Citation Nr: 21012210 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-33 394 DATE: March 3, 2021 ORDER New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, to include a generalized anxiety disorder and is reopened. Service connection for an acquired psychiatric disorder, to include a generalized anxiety disorder is granted. FINDINGS OF FACT 1. In a June 2007 rating decision, the Veteran's service connection claim for posttraumatic stress disorder (PTSD) was denied and she did not perfect an appeal regarding this determination. 2. Evidence received since the June 2007 rating decision is new and material regarding the issue of service connection for acquired psychiatric disorder, to include a generalized anxiety disorder because it contains evidence not previously considered that has some tendency to establish current diagnoses of a generalized anxiety disorder. 3. Resolving all doubt in the Veteran's favor, the currently diagnosed acquired psychiatric disorder, to include a generalized anxiety disorder, was incurred during active military service. CONCLUSIONS OF LAW 1. The June 2007 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for reopening the Veteran's previously denied claim of service connection for PTSD have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria to establish service connection for an acquired psychiatric disability, to include a generalized anxiety disorder are approximated. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from May 1998 to May 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office. In June 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the electronic claims file. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. In consideration of this holding and the generalized anxiety disorder, diagnosis of record, the Board has recharacterized the claim as reflected on the title page. Neither the Veteran nor her representative have raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Further, given the favorable outcome in this decision that represents a full grant of the issues on appeal, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 1. New and Material Evidence. The Veteran contends her acquired psychiatric disorder to include a generalized anxiety disorder, is a result of military service. Specifically, the Veteran has reported that in-service events resulted in the currently diagnosed generalized anxiety disorder. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c), (d)(3); 38 C.F.R. § 20.1103. If "new and material" evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "[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 making a determination 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. Id. at 118. The Veteran seeks to reopen the previously denied claim of service connection for PTSD now characterized as an acquired psychiatric disorder to include a generalized anxiety disorder. The claim was initially considered and denied by the RO in a June 2007 rating decision. The Veteran did not file a notice of disagreement with the decision, and no medical evidence was submitted within one year of the issuance of the decision. The Veteran did not perfect her appeal. The Veteran then filed to reopen a claim for PTSD in April 2014. The claim was denied in a July 2104 rating decision. The Veteran perfected the appeal and it is now before the Board. Since the June 2007 rating decision, additional evidence has been received in the form of VA treatment records, a VA examination, and an opinion by a private examiner. The VA treatment records, VA examination, and opinion by the private examiner are new because they have not been previously submitted. This evidence is also material because it pertains to the basis for the prior denial, that is, that the Veteran did not have a current mental health disability and raises a reasonable possibility of substantiating the claim. Specifically, a May 2016 VA examiner diagnosed the Veteran with a generalized anxiety disorder. VA treatment records include diagnoses of posttraumatic stress disorder, persistent depressive disorder, and an other specified feeding or eating disorder. Similarly, in a September 2020 opinion, a private examiner diagnosed the Veteran with a somatic symptom disorder. For these reasons, the Board finds that new and material evidence has been received to reopen service connection for an acquired psychiatric disorder. See 38 C.F.R. § 3.156(a). When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216 (1995). This new evidence raises a reasonable possibility of substantiating the claim; thus, this evidence is new and material and the requirements to reopen the claim under 38 C.F.R. § 3.156(a) have been satisfied. Accordingly, the Board has determined that new and material evidence has been received to reopen service connection for acquired psychiatric disorder. 2. Service Connection. The Veteran contends that service connection is warranted for an acquired psychiatric disorder, to include a generalized anxiety disorder. The Veteran reported multiple incidents of personal assault while in-service that she has stated resulted in the currently diagnosed generalized anxiety disorder. Specifically, the Veteran has documented multiple periods and incidents of domestic abuse while in service. The Board finds the evidence is in relative equipoise and that service connection for an acquired psychiatric disorder, to include a generalized anxiety disorder is warranted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The Veteran's entrance examination is silent for any mental health disabilities. On her exit examination, the Veteran indicated that worry about multiple issues, including being a new a mom, new wife, and domestic reasons. In April 2014, the Veteran detailed her in-service experiences. In May 2016, the Veteran underwent a VA examination to determine the nature and etiology of any mental health disabilities. The Veteran recounted her in-service experiences. The VA examiner diagnosed the Veteran with generalized anxiety disorder and opined that it was less likely than not incurred in or related to her active military service. The rationale provided was in part based on the Veteran seeking treatment in 2005, four years after service. In September 2020, a private psychologist reviewed the Veteran’s claims file and opined that the Veteran’s current generalized anxiety disorder was at least likely as not the direct result of the traumatic events the described during service. The rationale provided was that the credible statements of the Veteran showed a documented onset of mental health symptoms during service. The Board notes that the Veteran is competent to report the circumstances of the events she experienced in service because they are based on her own direct observations. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of her personal knowledge). Moreover, the Board finds these statements to be credible, as the Veteran has reported a consistent history of the in-service events throughout the period on appeal. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (holding that as a finder of fact, the Board, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing). The Board finds convincing the reason she provided for wanting to deny the causes of her physical injuries sustained in service. Similarly, the April 2014 lay statement of record is both competent and credible. As noted above, there is little contemporaneous evidence available to verify the Veteran's stressors. However, the Board finds that the letter from J.P., the Veteran's private psychologist, persuasive as to the existence of the events during service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that although "the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible."). Moreover, it is based on facts supported by the record as well as clinical findings at the examination and contains an adequate rationale. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek further examination to clarify and definitively opine on the nature and etiology of any current mental health disabilities. The Board could also order further development of the record and a more defined records search. However, under the law, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). In this case, although the VA examination concluded there was no diagnosis of PTSD and that the Veteran’s current generalized anxiety disorder was less likely than not related to service, other records, including the September 2020 private psychologists opinion reflected that the Veteran’s current generalized anxiety disorder was at least as likely as not related to service. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997) (holding that mental health professionals making diagnoses 'are presumed to know the DSM requirements applicable to their practice and to have taken them into account.'). In sum, the Board finds that the evidence of record is at least in relative equipoise. Under such circumstances, all reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Because a diagnosis of an generalized anxiety disorder has been offered, and because competent and credible supporting evidence that the in-service events and in service symptoms has been offered, service connection for an acquired psychiatric disorder, to include a generalized anxiety disorder is warranted. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Teague, 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.