Citation Nr: 21041806 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-50 070A DATE: July 10, 2021 ORDER New and material evidence HAS BEEN submitted sufficient to reopen a claim for service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depressive disorder. Entitlement to service connection for an acquired psychiatric disability, to include PTSD and depressive disorder, is DENIED. FINDINGS OF FACT 1. A March 2010 rating decision denied the Veteran's claim for service connection for PTSD and depression; the Veteran was notified of the decision and apprised of his right to appeal, but he did not appeal in a timely fashion or submit new and material evidence within one year of the notice of decision. 2. The evidence received since the March 2010 rating decision, for the Veteran's claim for service connection for an acquired psychiatric disability, is neither cumulative nor repetitive of facts that were previously considered. 3. The weight of the evidence is against a finding that the Veteran's acquired psychiatric disorder either began during, or was otherwise caused by, his military service. CONCLUSIONS OF LAW 1. The March 2010 rating decision that denied the Veteran's claim for service connection for PTSD and depression is final. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1103 (2020). 2. Following the March 2010 rating decision, there has been additional relevant evidence received that is new and material for the purpose of reopening the Veteran's claim for service connection for an acquired psychiatric disability. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from May 1968 to May 1971. The Veteran was the recipient of the Vietnam Service Medal and a Vietnam Campaign Medal. The Veteran's certificate of release from active duty (DD214) and military personnel records (MPRs) reflect that he served as a cook in an Army Medical Battalion. Unfortunately, the Veteran passed away in June 2019. In August 2019, the agency of original jurisdiction (AOJ) recognized the Veteran's spouse as a substitute Appellant for the claim for service connection for an acquired psychiatric disability. CLAIM TO REOPEN Under 38 U.S.C. § 5108, VA may reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial decision on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). "New evidence" means evidence not previously submitted to agency decision makers, and "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. 38 C.F.R. § 3.156 (a) (2015). To warrant reopening, the new evidence must not be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court held that the phrase "raise a reasonable possibility of substantiating the claim" does not create a third element for new and material evidence; rather, it provides guidance as to whether submitted evidence meets the new and material requirements. Id. The Court emphasized that this standard is a "low threshold" for reopening. By way of example, the Court explained that if the newly submitted evidence would likely trigger entitlement to a VA medical nexus examination were the claim reopened, the new evidence would raise a reasonable possibility of substantiating the claim. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently false or untrue or, if the evidence is in the form of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. New and material evidence has been submitted sufficient to reopen a claim for service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depressive disorder. In March 2010, the agency of original jurisdiction (AOJ) issued a rating decision. Therein, the AOJ denied the Veteran's claim for service connection for PTSD and depression. The AOJ noted that the Veteran's outpatient treatment records indicated that the Veteran was being treated for PTSD. The AOJ denied the claim because the Veteran had not submitted information necessary to verify an in-service stressor incident. In April 2021, the Appellant supplied sworn testimony to the undersigned Veterans' Law Judge (VLJ). The Appellant testified that the Veteran relayed the following: "(p)articular things that he saw when people were getting killed and other things." The Board concludes that, since the finalized March 2010 rating decision, new and material evidence has been added to the record. Specifically, the Appellant's April 2021 testimony supports the conclusion that the Veteran endured an in-service stressor incident or incidents. Accordingly, the Appellant's claim for service connection for an acquired psychiatric disability is reopened. 2. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depressive disorder, is denied. In April 2013, the Veteran submitted a VA Form 21-526b. Therein, the Veteran renewed his claim for service connection for an acquired psychiatric disability. Service connection may be established for disability resulting from personal injury suffered or disease contracted while in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In each case where service connection for any disability is sought, due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by the Veteran's service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In March 2010, a Memorandum from the Join Services Records Research Center (JSRRC) was associated with the claims file. Therein, it was reported that, "the information needed to verify that the Veteran experienced an in-service stressful event has not been furnished by the Veteran." In March 2014, the Veteran underwent a VA examination that addressed the nature and etiology of currently endured acquired psychiatric disorders. At that time, the examiner noted a diagnosis for Other Specified Depressive Disorder. The examiner relayed that, prior to the military, the Veteran witnessed abuse, homicide, and drug abuse in a "rough neighborhood." The Veteran reported that he received a minor stab wound during a confrontation with "some cowboys' in a village of the Republic of Vietnam. For identified stressors, the Veteran reported pre- and post-service acquired psychiatric events, to include homicide, assault, and muggings. The Veteran reported current nightmares about "home invasions and shootings." The VA examiner relayed that, "(h)e stated these started a few months ago, and noted 'why this is going on I don't know.' It is within the realm of possibility that these could have a relationship to pre- and/or post-military traumatic events; however, his presentation is not consistent with PTSD. He stated he is 'always stressed out, agitated, irritated, always tired . . ..' He noted that he has a 'distrust for folks that stemmed from the military.' When queried, he attributed the distrust from feeling that superior officers were racist and treated him unfairly. As an example, he cited 'burning feces' and other undesirable tasks. It is equally possible that veteran's mistrust is at least partly related to his pre- and post-military traumas, and growing up chronically feeling unsafe as he noted in the interview. Chronic fatigue may be attributable to medical issues, including sleep apnea, and/or the assigned mental disorder. He reported frequent low mood, feeling 'melancholy,' having low motivation at times." The examiner opined that, "(t)he veteran does not meet criteria for PTSD related to his military service. His current diagnostic presentation is depressive. Given the veteran's pre-and post-military experiences, it is less likely than not that the depression is uniquely related to military service. It is less likely than not that military service permanently exacerbated his diagnosed mental disorder." In May 2015, an Initial Intake Report was generated at the New Orleans VAMC. At that time, the Veteran reported that he had witnessed "bodies with missing parts, all torn up" during service. The Veteran also reported "being shot at" during service in the Republic of Vietnam. The provider noted a DSM-5 diagnosis for Other Specified Depressive Disorder. In August 2017, a Mental Health Note was generated at the New Orleans VAMC. At that time, the physician relayed that, "Veteran reported multiple non-military events that met requirements for Criterion A Stressor; however, he attributes many of symptoms he exhibits to his current living situation and medical concerns." In October 2017, a different VA physician reported diagnoses for unspecified Depressive and Anxiety Disorders. That provider did not address the etiology for the supplied diagnoses. In October 2017, the Veteran submitted a VA Form 9. Therein, the Veteran posited that, "I was treated during service for mental treatment. I served in a medical unit in Vietnam and clearly had exposure to hostile military." In April 2019, the Veteran's service treatment records (STRs) were associated with the claims file. In March 1968, the Veteran underwent a clinical examination at entrance into the U.S. Army. At that time, the military examiner noted a "normal" psychiatric presentation. The military examiner did not note or report a pre-service history for an acquired psychiatric disorder. Moreover, the Veteran reported that he had never had trouble sleeping, nightmares, depression, excessive worry, or nervous trouble of any sort. In March 1971, the Veteran underwent a clinical examination at separation from the U.S. Army. At that time, the military examiner noted a "normal" psychiatric presentation. The military examiner did not note a history for an acquired psychiatric disorder. Moreover, the Veteran reported that he had never had trouble sleeping, nightmares, depression, excessive worry, or nervous trouble of any sort. Despite the Veteran's reported on his October 2017 that he was received mental health treatment in service, the Board observes that the STRs do not reflect that the Veteran was seen or treated for the symptoms of an acquired psychiatric disorder during active duty service. Additionally, after deliberate review, the Board notes that the STRs do not reflect that the Veteran was treated for a knife / stab wound during service in the U.S. Army. While the Veteran's service separation examination report notes that the examination revealed that the Veteran had tattoos, the record does not document that he had any scars as a residual of a stab wound. In April 2021, the Appellant supplied sworn testimony to the undersigned VLJ. The Appellant testified that the Veteran relayed the following: "(p)articular things that he saw when people were getting killed and other things." During the claim period, the Board notes that the Veteran reported that he endured a stab wound from some "cowboys" in the Republic of Vietnam during the March 2014 VA examination. After review of the STRs, and the medical treatment reports in the claims file, the Board finds that the Veteran's report of an in-service stabbing in the Republic of Vietnam is not credible given the lack of complaints, treatment, or diagnosis during service and the lack of identified residual scarring during his separation physical examination. The Board also notes that the March 2014 VA examiner's opinion raises the presumption of soundness at / during the Veteran's enlistment. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Under these provisions, when no preexisting condition is noted on an entrance examination, the Board must generally presume that the Veteran was in sound condition when they joined the service. After deliberate review of the claims file, the Board finds that the Veteran's STRs and medical records do not identify a pre-existing acquired psychiatric disorder; consequently, the Board presumes that the Veteran was psychologically sound at entrance into active duty in the U.S. Army. See Smith, 24 Vet. App. at 45. The Board notes that the Veteran was diagnosed with Other Specified Depressive Disorder during the claim period. The Board also notes that the Veteran served in the Republic of Vietnam, with receipt of a Republic of Vietnam Campaign ribbon, and during service in a medical Battalion. Consequently, the Board finds that the Veteran endured an in-service stressor and, therefore, the first and second requisite elements for service connection have been substantiated. See Hickson, 12 Vet. App. at 253. On numerous occasions during the claim period, the Veteran's treatment records were associated with the claims file, to include those generated at the New Orleans and Montgomery VA Medical Clinics. After review, the Board notes that the Veteran was diagnosed with, and treated for, an acquired psychiatric disorder. However, the medical records do not identify a nexus between an acquired psychiatric disorder and the Veteran's military service. The Board finds that the evidence of record does not competently identify a nexus between the Veteran's diagnosed acquired psychiatric disability and an in-service injury event, illness, and/or injury. Consequently, the third and final requite element for direct service connection for an acquired psychiatric disability has not been substantiated. See id. Ultimately, the Board concludes that the preponderance of the evidence stands counter to the Appellant's claim for service connection for an acquired psychiatric disability. Since the preponderance of the evidence is against this claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Appellant's claim for service connection for an acquired psychiatric disability must be denied, because the preponderance of the evidence weighs against her claim. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.