Citation Nr: 21041244 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-60 939 DATE: July 8, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim of service connection for posttraumatic stress disorder (PTSD) is granted. Service connection is granted for an acquired psychiatric disorder, to include PTSD and depression. A separate initial 10 percent rating is granted for a painful scar. An initial compensable rating is denied for service-connected scars from an inguinal hernia repair. An effective date prior to November 5, 2015 is denied for a service-connected inguinal hernia. FINDINGS OF FACT 1. A September 2002 rating decision denying a claim for service connection for PTSD was not timely appealed and became final; evidence received since that time (including a February 2016 private medical opinion which indicates that the Veteran's acquired psychiatric disorder is causally related to his military service) relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 2. The probative evidence of record including February 2016 and May 2019 private medical opinions, competent and credible testimony provided by the Veteran and competent and credible buddy statements support a finding that the Veteran's acquired psychiatric disorder is causally related to his service. 3. The probative evidence of record (including the Veteran's competent and credible testimony) supports a finding that the inguinal hernia repair scars cause pain. 4. The probative evidence of record including a March 2016 VA examination does not support a finding that the Veteran's service-connected scars measure at least 144 square inches. 5. The record does not suggest that the Veteran had filed a claim, an informal claim, or expressed a written intent to file a service connection claim for scars s/p inguinal hernia repair prior to the date of the RO receiving the Veteran's claim on November 5, 2015. CONCLUSIONS OF LAW 1. New and material evidence has been received to warrant reopening of the claim of service connection for PTSD. 38 U.S.C. § 5107, 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection have been met for an acquired psychiatric disorder, to include PTSD and depression. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria have been met for a separate initial 10 percent rating for a painful scar. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code (DC) 7804. 4. The criteria have not been met for an initial compensable rating for scars from an inguinal hernia repair. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7802. 5. The criteria have not been met for an effective date before November 5, 2015 for the award of service connection for scars from an inguinal hernia repair. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to August 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held before the undersigned in August 2019; a transcript is associated with the record. The Veteran has filed claims for service connection for PTSD and service connection for depression; however, the Board finds it more appropriate to combine and recharacterize these claims as a claim of service connection for an acquired psychiatric disorder, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Combining these issues does not prejudice the Veteran because both medical conditions are rated under the same criteria. In addition, the evidence of record does not indicate that the symptoms of these conditions are distinguishable. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is impossible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the veteran's favor and the symptoms in question must be attributed to the service-connected disability). [CONTINUED ON NEXT PAGE] 1. New and material evidence having been received, the application to reopen the previously denied claim of service connection for PTSD is granted. Legal Criteria As a threshold matter, the Board must determine if new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). A rating decision becomes final when it has not been appealed within the prescribed period and when no additional material evidence was received within a year of the decision; the decision is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. To reopen a claim, "new and material evidence" must be added to the record. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. To be considered "material," the evidence must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). This means that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence must be added to the record since the time that the claims were finally disallowed on any basis (that is, including a denial of reopening) not only since the time the claims were last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). Regardless of the RO's determination as to whether new and material evidence has been received, the Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO has been properly reopened. See Jackson v. Principi, 265 F.2d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. § § 5108, 7105(c)). Factual Background In September 2002 the RO denied the Veteran's claim for service connection for PTSD because the Veteran did have a diagnosis of PTSD. The Veteran did not perfect his appeal or submit new and material evidence within one year of the decision; therefore, the decision became final. The Veteran submitted a February 2016 private medical opinion which indicates that the Veteran has a diagnosis of PTSD which is causally related to military sexual trauma. Analysis The post-decision private medical opinion constitutes "new" evidence because it was not previously submitted to agency decisionmakers. The Board finds that the private physician's positive nexus opinion is "material" and therefore are sufficient to reopen the claim for service connection for PTSD. For evidence to be material in this matter it would have to be evidence that would tend to show that the Veteran's PTSD is causally related to service or service-connected conditions. 38 C.F.R. § 3.156(a). The new evidence suggests that the Veteran's PTSD is causally related to his military sexual trauma. Therefore, the additional evidence received is both new and material, and the claim for service connection for PTSD may be reopened. 38 U.S.C. § 5108. 2. Service connection is granted for an acquired mental health disorder, to include PTSD and depression. Legal Criteria Service connection may be granted for a disability due to a disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. To substantiate a claim of service connection there must be evidence of: (1) a present disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Factual Background As indicated above, the Veteran submitted a February 2016 private medical opinion which indicates that the Veteran has a diagnosis of PTSD which is causally related to his military sexual trauma. The physician explained that the Veteran has been faithful in attending his appointments and adhering to the treatment plan but continues to experience significant PTSD symptoms related to his military sexual trauma and sequelae, as well as his military experience in the honors squad and burial detail. The physician further explained that the number and severity of symptoms experienced by the Veteran affect his quality of life and extend to his relationship with his spouse. At a March 2016 medical treatment, the attending physician explained that the Veteran continues to experience constant military sexual trauma-related intrusive thoughts, nightmares, flashbacks, hypervigilance, trouble sleeping, anger and anxiety. The physician also explained that the Veteran reported struggling with depression, being short-tempered and angry outbursts towards his spouse. The Veteran submitted a May 2019 medical opinion from his physician who opined that it was more likely than not that the Veteran's PTSD is causally related to his military service. As a rationale, the physician explained that the Veteran reported that he served burial detail for over two years and that according to the criteria in the DSM-5, performing these types of duties consistently can be traumatizing to the individual. The physician further explained that the Veteran reported being subject to sexual harassment by a male soldier who eventually became his superior. The physician opined that it is highly likely that the combination of the repeated emotional stress of attending funerals for two years is a primary cause for the Veteran's PTSD. The physician further opined that the addition of the military sexual trauma adds to the intensity of the disorder. The Veteran submitted buddy statements from his fellow servicemembers who reported that the Veteran confided in them about experiencing sexual harassment and bullying during service. They further explained that the Veteran reported to them that these incidents affect his whole life including his relationship with his wife and children. See buddy statements. The Veteran also submitted a buddy statement from a fellow servicemember who verified that they served with the Veteran on the Burial Detail Honor Guard. Analysis The Board finds that the evidence of record indicates that the Veteran has a diagnosis of an acquired psychiatric disorder. Specifically, a February 2016 medical treatment note indicates that the Veteran was diagnosed with PTSD. The Board also finds that the Veteran and his fellow servicemembers competent to credible to report the lay-observable events that the Veteran confided in them about the military sexual trauma and that he served on the Burial Detail Honor Guard. Turning to the question of whether there is a nexus, or causal link, between the current shown disability and service, the Board finds that the probative evidence of record supports a finding that the Veteran's acquired psychiatric disorder is causally related to his service. The Board assigns probative value to the February 2016 and May 2019 examiners' opinions because they supported their opinions with rationales. Given this, and the fact that there is no negative opinion of record, the Board finds that the preponderance of the evidence is in favor of a finding that the Veteran's acquired psychiatric disorder is causally related to service. Accordingly, service connection for an acquired psychiatric disorder is granted. 3. A separate initial 10 percent rating is granted for a painful scar. 4. An initial compensable rating is denied for service-connected scars s/p inguinal hernia repair. These claims will be addressed together because the outcomes rely on substantially similar facts. Legal Criteria Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. An April 2016 rating decision awarded a noncompensable rating as of November 15, 2015, for a scar resulting from an inguinal hernia repair, which is evaluated pursuant to DC 7802. In this regard, DC 7802 pertains to burn scars or scars due to other causes not of the head, face, or neck that are superficial and nonlinear. Under this Diagnostic Code, a 10 percent rating is assigned when the scar(s) cover an area or areas of 144 square inches (929 sq. cm) or greater. Note (1) to this Diagnostic Code states that a superficial scar is one not associated with underlying soft tissue damage. Diagnostic Code 7804 provides that one or two scars that are unstable or painful warrant a 10 percent evaluation; three or four scars that are unstable or painful warrant a 20 percent rating; and five or more scars that are unstable or painful warrant a 30 percent rating. An "unstable" scar is defined as one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note (1). If one or more scars are both unstable and painful, 10 percent will be added to the evaluation that is based on the total number of unstable or painful scars. Id. at Note (2). Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable. Id. at Note (3). Factual Background A March 2016 VA examiner indicated that the Veteran has bilateral inguinal hernia scars (12 cm long on the left, 9 cm long on the right) and that both linear and stable and that these scars were not painful or unstable. The Veteran testified at the Board hearing that his scar is painful to the point that he has to undo the button on his jeans because it hurts the scar when he bends over. The Veteran testified that he has to wear suspenders to keep the waistband of his clothing loose because the clothing causes painful chafing on the scar. Analysis The Board finds the Veteran competent and credible to testify to the fact that his scar is painful because such a symptom is readily observable to a lay person. See Layno supra. Accordingly, the Board finds that a separate 10 percent rating for a painful scar under DC 7804 is warranted. Because the record does not suggest that the Veteran has three or four painful scars, a higher, 20 percent rating under DC 7804 is not warranted. However, the Board finds that an initial compensable rating under DC 7802 (based on the size of the scars) is not warranted. According to the findings of the March 2016 VA examination, the Veteran's linear scars measured 12 cm long on the left side and 9 cm long on the right. Because the area of the Veteran's scars does not measure 144 square inches, the Board finds that the Veteran does not meet the criteria for an initial compensable rating under this Diagnostic Code. 5. An effective date prior to November 5, 2015 is denied for service-connected scars resulting from an inguinal hernia repair. Legal Criteria The effective date for a grant of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later date. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The only exception to this rule is the following situation. Once a decision establishing an effective date becomes final, the only way that that decision can be revised (that is, changed) is if VA finds that the decision was based on "clear and unmistakable error" (CUE), because any other result would vitiate the rule of finality. Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006). "Clear and unmistakable error" has a very specific legal definition and a motion alleging CUE must include a specific explanation about what Accordingly, by law, there can be no valid "freestanding" claim for an earlier effective date. Id. (That is, a Veteran must appeal any decision that establishes an effective date within the appeal period for that decision and, by law, cannot initiate an appeal of such a decision after the appeal period is over.) Factual Background In its April 2016 rating decision, the RO indicated that it received the Veteran's application for service connection for scars resulting from an inguinal hernia repair on November 5, 2015. The record does not suggest that the Veteran filed a claim, an informal claim, or expressed a written intent to file a service connection claim prior to the date of the RO receiving the Veteran's claim. [CONTINUED ON NEXT PAGE] Analysis Because the Veteran did not file a claim, an informal claim, or express a written intent to file a service connection claim prior to the date of the RO receiving the Veteran's claim, the Board finds that the accurate effective date is November 5, 2015. Therefore, the claim is without legal merit and earlier effective dates may not be granted. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.