Citation Nr: 21007910 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 16-03 748 DATE: February 11, 2021 ORDER Reopening of service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), dysthymic disorder, mood disorder, and paranoid personality disorder, is granted. REMANDED Service connection for an acquired psychiatric disorder, to include PTSD, dysthymic disorder, mood disorder, and paranoid personality disorder, is remanded. FINDINGS OF FACT 1. A December 2009 Board Decision denied the appeal for service connection for an acquired psychiatric disorder, to include PTSD, finding that the condition was not incurred in or caused by active service. 2. Evidence received since the December 2009 Board decision relates to an unestablished fact of a relationship between PTSD and active service. CONCLUSION OF LAW 1. The December 2009 Board decision denying the appeal for service connection for PTSD was final when issued. 38 U.S.C. § 7104; 38 C.F.R. §§ 20.1100. 2. Evidence received since the December 2009 rating decision is new and material to reopen service connection for an acquired psychiatric disorder, to include PTSD, dysthymic disorder, mood disorder, and paranoid personality disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant, served on active duty from October 1975 to December 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision from the Regional Office (RO), which, in pertinent part, denied reopening of service connection for PTSD. In December 2020, the Veteran testified at a Board virtual hearing through the RO in Portland, Oregon, before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The Board has recharacterized the issue on appeal as service connection for an acquired psychiatric disorder, to include PTSD, dysthymic disorder, mood disorder, and paranoid personality disorder, in accordance with the United States Court of Appeals for Veterans’ Claims (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that a claim for benefits of one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). Legal Criteria for Reopening Service Connection Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. “[N]ew evidence” means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components, first, that the new evidence pertains to the reason(s) for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When deciding whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Id. at 117-118. Regardless of the RO’s determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus v. Principi, 3 Vet. App. 510, 512 (1992). Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened. Once the case is reopened, the presumption as to the credibility no longer applies. Id at 513. 1. Reopening Service Connection for an Acquired Psychiatric Disorder In this case, a December 2004 rating decision denied service connection for PTSD on the grounds that the evidence did not show a diagnosis of PTSD or verified stressor that could cause PTSD. In May 2005, the Veteran appeal the decision to the Board. A December 2009 Board Decision denied the appeal for service connection for an acquired psychiatric disorder, to include PTSD, finding that the condition was neither incurred in nor caused by active service. The December 2009 Board decision, which was final when issued, is not subject to revision on the same factual basis. See 38 U.S.C. § 7104; 38 C.F.R. §§ 3.156(a), 20.1100. Since the December 2009 Board decision denying the appeal for service connection for PTSD, VA has received additional evidence of diagnosis of PTSD that is related to the active service. See March 2012, August 2019 VA treatment records. Presuming the credibility of such new evidence for the purpose of reopening the claim, such evidence relates to the unestablished fact of relationship between current diagnosis of PTSD and active service, so could reasonably substantiate the issue of service connection for an acquired psychiatric disorder, to include PTSD. For this reason, the Board finds that the additional evidence is new and material to reopen service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 2. Service Connection for an Acquired Psychiatric Disorder is remanded. The Veteran contends that service connection for an acquired psychiatric disorder is warranted, to include PTSD. The Veteran asserts that while stationed in German in 1976 he was stabbed in the abdomen by a fellow service member who was also his friend. The Veteran also asserts that upon returning from convalescence for the stab wound, his commanding officer began harassing him unfairly, and points to the fact that he received an Article 15 for a having a firecracker. The Veteran also contends that his Captain refused to recommend him for reenlistment, which was difficult for him to cope with. The Veteran testified that he was an outstanding servicemember with good performance appraisals prior to the stabbing injury and that, after being stabbed by his friend, he endorsed depression and difficulty trusting others. Additionally, the Veteran testified that he has also been diagnosed with dysthymic disorder and has endorsed significant difficulty adjusting to not being able to continue his miliary career. See December 2020 Board hearing transcript. Friends and family members have also stated than the Veteran was a happy and outgoing individual who engaged in multiple social activities prior to service; however, since service separation the Veteran has presented as depressed, subdued, reclusive, stand offish, with little interest in participating in social activities he once loved such as hunting, fishing, and playing sports. The Veteran’s friends and family have also stated that he gets emotional, belligerent, and upset whenever he recounts the stabbing injury and the perceived harassment from officers that he reports he experienced during service. See May 2019, May 2016, April 2016 Correspondence. The service treatment records show that the Veteran responded “yes” to a history of depression or excessive worry on the September 1975 service enlistment report of medical history. The service enlistment report of examination indicates that the Veteran was clinically normal upon examination of the psychiatric system. The military examiner noted mild anxiety tension state that was family and job oriented. A November 1976 service treatment note shows that the Veteran sustained a stab wound to the abdomen. Subsequent to this injury, service treatment records also show that the Veteran was required to undergo counseling for improper use of alcohol and hashish, and he received a field Article 15 for alcohol abuse. A June 1978 service treatment also reflects a diagnosis of situational anxiety, probably functional. See September 1975, November 1976, December 1976, November 1977, June 1978, December 1978 service treatment records. The VA examiner in December 2015 opined that the Veteran did not meet the diagnostic criteria for PTSD; however, an August 2019 evaluation conducted by a treating licensed clinical social work reflects that the Veteran does meet the criteria for PTSD based on the in-service stabbing event, and other treating mental health providers have also diagnosed PTSD. As such, an addendum opinion would be helpful to clarify whether the Veteran meets the diagnostic criteria for PTSD. See July 2010, March 2012, October 2018, August 2019 VA treatment records. Additionally, post-service records also reflect other psychiatric diagnoses, including dysthymic disorder, mood disorder, and paranoid personality disorder, which were not considered by the VA examiner. Paranoid personality disorder is not a disability for VA compensation purposes. Personality disorders are not subject to VA compensation unless the defect was subjected to a superimposed disease or injury that created additional disability during service. See 38 C.F.R. §§ 3.303(c), 4.9. As such, an addendum medical opinion would be helpful to assess whether the Veteran’s acquired psychiatric disorders, to include dysthymic disorder and mood disorder, were caused by or incurred in active service, and whether the personality disorder was subjected a superimposed disease or injury and aggravation during service. Service connection for an acquired psychiatric disorder is REMANDED for the following action: Return the VA medical opinion report to the VA examiner who provided the opinion in December 2015. If the original VA examiner is unavailable, a new examiner may be assigned to address the requested opinions. The relevant documents in the record should be reviewed by the examiner and a detailed history of relevant symptoms should be obtained from the record. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiner should offer opinions: a) Does the Veteran meet the diagnostic criteria for PTSD? b) If yes, is it at least as likely as not (50 percent or greater probability) that the current PTSD was caused by or etiologically related to active service, to include the abdominal stab wound, perceived slights from commanding officers, and the June 1978 diagnosis of situational anxiety during service? c) Is it at least as likely as not (50 percent or greater probability) that the current acquired psychiatric disorder, to include dysthymic disorder and mood disorder, was caused by or etiologically related to active service, to include the abdominal stab wound, perceived slights from commanding officers, and the June 1978 diagnosis of situational anxiety, during service? d) Is it at least as likely as not that the paranoid personality disorder was subject to a superimposed disease or injury that created an additional psychiatric disability during service ? J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Moore 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.