Citation Nr: 21009123 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 17-31 454 DATE: February 19, 2021 ORDER New and material evidence having been received, the claim to reopen the previously-denied claim for entitlement to service connection for dysthymic disorder, is reopened. Entitlement to service connection for dysthymic disorder, diagnosed as depressive and somatic disorder, to include as secondary to posttraumatic stress disorder (PTSD), is granted. FINDINGS OF FACT 1. Evidence associated with the record since the final rating decision in December 1970 relates to unestablished facts that are necessary to substantiate the claim of entitlement to service connection for dysthymic disorder, and it is reopened. 2. Resolving all reasonable doubt in favor of the Veteran, the competent and most probative evidence of record is at least in equipoise as to whether the Veteran's current dysthymic disorder, diagnosed as depressive and somatic disorder, is related to active service. CONCLUSIONS OF LAW 1. New and material evidence has been received to warrant reopening of the previously denied claim of entitlement to service connection for dysthymic disorder. 38 U.S.C. §§ 1110, 1131, 5103, 5108; 38 C.F.R. §§ 3.156, 3.303, 20.1103. 2. The criteria for entitlement to service connection for dysthymic disorder, diagnosed as depressive and somatic disorder, to include as secondary to PTSD, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.159, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August1966 to July 1970. The record also reflects that he served in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in April 2020 during which a virtual hearing was held in front of the undersigned Veterans Law Judge. A copy of the transcript has been associated with the records. The record was held open for 60 days for the Veteran’s attorney to submit additional medical evidence. The Veteran’s claim (originally claimed as anxiety reaction) was initially denied in a December 1970 rating decision. The Veteran did not file an appeal and the decision became final. The Veteran has since filed to reopen his claim. Thereafter, although the Veteran’s claim was deemed reopened by the RO, his underlying service connection claim remained denied in the June 2016 rating decision. Of note, the Board has considered the Veteran’s attorney’s contentions that his April 2020 Board hearing was inadequate due to technical issues encountered during the Board hearing, including a request for a new Board hearing. However, given that the Board is reopening and allowing the claim based on the existing evidence of record, this contention is now moot and proceeding to the merits of the claim is not prejudicial to the Veteran. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed unless new and material evidence is submitted. 38 C.F.R. § 5108. Evans v. Brown, 9 Vet. App. 273, 285 (1996). Graves v. Brown, 8 Vet. App. 522, 524 (1996). “New” evidence means existing evidence not previously submitted to agency decision-makers. “Material” evidence means existing 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 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). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510 (1992). A finding by the Board of new and material evidence is required in order to establish its jurisdiction to review the merits of a previously denied claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. The question of whether new and material evidence has been received to reopen a claim must be addressed in the first instance by the Board because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Id at 1369. In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Further, in determining whether this low threshold is met, VA should not limit its consideration to 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 VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. If it is determined that new and material has been submitted, the claim must be reopened. The Board may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. Reopening of the Veteran’s Claim In denying the Veteran’s original claim in its December 2017 rating decision, the RO stated that the Veteran failed to show that he had a current diagnosis of a mental disability. Since then the Veteran has submitted additional evidence, including a medical report that reflects that he meets DSM V diagnostic criteria for the diagnosis of dysthymic disorder (persistent mood disorder). The Veteran also testified during his April 2020 Board hearing that he believes this disorder also stems from his service-connected PTSD. Furthermore, in July 2020, a psychologist submitted a mental health assessment and a positive nexus statement relating the Veteran’s active duty service as a combat Veteran to his current dysthymic disorder, diagnosed as a depressive and somatic disorder. Consequently, since the current evidence of record includes a current diagnosis of his claimed mental disability, which was the primary basis for the original denial of the Veteran’s claim, and a positive nexus opinion, the Board finds that there is an adequate legal basis to reopen the Veteran’s previously denied claim. The Board is not bound by the RO’s findings regarding whether the claims should be reopened and must nevertheless independently consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Since the credibility of new evidence is generally presumed, the claim to reopen entitlement to service connection for dysthymic disorder is granted. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for dysthymic disorder, diagnosed as depressive and somatic disorder, to include as secondary to posttraumatic stress disorder (PTSD). The Veteran and his attorney assert that he should be granted service connection for his claimed dysthymic disorder because it stems from his active military service due to his combat experience in Vietnam, and is also secondary to his service-connected PTSD. See, April 2020 Board Hearing Testimony. A condition precedent for establishing service connection is the presence of a current disability. As an initial matter, the Board notes that the Veteran was diagnosed with dysthymic disorder in May 2016, during the examination afforded to the Veteran for his claim. Accordingly, the first element for establishing service connection for his sleep apnea has been met. With regards to the two other elements of in-service incurrence and a nexus relating the Veteran’s current diagnosis of dysthymic disorder to his military service, the Board also finds that these have been established by the evidence of record for the reasons discussed below. Although the Veteran’s November 1970 initial VA examination for his original claim found that he did not have a diagnosed mental disability, upon refiling his claim in February 2016, the Veteran subsequently submitted a report from his treating physician, in which he found that the Veteran’s ongoing medical symptoms are consistent with fatigue and brain fog, confusion and anxiety and hyperventilation due to his exposure to environment toxins, including past exposure to Agent Orange while serving in Vietnam. Further, during his May 2016 VA mental disorders examination, the VA examiner diagnosed the Veteran with dysthymic disorder, but opined that it is less likely than not (less than 50 percent probability) that the Veteran's disorder had its onset during active service or was otherwise related to his active duty service, stating the following as his rationale: “[I]t appears that he first noticed his problems with depression sometime after leaving the service and first sort treatment approximately in 1985.]” However, the Veteran’s service treatment records (STRs) makes a reference to two visits to a mental health clinic in September 1969 and October 1969, respectively, with regards to the Veteran’s report of unease with regards to interpersonal relationships. Moreover, at the time of the Veteran’s examination in May 2016, he was not yet service connected for his PTSD, and as such, no secondary service opinion for his dysthymic disorder with regards to the Veteran’s PTSD was offered. In this regard, in July 2020, the Veteran has submitted a positive nexus opinion from a licensed psychologist, Dr. Q.A-S., in which he opined that the Veteran’s current dysthymic disorder is directly related to his experience as a combat Veteran in Vietnam (PTSD). He made the following specific finding: “Based on the totality of the evidence [Veteran’s] persistent depressive disorder and somatic symptoms began during the course of his military service and were related to the ongoing high levels of stress and fear and social disruption he experienced when in Vietnam.” The Board assigns Dr. Q.A-S.’ positive nexus opinion associating the Veteran’s dysthymic disorder, diagnosed as a depressive and somatic disorder, with his combat service high probative value because it finds it had a sufficiently clear and well-reasoned rationale, supported by clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). By contrast, the May 2016 VA examiner’s negative nexus opinion nexus was solely based on a lack of documented in-service symptoms, which, as noted above, was not necessarily accurate. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As such, the Board has assigned it low probative value. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). (1998). Consequently, the Board also finds that the final element of service connection, a positive nexus, is also met in this case, in that the most probative medical opinion of record, the July 2020 opinion by Dr. Q.A-S., supports the existence of a nexus between the Veteran’s currently diagnosed dysthymic disorder, diagnosed as depressive and somatic disorder, and his active military service as a Vietnam combat Veteran. Accordingly, under these circumstances, and giving the Veteran the benefit of the doubt, the Board finds that service connection for dysthymic disorder, diagnosed as depressive and somatic disorder, is warranted. 38 U.S.C.§§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.B. King, 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.