Citation Nr: 21064825 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 20-01 250 DATE: October 21, 2021 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and major depressive disorder, is reopened, and service connection is granted. The claim regarding whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for a right elbow disability has been withdrawn. The claim regarding whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for a left knee disability has been withdrawn. The claim of entitlement to service connection for a right shoulder disability has been withdrawn. The claim of entitlement to service connection for a left shoulder disability has been withdrawn. The claim of entitlement to service connection for a left elbow disorder has been withdrawn. The claim of entitlement to service connection for a right knee disability has been withdrawn. The claim of entitlement to service connection for a right ankle disability has been withdrawn. The claim of entitlement to service connection for a left ankle disability has been withdrawn. The claim of entitlement to service connection for carpal tunnel syndrome (CTS) has been withdrawn. The claim of entitlement to service connection for arthritis due to CTS has been withdrawn. The claim of entitlement to service connection for diabetes mellitus has been withdrawn. The claim of entitlement to service connection for diabetic retinopathy due to diabetes has been withdrawn. The claim of entitlement to service connection for testicular atrophy has been withdrawn. The claim of entitlement to special monthly compensation (SMC) based on aid and attendance/housebound has been withdrawn. FINDINGS OF FACT 1. In a final rating decision issued in February 2010 a Department of Veterans Affairs (VA) Regional Office (RO) denied the Veteran's claim of entitlement to service connection for PTSD and, in a final rating decision issued in February 2012 a VA RO denied the Veteran's claim of entitlement to service connection for depression with psychotic features. 2. Evidence added to the record since the final February 2010 and February 2012 denials is not cumulative or redundant of the evidence of record at the time of the decisions and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for an acquired psychiatric disability. 3. Resolving all doubt in his favor, the Veteran has current diagnoses of PTSD and major depressive disorder which have been related to his active military service. 4. Prior to the promulgation of a decision in the appeal, during the April 2021 Board hearing, the Veteran withdrew his appeal concerning the claims regarding whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for right elbow and left knee disabilities; the claims of entitlement to service connection for bilateral shoulder disabilities, a left elbow disability, a right knee disability, bilateral ankle disabilities, CTS, arthritis due to CTS, diabetes mellitus, diabetic retinopathy, testicular atrophy; and the claim of entitlement to SMC based on aid and attendance/housebound. CONCLUSIONS OF LAW 1. February 2010 and February 2012 rating decisions that denied service connection for PTSD as well as depression with psychotic features are final. 38 U.S.C. § 7104; 38 C.F.R. §§ 20.1100(a), 20.1104. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection PTSD and major depressive disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. 4. The criteria for withdrawal of the claims regarding whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for right elbow and left knee disabilities; the claims of entitlement to service connection for bilateral shoulder disabilities, a left elbow disability, a right knee disability, bilateral ankle disabilities, CTS, arthritis due to CTS, diabetes mellitus, diabetic retinopathy, testicular atrophy; and the claim of entitlement to SMC based on aid and attendance/housebound have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1964 to September 1967. These matters come before the Board of Veterans' Appeals (Board) from August 2016 and July 2017 rating decision of a VA RO. Specifically, the August 2016 rating decision found that the Veteran had failed to submit new and material evidence to reopen previously denied claims of entitlement to service connection for an acquired psychiatric disability, a right elbow disability, and a left knee disability and denied service connection for bilateral shoulder disabilities, a left elbow disability, a right knee disability, bilateral ankle disabilities, CTS, arthritis due to CTS, diabetes mellitus, diabetic retinopathy, testicular atrophy. The July 2017 rating decision denied SMC based on aid and attendance/housebound. The Veteran testified before the undersigned Veterans Law Judge at a Virtual Board hearing in April 2021. A transcript of this proceeding has been associated with the claims file. Acquired Psychiatric Disability The Veteran contends that service connection is warranted for an acquired psychiatric disability, to include PTSD and major depressive disorder. He has proffered three separate theories for service connection. First, that he experiences psychiatric problems due to fear of hostile enemy fire while stationed in Germany. Second, that his psychiatric problems are due to in-service antisemitism/harassment. Third, that his psychiatric problems are secondary and/or aggravated by a service-connected disability (tinnitus and/or hydrocele of right testis). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Calusa v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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). By way of history, claims for service connection for PTSD as well as depression with psychotic features were previously denied by the RO in February 2010 (PTSD) and February 2012 (depression with psychotic features). While the Veteran was advised of his appellate rights, no further communication regarding his claims was received until December 2015, when VA received his application to reopen such claim. Therefore, the February 2010 and December 2012 rating decisions are final. 38 U.S.C. § 7105(c); 38 38 C.F.R. §§ 3.104, 20.302, 20.1103. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). Service treatment records are negative for any diagnosis psychiatric disorder. On separation examination in August 1967, the Veteran denied frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, and nervous trouble of any sort. He stated that he was in good health. Clinical examination revealed that he was psychiatrically normal, and qualified for separation. Post-service treatment records are negative for psychiatric problems until August 2009. Significantly, an August 2009 VA treatment record shows a recent work injury along with a diagnosis of major depressive disorder with psychosis, moderately severe. The Veteran submitted an initial claim for service connection for PTSD in September 2009. In connection with this claim, the RO reviewed the Veteran's service treatment records, which are negative for psychiatric complaints, as well as the Veteran's post-service VA treatment records showing treatment for major depressive disorder and, by rating decision dated in February 2010, denied service connection for PTSD, finding that the Veteran did not have a diagnosis of PTSD. In September 2010, the Veteran submitted a claim for service connection for "mental conditions secondary to complete atrophy of right testis." In connection with this claim, he was afforded a VA psychiatric examination in December 2010. Significantly, this examiner diagnosed depression with psychotic features and provided a positive nexus opinion relating the Veteran's depression with his service-connected hydrocele of right testis. However, in a January 2012 addendum opinion, the examiner found that the Veteran's depression was not related to his hydrocele of right testis as there were no complaints of pain associated with the hydrocele of right testis. However, the January 2012 addendum opinion did note that the Veteran's depression may be related to his other physical problems. Subsequently, by rating decision dated in February 2012, the RO denied service connection for depression with psychotic features, finding that there was no nexus between the Veteran's depression and his military service, to include a service-connected disability. In December 2015, the Veteran submitted the current claim for service connection for an acquired psychiatric disability. In connection with this claim, the Veteran was afforded a VA psychiatric examination in July 2016. Significantly, the VA examiner diagnosed major depressive disorder, recurrent with anxious distress, and provided a negative nexus opinion on a direct basis. Specifically, the examiner noted that the Veteran does not meet criteria for PTSD and that most of his symptoms are due to his depressive disorder. The examiner then opined that the Veteran's major depressive disorder is less than likely due to his service as there was no treatment of depression in service and the first record of treatment for depression was in 2009. Subsequently, the submitted several statements from his treating physicians relating his psychiatric problems to his military service. First, in a January 2014 statement, Dr. M.H. noted that she had been treating the Veteran for his depression with psychotic features and also noted that the Veteran experienced intrusive thoughts of traumatic events he witnesses while he was stationed in Germany. Second, in an August 2018 statement, Dr. T.S.B. noted that the Veteran was being treated for PTSD and severe depression and noted that such was "directly related to his combat service in the U.S. Army." Specifically, it was noted that the Veteran witnessed his best friends head blown off. It was also noted that the Veteran witnessed anti-Semitism and desecration of the Jews. Finally, Dr. T.S.B. noted that, since leaving the military, the Veteran had experienced severe psychiatric symptoms. More recently, in a June 2021 psychological evaluation from Dr. D.P.D., it was noted that the Veteran experienced several traumatic events during his military service in Germany, specifically while guarding the Berlin wall, he witnessed attempted border crossers being gunned down and blown up. Also, during a training exercise in Germany, the tank he was commanding was hit by friendly fire at a range and he was thrown from tank. Dr. D.P.D. noted that the Veteran met the criteria for diagnoses of both PTSD as well as major depressive disorder. Dr. D.P.D. then opined that such diagnoses were related to the traumatic experiences during the Veteran's military service, noting that the Veteran's psychiatric symptoms had increased with time but were experienced immediately following his discharge from military service and had continued at significant levels. 1. New and material evidence having been received, the previously denied claim of entitlement to service connection for an acquired psychiatric, to include PTSD and major depressive disorder, is reopened. As above, service connection for an acquired psychiatric disorder was denied in February 2010 because there was no evidence of a diagnosis of PTSD and was denied again in February 2012 because there was no nexus between the Veteran's current depression and his military service. Since the February 2010/12 decisions, the Veteran has submitted medical evidence showing a diagnosis of PTSD and also linking the Veteran's psychiatric PTSD and other psychiatric disabilities to his military service. The Board finds that this evidence is new in that it was not previously of record. It is material because it relates to unestablished facts necessary to substantiate the Veteran's claim. Furthermore, this new evidence supports a previously unestablished fact necessary to substantiate the underlying claim and raises a reasonable possibility of substantiating such claim. Therefore, the Board finds that new and material evidence has been received. Accordingly, the claim of entitlement to service connection for an acquired psychiatric disability is reopened. 2. Service connection for an acquired psychiatric disability, to include PTSD and major depressive disorder, is granted. Turning to the merits of the claim, the Board finds that the evidence of record is in favor of service connection for an acquired psychiatric disability. As an initial matter, the Board finds that the Veteran has current diagnoses of PTSD and major depressive disorder. Furthermore, there is medical evidence that such disability is related to the Veteran's military service. As above, the January 2014 statement from Dr. M.H., the August 2018 statement from Dr. T.S.B., as well as the June 2021 report from Dr. D.P.D. note significant in-service stressors while the Veteran was stationed in Germany and relate these stressful experiences to the Veteran's current psychiatric disabilities. The opinions are well-reasoned and, therefore, the Board finds them highly probative on the medical issue at hand. While the Veteran's claimed stressors have not been corroborated, the Veteran's service personnel records do show that he was stationed in Germany from February 1965 to September 1967 during a period of conflict. The situation here is analogous to that in the case of Pentecost v. Principi, 16 Vet. App. 124, 128 (2002). In that case, the Court found that the Board had erred, in the context of a claim for service connection for posttraumatic stress disorder, by requiring corroboration of the claimant's actual physical proximity to (or firsthand experience with) and personal participation in the claimed rocket attacks in Vietnam. The Court concluded corroboration of every detail of a claimed stressor, including the claimant's personal participation, is not required; rather, a claimant only needs to offer independent evidence of the event that is sufficient to imply his or her personal exposure. Also, while the July 2016 VA examiner provided a negative nexus opinion, the Board notes that the July 2016 VA examiner does not appear to have considered the Veteran's competent allegations regarding in-service stressors and/or continued psychiatric symptoms since his service. Resolving doubt in favor of the Veteran, the Board finds that the Veteran's acquired psychiatric disability is related to the Veteran's military service. Therefore, service connection for an acquired psychiatric disability is warranted. With regard to the Veteran's claimed PTSD, service connection for PTSD requires medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). Diagnoses of PTSD must be rendered in accordance with the diagnostic criteria for the condition set forth in the Fifth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-V). See 38 C.F.R. § 4.125 (noting that VA has adopted the nomenclature of the DSM-V). The Veteran contends that he began experiencing psychiatric problems during active duty service in Germany during a period of conflict. While service treatment records are negative for psychiatric problems, as above, the August 2018 statement from Dr. T.S.B., as well as the June 2021 report from Dr. D.P.D. both show diagnoses of PTSD and relate the Veteran's PTSD to stressful experiences during his military service. The Board finds that the evidence of record is in relative equipoise and, affording the Veteran the benefit of the doubt, service connection for PTSD is warranted. As above, the Veteran has been diagnosed with PTSD. Furthermore, the August 2018 statement from Dr. T.S.B., as well as the June 2021 report from Dr. D.P.D. relate the Veteran's PTSD to his military service. Accordingly, the Board resolves all doubt in favor of the Veteran and finds that the Veteran's PTSD is related to his military service. Therefore, service connection for PTSD is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303; Gilbert, supra. 3. The claims regarding whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for right elbow and left knee disabilities; the claims of entitlement to service connection for bilateral shoulder disabilities, a left elbow disability, a right knee disability, bilateral ankle disabilities, CTS, arthritis due to CTS, diabetes mellitus, diabetic retinopathy, testicular atrophy; and the claim of entitlement to SMC based on aid and attendance/housebound have been withdrawn and are dismissed. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. During the April 2021 Board hearing, the Veteran indicated that he wished to withdraw his appeal concerning the claims regarding whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for right elbow and left knee disabilities; the claims of entitlement to service connection for bilateral shoulder disabilities, a left elbow disability, a right knee disability, bilateral ankle disabilities, CTS, arthritis due to CTS, diabetes mellitus, diabetic retinopathy, testicular atrophy; and the claim of entitlement to SMC based on aid and attendance/housebound. Hence, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues. Accordingly, the Board does not have jurisdiction to review these issues and they are dismissed. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.