Citation Nr: 22019907 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 19-03 421A DATE: April 3, 2022 ORDER The petition to reopen the previously denied claim for service connection for an acquired psychiatric disorder (previously denied as phobias) is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, other than adjustment disorder, is remanded. FINDING OF FACT An unappealed September 2015 rating decision denied entitlement to service connection for phobias; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW The September 2015 rating decision denying the claim for service connection for phobias is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 2002 to July 2003, and from December 2003 to February 2005. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. Although the Veteran submitted a claim for posttraumatic stress disorder (PTSD), the Board has recharacterized the issue as a claim for an acquired psychiatric disorder, generally. The Veteran cannot be required to know whether the symptoms he is claiming service connection for are related to PTSD or another psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder (previously denied as phobias). The Board concludes that the September 2015 rating decision denying the claim for service connection for phobias is final; and that new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156(a), (b), 20.1103. Generally, a claim that has been denied in an unappealed RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). Initially, an April 2015 rating decision denied service connection for phobias because the evidence of record did not show that the Veteran's disability had its onset in service or was caused by an in-service injury or disease. The Veteran, subsequently, submitted a request for reconsideration and sent evidence in support of the claim. A September 2015 rating decision continued denial for service connection for phobias because the evidence submitted was not new and material. VA notified the Veteran of this decision in a September 2015 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. Evidence associated with the claims file since the prior final disallowance includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. In this regard, there is evidence reflecting that the Veteran has PTSD, and it is related to service. See Medical Treatment Record-Non-Government Facility (September 2018). This evidence was not previously considered by decision-makers and tends to support the Veteran's theory of entitlement. For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Therefore, as a prior evidentiary defect has been cured, the recent evidentiary submission is considered new and material. Accordingly, the petition to reopen the claim is granted. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, other than adjustment disorder, is remanded. The Veteran, and his representative, contends that his current acquired psychiatric disorder stems from a February 4, 2012, to February 18, 2012, period of active duty for training (ACDUTRA). In this regard, the Veteran testified to incurring in-service injury, described as a turbulence event while in an airplane heading to Paris, France. See Hearing Transcript at 4 (December 2020). At the Board hearing, the Veteran's representative explicitly stated that they were not pursuing the theory of entitlement to service connection for adjustment disorder based on aggravation of preexisting adjustment disorder. Id. at 10. For reasons explained below, the Board finds that remand is necessary. It is noted that when a claim for service connection is based only on a period of ACDUTRA, there must be evidence that the claimant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. See 38 U.S.C. §§ 101(2), (22), (24); 38 C.F.R. § 3.6(a); Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (citing Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995)). In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, air, or space service," and the claimant would not qualify as a "veteran" for that period of ACDUTRA or inactive duty training (INACDUTRA) service alone. 38 U.S.C. § 101(2), (24); see Acciola, 22 Vet. App. at 324. Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA unless "veteran" status is attained during those periods. Paulson, 7 Vet. App. at 470. As to the presumption of soundness, it does not apply to a claimant who had only ACDUTRA service and who is not otherwise a veteran. Id. Even for veterans who have achieved "veteran" status through a prior period of active service and now claim a disability incurred only during a later period of ACDUTRA, the presumption of soundness applies only when the veteran has been "examined, accepted, and enrolled for service" and where that examination revealed no "defects, infirmities, or disorders." Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). In other words, there must be an entrance examination prior to the period of ACDUTRA in which the claimant claims the disease or injury occurred; otherwise, the presumption of soundness does not attach. Id. at 45-46. Moreover, if the claimant has not achieved "veteran" status through a prior period of service, then the presumption of soundness does not attach to a period of ACDUTRA or INACDUTRA, no matter if an examination occurred prior to the period of ACDUTRA or INACDUTRA. Id. With respect to a claim for aggravation of a preexisting condition during a period of ACDUTRA or INACDUTRA, in order for a claimant to establish "veteran" status, the claimant must demonstrate both elements of aggravation (1) that the preexisting disability permanent worsened in service, and (2) that such worsening was beyond the natural progression of the disease (i.e., such worsening was caused by service). Donnellan, 24 Vet. App. at 174. In such instances, the claimant is not entitled to the easier presumption of aggravation standard. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). The standard of proof for the claimant is the "benefit of the doubt" standard; thus, the claimant must only show that there is an approximate balance of positive and negative evidence to prevail on this matter. Donnellan, 24 Vet. App. at 174. There is no shifting burden to VA as there is when the presumptions of soundness and aggravation apply. Id. at 175. Thus, in consideration of the above, the appeal turns on whether the Veteran became disabled as a result of a disease or injury incurred or aggravated in the February 4, 2012, to February 18, 2012, period of ACDUTRA. Initially, the record raises a question as to whether the Veteran had an acquired psychiatric disorder that preexisted the February 4, 2012, to February 18, 2012, period of ACDUTRA. In this regard, the record does not reveal that the Veteran underwent an examination prior to entering the period of ACDUTRA during which the injury or disease occurred for the presumption of soundness to apply. The Veteran further has not raised the argument that he underwent an examination prior to entering the February 4, 2012, to February 18, 2012, period of ACDUTRA. Additionally, at the Board hearing the Veteran testified to being diagnosed with adjustment disorder prior to service. See Hearing Transcript at 8 (revealing testimony to the effect that the Veteran has been seen for psychiatric symptoms since the age of 12). Accordingly, the Veteran is not presumed sound upon entry into the February 4, 2012, to February 18, 2012, period of ACDUTRA, and the burden to establish incurrence or aggravation in service remains with the Veteran. Turning to the evidence, the record reveals competent evidence of a current disability or persistent or recurrent symptoms of a disability. In this regard, the record shows that the Veteran has been diagnosed for an acquired psychiatric disorder, to include situational phobia and PTSD. Next, the record reflects competent, credible evidence of in-service injury, described as a turbulence event while in an airplane heading to Paris, France, during the February 4, 2012, to February 18, 2012, period of ACDUTRA. In this regard, the Veteran competently and credibly testified to in-service injury, in which, he experienced a turbulence event while in an airplane. Although the Veteran's service treatment records (STRs) or military personnel records do not show alleged in-service injury, the Board finds that the absence of documentation cannot be used against the Veteran's credibility alone since the occurrence of such would not ordinarily be recorded. The Board, therefore, cannot legitimately infer from its absence that it did not occur. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible). Therefore, the Board finds competent, credible evidence of in-service injury, described as experiencing a turbulence event while in an airplane. The Board observes that the record contains a July 2013 DA Form 2173 (Statement of Medical Examination and Duty Status) that shows the Veteran was on ACDUTRA at the time of the turbulence event. The Board, however, finds the evidence not credible because it is incomplete and inaccurate. First, section I of the form, notes that the Veteran's attending physician found that he "was not under the influence of" alcohol or drugs at the time of alleged in-service injury. This finding is, however, contradicted by the Veteran's Board testimony. See Hearing Transcript at 4 (December 2020) (revealing testimony, to the effect, that the Veteran was under the influence of Xanax during the period of ACDUTRA). It is noted that Alprazolam can cause, among other things, confusion, altered mental status, disinhibition, disturbance in attention, equilibrium disturbance, and akathisia. See Alprazolam: Drug information, UPTODATE, https://www.uptodate.com/contents/alprazolam-drug-information?search=xanax&source=panel_search_result&selectedTitle=1~122&usage_type=panel&kp_tab=drug_general&display_rank=1#F132006 (last visited Mar. 28, 2022). Further, section II of the form was not completed by the unit commander or unit advisor; and although the form was signed, it is missing a date of signature. Thus, the Board finds the July 2013 DA Form 2173 not credible because it is incomplete and inaccurate. VA medical opinion, dated in November 2017, reflects the conclusion that the Veteran's situational phobia is more likely than not related to his preexisting acquired psychiatric disorder and in-service injury. The Board finds the medical opinion inadequate for adjudicative purposes. In this instance, the opinion is inadequate because it appears that the clinician conflated the Veteran's preexisting acquired psychiatric disorder and in-service injury in reaching the conclusion. Indeed, in support of the conclusion, the opinion noted that the Veteran "had an extensive psychiatric history" prior to entering his period of ACDUTRA. It further notes that his preexisting "psychiatric history most likely made him vulnerable to the stressor of his work . . . ." Thus, the opinion's usage and discussion of these facts makes it too indefinite to provide the degree of certainty required for medical nexus evidence. Given the above, the Board finds that it may not rely upon the VA medical opinion in its present form and, therefore, finds the medical evidence is inadequate for adjudicative purposes. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, remand is warranted for an addendum medical opinion. Next, the Board finds that the agency of original jurisdiction (AOJ) did not adequately assist the Veteran in developing and attempting to verify the claim in-service stressor. 38 C.F.R. § 3.304. If a claim for PTSD is based on a noncombat stressor, VA's duty to assist requires it to attempt to corroborate a veteran's alleged stressors or, if the claimant did not provide specific enough stressor information, to request more detailed information. Cohen v. Brown, 10 Vet. App. 128, 148-49 (1997); Zarycki v. Brown, 6 Vet. App. 91, 99-100 (1993). Here, the AOJ concluded that a turbulent flight was not a stressor that could be verified by the Joint Service Records Research Center (JSRRC). The verification of a claimed stressor, however, is not limited to the JSRRC. Indeed, the verification of a stressor may be obtained from other appropriate records repositories. Further, the record does not reveal that the AOJ requested more detailed information from the Veteran. Therefore, the Board finds the AOJ efforts to confirm the alleged stressor event are incomplete, and in accordance with VA's duty to assist, the AOJ should undertake additional efforts to obtain any outstanding official records which may assist in corroborating the Veteran's assertions, including submitting the stressor information to appropriate records repositories in an attempt to corroborate the Veteran's claimed stressor. Also, the Board observes that the record indicates that there is reasonably identified relevant outstanding non-VA treatment records. Specifically, psychiatric report, dated in July 2018, reveals that the Veteran has been receiving psychiatric treatment from Dr. Deutsch since the age of six years old. The record, however, does not reveal that VA has attempted to obtain private treatment records from this provider, to include asking the Veteran to submit an authorization for release of the private treatment records. As these treatment records, if obtained, could bear on the outcome of the Veteran's claim, specific efforts should be made to procure them. See 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). Thus, remand is also required to afford the Veteran an opportunity to authorize release of relevant non-VA treatment records to VA. Lastly, the Board notes that the record reveals private nexus evidence. In this regard, private medical opinion, dated in October 2013, reflects the conclusion that the Veteran's phobic symptoms were likely caused by military service. The Board finds the private medical opinion inadequate to support the claim. Hayes v. Brown, 5 Vet. App. 60, 69 (1993). Here, initially, the Board observes that the medical opinion is not shown to be based on an accurate factual premise with consideration of the Veteran's complete medical history. Although the opinion notes and discusses the Veteran's past psychiatric medical history, it does not discuss or even mention highly relevant medical evidence reflecting that the Veteran denied having, or ever having, psychiatric symptoms following his period of ACDUTRA. For instance, STRs, dated in March 2012, overall, show that the Veteran denied, among other things, having symptoms of feeling down, depressed, or hopelessness. These STRs go against a finding in the opinion that during the flight, the Veteran "subsequently developed phobic symptoms." Although the claims file is not a "magical or talismanic set of documents," Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008), it provides critical pieces of information that can lend credence to the opinion. Id. at 304. The opinion, in this case, does not dispute or even mention the above critical findings in the rationale. The absence of a meaningful discussion of this evidence in the rationale does not show awareness of seemingly relevant facts and, consequently, it will be erroneous for the Board to rely on an opinion that is not shown to be based on an accurate factual premise with consideration of the Veteran's prior medical history. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Aside from the above explicit findings, in remanding this matter, the Board makes no further finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. Specifically, as the AOJ's efforts to confirm the alleged stressor event have been found to be inadequate, the Board defers making a credibility finding on the alleged in-service stressor until after all necessary development is accomplished. In this regard, 38 C.F.R. § 3.304(f) precludes use of "after-the-fact medical nexus evidence" to establish "actual" occurrence of an in-service stressor. Moreau v. Brown, 9 Vet. App. 389, 394-96 (1996). Further, the requirement in 38 C.F.R. § 3.304(f) for "credible supporting evidence" means that a veteran's testimony, by itself, could not, as a matter of law, establish the occurrence of a noncombat stressor. Id. Here, it is not argued, and the record does not reflect, a combat-related stressor or combatant status and, thus, the Veteran's lay statements, by themselves, cannot establish the occurrence of his noncombat stressor. Moreover, the Veteran has not argued, and the record does not reflect, that his PTSD claim is based on an in-service personal assault. See 38 C.F.R. § 3.304(f)(5). The matter is REMANDED for the following actions: 1. Attempt to corroborate the Veteran's in-service stressor(s), including stressor related to turbulent flight. If more details are needed, contact the Veteran to request the information. If the claimed stressor cannot be verified, then issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify the in-service stressor(s). 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for signs and symptoms for his acquired psychiatric disorder, to include from Dr. Deutsch. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Obtain all VA treatment records dated from November 2017 to the Present. 4. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's acquired psychiatric disorder, to include PTSD. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with any acquired psychiatric disorder. The clinician must opine on: Preexisting Acquired Psychiatric Disorder (a) Whether any acquired psychiatric disorder, other than adjustment disorder, at least as likely as not preexisted the Veteran's February 4, 2012, to February 18, 2012, period of ACDUTRA. Explain. (b) If so, whether it was at least as likely as not aggravated by service or whether it is at least as likely as not that any increase was due to the natural progress. Consider and expressly address conceded in-service injury, described by the Veteran as experiencing a turbulence event while in an airplane. Explain. Non-Preexisting Acquired Psychiatric Disorder (c) For any non-preexisting acquired psychiatric disorder, opine on whether it is at least as likely as not had its onset in during the February 4, 2012, to February 18, 2012, period of ACDUTRA or is related to an in-service injury, event, or disease. Consider and expressly address conceded in-service injury, described by the Veteran as experiencing a turbulence event while in an airplane. Explain. PTSD (d) Whether it is at least as likely as not that the Veteran has, or has had, PTSD at any time during the pendency of the claim or recent to the filing of the claim. Attempt to reconcile, or account for, medical evidence showing negative and positive findings for PTSD. Explain. (e) If the Veteran is diagnosed with PTSD, the clinician must explain how the diagnostic criteria are met and opine on whether it is at least as likely as not related to any conceded in-service stressor. Explain. 5. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 6. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.