Citation Nr: 21001606 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-27 178 DATE: January 11, 2021 ORDER New and material evidence has not been received to reopen a claim of entitlement to service connection for a personality disorder. Entitlement to service connection for posttraumatic stress disorder (PTSD) and depression is granted. FINDINGS OF FACT 1. The February 1997 rating decision that denied service connection for a personality disorder is final. 2. The evidence received since the February 1997 rating decision, by itself, or in conjunction with previously considered evidence, is either cumulative or redundant of evidence previously of record or does not relate to an unestablished fact necessary to substantiate a claim for service connection for personality disorder. 3. The evidence is, at least, in relative equipoise regarding posttraumatic stress disorder (PTSD) and depression were incurred in active service. CONCLUSIONS OF LAW 1. The February 1997 rating decision which denied service connection for a personality disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. The evidence received after the February 1997 rating decision is not new and material, and the claim for service connection for personality disorder is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for posttraumatic stress disorder (PTSD) and depression have been met. 38 U.S.C. §§ 1110, 1110, 5103A, 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 December 1994 to September 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. 1. New and material evidence has not been received to reopen a claim of entitlement to service connection for a personality disorder. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. VA rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as 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). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided on the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. 38 U.S.C. § 5108. The claim to reopen does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether the low threshold is met, consideration need not be limited to consideration of 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. The Board has thoroughly reviewed all the evidence of record. The Board has an obligation to provide reasons and bases supporting a decision. However, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000) (Board must address its reasons for rejecting evidence favorable to the Veteran). The Department of Veterans Affairs (VA) Regional Office (RO) considered and denied a claim for service connection for a personality disorder in a February 1997 rating decision. At that time, the evidence of record included service medical records and a January 1997 VA examination. The February 1997 rating decision denied service connection for a personality disorder because personality disorder is not a disease or disability for which service connection can be granted. The Veteran was notified of the February 1997 rating decision and his appellate rights. The Veteran did not submit a notice of disagreement or new and material evidence within one year of the notification. The February 1997 rating decision is now final. 38 U.S.C. § 7105; 38 C.F.R. § § 3.156, 3.160(d), 20.200, 20.201, 20.302, 20.1103. The evidence received since the February 1997 rating decision includes VA treatment and personnel records, additional service treatment records, and lay statements from the Veteran. The Veteran has also provided a September 2019 private medical examination with positive nexus opinions relating a current personality disorder to service. Regardless of the evidence submitted since the most recent final denial, none of the new evidence is material as a personality disorder is not a disease or injury within the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. Therefore, regardless of the evidence submitted with respect to this claim, service connection for a personality disorder is precluded as a matter of law and thus the new evidence cannot raise a reasonable possibility of an allowance of the claim. Thus, none of the evidence received since the February 1997 rating decision raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has not been presented to reopen the previously denied claim for service connection for personality disorder. Therefore, the claim is not reopened, and remains denied. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD) and depression. Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In order to establish service connection for a claimed disability, 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) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). The PTSD diagnosis must be made in accordance with the criteria of American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-V). 38 C.F.R. § 4.125(a). Secondary service connection may be established for a disability that is proximately due to, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. §§ 3.159(a)(2). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked evidence that is not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran is seeking service connection for a psychiatric disability, to include PTSD. The Veteran contends that current psychiatric disabilities are the result of constant verbal abuse experienced in-service or the result of witnessing a female soldier being assaulted while on active duty service. The Veteran’s November 1994 enlistment examination notes the Veteran as having a normal psychiatric evaluation. The service medical records show the Veteran as being treated for depression and suicidality in August 1996 while on active duty. The Veteran’s September 1996 separation examination notes the Veteran as experiencing frequent trouble sleeping and depression or excessive worry. In support of the claim, in addition to numerous written statements, the Veteran has provided a private September 2019 psychological evaluation from a licensed clinical psychologist. In the private September 2019 psychological evaluation, after review of the Veteran’s medical record, lay statements, ancillary information regarding the Veteran, and clinical interview, in an extensive, detailed report, the examiner diagnosed depressive disorder and PTSD. After a lengthy discussion of the Veteran’s psychiatric history, the psychologist opined that, the Veteran’s depressive disorder and PTSD were as likely as not associated with service and significantly influenced by the emotional trauma of discovering, while on security patrol, the physical assault of a female soldier by several soldiers. The examiner explained that the Veteran had no mental health history prior to service and that the collateral information in the form of lay statements from family and friends painted the picture of a relatively normal and even accomplished youth who returned home from service with significant changes in personality and behavior. The psychologist also noted that the Veteran was evaluated for depression and suicidality in August 1996 on referral from the emergency room and records note the onset of depression to be one year prior. The examiner concluded by saying that Minnesota Multiphasic Personality Inventory (MMPI) testing confirmed a profile configuration often encountered in individuals suffering long-standing depressive symptoms and PTSD. The Board assigns great probative value to the September 2019 private psychologists’ medical opinion because of the training, experience, and thoroughness of the examiner. Among the factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion he reaches. As is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The September 2019 private psychologist opinion was made upon a review of the record, was consistent with the evidence in the case, and provided adequate reasons and basis in support of the conclusion. The September 2019 private psychologist opined that the Veteran met the diagnostic criteria for depressive disorder and PTSD which, in the examiner’s opinion, were directly related to the traumatic incidents he experienced while on active duty service. The opinion of the September 2019 private psychologist is highly probative because it is supported by detailed rationale and provided by a trained medical professional. The private psychologist specifically identified and discussed the Veteran’s contentions and theory concerning service and the claimed disability. Thus, the Board finds the September 2019 private psychologists’ medical opinion to be competent and credible. The Board acknowledges that there may be contradictory evidence of record. However, the Board cannot ignore the medical evidence finding that a psychiatric disability is due to active service. Because of the detail and thoroughness of the September 2019 private psychologist opinion, the Board finds that the evidence is, at least, in equipoise regarding whether a current psychiatric disability is related to service. The Board finds is highly probative that the Veteran was treated for depression during service and after service, and that a medical opinion relates the current depression to service. Accordingly, based on the foregoing, and resolving doubt in the Veteran’s favor, the Board finds the competent medical evidence supports a finding that a current psychiatric disability of PTSD and depression is etiologically related to active service. Therefore, service connection for a psychiatric disability of depression and PTSD, is warranted. Accordingly, service connection for PTSD and depression is granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.