diagnosis of PTSD under the DSM-5, a November 2016 letter from a VA staff psychologist stated that the Veteran was found to have met full criteria for PTSD during a research study. The same letter was resubmitted in October 2019. Thus, the Veteran meets the first element of a service-connection claim for PTSD. As to medical evidence of a causal nexus between the current symptomatology and a claimed in-service stressor, a VA psychologist connected the Veteran’s in-service military sexual trauma (MST) to his PTSD in a November 2016 letter. Thus, the Veteran meets the second element of a service-connection claim for PTSD. As to credible evidence of an in-service stressor, the preponderance of the evidence is against a finding of credible evidence that the Veteran experienced an MST while in service. The Board is aware that the service personnel and service treatment records are unavailable for review, which inhibits consideration of what happened in service. However, the Board finds that the VA treatment records document sufficient facts to assist the Board in determining whether the Veteran experienced an MST in service. The Veteran’s stressor must be corroborated by “credible supporting evidence.” See Cohen v. Brown, 10 Vet. App. 128, 142 (1997). This is what is lacking in this particular case, which is explained below. In June 2012, the Veteran established care at VA. During this evaluation, he underwent depression, PTSD, and MST screening. The depression screen was negative. The PTSD screen was negative. The MST screen involved two questions: (1) Did you receive uninvited and unwanted sexual attention, such as touching, cornering, pressure for sexual favors, or verbal remarks? and (2) Did someone ever use force or threat of force to have sexual contact with you against your will? The examiner wrote that the Veteran answered no to both questions. The Veteran was being evaluated by VA at that time, and the Board finds that the Veteran responded honestly to the questions that were asked of him, which means that he specifically denied experiencing MST in service, which is evidence against an in-service MST. In a separate June 2012 VA treatment record, it shows that the examiner wrote, “No” in response to questions about whether the Veteran had military-related PTSD or non-military-related PTSD. The Veteran admitted he had a drug use disorder. Another PTSD screen was negative in September 2012, and the Veteran specifically denied a history of sexual abuse. This is further evidence against the Veteran experiencing an MST in service that caused PTSD. An April 2014 VA treatment record involving a mental health biopsychosocial assessment shows a detailed assessment of the Veteran (the assessment is five pages long). The examiner wrote the following, in part: The Veteran served in the Army from 1979 through 1980. His highest rank was a PFC and his MOS was as diesel mechanic. He denied being deployed and did not serve in combat during his service. He denied being exposed to trauma during his service. He denied a history of military sexual trauma. He reported a history of disciplinary issues during his service, including “two Article 15’s for Possession of Cocaine.” (Italics added.) In this same record, the examiner made a notation that the Veteran noted he was told at one time he had PTSD, although he “denied experiencing any highly traumatic events during his life or having any symptoms related to PTSD now or in the past.” Thus, on two occasions, in June 2012 and April 2014, the Veteran specifically denied being exposed to a traumatic event in service, to include, specifically, MST. The Board finds that this is strong evidence against the Veteran having experienced an MST in service. He was being psychiatrically evaluated and was forthcoming in his past experiences, including his disciplinary problems in service, using drugs in service, and the fact that he had a drug-use disorder, and the Board finds that had the Veteran experienced a traumatic event in service, he would have reported it. He specifically told the VA examiner that he had not experienced “highly traumatic events during his life,” which would refute his subsequent allegation that he was exposed to a traumatic MST in service. In an October 2014 VA treatment record, the examiner noted that he had “Reviewed or completed these reminders,” which included a PTSD screen, a depression screen, and an MST screen. While the answers to these screens are not documented in this treatment record, the Board finds it reasonable to conclude that they were negative; otherwise, the positive screen would likely have been documented and the Veteran referred for further evaluation. In a January 2016 VA treatment record, the examiner wrote that the Veteran “served in the United States Army from 1979 to 1979. He denies physical abuse or military sexual trauma.” Thus, the Veteran denied experiencing an MST in service from June 2012 to January 2016 on multiple occasions, which is evidence against the Veteran having experienced an MST during service. The first mention in the record of the Veteran reporting MST is within the Veteran’s April 2016 VA Form 21-0781a, Statement in Support of Claim for PTSD Secondary to Sexual Assault, where he contended that in November 1979 while drinking with fellow soldiers, one of the men came up behind him and choked the Veteran until he passed out. He wrote that when he awoke, he found his pants pulled down and his buttocks were wet. The Veteran reported that he did not tell anyone, and he stated that he decided to get out of the Army by breaking rules on purpose. The Veteran wrote that the incident stayed with him and continued to stress him out leading him to being in and out of treatment and prison. While the Veteran stated that he did not tell anyone, this statement contradicts an October 2019 lay statement where the Veteran’s friend, E.L., stated that while they were in the Army together in November 1979, the Veteran came to him in tears saying he had been molested by fellow soldiers in Alpha dorm. He noted the Veteran was too embarrassed to report it at the time. This contradiction damages the credibility of the lay statement from E.L. and damages the Veteran’s credibility, as he claimed he had not told anyone and now had a lay statement that attempted to corroborate the stressor. In an April 2016 letter, a VA staff psychiatrist noted the Veteran revealed to her and a mental health nurse that he was a victim of MST in April 2016. The doctor noted the Veteran’s symptoms related to the MST such as nightmares and flashbacks, and she referred him for trauma focused therapy and psychotropic medications. This after-the-fact medical nexus evidence is not credible evidence that an in-service stressor actually occurred, as the Board finds as fact that the in-service stressor alleged by the Veteran did not occur. In a November 2016 VA Form 21-4138, Statement in Support of the Claim, the Veteran’s representative contended that the Veteran receiving two Article 15s and going to the brig were behavior changes that are markers of the in-service MST. However, the Veteran admitted to breaking rules prior to his MST when he was drinking alcohol as a 17 year old. Thus, the Board does not find that the Article 15s and time in the brig are behavior changes for the Veteran. The representative stated that the discharge code, RE-3, is a code meaning the individual is not qualified for continued Army service, which would indicate that something happened in service in order for the Veteran to be discharged from basic training thereby corroborating his in-service stressor of MST. The representative asserted the Veteran has suffered from mental health conditions since service resulting in the Veteran being homeless, unable to hold a job, abusing drugs and alcohol, and being in out of jail and treatment programs. The Veteran’s statements/testimony cannot, by itself, as a matter of law, establish the occurrence of a non-combat stressor. Veteran reiterated earlier contentions on his March 2017 VA Form 9, Appeal to the Board, that he showed markers and stressors of military sexual assault in his military records. The Veteran stated that VA should use his DD Form 214 as evidence of his MST based upon his trainee discharge. He reported that when the assault happened, he felt ashamed and embarrassed and did what he could to get out of the military including exhibiting bad behaviors to initiate a discharge. The Veteran contended he initially planned to make a career out of military service, but the assault changed his mind and caused him intense stress. He stated he started to drink, do drugs, and was in and out of jail after service as a result of the in-service MST. This statement is not found to be credible because the Veteran stated that his MST happened on a night of drinking at 17 years old; therefore, he was drinking prior to leaving service. More importantly, when the Veteran sought treatment from VA in 2012, he specifically denied experiencing an MST then and denied experiencing an MST again in April 2014, October 2014, and January 2016. The first time he began to report an MST was when he filed the April 2016 claim for service connection for PTSD. At the time of the detailed biopsychosocial evaluation in April 2014, the Veteran had denied any stressful event either in service or during his life. The examiner wrote, “He denied being exposed to trauma during his service. He denied a history of military sexual trauma.” The Board finds no reason to question the accuracy of those answers that the Veteran provided while seeking treatment for his psychiatric disorder in 2012, 2014, and 2016. Accordingly, the Board finds that the preponderance of the evidence is against independent credible evidence corroborating the Veteran’s statements as to the alleged stressor. As stated above, the Board does not find that the buddy statement from E.L. is credible, as the Veteran had previously reported he did not tell anyone at the time it happened. For all the reasons laid out above, the Veteran does not meet the third element of a service-connection claim for PTSD regarding credible corroborating evidence that the stressor occurred. However, the Board is not limited to an adjudication of PTSD alone in light of the other mental health diagnosis in the record. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). Other mental illnesses require the general service connection elements be met to substantiate a claim for service connection. As to evidence of a current disability, a June 2014 VA treatment record diagnosed the Veteran with depressive disorder. The Veteran has also been noted to have anxiety. Therefore, the Veteran meets the first element of a service-connection claim. As to an in-service disease or injury, the Board finds that the preponderance of the evidence is against this element. For the same reasons described as to why the Board does not find that there is credible, supporting evidence that an alleged in-service stressor occurred, the Board finds that a disease or injury in service is not supported by the evidence of record. The Board finds that the preponderance of the evidence is against a finding of a disease or injury in service related to a psychiatric disorder. Without a disease or injury in service, service connection cannot be granted. The Veteran has attempted to establish a nexus through his own lay assertions that his psychiatric disorder, to include PTSD, anxiety, and depression, is related to an MST he experienced in service. However, the Veteran is not competent to offer opinions as to the etiology of his psychiatric disorder. A psychiatric disorder requires specialized training for determinations as to diagnosis and causation, and are, therefore, not susceptible to lay opinions on etiology. Thus, the Veteran’s allegations are not competent evidence of a nexus between the post service psychiatric diagnoses and service. Additionally, as noted above, the Board does not find that there is evidence of an in-service stressor or disease or injury for purposes of supporting a service-connection claim. VA has not provided the Veteran with an examination or opinion in connection with the claim for service connection for a psychiatric disorder. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the evidence does not show that an event, injury, or disease occurred in service. For a VA examination to be warranted, all the McLendon criteria have to be met, and at least one element is not met. Therefore, entitlement to a VA examination is not warranted. For all the reasons laid out above, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim for service connection for a psychiatric disorder, to include PTSD, anxiety, and depression. As such, there is no reasonable doubt to be resolved, and the claim for service connection for a psychiatric disorder is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. McDaniels, Associate 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.