Citation Nr: 21022431 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-00 596 DATE: April 15, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD, anxiety, and depression, is reopened. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression, is denied. FINDINGS OF FACT 1. The evidence received since July 2005 is new in that it was not of record at the time of the prior decision, and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for an acquired psychiatric disability. 2. The preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disability, to include PTSD, anxiety, and depression, that is due to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen the claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD, anxiety, and depression. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 2. The criteria for service connection for an acquired psychiatric disability, to include PTSD, anxiety, and depression, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to October 1968 and from March 1971 to March 1974. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. New and Material Evidence Generally, a claim that has been denied in a final decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The U. S. Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Meyer v. Brown, 9 Vet. App. 425, 429 (1996). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), anxiety, and depression In order to more accurately reflect the nature of the Veteran’s disability, the Board has expanded the claim to one for entitlement to service connection for an acquired psychiatric disability, to include PTSD, anxiety, and depression. Clemons v. Shinseki, 23 Vet. App. 1 (2009). These changes are reflected on the title page and provide the most favorable review of the Veteran’s claim in keeping with the holding in Clemons. The AOJ issued an original rating decision in July 1992 denying service connection because the Veteran had not reported to a scheduled VA examination. Thereafter, a rating decision in July 2005 denied service connection for PTSD on the basis that there was no new and material evidence to reopen the claim for service connection, as the Veteran had not provided evidence of an in-service injury or of treatment since service, nor of any continuity of symptomatology since service. The Veteran did not submit any statements disagreeing with the July 2005 findings, and the July 2005 rating decision, therefore, became final. The evidence of record at the time of the July 2005 rating decision included the Veteran’s service treatment and personnel records, and the Veteran’s statements. Clinical records did not show complaints, treatment, or diagnosis of PTSD. In fact, an April 2004 depression screen was negative. The records received since the July 2005 decision include ongoing VA clinical records, an April 2014 VA examination report, and lay statements, including the Veteran’s own statements regarding his in-service stressors and course of symptoms. The Veteran indicated in the July 2014 Notice of Disagreement (NOD) that he has experienced anxiety and flashbacks since service. The newly received lay statements suggest the presence of symptoms of a mental disorder, which the Veteran reports have been present since his time in service. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, as previously noted, the credibility of the new evidence is presumed. As the Veteran provided credible lay testimony as to continuity of his psychiatric symptomatology since service, the Board finds that this evidence is both new and relates to an unestablished fact necessary to substantiate the claim. Without yet addressing the probative value of this additional evidence, the Board acknowledges that the evidence satisfies the low threshold of new and material evidence required to reopen the claim. To this extent only, the appeal is granted, and the claim is reopened. Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression The question before the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. First and foremost, the Board acknowledges the Veteran’s claims and multiple lay statements that he has PTSD. However, the Veteran’s VA examination of April 2014, based on a review of the Veteran’s claims file, clinical records, and an interview, found that the Veteran does not meet the criteria for a PTSD diagnosis. Review of the Veteran’s treatment records do not reflect a diagnosis of PTSD. In this regard, the Board notes that a March 2016 VA treatment note reflects that the Veteran denied both depression and anxiety; and though he was referred for evaluation due to a positive PTSD screen, the provider indicated the Veteran was mad about the fact that he does not have a PTSD diagnosis. The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 as requiring the existence of a current disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, the Veteran cannot be service-connected for PTSD. However, the Board notes that review of the record does reflect a diagnosis of anxiety and depression. As such, the discussion below will focus on the Veteran’s diagnosed psychiatric disorders. The Board concludes that, while the Veteran has a current diagnosis of an acquired psychiatric disability, to include anxiety and depression, the preponderance of the evidence weighs against finding that the disability began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d). Service treatment records reflect no evidence of any complaint, treatment or diagnosis of any psychiatric condition while in service. In fact, both separation examinations of 1968 and 1974 show that the Veteran had normal psychiatric evaluations, and in the associated reports of medical history, the Veteran specifically denied depression, trouble sleeping, excessive worry and nervous trouble of any sort. VA treatment records do show the Veteran was diagnosed with anxiety in November 2004, and with depression and anxiety in February 2015, decades after his separation from service in March 1974. None of the Veteran’s VA medical records provide a nexus or link between the Veteran’s acquired psychiatric disability and his service. The Veteran was afforded a VA examination in April 2014 with an addendum in May 2014 to assess the nature and etiology of his claimed psychiatric disability. In this regard, the examiner reviewed the Veteran’s claims file, interviewed the Veteran, and confirmed a diagnosis of generalized anxiety disorder. The Veteran reported he started taking nerve medicine after discharge from service in Vietnam. Pertinently, the examiner opined that the Veteran’s anxiety disorder is less likely than not related to service. It was reasoned that there is no report of mental health issues during the Veteran’s service, nor any consistent report of ongoing mental health problems since then. Additionally, the examiner explained that after a personal episode of anxiety related to his divorce, he reenlisted in service and was not treated for anxiety – nor is he currently receiving such treatment. As such, the Board concedes a diagnosis of acquired psychiatric disability, to include anxiety and depression, but notes that there is simply nothing in the record that suggests the Veteran’s acquired psychiatric disability began in or is otherwise related to service. The Board acknowledges the Veteran’s lay testimony of record, including that he has had continuous anxiety and flashbacks since service. While the Veteran is competent to report having experienced symptoms of an acquired psychiatric disability since service, he is not competent to provide a diagnosis, or to determine that these symptoms were manifestations of a psychiatric disability. The issue is medically complex, as it requires knowledge of and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As such, the Board finds that, other than the Veteran’s unsupported contentions, there is simply no evidence in the record of any etiological relationship between the Veteran’s acquired psychiatric disability, to include anxiety and depression, and his time in service. Further, there is simply no mention in the record of a relationship between the Veteran’s service and his current acquired psychiatric disability or any other competent evidence to suggest an etiological relationship between the Veteran’s service and his current acquired psychiatric disability, to include anxiety and depression. The competent medical evidence of record, and specifically the April 2014 and May 2014 VA examiners’ opinions, weighs against a finding that the Veteran’s current psychiatric disorders began in or are otherwise related to service. Thus, the criteria for service connection for acquired psychiatric disability have not been met. The evidence weighs against the Veteran’s claim. Service connection for an acquired psychiatric disability, to include anxiety and depression, must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Comninos, Georgio 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.