Citation Nr: 21031379 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 18-38 849 DATE: May 21, 2021 ORDER New and material evidence having been received, the application to reopen the claim of service connection for an acquired psychiatric disorder is granted. Service connection for an acquired psychiatric disorder is denied. FINDINGS OF FACT 1. The Veteran served on active duty from April 1983 to April 1986. 2. In September 2012, the Regional Office (RO) denied service connection for a psychiatric disorder to include posttraumatic stress disorder (PTSD); the Veteran did not appeal that decision and it became final. 3. The evidence received since the September 2012 rating decision raises a reasonable possibility of substantiating the claim. 4. An acquired psychiatric disorder, to include PTSD, was not shown in service and is not etiologically or causally related to service. CONCLUSIONS OF LAW 1. The September 2012 rating decision, which denied service connection for a psychiatric disorder, is final. 38 U.S.C. § 7105 (2012). 2. The claim for service connection for an acquired psychiatric disorder, to include PTSD, is reopened. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. § §§ 3.102, 3.156, 3.159 (2020). 3. An acquired psychiatric disorder was not incurred in service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310(a), 4.127 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran testified before the undersigned Veterans Law Judge (VLJ) in March 2021. A copy of the transcript has been associated with the record. New and Material Evidence to Reopen Claim Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § § 3.156. "New" evidence means evidence "not previously submitted to agency decisionmakers." "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim." 38 C.F.R. § § 3.156(a). In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). In an unappealed September 2012 rating decision, the RO denied service connection for PTSD for a lack of finding of an in-service incurrence. Since that time, additional service treatment records (STRs) and medical records have been added to the record which tend to show diagnoses for additional mental health disorders. The Veteran has since also testified before a VLJ outlining his in-service injuries, including harassment and illness, and his current symptomatology. Therefore, this evidence is new and material as it goes to an element lacking at the time of the prior denial, i.e. an in-service incurrence. Therefore, the application to reopen the claim is granted. Service Connection for an Acquired Psychiatric Disorder Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Although the Veteran initially sought service connection for PTSD, the claim has been expanded to include all acquired psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). He claims that service connection is warranted because his psychiatric disorder was incurred during service. He has, in part, claimed that he has PTSD due to the stress of serving on a submarine for many months, becoming ill while on board, and experiencing harassment. As to a current disorder, the medical evidence does not reflect a clinical diagnosis of PTSD as no VA health care professional has found that the criteria for a diagnosis of PTSD were met. While PTSD is noted in the record, it is mostly reported as a history provided from the Veteran. Nonetheless, the February 2018 VA clinician diagnosed unspecified anxiety disorder. Similarly, VA treatment records noted ongoing diagnoses of anxiety and depression. Thus, the claim has been broadened to incorporate all acquired psychiatric disorders, and the first element of service connection has been met. As to an in-service incurrence, a review of the service treatment records (STRs) failed to show any complaints of, treatment for, or diagnosis of an acquired psychiatric disorder. An October 1983 notation revealed that a psychiatric examination was conducted, and that the Veteran was fit for submarine duty. Additionally, the January 1986 separation examination did not note any psychiatric symptoms, and the Veteran denied nervous trouble. Nonetheless, the Veteran's military personnel records (MPRs) reveal that he entered and completed a drug rehabilitation program from August to November 1984. He has repeatedly attested that his substance abuse issue was a result of the illness and harassment he experienced in service. Thus, an in-service incurrence is shown, and the second element of service connection is met. As to a causal relationship between service and the current psychiatric disorder, the medical evidence does not support the claim. Specifically, in a February 2018 VA examination, after reviewing the Veteran's claim file and examining him, the examiner ultimately opined it was less likely than not that the Veteran's psychiatric disorder was related to his service. Initially, the examiner clarified the Veteran's diagnosis and noted that he had seen multiple providers for multiple symptoms, presentations, and diagnoses; however, the examiner noted that the one symptom most common in his presentations was the feeling of anxiety and that his symptoms did not meet the DSM-V diagnostic criteria for PTSD or generalized anxiety disorder. Instead, the examiner opined this was more consistent with an unspecified anxiety disorder. However, the examiner opined that the diagnosis was not related to service. The examiner reasoned that there were no mental health medical records, during or following the Veteran's service until 2016, when he was admitted to a mental health hospital. The examiner noted that because of the length of time between the harassment on the USS Minneapolis, which in turn did not rise to the DSM-V diagnostic criteria for PTSD, and subsequent anxiety after his marriage, it was less likely than not related to service. The Board finds that the examination was adequate for evaluation purposes. Specifically, the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Moreover, the examiner has the requisite medical expertise to render a medical opinion regarding the etiology of the disorder and had sufficient facts and data on which to base the conclusion. Further, there is no contradicting medical evidence of record. Therefore, the Board finds the VA examiner's opinion to be of great probative value. Additionally, while the Veteran has received post-service treatment for psychiatric symptoms, no examiner has suggested these began in service or were a result of service without being provided such history from the Veteran himself. Instead, a review of VA treatment records revealed that he continued to discuss mostly marital issues. The Board has also considered the Veteran's lay statements that that his disorder was caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yacoub, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED