Citation Nr: 21073796 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 16-46 620 DATE: December 10, 2021 ORDER New and material evidence having been submitted, the Veteran's request to reopen his claim for entitlement to service connection for an acquired psychiatric disorder is granted. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety, is granted. FINDINGS OF FACT 1. Evidence received since the May 1964 rating decision denying service connection for an emotional disorder is neither cumulative nor redundant of the evidence of record at the time of the May 1964 final decision and raises a reasonable possibility of substantiating the claim as it relates to an unestablished fact. 2. Resolving reasonable doubt in the Veteran's favor, his acquired psychiatric disorder began during active service. CONCLUSIONS OF LAW 1. The criteria to permit reopening the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder based on new and material evidence have been met. 38 U.S.C. §§ 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from January 1959 to April 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut (Agency of Original Jurisdiction (AOJ)). The Veteran testified at a Travel Board hearing before the undersigned in August 2021. A transcript of the proceeding is of record. The evidence reflects that the Veteran has been given multiple psychiatric diagnoses. As such, the matter on appeal has been broadly characterized as an acquired psychiatric disorder. See, e.g., Clemons v. Shinseki, 23 Vet. App. 1 (2009) (indicating that a veteran's claim for service connection for psychiatric symptoms should not be limited to consideration of a specific diagnosis where the pleadings and evidence suggest a claim of broader scope). New and Material Evidence Generally, an unappealed AOJ denial is final under 38 U.S.C. § 7105(c). A claim for service connection may be reopened, however, if new and material evidence is received. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140 (1991). Per 38 C.F.R. § 3.156, "new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 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 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 the VA's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. §§ 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 1. Whether new and material evidence has been received to permit reopening the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder The Veteran filed a claim for entitlement to service connection for an emotional disorder in January 1964. At that time, the evidence of record available prior to adjudication included service treatment records (STRs), lay statements from the Veteran and his mother, a VA examination, and a medical report from a Dr. J.F.C. The Veteran provided no further evidence pertaining to his claim. The AOJ denied the Veteran's claim for entitlement to service connection for an emotional disorder in a May 1964 rating decision, indicating that his emotional disorder predated his active duty service, citing evidence of anxiety, fear of failure, and homosexual tendencies. The Veteran was provided notice of this decision and his appellate rights by letter dated June 1964. However, the Veteran did not submit a notice of disagreement or new and material evidence within one year of notice of the decision. This decision, therefore, is final. 38 U.S.C. § 4005(c) (1958, Supp. 1962); 38 C.F.R. §§ 3.104, 19.2 (1964). Evidence submitted since the May 1964 final AOJ rating decision includes civilian treatment records, CAPRI VA treatment records, a lay statement from the Veteran's wife, reports from two separate psychologists, and testimony provided at the August 2021 hearing. The Board finds that the information provided and evidence associated with the Veteran's claims file is sufficient to permit reopening his claim. Specifically, the new evidence of record includes the opinions of two psychologists suggesting the Veteran was misdiagnosed with a personality disorder, which raises the possibility of substantiating his claim. Therefore, the Board finds that the evidence of record submitted since May 1964 pertaining to the Veteran's acquired psychiatric disorder is new and material, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. As such, the Board will permit reopening the claim. Service Connection Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303. Service connection may also 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). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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). Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature." Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. §§ 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 2. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety The Veteran contends that he has an acquired psychiatric disorder that is etiologically related to his active duty service. Specifically, he reports that he first received treatment for anxiety and depression in service and has continued to experience the effects of these conditions throughout his life. His wife provided a lay statement in March 2016, chronicling his consistent mental health treatment throughout the years after his separation from service and describing his persistent problems with despondency and depression. The record reflects that the Veteran has a current diagnosis for his acquired psychiatric disorder. CAPRI VA treatment records document that he has been diagnosed with recurrent major depressive disorder and unspecified anxiety disorder. These diagnoses were corroborated by Dr. S.C., a psychologist who has been treating the Veteran since March 2014, who stated that every other VA mental health clinician who has worked with him over the years has also diagnosed these conditions. Another psychologist, Dr. B.S.B., provided a letter in March 2020 that also cited these diagnoses. The Board therefore accepts that the Veteran has a current diagnosis of anxiety and depression. STRs document frequent psychological treatment during his active duty service. The physician who documented his November 1958 enlistment Report of Medical Examination recorded normal results upon clinical psychiatric evaluation. However, he marked "yes" when asked if he had depression or excessive worry and nervous trouble of any sort on his enlistment Report of Medical History. He elaborated that he has difficulty in application to studying, i.e., that he had trouble with self-discipline. The examiner noted that his nervousness was not disabling. In July 1959, he was referred to the mental hygiene clinic because he "indicated a fear of homosexuality and a despondent attitude concerning this...problem." Thereafter, he received counseling until May 1960 on a near-weekly basis. He was diagnosed with severe chronic schizoid personality disorder. A December 1959 and a March 1961 Report of Medical Examination documented abnormal clinical psychiatric evaluations, noting his schizoid personality disorder diagnosis. In March 2016, the Veteran's treating psychologist, Dr. S.C., provided a letter on his behalf in support of his service connection claim. In addition to corroborating his diagnoses of depression and anxiety, she reported that he suffers from the following symptoms as a result of these conditions: hypersomnia, low energy, low self-esteem, poor concentration, difficulty making decisions, feelings of hopelessness, excessive worry, self-doubt, irritability, fatigue, and sleep disturbances. She said that the Veteran first sought mental health treatment while he was in the Army and sought mental health treatment via civilian providers until 2002. Dr. S.C. noted that his symptoms are severe and persistent and have severely impacted his social and occupational functioning over the course of his adult life. In May 2021, a letter from psychologist Dr. B.S.B. (dated March 2020) was associated with the file. She observed that the Veteran's appeal has been denied because in 1959, he was diagnosed with schizoid personality disorder; she states, however, that this was a misdiagnosis and that he did not meet the criteria for schizoid personality disorder. Instead, she explained that the Veteran showed clear signs and symptoms of depression and anxiety that went undiagnosed throughout his service. In relevant part, she stated as follows: "[The Veteran] did not meet criteria for [schizoid personality disorder] at the time of his separation. Symptoms of schizoid personality disorder reflect an entrenched and pervasive pattern of social detachment, disinterest in relationships, blunted affect, and disinterest in improvement of symptoms...[it] is akin to schizophrenia, a mental illness in which patients are psychotic or out of touch with reality. [The Veteran's] symptoms in his military record were not consistent with a diagnosis of [schizoid personality disorder]. He presented with excessive thoughts and fears of homosexuality, and symptoms of poor concentration, despondency, sleep disturbance, and thoughts of suicide or death without a plan. His symptoms were consistent with diagnoses of depression and anxiety. In addition, the record shows that events during his service might have indeed precipitated the depression and exacerbated the anxiety. [The Veteran] has continued to suffer from depression and anxiety since his discharge from the military. There are two historical factors that seem pertinent to the misdiagnosis. First, criteria for mental health issues did not exist in 1961, as diagnosis and psychiatric intervention were based on theory alone until approximately 1980. [The Veteran's] fears of homosexuality were theoretically understood to reflect an inherently pathological personality that developed from an inadequate mother-child bond. In addition, until 1973 (when American Psychiatric Association removed the diagnosis from the DSM-II) homosexuality was itself viewed as an illness, a pathological aspect of personality. Thus, [his] diagnosis at separation in 1961 focused on his 'pathological personality' and ignored (or minimized) the 'neurotic' or reactive symptoms of depression and anxiety. The present review thus disagrees with the conclusion reached in 1964. Instead, it is my opinion that [the Veteran] did not exhibit symptoms of a schizoid personality disorder during his service; and was misdiagnosed at that time. Further, there are continual indications in his record that he was very depressed and anxious during his service, though the doctors at the time did not diagnose him with depression or anxiety. There was also at least one incident that occurred during service and likely precipitated depression and exacerbated intense anxiety. Finally, [the Veteran's] mental health treatment since separation from the service has continued to address depression and anxiety with psychotherapy, as well as medications... Based on the review and my professional training, I believe it is more likely than not that [the Veteran] was misdiagnosed with a personality disorder that disallowed service connection, and further that during his service he was noted to have depression and anxiety that was indeed evidenced and exacerbated, but went undiagnosed until after service. It is my professional opinion that [the Veteran's] depression and anxiety were intensified by the stress of military life and exacerbated by the administrative response to his distress." Based on this opinion as well as the other evidence of record, the Board will resolve reasonable doubt in favor of the Veteran and grant service connection for an acquired psychiatric disorder, to include depression and anxiety. Dr. B.S.B.'s opinion was based not only upon a thorough review of the Veteran's records, but also two interviews with the Veteran and a consultation with his treating psychologist. Additionally, as Dr. B.S.B. also observed, the Veteran did not have any mental health diagnoses prior to his service; he began treatment during service. While the Veteran documented he suffered from depression, excessive worry, and nervous trouble on his enlistment Report of Medical History, the examiner recorded normal results upon clinical psychiatric evaluation at enlistment. Indeed, as Dr. B.S.B. noted, even if it was found that the Veteran suffered from anxiety prior to service, she found that his anxiety was aggravated by his military service. See 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Thus, resolving reasonable doubt in favor of the Veteran, the Board will grant entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Victoria A. Banis, 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.