Citation Nr: 21026952 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-57 193 DATE: May 4, 2021 ORDER The claim of entitlement to service connection for a psychiatric disorder to include PTSD, is reopened. Service connection for a psychiatric disorder is granted. FINDINGS OF FACT 1. A January 2009 rating decision denied service connection for PTSD; evidence received since that denial relates to unestablished facts necessary to substantiate that claim. 2. A psychiatric disorder variously diagnosed as an anxiety disorder, depressive disorder, or adjustment disorder, was incurred during service. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 2. The criteria for service connection for a psychiatric disorder are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2003 to January 2007. This matter is before the Board following his appeal of an October 2013 rating decision. In January 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. Service Connection The Veteran is seeking service connection for a psychiatric disorder that he contends began in service, to include as a result of stressors related to witnessing fellow sailors sustain burns from steam or oil, and to the death of a local fisherman that was caused by the Veteran's ship. As an initial matter, the Board observes that in an October 2007 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for PTSD because there was no evidence of a current diagnosis of PTSD of record. Following a request for reconsideration, the AOJ again denied service connection for PTSD in an unappealed January 2009 rating decision because a VA examiner found that the criteria for a diagnosis of PTSD were not met. Notably, the January 2009 rating decision also denied service connection for other psychiatric disorders because the evidence did not show a nexus to service. Because the Veteran did not appeal or submit new and material evidence, the January 2009 rating decision became final. Generally, when a claim of entitlement to service connection is denied and a veteran fails to appeal or submit new evidence within a year of the denial, the decision becomes final and the claim can be reopened only if the veteran submits new and material evidence. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decisionmakers. Material evidence is evidence that, alone or together with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). Here, since the final January 2009 rating decision, new and material evidence has been received to reopen the Veteran's claim, including VA treatment notes showing a diagnosis of chronic PTSD, and the Veteran's Board testimony regarding an onset of psychiatric symptoms in service that were diagnosed as an adjustment disorder, and treatment for the same since. See, e.g., September 2016 VA treatment note; January 2021 Hearing Transcript. Thus, the claim is reopened. Turning to the merits of the claim, the Board finds that following a review of the record, service connection for a psychiatric disorder is warranted. Generally, in order to prove service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Here, the Veteran has a current disability, as VA treatment records show ongoing treatment for psychiatric symptoms variously described or diagnosed as a mood disorder, chronic PTSD, probable PTSD, severe and recurrent Major Depressive Disorder with anxious distress, anxiety disorder, panic disorder, PTSD, and dysthymia. Additionally, the Veteran's service treatment records (STRs) support in-service incurrence, as they show mental health treatment from July 2006 until the Veteran's separation for variously diagnosed psychiatric conditions to include acute reaction to stress, a depressive disorder not elsewhere classified, PTSD, personality disorder NOS, alcohol dependence, acute adjustment reaction, and severe, recurrent Major Depression. They further show that the Veteran was started on psychiatric medication in service. Thus, the only remaining question is whether the Veteran's current psychiatric disorder(s) is related to service. The Board finds that it is. In this regard, the Veteran has provided competent and credible lay testimony of the onset of his current psychiatric symptoms in service and a continuity of those symptoms since. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Falzone v. Brown, 8 Vet. App. 398 (1995). His testimony is generally consistent with the record, which shows that the Veteran began receiving mental health treatment at VA within a year of his separation from service and, at that time, placed the onset of his psychiatric symptoms in service. See December 2007 VA treatment note. Moreover, it is noteworthy that diagnoses of adjustment disorder, Major Depressive Disorder, and PTSD were all diagnosed both in and post service based on the Veteran's reported symptoms, supporting a continuation of the same psychiatric disorder(s) in and since service. The Board acknowledges that there is evidence suggesting the Veteran may have experienced some psychiatric problems prior to service, including his in-service report of intermittent symptoms since childhood in July 2006, his report to a September 2008 VA PTSD examiner that he received counseling around the age of 11 because of a fear of being abducted, and an April 2008 VA provider's finding that the Veteran likely had an attachment disorder as a child. Nevertheless, the Veteran was presumed sound at entry in this case because no mental health issues were reported, observed, or noted on his November 2002 enlistment examination. Indeed, the Veteran affirmatively denied any mental health history on a February 2003 flight applicant questionnaire and during flight physicals in March 2003, September 2003, March 2004, and March 2005. Importantly, during VA psychiatric treatment in December 2007, the Veteran's mother spoke with a VA psychiatric provider and reported that "the [Veteran] changed very much while in the military." She described him as laid back and easy going prior to service, but noted that he became on edge, agitated, and engaged in risky behavior during and since service. Such evidence supports that, even if the Veteran did have some mental health problems as a child, the onset of the Veteran's current psychiatric problems was in service. As a final matter, the Board acknowledges that there has been some question regarding the appropriate diagnosis and the validity of the Veteran's responses to psychiatric testing, with concerns of exaggeration or conscious attempts to manipulate data by marked exaggeration. See September 2008 VA Examination Report, October 2014 VA treatment note. Nevertheless, the September 2008 VA examiner (who did not offer a nexus opinion) acknowledged some likely exaggeration but also found that "some legitimate psychiatric difficulties also appear present," particularly with respect to social functioning and the ability to cope with stressors. And, the Board finds that the weight of the evidence of record places the onset of those "psychiatric difficulties" in service. Thus, the Board finds that the evidence is at least in equipoise regarding the question of whether the Veteran's current psychiatric disorder is related to his military service. Therefore, resolving doubt in favor of the Veteran, his claim for service connection for a psychiatric disorder is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). S. C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Fagan 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.