Citation Nr: 21014832 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 18-45 648 DATE: March 15, 2021 ORDER The application to reopen a claim of service connection for major anxiety and depression is granted. Entitlement to service connection for a psychiatric disability, diagnosed as major depressive disorder and generalized anxiety disorder, is granted. FINDINGS OF FACT 1. In an October 2012 rating decision, service connection for major anxiety and depression was denied. Although notified of the decision, the Veteran did not submit a notice of disagreement (NOD) and new and material evidence was not received within one year thereafter. 2. Evidence received since the October 2012 final decision of the Agency of Original Jurisdiction (AOJ) includes information not previously considered and which relates to an unestablished fact necessary to substantiate the claim, the absence of which was the basis of the previous denial. 3. The evidence is at least evenly balanced as to whether the Veteran’s major depressive disorder and anxiety disorder are related to service; he is presumed to have been in sound psychiatric condition when he entered service and that presumption has not been rebutted. CONCLUSIONS OF LAW 1. The AOJ’s October 2012 rating decision which denied the claim of service connection for a psychiatric disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 19.20, 19.32, 19.52, 20.1103. 2. The evidence received since the October 2012 AOJ decision is new and material and reopening of the claim of service connection for a psychiatric disability is therefore warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for a psychiatric disability, diagnosed as major depressive disorder and generalized anxiety disorder, are met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1978 to February 1981. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO declined to reopen a claim for service connection for major anxiety and depression also claimed as posttraumatic stress disorder (PTSD), finding evidence submitted was not new and material. Thereafter, following receipt of additional evidence, in a November 2017 rating decision the RO denied service connection for PTSD, noting it was also claimed as anxiety and depression. As new and material evidence pertaining to the service connection claim was received prior to the expiration of the appeal period, the June 2015 rating decision did not become final. 38 C.F.R. § 3.156(b). Following the November 2017 rating decision, the Veteran submitted his Notice of Disagreement in December 2017. After a June 6, 2018 Statement of the Case, in August 2018, the Veteran informed VA in a phone call that he had not received a Statement of the Case. Due to this, he was given an extension to submit an appeal, which he filed in September 2018, and the RO certified his appeal to the Board the next month. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a March 2021 hearing. A transcript of the hearing has not yet been associated with the claims file, but as the benefit sought is being granted in full, a transcript is unnecessary. Service Connection 1. Whether New and Material Evidence Has Been Received to Reopen the Claim of Service Connection for a Psychiatric Disability. Where a claim has been finally adjudicated, a claimant must present new and material in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA’s duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. The June 2015 rating decision on appeal confirmed and continued a denial of service connection for a psychiatric disability, previously denied in an October 2012 rating decision. The October 2012 denial noted that the evidence did not show the Veteran’s current psychiatric disability was attributable to service. See e.g. October 11, 2012 Codesheet (no evidence that military service aggravated or contributed to current mental condition); October 25, 2012 Notification Letter (no link with service, evidence does not show condition which existed prior to service permanently worsened as a result of service). The Veteran did not appeal the October 2012 decision, and VA did not receive new evidence within one year after the notice of the decision. As such, the October 2012 rating decision became final. The record reflects that some service treatment records and military personnel records were associated with the claims file in February 2015. See 38 C.F.R. § 3.156(c). However, the records do not contain any new information or evidence regarding the nature and circumstances of the Veteran’s military service. Information contained therein was previously available for consideration in another service treatment record document associated with the claims file in July 2012 and is otherwise irrelevant to the claim on appeal. Therefore, the service treatment records and personnel records from February 2015 are not relevant service department records warranting reconsideration of the claim under 38 C.F.R. § 3.156(c). Since the last final denial in October 2012, VA has received new and material evidence to reopen the Veteran’s claim which includes a September 2015 transcript of Operation Eagle Claw, an October 2017 VA examination, VA treatment records pertaining to mental health, and the Veteran’s testimony at the March 2021 Board hearing. This evidence is new, relates to an unestablished element of the previously denied claim, and raises a reasonable possibility of substantiating the claim as it potentially establishes a connection between a current disability and service. Therefore, the claim is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Service Connection for a Psychiatric Disability. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In all cases, a Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1111; 38 C.F.R. § 3.304(b). The term noted, in 38 U.S.C. § 1111, refers to [o]nly such conditions as are recorded in examination reports. 38 C.F.R. § 3.304(b). A [h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304(b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). The Veteran testified at the March 2021 Board hearing that he currently has an acquired psychiatric disorder caused by an event he experienced during military service. In his January 2015 application to reopen, he specified PTSD, anxiety, and depression. However, a claim should not be limited to a disorder as characterized by the Veteran but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). As the Veteran seeks entitlement to service connection for an acquired psychiatric disorder, all diagnoses have been considered. There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. Kays v. Snyder, 846 F.3d 1208, 1211 (Fed. Cir. 2017). As indicated above, there is no independent corroboration requirement for the in-service disease or injury requirement with regard to a service connection claim for a disability other than PTSD. The Veteran wrote to VA in May 2015 that his ship was part of the mission to save hostages in Iran in 1980 called “Operation Eagle Claw.” For a 24-hour period, they attempted to get the ship out of the fighter range and the ship he was on did not have fire power to protect itself. The Veteran’s participation in this operation has been verified by the AOJ and supported by the Veteran’s military records. See July 2012 STR document (showing service on the USS San Bernadino continuously including through 1980); see also May 2013 Transcript of Operation Eagle Claw (showing San Bernadino provided amphibious support to the April 1980 operation). On the October 1977 entrance examination report, the psychiatric system was normal. The Veteran is therefore presumed to have been in sound condition psychiatrically when he entered service. 38 U.S.C. § 1111. As noted, that presumption can only be rebutted with clear and unmistakable evidence that a psychiatric disorder preexisted service and was not aggravated by service. Id. The evidence below reflects that the presumption of soundness has not been rebutted. The Veteran reported on the October 1977 entrance report of medical history he did not experience frequent trouble sleeping, depression or excessive worry, or nervous trouble of any sort. A June 1980 treatment record shows the Veteran reported to sick call for fatigue, not getting enough sleep, reporting his head was cloudy and fuzzy, only getting four to five hours of sleep a night, and was referred to counseling. In the February 1981 separation report of medical history, the Veteran reported frequent trouble sleeping, depression or excessive worry, and nervous trouble. In the February 1981 separation examination report, “psychiatric” was left blank. At an August 2012 VA examination, the Veteran was diagnosed with major depressive disorder (rule out bipolar disorder) and polysubstance abuse in partial remission. His chronic symptoms of depression and all psychiatric symptoms were attributable to depressive disorder. At the examination, he discussed his pre-military and post-military histories, and recalled having a problem with authority during his service and outside of the service. The VA examiner noted how the Veteran’s responses seemed honest, forthcoming, and matter-of-fact. The August 2012 VA examiner opined it is less likely as not that Veteran’s depression symptoms are the result of his military service and attributed the psychiatric symptoms noted upon separation to his childhood experiences. She wrote the Veteran’s depressive symptoms appear to have preceded his military service and persisted in the context of psychosocial stressors. However, she also noted there were situational stressors during service and did not explain the conclusion for why the Veteran had no psychiatric symptoms upon entry if his current disability preceded service, whether there was clear and unmistakable evidence demonstrating the condition existed prior to service, and if so, how the difference between the Veteran’s entry and separation examinations did not show aggravation. Therefore, the conclusions drawn are of no probative weight. The Veteran was afforded a second VA examination in October 2017 at which point he was diagnosed with major depressive disorder and generalized anxiety disorder; the diagnoses were noted to not be independent of each other and are part of the same syndrome. The examiner documented a childhood stressor, but did not consider evidence regarding events in service, such as the Veteran’s letter regarding Operation Eagle Claw associated with the claims file in May 2015. The October 2017 VA examiner opined there is no evidence that the Veteran’s diagnoses meeting DSM criteria are related to his military service as there is no report of mental health issues during the Veteran’s service time and no consistent report of ongoing mental health problems since military service. This opinion ignores the February 1981 separation report of medical history documenting psychiatric symptoms, as well as the fact that the Veteran is presumed to have been in sound condition psychiatrically when he entered service. It also did not address the treatment sought during service in June 1980, less than two months after Operation Eagle Claw, for problems sleeping and referral to counseling. The opinion also improperly relies on a lack of a consistent report of ongoing mental health problems since military service, which does not consider the abundance of evidence in the claims file of the Veteran’s situation (including mental health struggles, not having a job, and homelessness), and does not provide explanation for why the Veteran was not credible in reporting his current mental disability was from service. The Veteran is competent to report his symptoms and when they occurred. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, the October 2017 VA opinion is of no probative weight. While the Board could remand the case for another medical opinion, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). The evidence is sufficient to decide the claim. The medical opinions attributing the Veteran’s psychiatric disorder to his childhood are flawed because the Veteran is presumed to have been in sound psychiatric condition when he entered service. The evidence reflects that the Veteran began experiencing psychiatric symptoms due to an in-service event and continued to experience these symptoms until diagnosed with major depressive disorder and anxiety disorder. This is sufficient to establish service connection for these diagnosed psychiatric disorders. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s diagnosed major depressive disorder and generalized anxiety disorder are related to service, to include his service in Operation Eagle Claw. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for his psychiatric disability, diagnosed as major depressive disorder and generalized anxiety disorder, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although a Social Security Administration determination contains notation that testimony by a psychological expert in January 2015 included a history of PTSD, the VA examinations did not produce results consistent with a diagnosis of PTSD under the DSM-5. However, because service connection for other psychiatric disorders is being granted, further discussion of PTSD or any other psychiatric diagnosis is unnecessary. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (explaining that the Secretary must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant’s service-connected disability); see also Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (considering the possibility that bipolar disorder and PTSD did not constitute the same disability, but rejecting this argument based on the facts of that case). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Kuczynski, 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.