Citation Nr: 21074068 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 15-30 227 DATE: December 14, 2021 ORDER As the claim is withdrawn, the claim of entitlement to service connection for diabetes mellitus, type II, is dismissed. The petition to reopen the previously denied claim for service connection for an acquired psychiatric disorder (previously denied as nervous condition) is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. On January 5, 2021, prior to the promulgation of a decision in the appeal, the Board of Veterans' Appeals (Board) received notification from the Veteran that he sought to withdraw his claim of entitlement to service connection for diabetes mellitus, type II. 2. An unappealed January 1981 rating decision denied entitlement to service connection for nervous condition; 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. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim of entitlement to service connection for diabetes mellitus, type II, by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The January 1981 rating decision denying the claim for service connection for nervous condition is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1970 to December 1971. This appeal comes before the Board from a July 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The VLJ held the record open for 30 days for the submission of additional evidence. VA subsequently received additional evidentiary submissions. 1. Entitlement to service connection for diabetes mellitus, type II, is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, in a January 5, 2021, correspondence, received prior to a decision by the Board, the Veteran explicitly withdrew the appeal of the claim listed above. The withdrawal of the appeal included the name of the Veteran, the applicable VA file number, and a statement of the issue being withdrawn. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of this matter and it is dismissed. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder (previously denied as nervous condition). The Board concludes that the January 1981 rating decision denying the claim for service connection for nervous condition is final; and that new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156(a), (b), 20.1103. Generally, a claim that has been denied in an unappealed RO or Board 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. 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). A January 1981 rating decision denied service connection for nervous condition because the evidence of record did not show that the Veteran's current acquired psychiatric disorder was incurred in or related to service. VA notified the Veteran of this decision in a February 1981 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. Evidence associated with the claims file since the prior final disallowance includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. In this regard, there is evidence reflecting that the Veteran had a preexisting acquired psychiatric disorder that was exacerbated by service. See Medical Treatment Record-Government Facility (August 2013). This evidence was not previously considered by decision-makers and tends to support the Veteran's theory of entitlement. 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); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Therefore, as a prior evidentiary defect has been cured, the recent evidentiary submission is considered new and material. Accordingly, the petition to reopen the claim is granted. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran, and his representative, contends that his current acquired psychiatric disorder was aggravated during service. See Hearing Transcript at 8 (February 2019). In regard to his PTSD, the Veteran maintains that it stems from lack of in-service medical care, to include not being prescribed medications. Id. at 15. For reasons discussed below, the Board finds that remand is necessary to obtain a medical opinion and examination. Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C. § 1111. A preexisting injury or disease is considered aggravated by military service where there is an increase in disability during service, absent a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). Here, the record raises a question as to whether the Veteran had an acquired psychiatric disorder that preexisted service. As discussed above, a veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In cases where the disease or injury at issue is not noted on the entrance examination, a two-pronged test is for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A review of the Veteran's December 1969 enlistment examination report reflects that the Veteran was clinically evaluated as having a normal psychiatric. Indeed, the entrance examination report reveals no abnormalities or defects for the psychiatric. Accordingly, the presumption of soundness is for application. To rebut this presumption, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See 38 C.F.R. § 3.304(b); see also Wagner, 370 F.3d at 1093. The record, however, shows that the Veteran was hospitalized for an acquired psychiatric disorder from January 1970 to February 1970. See Third Party Correspondence (October 1980). The hospitalization was after the Veteran's entrance examination, but prior to his Oath of Enlistment, in March 1970. Additionally, the Veteran has testified to spending 27 days at a state hospital for a psychiatric condition prior to his induction into the military. See Hearing Transcript at 3 (February 2019). VA medical examination report, dated in July 2013, reflects that the Veteran was diagnosed with major depressive disorder, recurrent, pursuant to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). In a corresponding medical opinion, the examiner found that the claimed condition clearly and unmistakably existed prior to service and that it was not clearly and unmistakably aggravated beyond its natural progression by an in-service injury, event, or illness. The Board finds the VA examination, and its corresponding medical opinion, inadequate for adjudicative purposes. 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). In this instance, this appeal was certified to the Board on October 31, 2016; and, as noted above, on August 4, 2014, a rule came into effect which required use of the DSM-5 in all claims certified after that date. In other words, DSM-5 will apply to all applications for benefits received by VA or pending before the AOJ on or after August 4, 2014. 38 C.F.R. § 4.125; The VA examination, and its corresponding medical opinion, were, in this instance, formulated pursuant to the DSM-IV. Thus, given the above, the Board may not rely upon the VA examination report, and its corresponding medical opinion, in its present form and, therefore, finds the evidence is inadequate for adjudicative purposes as the Board cannot rely on evidence VA has determined to be undependable. Golden v. Shulkin, 29 Vet. App. 221 (2018) (holding the Board, as an adjudicator, cannot rely on evidence that expert consensus as adopted by VA has determined to be unreliable). Accordingly, remand is necessary for an adequate examination and medical opinion. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board acknowledges the private medical opinion, dated in July 2013, reflecting the conclusion that: It is not uncommon for situations of high stress to exacerbate underlying psychiatric condition, in particular psychotic symptoms. The Board finds the private medical opinion inadequate to support the claim. Hayes v. Brown, 5 Vet. App. 60, 69 (1993). First, the opinion's usage of the speculative term, "uncommon," without supporting clinical data or other rationale, makes it too abstract to provide the degree of certainty required for medical nexus evidence. Moreover, the opinion is not shown to be based on an accurate factual premise with consideration of the Veteran's prior medical history. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In this regard, the opinion in support of finding that the Veteran's preexisting acquired psychiatric disorder was aggravated by service points to the Veteran's lay statements, without a discussion of the relevant medical evidence, such as his separation examination report revealing a clinically normal psychiatric at service separation. A bare transcription of lay history is not transformed into competent medical evidence simply because it was transcribed by a medical professional, whether that professional is a VA or private physician. LeShore v. Brown, 8 Vet. App. 406 (1995). The private medical opinion, given the above, does not show a discussion or clarification on the contrary findings in the Veteran's treatment records; thus, the Board finds the private medical opinion inadequate as it is not shown to be founded on an accurate factual premise with consideration of the Veteran's prior medical history. Nevertheless, the Board finds that remand is necessary for a new examination and medical opinion. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). In remanding this matter, 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. The matter is REMANDED for the following actions: 1. Attempt to corroborate the Veteran's in-service stressor(s). If more details are needed, contact the Veteran to request the information. 2. Obtain the Veteran's VA treatment records for the period from July 2015 to the Present. 3. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with any acquired psychiatric disorder. The clinician must opine on: Preexisting Acquired Psychiatric Disorder (a) Whether any acquired psychiatric disorder clearly and unmistakably (undebatable) preexisted the Veteran's service. Explain. (b) If so, whether it was clearly and unmistakably not aggravated by service or whether it is clear and unmistakable that any increase was due to the natural progress. Consider and expressly address in-service psychiatric complaints. Explain. Non-Preexisting Acquired Psychiatric Disorder (c) For any non-preexisting acquired psychiatric disorder, opine on whether it is at least as likely as not had its onset in service or is related to an in-service injury, event, or disease. Consider and expressly address in-service psychiatric complaints. Explain. PTSD (d) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. 4. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.