Citation Nr: 21064974 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 20-28 302A DATE: October 22, 2021 ORDER As new and material evidence has been received, the petition to reopen previously denied claim for service connection for anxiety disorder is granted. Entitlement to service connection for an acquired psychiatric disorder, other than service-connected major depressive disorder (MDD) disability, is denied. REMANDED Entitlement to a rating in excess of 30 percent for headache disability is remanded. Entitlement to a compensable rating for ulcerative colitis disability is remanded. FINDINGS OF FACT 1. An unappealed April 2006 rating decision denied the Veteran's claim for service connection for anxiety disorder; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. 2. Throughout the appeal period, and during the period approximate to the appeal period, the Veteran has been service-connected for MDD, which includes manifestations of anxiety and bipolar symptomatology; there is no indication that any symptoms have been excluded from the rating of her MDD to include anxiety-type symptoms; the Veteran does not have a current diagnosis of posttraumatic stress disorder (PTSD) in accordance with VA regulations; and the Veteran's borderline personality disorder is not a disability for VA compensation purposes. CONCLUSIONS OF LAW 1. The April 2006 rating decision denying claim for service connection for anxiety disorder is final; new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.104, 3.156(a), 3.160(d), 20.1103. 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, other than service-connected MDD, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from March 2002 to October 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). As to the headache claim, the Board observes that an August 2021 Board decision denying the claim for increase under the modernized appeal system was vacated by a September 2021 Board vacatur decision because the issue was properly within the legacy appeal system and should be adjudicated therein to ensure due process of law. See BVA Decision (September 2021). 1. Whether new and material evidence has been received to reopen previously denied claim for service connection for anxiety disorder. The Board concludes that the April 2006 rating decision denying the claim for entitlement to service connection for anxiety disorder is final; and that new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.104, 3.156(a), 3.160(d), 20.1103. A claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 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. Generally, a claim that has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 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 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). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of 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). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). An April 2006 rating decision denied the Veteran's claim for service connection for anxiety because the evidence showed no current disability. VA received no appeal or no new and material evidence prior to expiration of the appeal period. Therefore, the April 2006 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Evidentiary submissions received since the last prior final disallowance includes new and material evidence. Specifically, VA medical records show complaints of anxiety, as well as an impression of anxiety. See C&P Exam (April 2018) and CAPRI (November 2020). Since the additional evidentiary submissions demonstrates a current disability, and this evidence was not previously before VA adjudicators at the time of the prior final disallowance, it constitutes new and material evidence. Further, considering the "low threshold" standard for reopening endorsed by the Court in Shade, this additional evidence raises a reasonable possibility of substantiating the underlying claim. Therefore, the Board finds that new and material evidence has been received as to the claim of entitlement to service connection for anxiety. See 38 C.F.R. § 3.156(a). Accordingly, the application to reopen is granted. A May 2018 rating decision found that new and material evidence had been received, thus reopened the claim for anxiety claim. Next, the RO adjudicated the underlying claim for service connection on the meritsand denied the claim. Consequently, the Veteran is not prejudiced by the Board also adjudicating the issue of service connection for anxiety disorder as part of acquired psychiatric disorder claim, as addressed below. See Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010) (holding that when the Board reopens a claim after the AOJ did not, the matter generally must be returned to the AOJ for consideration of the new evidence submitted and the merits in the first instance "so as to preserve for that claimant the one review on appeal as provided by section 7104"). 2. Entitlement to service connection for an acquired psychiatric disorder, other than service-connected major depressive disorder disability, The Veteran contends that she has acquired psychiatric disorder, other than her MDD disability. She contends that she has separate and distinct mental health disorders that should each be compensated. The Veteran asserts that she has anxiety, bipolar disorder, PTSD, and borderline personality disorder that are related to her service. She contends that she has PTSD as result of incidents that occurred during service, including military sexual trauma by fellow servicemembers. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. 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). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). The Board concludes that the preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disorder, other than service-connected MDD, that began in service or is otherwise related to an in-service injury or disease. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.125. First, throughout the appeal period, and during the period approximate to the appeal period, the Veteran has been service-connected for MDD manifestations include mood symptoms such as anxiety. The record shows that service connection has been established for an acquired psychiatric disability, diagnosed as MDD, since October 19, 2005. See Rating Decision Codesheet (February 2021). Next, there is no indication that the Veteran's anxiety symptoms, or any other symptoms of mental disorder, have been excluded from the rating of the Veteran's service-connected MDD. Lastly, there is not competent evidence of any acquired psychiatric disorder (other than MDD) related to the Veteran's service. In this regard, an April 2018 VA examination indicated that symptoms associated with the Veteran's diagnosed MDD included depressed mood and anxiety, that the Veteran's anxiety disorder was a part of her current MDD disability, and that her bipolar symptoms were already accounted for by her diagnosed MDD. Also, a December 2020 VA examination reflects that it was not possible to differentiate symptomatology attributable to each of the Veteran's mental disorder diagnoses as symptoms overlapped. At this exam, the Veteran's symptoms of psychiatric disorder were noted to include depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; and suicidal ideation. The August 2021 Board decision considered all the Veteran's symptoms of mental disorder, regardless of diagnosis, when evaluating her claim of entitlement to a higher rating for MDD with alcohol abuse disorder. Furthermore, the December 2020 VA examination shows diagnoses for MDD and borderline personality disorder only. Hence, there is not competent evidence of a mental disorder other than MDD, which is already service connected; also, although a personality disorder is shown, it is not a disease or disability for VA purposes as addressed more fully below. Second, there is not competent evidence showing that the Veteran has a diagnosis of PTSD. 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). VA regulations require evaluation of mental disorders using the fifth edition of the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-5). 38 C.F.R. § 4.125. This applies to all applications for benefits that are received by VA or that are pending before the AOJ on or after August 4, 2014 (i.e., have not yet been certified to the Board). See 80 Fed. Reg. 14,308 (Mar. 19, 2015). Lay testimony may be sufficient to corroborate an in-service stressor if the stressor is related to fear of hostile military or terrorist activity. In this case, the record reflects that the Veteran does not have PTSD. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. §§ 1110. 1131. See also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While there are documented complaints of PTSD symptoms, the VA treatment records do not contain a diagnosis of PTSD that conforms to the DSM-5 in accordance with 38 C.F.R. § 4.125 (a). See CAPRI (November 2020). Moreover, the Veteran has undergone VA psychiatric examinations in December 2005, October 2014, April 2018 and December 2020 regarding acquired psychiatric disorders, including PTSD, which do not reveal that the Veteran meets the criteria for a diagnosis of PTSD. Likewise, a March 2018 Mental Health Disability Benefits Questionnaire completed by the Veteran's VA mental health provider discloses no diagnosis for PTSD. Pertinently, the April 2018 VA examination report shows that the Veteran did not meet the diagnostic criteria for PTSD diagnosis. Therefore, the Board finds that the competent medical evidence does not support a present diagnosis of PTSD as required for service connection. Third, while the record establishes that the Veteran has a personality disorder, this is not a disability for which service connection may be granted; rather, it is considered a congenital or developmental abnormality. See 38 C.F.R. § 3.303(c). VA regulations mandate that "personality disorders which are manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin" and service connection for such disorders are prohibited. Id. However, service connection may be granted for additional disability resulting from a mental disorder that is superimposed upon the personality disorder. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; VAOPGCPREC 82- 90, 55 Fed Reg. 45,711 (July 18, 1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). Notwithstanding, here, no superimposed additional is shown. On balance, the weight of the evidence is against the claim. The competent, credible evidence of record does not show that the Veteran has an acquired psychiatric disorder that began in service or is otherwise related to service, apart from already service-connected MDD. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. To the extent that the Veteran believes her mental health symptoms have worsened or are not appropriately evaluated under the VA Rating Schedule, she may file a claim for increase for MDD with VA. REASONS FOR REMAND In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. Indeed, the Board expressly defers a credibility determination in this appeal until the development has been completed to the extent feasible. 1. Entitlement to a rating in excess of 30 percent for headache disability is remanded. 2. Entitlement to a compensable rating for ulcerative colitis disability is remanded. Remanded Issues 1-2: To ensure that VA has satisfied its duty to assist, a remand is needed to obtain identified outstanding VA and private treatment records as well as afford the Veteran with a new VA examination. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). VA has a duty to attempt to obtain relevant records not in Federal custody and to ensure VA treatment records are complete regardless of relevancy, which should then be associated with the claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c)(1), (2); Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). A review of the Veteran's VA treatment records discloses that medical records relevant to the appeal were "scanned documents" associated with VA medical records system. In particular, these medical records indicate non-VA neurologic and gastroenterology consultation reports, as well as more a January 2020 colonoscopy report. See CAPRI (November 2020). However, copies of these records are not included in the claims file or otherwise associated with the available VA treatment records. Therefore, remand is necessary to associate copies of these scanned records with the claims file. The Veteran has also identified relevant private treatment for her headache disability from an acupuncturist. See Correspondence (March 2021). In addition, VA treatment records also reflect that the Veteran has received private treatment from an Ear, Nose, and Throat (ENT) specialist in conjunction with symptomatology associated with her headache disability. See CAPRI (November 2020). However, the record does not reflect efforts to obtain these relevant, reasonably identified, and outstanding private treatment records. Thus, a remand is needed to permit VA to make the necessary attempts to obtain these relevant private treatment records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c). Next, the Veteran has reported that she submitted a Headaches Disability Benefits Questionnaire (DBQ) (VA Form 21-0960C-8), which was completed on March 16, 2018 completed by her primary care physician. See Correspondence (March 2021). However, a review of the record does not reflect that such a report has been associated with the claims folder. On remand, the Veteran should be provided with the opportunity to resubmit this report. Finally, a remand is needed to afford the Veteran with a new VA examination to determine the current severity of her service-connected ulcerative colitis disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (finding the Board erred by not requiring a new medical examination after the veteran had presented medical evidence suggesting that his disabilities had worsened). The Veteran's disability was last evaluated by VA in April 2018, and at that time, she denied any current symptomatology, except rare diarrhea and frequent constipation, and she was not taking any medication. The VA examiner considered the Veteran's ulcerative colitis disability to be inactive. See C&P Exam (April 2018). Since then, additional VA treatment records show she has presented with complaints of abdominal pain, diarrhea, and flatus, and she is currently taking medication regularly for her symptomatology. See CAPRI (November 2020). Given that the evidence suggests a worsening of the Veteran's ulcerative colitis disability since she was last evaluated by VA, a remand is necessary to adequately evaluate the current severity of her disability. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from November 2020 to the Present. 2. Associate copies of all treatment records identified as "scanned documents" that are available via VA medical records system with the Veteran's claims folder. 3. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms or treatment for headaches and ulcerative colitis, including from Dr. Dr. Marisoich, Ear, Nose, and Throat specialist and Dr. Laura Ellis, acupuncturist. Make two requests for the authorized records from all identified sources unless it is clear after the first request that a second request would be futile. 4. Ask the Veteran to submit another copy of her VA Form 21-0960C-8, Headaches Disability Benefits Questionnaire completed on March 16, 2018 by her primary care physician. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected ulcerative colitis disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Murray, 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.