Citation Nr: 22017899 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 18-02 610 DATE: March 26, 2022 ORDER New and material evidence has been submitted sufficient to reopen a claim for service connection for an acquired psychiatric disability. Entitlement to service connection for an acquired psychiatric disability is granted. FINDINGS OF FACT 1. An August 2015 rating decision confirmed and continued a September 2010 final denial of the Veteran's claim for service connection for an acquired psychiatric disability. 2. The evidence received since the August 2015 rating decision, for the Veteran's entitlement claim for service connection for an acquired psychiatric disability, is neither cumulative nor repetitive of facts that were previously considered by the Board. 3. The evidence is in relative equipoise as to whether the Veteran's currently diagnosed acquired psychiatric anxiety disorder resulted from service in the United States Army. CONCLUSIONS OF LAW 1. In an August 2015 rating decision, the AOJ's 2010 final denial of the Veteran's claim for service connection for an acquired psychiatric disability was confirmed and continued. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1103 (2020). 2. Following the August 2015 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 been met. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from February 1972 to January 1975. 1. New and material evidence has been submitted sufficient to reopen a claim for entitlement to service connection for an acquired psychiatric disability. In August 2015, the agency of original jurisdiction (AOJ) issued a rating decision that confirmed and continued a previous final, 2010 denial of the Veteran's claim for service connection for an acquired psychiatric disability. The AOJ relayed that, "(w)hile you submitted positive medical evidence to support your claim, we found other medical evidence more persuasive because it is better supported in its rationale and conclusions. Two VA compensation examinations have concluded you do not meet the criteria for a formal diagnosis of PTSD . . .." 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). In January 2013, the Veteran submitted a VA Form 21-0781. Therein, the Veteran vividly described an incident, in Germany during the summer of 1974, were another soldier severely injured his hand while working with / on explosive simulators, which unexpectantly exploded. In October 2013, a response from the Defense Personnel Records Information Retrieval System (DPRIS) was associated with the claims file. Therein, the Veteran's report of an explosion that occurred in Germany during the summer of 1974 was conceded. In November 2017, the AOJ issued a statement of the case (SOC). Therein, the AOJ found that new and material evidence had been submitted sufficient to reopen the Veteran's claim for service connection for an acquired psychiatric disability. Notwithstanding the AOJ's finding that new and material evidence has been received, the Board must independently determine whether new and material evidence has in fact been submitted in order to assume jurisdiction over the merits of this claim. See 38 U.S.C. § 7104 (b); Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In November 2021, the Veteran supplied sworn testimony to the undersigned Veterans' Law Judge (VLJ). At that time, the Veteran testified that he was standing over / behind a superior (Sergeant) that was dealing with explosive ordnance when it improperly detonated in Germany (in 1974). At this time, the Board concludes that new and material evidence has been added to the claims file after the AOJ's final denial of service connection for an acquired psychiatric disability in September 2010 and August 2015. Specifically, the October 2013 VA concession, regarding an incident where another Soldier was injured during an explosive incident with a simulator, is both new and material for the Veteran's service-connection claim. Moreover, the Veteran's November 2021 testimony, regarding the same incident, is new and material for this service-connection claim. Consequently, the Veteran's claim for service connection for an acquired psychiatric disability is now reopened. 2. Entitlement to service connection for an acquired psychiatric disability is granted. In January 2013, the Veteran submitted a VA Form 21-0781. Thereby, the Veteran requested to reopen a claim for service connection for a PTSD disability. The Veteran has formally claimed service connection for PTSD. In general, the Board will broadly characterize an acquired-psychiatric claim as a claim for any psychiatric disorder that is related to service, regardless of how the Veteran describes his specific diagnosis. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Board initially notes that service connection may be established for a 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). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise (with the Veteran prevailing in either event) or whether a preponderance of the evidence is against the claim (in which case the claim is denied). Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b). In November 2013, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured PTSD disability. The examiner reported that the Veteran did not meet the diagnostic criteria for PTSD at that time. The examiner did report current diagnoses for a depressive disorder and generalized anxiety disorder. At that time, the Veteran reported an in-service incident where he witnessed an explosion that damaged / burnt another soldier's hand. The examiner reported that the explosion incident did not satisfy Criterion A for a PTSD diagnosis and it was not related to fear of hostile military or terrorist activity. The examiner relayed that, "(the Veteran) may have some anxiety around this incident, however. He stated that he witnessed the injury, but then left the area because he was afraid, he would get into trouble just being there." In March 2015, a staff psychiatrist at the Topeka VA medical clinic (VAMC) generated a mental health notation. At that time, the provider relayed that the explosion witnessed by the Veteran in Germany satisfied the DSM-5 criteria for PTSD. The provider noted that the criteria were different between DSM-4 and DSM-5, which was the reason for the negative determination on a current PTSD diagnosis in November 2013. The provider noted current DSM-5 diagnoses for PTSD, recurrent depression, and unspecified anxiety. The examiner relayed that, "(the Veteran) is reminded daily of the incident on an almost-daily basis. He remains preoccupied with not knowing the outcome, his not preventing the incident feeling helpless to be able to do so, and for vacating the scene after the explosion happened." In July 2015, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured acquired psychiatric disability. The examiner reported that the Veteran did not meet the diagnostic criteria for PTSD. The examiner did report current diagnoses for a depressive disorder and generalized anxiety disorder. The examiner reported that the depressive disorder diagnosis was secondary to a medical condition, psoriatic arthritis. At that time, the Veteran reported an in-service incident where he witnessed the powder from a cut-open artillery shell explode and burn another soldier's hand. The examiner reported that explosion incident did not satisfy Criterion A for a PTSD diagnosis and it was not related to fear of hostile military or terrorist activity. The Board has deliberately reviewed the claims file. The Board notes that the Veteran is not currently service connected for any disabilities. Importantly, the Veteran was denied service connection for psoriatic arthritis in January 2009. Consequently, a Board analysis for secondary service connection for psoriatic arthritis is not warranted at this time. In November 2021, the Veteran supplied sworn testimony to the undersigned Veterans' Law Judge (VLJ). At that time, the Veteran testified that, in 1974, he was standing over / behind another Soldier that was dealing with explosive ordnance when it improperly detonated (in Germany). On numerous occasions during the claim period, the Veteran's treatment records have been associated with the claims file, to include notations made at the Topeka VA Medical Center (VAMC), Kansas City VAMC, and Leavenworth VAMC. The Board has deliberately and extensively reviewed the medical treatment records. The Board notes that the Veteran maintains current diagnoses for PTSD, depression, and anxiety. The Board also notes that the explosion incident (in Germany during the summer of 1974) was conceded by VA and DPRIS in October 2013. Consequently, the first two requisite elements for direct service connection have been substantiated. See Hickson, 12 Vet. App. at 253. With regard to the third element, the record contains conflicting evidence regarding the relationship of the Veteran's current psychiatric disability and his military service. The evidence against the claim includes the opinion of the July 2015 VA examination. With respect to the evidence for the claim, the November 2013 VA examiner opined that the Veteran may have anxiety related to his inservice stressor. While this opinion is speculative and insufficient on its own to establish service connection, the opinion is consistent with the March 2015 opinion from a VA staff psychiatrist that the Veteran is reminded of the of the in-service explosion incident endured by a fellow Soldier (and witnessed by the Veteran) on an almost daily basis. In determining whether entitlement is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). In light of the conflicting evidence of record, the Board concludes that the evidence is in relative equipoise for the Veteran's claim for service connection for an acquired psychiatric disability. Since the evidence is in relative equipoise, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are applicable. Consequently, the Veteran's claim for service connection for an acquired psychiatric disability is granted. 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.