Citation Nr: 21069646 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-50 400A DATE: November 19, 2021 ORDER New and material evidence not having been received, the request to reopen a claim of service connection for post-traumatic stress disorder (PTSD) is denied. New and material evidence having been received, the request to reopen a claim of service connection for generalized anxiety disorder is granted. REMANDED Service connection for generalized anxiety disorder is remanded. Service connection for allergic rhinitis is remanded. FINDINGS OF FACT 1. The Veteran had active service from October 1979 to August 1980. 2. In an unappealed December 2001 rating decision, the RO denied service connection for an acquired psychiatric disorder, to specifically include PTSD and an anxiety disorder. That decision became final after one year. 3. The evidence submitted since the December 2001 rating decision, to the extent that it is new, is not material with regard to the claim for PTSD. 4. The evidence submitted since the December 2001 rating decision relates to unestablished facts necessary to substantiate the claim of service connection for generalized anxiety disorder. CONCLUSIONS OF LAW 1. The December 2001 rating decision, which denied service connection for an acquired psychiatric disorder, to specifically include PTSD and an anxiety disorder, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2021). 2. The evidence received since the December 2001 rating decision is not new and material with respect to the claim of entitlement to service connection for PTSD and the claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2021). 3. The evidence received since the December 2001 rating decision is new and material with respect to the claim of entitlement to service connection for generalized anxiety disorder and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a procedural note, in October 2013 the Veteran styled his claim as a request to reopen two separate claims for PTSD and anxiety. His claim had previously been denied in December 2001 as a single acquired psychiatric disorder, to include PTSD and generalized anxiety disorder, in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, the Board has restyled the issues of PTSD and generalized anxiety disorder as two separate claims in accordance with the Veteran's October 2013 request. Additionally, in connection with his appeal, the Veteran testified before a Decision Review Officer (DRO) in a November 2015 hearing. A transcript of the hearing has been associated with the claims file. New and Material Evidence Prior unappealed decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. "New" evidence means evidence not previously submitted to agency decisionmakers." "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim." 38 C.F.R. § 3.156(a). Material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). The Veteran was originally denied service connection for a nervous condition in January 1981 on the basis that the evidence did not demonstrate a nervous condition. The evidence of record at the time of the January 1981 decision included service treatment records (STRs) and post-service treatment records. He did not appeal that decision and the January 1981 rating decision became final. In a February 1998 rating decision, the RO again denied the claim, finding that the Veteran did not submit any new and material evidence to support reopening the claim. The evidence at the time consisted of additional post-service treatment records. He did not appeal the decision and the February 1998 rating decision became final. Next, the Veteran requested to reopen his claim for a psychiatric disorder, specifically including PTSD, in March 1998. However, his claim was again denied by the RO in July 1998 on the basis of failing to attend a VA psychiatric examination and in April 1999 and December 2001 on the basis that the Veteran did not submit new and material evidence indicating a confirmed diagnosis of either an acquired psychiatric disorder or PTSD. The evidence at the time of the April 1999 decision consisted of additional post-service medical treatment records and a September 1998 lay statement describing being attacked by a duty watch guard with a police flashlight and subsequently shouting and waking up fellow servicemembers while in active service. The evidence at the time also included a March 1999 VA examination diagnosing an anxiety disorder NOS but not diagnosing PTSD. The evidence at the time of the December 2001 rating decision included additional post-service medical treatment notes. He did not appeal any of these decisions and the July 1998, April 1999, and December 2001 decisions all became final. The evidence received since the December 2001 rating decision includes November 2015 buddy statements describing how his family could tell that something was wrong when the Veteran returned from service, describing how he fell into a deep depression, and noting that he was admitted to a VA medical center and diagnosed with depression, anxiety, panic attacks, and other issues. The evidence also includes multiple lay statements and November 2015 testimony before a DRO reinforcing his September 1998 account of his in-service experiences and explaining that he served in the midst of a tense racial climate, was the target of offensive and harassing remarks from other servicemembers, and felt anxious, nervous, and scared. The evidence further includes November 2015 and October 2017 lay statements asserting that VA did not properly diagnose his condition and that his symptoms and feelings were indicative of PTSD rather than another psychiatric disorder. In his November 2015 and October 2017 statements, the Veteran contended that his claims file contained overwhelming evidence that he served in a "PTSD-inducing environment" and that he developed the disorder during his time in service. The evidence finally includes additional medical treatment notes diagnosing an anxiety disorder, to include a June 2015 treatment note in which a clinician offered that the Veteran's anxiety and depression were related to a loss of career in the Navy due to racially motivated incidents. With regard to his claimed PTSD, the buddy statements, lay testimony, lay statements and medical treatment notes are not material. In this regard, while lay witnesses are competent to report observations and describe in-service experiences, they are not competent to diagnose conditions such as PTSD. The record does not otherwise establish a current diagnosis of PTSD. The buddy statements, lay testimony, lay testimony, and medical treatment notes thus fail to raise a reasonable possibility of substantiating the claim, are not material, and do not support reopening his claim for PTSD. As such, the application is denied, the claim is not reopened, and there is no doubt to be otherwise resolved. With respect to his generalized anxiety disorder, however, the evidence is new and material within the meaning of applicable law and regulations because they are probative of the issues. The Veteran is competent to describe his in-service experiences and observations. As such, his lay statements and testimony reveal that he experienced anxiety, nervousness, and fear in the wake of offensive and harassing conduct from his fellow servicemembers. Additionally, the June 2015 medical treatment note asserts that his anxiety complaints were related to his in-service experience. The evidence is new as it was not of record prior to the December 2001 rating decision. Moreover, the evidence is material as it relates to the unestablished elements of an in-service incurrence and nexus between a current anxiety disorder and service. Accordingly, with respect to reopen the claim of service connection for a generalized anxiety disorder, the newly added evidence relates to unestablished facts necessary to substantiate the claim. As such, the application is granted, and the claim is reopened to this extent. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND In September 1998, August 2014, June 2015, and October 2017 statements, as well as November 2015 testimony before a DRO, the Veteran contended that his anxiety stemmed from a fight and subsequent harassment and persecution by fellow servicemembers while in service. In March 1999, a VA examiner diagnosed anxiety disorder NOS. The examiner noted that the Veteran's symptoms did not meet the criteria for a diagnosis of PTSD, remarked that the Veteran consistently complained of anxiety throughout the years and offered that he did not give a consistent history regarding events that occurred during service. The examiner, however, did not opine as to the etiology of his generalized anxiety disorder, and additional examinations were not afforded. Accordingly, further development is required. With regard to allergic rhinitis, the Veteran stated in November 2015 testimony and an October 2017 lay statement that the symptoms of his allergic rhinitis began when he was stationed in the Azores during active service. He explained that the Azores had an extremely different and exotic terrain from that with which he was familiar and that he had worsening asthma and increased difficulty breathing. He asserted that his symptoms were continuous since that time. However, he has not been afforded an examination for his claim. Accordingly, an examination should be undertaken to determine the nature and etiology of his allergic rhinitis. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private medical treatment records not already of record and associate them with the claims file. 2. Direct the claims file to an appropriate clinician to determine the nature and etiology of the Veteran's generalized anxiety disorder and allergic rhinitis. The claims file must be made available to the examiner. Any indicated studies should be performed. Based on a review of the record, the clinician is asked to opine as to whether it is at least as likely as not (a 50 percent probability or greater) that: (a.) the Veteran's generalized anxiety disorder is etiologically related to service; and (b.) the Veteran's allergic rhinitis is etiologically related to service, to specifically include exposure to the environment while serving in the Azores. In forming the opinions, the examiner must consider the Veteran's September 1998, August 2014, June 2015, and October 2017 lay statements, as well as his November 2015 testimony. The rationale for all opinions must be provided. 3. If the clinician determines that examinations are necessary in order to provide the requested opinions, then they should be scheduled. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Spigelman, 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.