Citation Nr: 1427053 Decision Date: 06/16/14 Archive Date: 06/26/14 DOCKET NO. 09-40 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a service connection claim for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. 3. Entitlement to service connection for an acquired psychiatric disability, other than PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, that declined to reopen a previously denied service connection claim for PTSD. During the pendency of the appeal, the RO, in a December 2013 supplemental statement of the case, reopened the service connection claim for PTSD, and ultimately denied the claim on the merits. Regardless of the RO's actions however, the Board must still determine de novo whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Regarding the characterization of the claim, although the Veteran initially submitted a claim of service connection for PTSD, he was later diagnosed with an anxiety disorder, not otherwise specified (NOS) during a 2013 VA examination. Below, the Board reopens the PTSD claim, and adjudicates the underlying PTSD claim, but also the issue of entitlement to service connection for an acquired psychiatric disability, other than PTSD, to contemplate the Veteran's psychiatric symptoms, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a claim is determined by the claimant's description of the claim, the symptoms described, and the information submitted or developed in support of the claim). FINDINGS OF FACT 1. In an unappealed February 2003 rating decision, the RO denied the Veteran's original service connection claim for PTSD. 2. The evidence received since the February 2003 rating decision relates to unestablished facts of whether there is evidence of a current psychiatric disability and a corroborated in-service stressor. 3. The most probative evidence establishes that the Veteran does not meet the criteria for a current diagnosis of PTSD in accordance within the applicable VA regulation. 4. The competent medical evidence relates the Veteran's current anxiety disorder, NOS, to his military service. CONCLUSIONS OF LAW 1. The February 2003 rating decision denying service connection for PTSD is final. 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 2. New and material evidence has been received to reopen the service connection claim for PTSD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. The criteria for establishing entitlement to service connection for PTSD are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f)(3) (2013). 4. The criteria for establishing entitlement to service connection for an anxiety disorder, NOS, are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Below, the Board grants service connection for an anxiety disorder; therefore, a discussion as to whether the requirements of VCAA have been satisfied with respect to the claim for a psychiatric disorder, other than PTSD, is not necessary. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition, without deciding whether the notice and development requirements of VCAA have been satisfied with respect to petition to reopen the service connection claim for PTSD, the Board concludes that there is no prejudice in the Board adjudicating that portion of the case because the Board is taking action favorable to the Veteran by reopening the service connection claim for PTSD. Ultimately however, the Board denies the underlying service connection claim for PTSD on the merits. Concerning the PTSD claim, the Veteran was provided a VCAA notice letter in April 2008. The letter notified the Veteran of what information and evidence must be submitted to substantiate a claim for service connection, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. He was also advised as to how disability ratings and effective dates are assigned. See Dingess, supra. He has therefore received all required notice concerning his claim. VA's duty to assist includes assisting him in obtaining his service treatment records (STRs) and pertinent post-service treatment records (VA) and providing an examination when needed to assist in deciding the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the claims file contains the Veteran's STRs, VA medical evidence, and a hearing transcript. All necessary development has been accomplished to the extent possible and, therefore, appellate review of this claim may proceed without unduly prejudicing the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained and that is obtainable. He has received all essential notice, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). VA's duties to notify and assist him with his claim have been satisfied. As indicated, the Veteran was provided with a videoconference Board hearing in 2014 before the undersigned VLJ. Under 38 C.F.R. § 3.103(c)(2) (2013), it is the responsibility of the hearing officer to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer's duties under section 3.103(c)(2) are two-fold. First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id., at 496. Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id., at 496-97. During the 2014 videoconference Board hearing, the undersigned VLJ informed the Veteran of the issue on appeal in this case and elicited testimony from the Veteran regarding his specific contentions. The Veteran did not raise any new issues pertaining to the claim at the hearing. See Bryant, 23 Vet. App. at 497-98. In addition, the Veteran has not alleged that there were any deficiencies in the Board hearing related to the hearing officer's duties under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. Moreover, even assuming that there was such a deficiency, the Board finds that it did not prejudice the Veteran's claim. In Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that the issue was developed by VA, and there was no indication that the Veteran had any additional information to submit. The Board finds that any deficiency in the Board videoconference hearing was non-prejudicial. See id. Moreover, as already stated, the Board does not find any deficiency related to the hearing officer's duties under Bryant, and none has been alleged. Petition to Reopen The RO denied the Veteran's original service connection claim for PTSD in a February 2003 rating decision because there was no evidence of a current disability, and an in-service stressor had not been corroborated. The Veteran was notified of that decision and of his appellate rights, but he did not perfect an appeal of the rating decision. The February 2003 rating decision therefore became final under the law and regulations then in effect. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). In March 2008, the Veteran sought to reopen his PTSD claim. Evidence since added to the claims file since the February 2003 rating decision includes additional VA medical evidence, the Veteran's contentions, and a hearing transcript. Notably a VA social worker assessed the Veteran with PTSD. See June 2008 and May 2009 progress notes. In addition, a February 2013 VA examiner determined that the Veteran's reported stressor was related to fear of hostile military or terrorist activity. He also diagnosed the Veteran with an anxiety disorder, NOS. This newly received evidence relates to unestablished facts of a current disability and an in-service stressor. The Board finds this medical evidence both new and material, and when its credibility is presumed, relates to an unestablished element, and raises a reasonable possibility of substantiating the claim. The petition to reopen will be allowed. Pertinent Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran's claimed psychiatric disorders, namely PTSD and an anxiety disorder, are not considered a chronic disease listed under § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to this claim. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2013) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2013). The applicable regulation requires that the in-service stressor or traumatic event involve actual or threatened death, serious injury, or a threat to the physical integrity of self or others and the person's response involve intense fear, helplessness, or horror. See DSM-IV § 309.81 (4th ed. 1994). In adjudicating a claim for service connection for PTSD, the evidence necessary to establish the incurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the Veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, a veteran's lay testimony regarding the reported stressor must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records, and "consistent with the circumstances, conditions, or hardships of such service." 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d),(f); Doran v. Brown, 6 Vet. App. 283, 289 (1994). To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C.A. § 1154(b) requires that a veteran have actually participated in combat with the enemy. See VAOPGCPREC 12-99. If it is determined that a veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, a veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies a veteran's testimony or statements as to the occurrence of the claimed stressor. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Effective July 13, 2010, VA amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat Veterans. See 75 Fed. Reg. 39,843 -39,852 (effective July 13, 2010). Previously, VA was required to undertake extensive development to determine whether a non-combat Veteran actually experienced the claimed in-service stressor and lay testimony, by itself, was not sufficient to establish the occurrence of the alleged stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Instead, credible supporting evidence of a corroborated in-service stressor was required. Credible supporting evidence was not limited to service department records, but could be from any source. See YR v. West, 11 Vet. App. 393, 397 (1998); see also Moreau v. Brown, 9 Vet. App. 389, 395 (1996). Further, credible supporting evidence of the actual occurrence of an in-service stressor could not consist solely of after-the-fact medical nexus evidence. See Moreau, 9 Vet. App. at 396. The amended version of 38 C.F.R. § 3.304(f)(3) (2013) eliminated the need for stressor corroboration in circumstances in which the service member's claimed in-service stressor is related to "fear of hostile military or terrorist activity." Specifically, the amended version of 38 C.F.R. § 3.304(f)(3) states: If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. Aside from verification of an in-service stressor, current medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV) is required, as well as competent evidence of a nexus between current PTSD symptomatology and his verified in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). Here, the record does not reflect receipt of medals, badges, or decorations that specifically denote combat with the enemy. The Veteran's service personnel records do not document the receipt of any award that establishes that he engaged in combat. Thus, the combat provisions are not for application. 38 C.F.R. § 3.304(f)(2). See also 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat Veterans). Nevertheless, under the July 13, 2010, liberalizing amendments to the PTSD regulation, the Veteran's lay testimony alone may establish the occurrence of claimed in-service stressors that are the result of "fear of hostile military or terrorist activity" in certain instances. 38 C.F.R. § 3.304(f)(3). The Veteran's service personnel records confirm that he served in Vietnam from September 1969 to April 1971. On a September 2008 statement, the Veteran indicated that while stationed in Vietnam he participated in convoys to resupply forward supply bases with ammunition, food, etc. On some convoys, they took small weapons fire and on other convoys there were ambushes. Notably, a February 2013 VA psychologist determined that the Veteran's stressors are related to the "fear of hostile military or terrorist activity." The Board also notes that the Veteran's descriptions of the claimed enemy attack stressors are consistent with the places, types, and circumstances of the Veteran's service in the U.S. Army in Vietnam at that time. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In addition, the Board notes that the Veteran's military occupational specialties as a clerk and mechanic helper are supportive of his assertions that he travelled in supply convoys in Vietnam on occasion, with the possibility of being subject to enemy attack on occasion. There is no clear and convincing evidence to the contrary that he was not involved in these incidents. Thus, under the amended PTSD regulation, the Veteran's lay testimony and statements alone establish the occurrence of the claimed in-service stressors of gunfire attacks while travelling in supply convoys. See 38 C.F.R. § 3.304(f)(3). The Veteran's STRs do not reveal complaints, treatment, or diagnosis of PTSD or any other acquired psychiatric disorder. However, as to PTSD, an in-service diagnosis is not required. See 38 C.F.R. § 3.304(f). Post-service in 2002, the Veteran reported symptoms of anxiety, irritability and intrusive nightmares, but there was no evidence of a psychiatric disability at that time. The threshold consideration for any service connection claim is the existence of a current disability. With regard to a diagnosis of PTSD based on his in-service stressors from Vietnam, the record contains both favorable and unfavorable evidence. According to a June 2008 VA Mental Health Diagnostic Study Note, a VA social worker stated that the Veteran's score on the "PCLM" noting that the Veteran may have minimized his responses on the test. However, the social worker noted that "CAPS" did suggest PTSD. On the PTSD evaluation summary, Axis I diagnoses were moderate PTSD and alcohol abuse. The same VA social worker, in May 2009 PTSD group therapy and social work notes, indicated that the Veteran had completed "PTSD 101," stress management, and anger management classes. Assessment was PTSD. Conversely, a February 2013 VA psychologist determined that the Veteran did not meet the full DSM-IV criteria for a diagnosis of PTSD. The psychologist determined that the Veteran met Criterion A, B, and C, but not Criterion E and F. If a veteran has received a diagnosis of PTSD from a competent medical professional, VA must assume that the diagnosis was made in accordance with the appropriate psychiatric criteria in regard to the adequacy of the symptomatology and the sufficiency of the stressor. Cohen v. Brown, 10 Vet. App. 128, 153 (1997). VA can only reject such a diagnosis on a finding that the preponderance of the evidence is against (1) the PTSD diagnosis, (2) the occurrence of the in-service stressor, or (3) the connection of the current condition to the in-service stressor. The adequacy of a stressor, sufficiency of symptomatology, and diagnosis are all medical determinations. Cohen, 10 Vet. App. at 143-44. However, in evaluating the probative value of competent medical evidence, the Court has observed that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. The Court has also noted that as was true with any evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Here, the Board finds that the most probative medical evidence weighs against a finding that the Veteran has a PTSD diagnosis in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV). The February 2013 VA psychological examination was thorough, supported by an explanation, and considered the Veteran's history and relevant longitudinal complaints. After an extensive interview and testing, the VA psychologist provided greater detail in assessing whether the Veteran met each of the DSM-IV criteria (A through E) for PTSD than the VA social worker. The February 2013 VA opinion outweighs the opinion of the VA social worker on the issue of whether the Veteran has a PTSD diagnosis in accordance with DSM-IV. Absent evidence of a current DSM-IV diagnosis of PTSD, the Veteran's service connection claim for PTSD fails. The Veteran is not competent to diagnosis himself with PTSD because the evidence does not show that he possesses the medical expertise required to render a medical diagnosis or link PTSD to his military service. PTSD is a condition that can only be diagnosed by a medical professional, according to 38 C.F.R. § 3.304(f). Because the requisite DSM-IV diagnosis of PTSD to establish evidence of a current disability is not shown, the threshold element of the service connection claim for PTSD has not been met. The Board concludes that a preponderance of the evidence is against the service connection claim for PTSD, and that claim must be denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Psychiatric Disability, other than PTSD As discussed in the Introduction, the Veteran's claim was broadened to include consideration of any acquired psychiatric disorder consistent with Clemons, supra. Although the February 2013 VA examiner determined that the Veteran did not meet the full criteria for a diagnosis of PTSD, he did diagnose the Veteran with an anxiety disorder, NOS. In addition, the February 2013 VA examiner determined that the Veteran's stressor involves fear of hostile military or terrorist activity in service. Lastly, the February 2013 VA examiner concluded that the Veteran's anxiety disorder is at least as likely as not related to his Vietnam service. The three elements of a service connection claim have been met and the Board concludes that the Veteran's anxiety disorder had its onset during military service. The service connection claim for an anxiety disorder will therefore be allowed. ORDER Service connection for PTSD is denied. Service connection for an anxiety disorder, NOS, is granted. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs