Citation Nr: 0811717 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 07-14 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for post- traumatic stress disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The veteran had active service from December 1950 to September 1952. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of February 2006 by a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The RO denied service connection for PTSD in July 2003. The veteran did not appeal this decision and, therefore, this decision is final. 2. The evidence received subsequent to the July 2003 RO decision includes VA treatment records, private treatment records, and lay statements; this evidence does not raise a reasonable possibility of substantiating the claim for service connection. CONCLUSIONS OF LAW 1. The RO's July 2003 decision is final. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. §§ 20.200, 20.300, 20.1103 (2007). 2. No new and material evidence has been presented since the July 2003 decision denying the veteran's service connection claim for PTSD; thus, this claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The RO denied the veteran's initial claim of service connection for PTSD in a rating decision dated July 2003 on the basis that the veteran did not have a confirmed diagnosis of PTSD. The veteran was notified of this decision in a letter dated July 16, 2003 and did not appeal. Thus, the decision became final. With claims to reopen filed on or after August 29, 2001, such as this one, "new" evidence is defined as evidence not previously submitted to agency decision-makers and "material" evidence as 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 (2007). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial and must raise a reasonable probability of substantiating the claim. Id. The evidence received subsequent to the July 2003 decision is presumed credible for the purposes of reopening a claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the RO's actions, 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); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board concludes that new and material evidence has not been submitted in this case. The evidence of record at the time of the July 2003 decision consisted of the veteran's service medical records (SMRs) and post-service VA treatment records. The evidence now of record includes additional VA treatment records, private treatment records, and a statement from the veteran's wife in support of his claim. The veteran was admitted to the University of Alabama at Birmingham Center for Psychiatric Medicine in June 2003 at the direction of A. Piha, M.D. for the evaluation and treatment of numerous illnesses, including depression and dementia. The veteran reported a 17 pound weight loss over a period of five months as well as a marked decrease in interest. The veteran stated that he believed he would die of cancer, and according to his daughter, required prompting to get out of bed and take his medications. The veteran was preoccupied with a recently diagnosed facial cancer and the methods use to treat it. The veteran's family also indicated that the veteran became increasingly withdrawn and would not leave the house or interact with them. Upon mental status examination, the veteran exhibited decreased psychomotor activity, eye contact, and verbal speech. His mood was sad and dysthymic with a constricted affect. No evidence of auditory or visual hallucinations was noted and the veteran's thought content was negative for suicidal or homicidal ideation, delusions, or paranoia. The veteran's insight was poor. Electroconvulsive therapy was administered and a Single Photon Emission Computed Tomography (SPECT) scan of the veteran's brain revealed findings consistent with mild to moderate advanced vascular-type dementia. No evidence of specific posterior temporoparietal hypofusion, suggestive of a posterior degenerative-type dementia such as Alzheimer's Disease, was noted. The veteran was diagnosed as having major depression, severe single episode and dementia, not otherwise specified. The veteran was discharged in July 2003. No references to the veteran's military service are contained in these treatment notes. A private follow-up treatment note from the Kirklin Clinic dated July 2003 diagnosed the veteran as having severe major depression. The veteran was again hospitalized in December 2003 after he began losing interest and refused to eat or dress regularly. The veteran preferred to remain in bed. The veteran's past medical history was significant for major depression with psychotic features and vascular dementia. Upon mental status examination, the examiner found the veteran's psychomotor activity to be "within normal limits to decreased." Eye contact was good, while the veteran's speech was fluent with decreased spontaneousness. The veteran's mood was euthymic with a constricted affect. No evidence of auditory or visual hallucinations, suicidal or homicidal ideation, delusions, or paranoia was noted. The veteran's thought process was slow, but organized. His judgment was adequate to social anecdotes and his insight was fair. Upon admission, the veteran had poor hygiene with prominent body odor as well as decreased motivation and initiative. Magnetic resonance imaging (MRI) of the veteran's brain was interpreted to show an acute infarct of the left caudate head. The veteran was diagnosed as having major depression with psychotic features and vascular dementia. The veteran was discharged in January 2004. No references to the veteran's military service are contained in these treatment notes. Similarly, private treatment notes from G. Walters, M.D. dated October 2004 and January 2005 indicated that the veteran reported symptoms of depression. Dr. Walters diagnosed the veteran as having dementia. No references to the veteran's military service are contained in these treatment notes. The veteran was afforded a VA Compensation and Pension (C&P) Examination in January 2006 in connection with the current claim. The examiner noted the veteran's previous inpatient psychiatric treatment and a recent November 2005 motor vehicle accident which required hospitalization. At the time of the accident, the veteran experienced confusion, memory impairment, moderate interruption in judgment, and functional incapacity based on the dementia. The examiner noted that the veteran's previous major depression improved over the past year, and in the examiner's opinion, the preponderance of the veteran's symptoms over the past year, including decreased sleep, dreams of death, and mixed mood dysphoria, were related to cognitive impairments. The examiner noted that the veteran served in Korea and was awarded a Korean Service Medal (3 Bronze Stars) and Combat Infantryman Badge, but that the veteran was unable to describe a "significant stressor event." The veteran indicated that he drove a water truck in a combat zone in Korea and that he was disturbed by the "condition" of the Korean people. He purportedly had interrupted sleep and nightmares about this after returning home. The veteran denied having intrusive memories, intense fear, feelings of hopelessness or horror, or exposure to dead or wounded persons. The veteran avoided discussing or recalling the events he experienced in Korea. The examiner stated that the veteran had mild cognitive impairment since his first cerebrovascular accident in 1994, was significantly depressed in 2001, received treatment, and significantly improved. According to the examiner, the veteran's current psychosocial status was impaired because of his health issues and cognitive impairment. The examiner concluded that the veteran "does not have a stressor event that meets Diagnostic, DSM IV criteria in my view." The examiner also noted that "there have not been clear or significant symptoms of PTSD for a number of years." Upon mental status examination, the examiner noted that the veteran was appropriately dressed, but that there was evidence of psychomotor retardation and impaired memory. The veteran was cooperative and his speech was unremarkable, but his affect was constricted. The examiner noted that although the veteran was easily distracted and had mild to moderate confusion regarding the date, year, and time, he was oriented to person and place. The examiner observed mild to moderate cognitive impairment, but found no evidence of delusions, hallucinations, obsessive/ritualistic behavior, panic attacks, impaired impulse control, or suicidal or homicidal ideation. Judgment and insight were partially impaired. The veteran reported moderate sleep impairment. The examiner also noted that the veteran was able to maintain minimum personal hygiene with minimal assistance from family members. The veteran's Global Assessment of Functioning (GAF) score was 48. The examiner diagnosed the veteran as having mild to moderate dementia and major depression, partly remitted. The veteran's wife submitted a statement in support of his claim dated June 2006. She stated that the veteran had problems sleeping shortly after they were married, and that he refused to watch anything on television related to war or war movies. Eventually, the veteran recounted his service in Korea and discussed "being in foxholes with shelling all around" and how someone was killed near to the veteran's foxhole. The wife also stated that the veteran guarded enemy soldiers, and on one occasion, filled a water bottle in a stream with dead bodies in it. The Board notes that the veteran's claim was previously denied and he did not appeal. The fact that the RO may have determined in its February 2006 rating decision that new and material evidence was presented, and reopened the claim on that basis, is not binding on the Board's determination of the question of whether new and material evidence has been submitted. The Board must address the issue initially itself. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). Given the evidence of record, the Board concludes that a claim of entitlement to service connection for PTSD has not been reopened. Specifically, the Board notes that the veteran's previous claim for service connection was denied in July 2003 on the basis that the veteran did not have a PTSD diagnosis. Thus, new and material evidence must be presented to establish that fact. The Board acknowledges that the veteran submitted "new" evidence (i.e., evidence not previously submitted to agency decision-makers), but this evidence was not "material" evidence in that by itself or when considered with previous evidence of record, the evidence related to an unestablished fact necessary to substantiate the claim. See 38 C.F.R. § 3.156. VA and private medical records submitted after the July 2003 denial show that the veteran was diagnosed as having major depression, major depression with psychotic features, and vascular dementia. None of the medical evidence of record diagnoses the veteran as having PTSD. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Furthermore, the Board notes that at no time during the pendency of this appeal has the veteran demonstrated, nor does the evidence show, that he has PTSD. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007)(noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim). The Board also notes that the Court of Appeals for Veterans Claims (Court) has in the past held that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, the Court has also held that lay persons, such as the veteran, are not qualified to offer an opinion that requires medical knowledge, such as a diagnosis or an opinion as to the cause of a disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007) (holding that a layperson may provide competent evidence to establish a diagnosis where the lay person is "competent to identify the medical condition"). Here, the veteran is capable of reporting symptoms of decreased interest or impaired sleep, etc., but neither the veteran nor his wife is competent (i.e., professionally qualified) to offer an opinion as to the cause of his psychiatric disabilities. As previously stated, the veteran submitted new evidence in conjunction with his current claim, but material evidence must relate to an unestablished fact necessary to substantiate the claim. In this case, a current diagnosis of PTSD was required. The evidence of record does not support such a diagnosis. Accordingly, new and material evidence to reopen a claim of entitlement to service connection for PTSD has not been presented. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the veteran is expected to provide; and (4) must ask the veteran to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a veteran of the evidence and information that is necessary to reopen the claim and notify the veteran of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the veteran with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Here, the duty to notify pursuant to Kent was satisfied by way of a letter sent to the veteran in May 2005 that fully addressed VA's duty to notify in the context of claims to reopen. The letter was sent prior to the initial AOJ decision in this matter and informed the veteran that his claim of entitlement to service connection for post-traumatic stress disorder was previously denied on July 16, 2003 on the grounds that he did not have a confirmed PTSD diagnosis. The letter also described and defined the terms new and material evidence, and instructed the veteran to submit evidence that showed he had a confirmed PTSD diagnosis. The Board further observes that during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In the present appeal, the veteran was provided with notice of what type of information and evidence was needed to reopen his claim for service connection, but he was not provided with notice of the type of evidence necessary to establish a disability rating and an effective date for the disability on appeal. Despite the inadequate notice provided to the veteran on these latter two elements, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As the Board concludes that new and material evidence has not been presented to reopen the claim, any questions as to the effective date to be assigned are rendered moot. The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the issue has been obtained. The veteran's service medical records have been obtained. The veteran's post-service treatment records have been obtained. The veteran was also afforded a VA examination in connection with the current claim. The record reflects that the veteran is in receipt of Social Security Administration (SSA) disability benefits. If SSA records are relevant to a claim they should be obtained. In this case, however, the veteran has been entitled to SSA benefits since December 1981 and the first reference in the claims file to a psychiatric disorder is not dated until many years later. Accordingly, SSA records dated in 1981 or earlier would not be relevant to the claim at hand and therefore need not be obtained. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the veteran's claim. Therefore, no further assistance to the veteran with the development of the evidence is required. ORDER New and material evidence to reopen a claim of entitlement to service connection for PTSD has not been presented. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs