Citation Nr: 21008429 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-56 486 DATE: February 17, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD) and post-traumatic stress disorder (PTSD), is reopened. Entitlement to service connection for an acquired psychiatric disorder, to include MDD and PTSD, is granted. FINDINGS OF FACT 1. Sufficient new and material evidence has been received to reopen a claim for entitlement to service connection for an acquired psychiatric disorder, to include MDD and PTSD. 2. The Veteran’s acquired psychiatric disorder, to include MDD and PTSD, is due to his military service. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of entitlement to service connection for an acquired psychiatric disorder, to include MDD and PTSD, have been satisfied. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.104(a), 3.156. 2. The criteria for service connection for an acquired psychiatric disorder, to include MDD and PTSD, are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 2000 to June 2002. The Board sincerely thanks the Veteran for his service to our country. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified at a virtual Hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. The record was held open for 30 days thereafter for the Veteran to submit additional evidence. Additional evidence was received, and the Veteran waived RO consideration of any further evidence added to his file. 1. New and material evidence sufficient to reopen the claim for entitlement to service connection for an acquired psychiatric disorder, to include MDD and PTSD A claim which has been finally denied in an unappealed rating decision generally may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). An exception to this rule exists when new and material evidence is secured with respect to a claim which has been disallowed, in which case the Secretary shall reopen the claim and review the prior disposition. 38 U.S.C. § 5108. The Veteran’s original claim for an acquired psychiatric disorder was denied by the RO in an April 2013 rating decision because a PTSD stressor was not confirmed. The Veteran did not file a Notice of Disagreement in response to the rating decision. Accordingly, the April 2013 rating decision became final, and new and material evidence is necessary to reopen the claim. In December 2016, the Veteran filed the current claim. A March 2017 rating decision denied reopening the claim for a mental health disorder (claimed as any mental health diagnosis) because the evidence submitted was not new and material. Thereafter, the Veteran submitted an April 2019 evaluation and a November 2020 medical opinion from a private psychologist. The psychologist opined that the Veteran had current diagnoses of MDD and PTSD and indicated that the Veteran’s claimed military sexual trauma (MST) stressor would satisfy the diagnostic criteria for PTSD. Because the medical opinions go to whether the Veteran has current MDD and PTSD diagnoses related to his service, the Board finds that sufficient new and material evidence has been received to reopen the claim of entitlement to service connection an acquired psychiatric disorder, to include MDD and PTSD. 2. Entitlement to service connection for an acquired psychiatric disorder, to include MDD and PTSD The Veteran contends that his MDD and PTSD are due to verbal and physical abuse he experienced in service. See August 2017 VA Form 21-4138; September 2019 VA Form 21-8940. In order to establish service connection for a claimed disorder, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), i.e., a diagnosis conforming to specified diagnostic criteria (currently the DSM-5, previously the DSM-IV); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link, or causal nexus, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). It is not in dispute that the Veteran has current diagnoses of MDD and PTSD. See, e.g., April 2018 VA treatment record showing a diagnosis of depression in 2010 and PTSD in 2016. At the November 2020 hearing before the undersigned, the Veteran testified that he experienced discrimination from his platoon sergeant and non-commissioned officer (NCO), that his superior threatened to seriously hurt him, and sexually assaulted him numerous times in front of his roommate. Specifically, the Veteran contends he would be pulled from bed, told to undress, and his superior would hit his genitals with a broom stick. An April 2016 statement by the Veteran’s former insurance agent and roommate states that, while the Veteran was in service, he told his friend of the verbal and physical abuse the Veteran was experiencing. The Veteran’s friend state that he witnessed the Veteran’s sergeant call him a “[expletive] big dumb white idiot just like the rest,” and on another occasion saw the sergeant throw him against the wall. An October 2016 statement by the Veteran’s bunkmate states that the Veteran would return to the barracks upset and frustrated at the end of the day and would cite leadership for being verbally and physically abusive based on the color of his skin. The Veteran’s bunkmate noted that his leadership frequently gave the Veteran extra duty and watches and did not do that to the other troops in his command. A December 2016 VA treatment record shows that the Veteran reported experiencing verbal, emotional, and physical abuse at the hands of his sergeant. He reported being assigned extra duties, watches, and worst jobs, was called a “white piece of shit,” was pushed, slapped, choked, sand threatened. The Board finds that the Veteran’s lay statements regarding experiencing verbal, emotional, and physical abuse in service are internally consistent, reasonably consistent with other lay statements of record, and that there is no probative evidence of record that conflicts with the information provided. Therefore, the Veteran’s statements are credible. An April 2019 private psychologist diagnosed the Veteran with PTSD and MDD. The Veteran reported that he was verbally and physically abused on a regular basis while in service from his NCO but was afraid to seek help at the time due to the fear of retaliation from his sergeant. The psychologist stated that the Veteran’s diagnoses were a direct result of service but did not provide a rationale. In November 2020, the April 2019 examining psychologist opined that the Veteran’s PTSD and MDD are both a direct result of the MST and other traumatic events he experienced while serving his country in the United States Marine Corps. The psychologist reasoned that the Veteran first made detailed and credible reports of suffering from physical and emotional abuse and sexual trauma perpetrated against him during his service. The psychologist further reasoned that anxiety and mood disorders have long been shown to be typical reactions to such trauma experiences and well validate in mental health research. Finally, the psychologist reasoned that the Veteran’s psychiatric symptoms persisted after his discharge and continued to cause impairment in his ability to sustain employment and a variety of interpersonal relationships. Because the psychologist reviewed the Veteran’s medical history, examined the Veteran, and explained his rationale, the Board finds the November 2020 medical opinion to be of high probative value. The evidence of record shows that the Veteran has current diagnoses of MDD and PTSD and that he experienced verbal, emotional, and physical abuse in service. The probative medical evidence of record shows that the Veteran’s psychiatric disorders are directly due to his military service. In sum, the Board finds that service connection for an acquired psychiatric disability, to include MDD and PTSD, is warranted. To the extent that the Veteran experiences additional   psychiatric symptomatology, the Board finds that a full grant of the benefit sought on appeal has been awarded as it is intended to encompass all psychiatric symptomatology of record. See Mittleider v. West, 11 Vet. App. 181 (1998). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O. Halpern 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.