Citation Nr: 1002192 Decision Date: 01/13/10 Archive Date: 01/22/10 DOCKET NO. 95-18 698 ) DATE ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for ankylosis of the knees. (The issue of whether the Veteran is entitled to a program of education through vocational rehabilitation training under the terms and conditions of Chapter 31, Title 38, United States Code, will be the subject of a separate decision). REPRESENTATION Appellant represented by: Peter J. Sebekos, Attorney at Law (regarding the PTSD claim) ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran served on active duty for training from February 1973 to August 1973. He had active service from November 1974 to June 1977. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2001 rating decision by the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the Veteran's petition to reopen the claim of service connection for PTSD. In April 2003, the Board remanded this issue to the RO. In a decision dated in August 2005, the Board denied the claim. The Veteran appealed that determination to the United States Court of Appeals for Veterans Claims (Court). Regarding the PTSD claim, in February 2008, the parties submitted a Joint Motion for Remand and to Stay Proceedings. The parties asserted that the Board decision did not present reasons and bases that the Veteran was not provided notice which complied with the provisions of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA). In a February 2008 order, the Court granted the joint motion and vacated the Board's August 2005 decision. The Board remanded the claim in May 2008 for further development and consideration. A May 2009 rating decision denied service connection for ankylosis of the knees. A notice of disagreement was received in June 2009. A statement of the case was issued in August 2009. A substantive appeal was received in August 2009. In September 2009, the Veteran requested that the appeals set forth on the cover page of this decision be withdrawn. In October 2009, the Veteran presented argument regarding the PTSD claim. Therefore, the Board finds that the PTSD claim is not considered withdrawn. In November 2009, the Veteran submitted information regarding psychiatric medication he is taking. The Board finds that because the evidence reveals no pertinent or relevant information that could possibly aid him in his present claim, a remand for consideration by the agency of original jurisdiction (AOJ) is unnecessary. Bernard v. Brown, 4 Vet. App. 384 (1993). Also, the VA outpatient treatment records of 2009 are irrelevant to or cumulative of evidence already in the file as pertains to the PTSD issue. See 38 C.F.R. §§ 19.9(b)(3), 19.37(b), 20.1304(c). Thus, the Board finds that a supplemental statement of the case covering this evidence is not required. FINDINGS OF FACT 1. In a September 1997 rating decision, the RO determined that new and material evidence had not been received to reopen the claim of service connection for PTSD. A notice of disagreement was not received within the subsequent one-year period. 2. Evidence submitted since the RO's September 1997 decision, is not cumulative or redundant and must be considered to fairly evaluate the merits of the claim. 3. The Veteran does not have PTSD related to stressors in service. 4. In September 2009, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of this appeal regarding service connection for ankylosis of the knees is requested. CONCLUSIONS OF LAW 1. The RO's September 1997 rating decision is final. 38 U.S.C.A. § 7105 (West 2002). 2. New and material evidence has been received since the RO's September 1997 rating decision; thus, the claim for service connection for PTSD is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2001). 3. PTSD was not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.102, 3.304(f) (2009). 4 The criteria for withdrawal of the appeal regarding service connection for ankylosis of the knees by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. PTSD A. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156, 3.159, and 3.326 Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). See also Quartuccio v. Principi, 18 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has an obligation to provide a claimant with notice of what constitutes new and material evidence to reopen a service-connection claim, and of the reasons for the previous denial. The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant with notice in August 2008, subsequent to the initial adjudication. While the notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in an April 2009 supplemental statement of the case, following the provision of notice. The appellant has not alleged any prejudice as a result of the untimely notification, nor has any been shown. The letter informed the Veteran of the criteria for service connection, and told him that he had to submit new and material evidence to reopen his claim, including new and material evidence of a current disability, as well as medical evidence showing that the claimed condition was incurred in or made worse inservice, and there is a relationship between the disability and service. He was informed what constituted new evidence and what constituted material evidence. This essentially complies with the requirements set forth in Kent v. Nicholson, 20 Vet. App. 1 (2006). The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. Regarding the duty to assist, VA has obtained service treatment records, assisted the appellant in obtaining evidence, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. In addition, nothing in the evidence indicates that additional records regarding his PTSD claim should be obtained from a physician or facility. Robinette v. Brown, 8 Vet. App. 69 (1995); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). B. Factual Background and Legal Analysis The service treatment records for the period of active duty for training do not show any complaints, findings, treatment or diagnosis of a psychiatric disease or injury. The Veteran denied a history of depression and nervous trouble in his February 1973 report of medical history. Psychiatric examination was normal in August 1973 at the separation medical examination. Psychiatric examination was normal in November 1974 at the medical enlistment examination for active duty. The service treatment records show the Veteran requested a psychiatric consultation in February 1977 because of "dreams" involving a military aspect. The Veteran also related that he had some problems with his sister because his wife was living in his sister's house. The Veteran did not report for the scheduled examination. On March 10, 1977, the appellant stated he did not think he needed a psychiatric evaluation because he only had 77 more days of active service and he felt he could cope with his situation at that time. There are no records of psychiatric treatment or examination during service. Psychiatric examination was normal in June 1977 at the separation medical examination. Following service, the Veteran was afforded a VA examination in March 1978. A psychiatric examination showed a satisfactory psychiatric status. There was no diagnosis of a psychiatric disability. Thereafter, VA treatment records dated from July 1977 to July 1991 were received which did not show any complaints, findings, treatment, or diagnosis of a psychiatric disability. In May and July 1993, the Veteran was afforded VA orthopedic examinations which did not reflect a diagnosis of a psychiatric disability. In September 1993, the Veteran submitted a copy of a December 1992 Social Security Administration (SSA) decision showing he had been awarded disability benefits. The SSA Law Judge concluded the Veteran was under a "disability" as defined in the Social Security Act, since June 28, 1991, due to medical evidence establishing severe bilateral degenerative joint disease of the knees, adjustment disorder and dysthymia. The evidence included applications for state and federal disability determinations, in which the Veteran reported severe physical impairment due to bilateral knee pain. The decision is based, in part, on a history from the Veteran that he sustained a knee injury while in service and mental stress related to those injuries. The Veteran had testified that he performed "sensitive missions for the government" while serving in Vietnam. He also described recurrent hallucinatory dreams, reflective of combat situations, from which he woke up screaming. He also testified to headaches since being hit in the head during a fight while a Marine. The SSA Law Judge specifically found the Veteran's testimony credible with respect to his complaints of knee pain, and concluded that the Veteran was disabled based on his bilateral knee impairment and post-traumatic stress dating back to military service. The SSA records include a March 1992 disability determination evaluation report. The Veteran reported doing well until four years ago when hit on the head. (Prior VA outpatient records show post-service treatment for a laceration to the forehead in March 1985 as well as treatment for a stab wound to the back in November 1978.) The Veteran stated he experienced episodes of depression with decreased sleep since that time. He also related other symptoms that included suicidal thoughts, nervousness, anxiety and social isolation. The Veteran also stated that he quit his job because he felt very overwhelmed. He also reported a history of alcohol abuse, and continued alcohol use to ease his pain. The examiner recorded a psychosocial history and performed a mental status examination. The impression was that the Veteran's history was most significant for alcohol abuse and dysthymia. The physician did not relate this to active service, but noted that the Veteran reported increased depression under stress, which he related to unclear medical conditions and his assault four years previously. Also of record was an emergency room psychiatric consultation record from a private hospital, which was dated on October 28, 1992. The Veteran was brought to the hospital the prior evening by police following information that the Veteran was threatening suicide in response to frustration with the VA. The Veteran admitted that he was only trying to provoke the VA into providing a positive response to his legal claims related to knee problems without real intent or thought to harm himself. On admission, there were no signs of acute illness or injury, but the Veteran was positive for alcohol use. A psychologist examined the Veteran the next day. The Veteran denied any past psychiatric treatment or history of substance or alcohol abuse. The psychologist examined the Veteran and assessed anger, frustration and hostile behavior, but no other significant findings. The diagnosis was adjustment disorder with equally mixed distribution of emotion and conduct. The Veteran refused treatment, but agreed to pursue follow-up VA outpatient treatment. In April 1994, a claim for service connection for PTSD was received. In July 1994, the Veteran reiterated that he was seeking service connection for PTSD. Thereafter, service records were received. These records as well as the DD Form 214 show the following. The Veteran was awarded the Good Conduct Medal and various marksmanship badges. He was not awarded any combat decorations. His record of inservice assignments and duty stations reflect that from November 1974 to March 1975, he was continuously employed as a motor vehicle operator at duty stations in the United States. He had overseas service from April 1975 to April 1976, serving as a motor vehicle operator and assistant training non-commissioned officer. He then returned to the United States, and served the remainder of his military tenure as a motor vehicle operator. A Report of Contact reflects that the Veteran was scheduled for a PTSD examination on March 27, 1995. His appointment was later canceled due to the unavailability of the examining physician. The Veteran was rescheduled for an appointment on April 5, 1995, but on March 30, 1995, he canceled the appointment without explanation. In an April 1995 rating decision, the RO denied service connection for PTSD on the basis that there was no diagnosis of PTSD. The Veteran appealed that denial. In July 1995, the Veteran was notified that he was to be rescheduled for VA psychiatric and orthopedic examinations. A July 31, 1995 report of contact memorandum reflects that the Veteran contacted the RO, and upon being informed of the scheduled examinations, stated that he would appear and undergo examination. While the Veteran underwent the orthopedic examination, which did not reflect any diagnosis of a psychiatric disability, an August 24, 1995 Report of Contact reflects that the Veteran's psychiatric examination was canceled because he "withdrew" the claim for a psychiatric disorder. However, he thereafter continued to pursue his appeal so the matter was not considered withdrawn. In a December 1996 decision, the Board denied service connection for PTSD. The Veteran filed a Motion of Reconsideration to the Board, but the prior Board decision was affirmed. The Veteran appealed the December 1996 decision to the Court. In addition, VA outpatient records were received which showed that the Veteran was seen on February 26, 1997, at the VA outpatient clinic for urgent care. He complained of a 25- year history of bilateral knee pain for which he requested a prescription for Motrin. There was no physical examination. He also complained of chronic headaches that had been continuous for several years. He denied a history of head injury. An examination was performed on the same day. The indicated diagnoses were possible hyperthyroidism, bilateral chondromalacia "+/- OA," chronic headaches times 21 years per the Veteran and major depression, which has been underscored twice. The Veteran submitted copies of two prescriptions issued to him by VA on that day. In July 1997, the Veteran indicated that he was seeking to reopen his claim of service connection for PTSD. In a September 1997 rating decision, the RO determined that new and material had not been received to reopen the claim of service connection for PTSD because the Veteran had not submitted evidence of a diagnosis of PTSD with a nexus relating PTSD to service. Thereafter, in September 1997, correspondence was received from the Veteran. In that correspondence, he stated that there should be only one issue on appeal, service connection for dysthymia. He also stated that it should be considered if dysthymia had a nexus to PTSD. The Veteran clearly stated that he wanted that ONE issue to be adjudicated, service connection for dysthymia. In October 1997, the RO sent the Veteran a letter, acknowledging his September 1997 letter requesting service connection for dysthymia and which stated that he was not claiming service connection for PTSD. Thus, there was no notice of disagreement, no appeal of the September 1997 rating decision which determined that new and material had not been received to reopen the claim of service connection for PTSD. Thereafter, VA outpatient records dated in 1996 to 1997 were received which included a duplicate copy of the February 1997 report. The additional records did not reflect any treatment for psychiatric complaints. The Veteran also submitted treatise evidence with regard to dysthymia. In October 1997, the RO denied service connection for dysthymia. The Veteran appealed that decision. The Veteran submitted a copy of a prescription form issued in November 1997. An unsigned private psychiatric consultation report dated the same day shows the Veteran reported a history of being followed at the VA for dysthymia since service in the Marines. He stated that he had been hospitalized during active service for military dreams, which the examiner noted, sounded like psychotic ideations-the Veteran stated he would provide these records to the examiner. The Veteran stated he had been experiencing auditory hallucinations since active service but had never been on anti-psychotic medication. The examiner conducted a mental status examination. The impression was rule out schizoaffective disorder and rule out schizophrenia. A diagnosis of PTSD was not made. In a January 1998 Order, the Court affirmed the Board's December 1996 denial of service connection for PTSD. The Veteran submitted a February 1998 statement and copies of VA outpatient records. In January 1998, the Veteran related being on disability for five years for dysthymia. He also related a history of bilateral chondromalacia. The Veteran stated he was involuntarily hospitalized four or five years earlier and he had been depressed since active service after having been involved in a Ku Klux Klan (KKK) riot. The examiner conducted a mental status examination. The examiner diagnosed dysthymia and rule out PTSD. The examiner referred the Veteran to the Mental Health Clinic. In his statement, the Veteran added that he had not gone to the Mental Health Clinic due to lack of transportation. In a March 1999 decision, the Board denied service connection for dysthymia. The Veteran submitted copies of medals he was awarded during service. He was not awarded any combat decorations. In a March 2000 Order, the Court noted that when the claim of service connection for PTSD was on appeal before the Court in January 1998, the Court granted the Veteran's joint motion with the Secretary to dismiss that issue. Thus, there was no pending appeal for PTSD. The decision of the Board to deny service connection for dysthymia was affirmed. In May 2000, a new claim of service connection for PTSD was received. At that time, the Veteran reported that he was the last person "hit" in Vietnam under orders. He described killing "gooks" in Vietnam in 1975. He stated that he met Ho Chi Minh's daughter and was responsible for prisoners of war being released. In March 2001, the Court vacated the Board's decision denying service connection for dysthymia. VA treatment records were received and showed that the Veteran was hospitalized in April 1993 for alcohol dependence. He was not diagnosed as having PTSD during this hospitalization. In February 1999, the Veteran was afforded a psychiatric evaluation. It was noted that he was referred for the evaluation secondary to a history of PTSD and problems sleeping. The Veteran reported that a private physician diagnosed him with PTSD and schizophrenia in the past. It was noted that he had been seen in this VA clinic and the diagnosis was dysthymia, rule out PTSD. With regard to PTSD, the Veteran reported that he did not see combat during service, but he went to Okinawa and Cambodia and his job was to shoot people. He had bad experiences. Mental status examination was performed. The diagnoses were rule out psychotic disorder, rule out PTSD, rule out affective disorder, rule out personality disorder. Thus, no definitive current diagnosis was made. In April 2001, the Veteran reported having insomnia which was noted to be possibly related to PTSD. Thereafter, a few days later, the Veteran reported that he had a military history of service in Vietnam and Cambodia in 1977 which included combat. Mental status examination was performed. The diagnoses were psychotic disorder, not otherwise specified; alcohol abuse; rule out CPS (chronic paranoid schizophrenia); rule out PTSD; rule out MDD (major depressive disorder); rule out paranoid personality disorder; rule out schizoid personality disorder. Thus, the diagnosis at this time was psychotic disorder, not otherwise specified. The Veteran was referred with a provisional diagnosis of psychotic disorder, not otherwise specified. In May 2001, it was noted that the Veteran had been referred to the VA mental health clinic after he complained about depressive and psychotic symptoms. It was noted that he was seen in January 1998 and presented with depressive, but not psychotic, symptoms. He endorsed some symptoms of PTSD at that time. He was again admitted about 4 years ago and was given Zoloft. In February 1999, he had psychotic symptoms, but he did not follow up with his mental health clinic referral. A current mental status examination was performed. The diagnoses were rule out psychosis, not otherwise specified; rule out PTSD. Thereafter, duplicate service records were received. On an August 2001 VA referral form, it was noted by a physician that the Veteran had a diagnosis of PTSD. The etiology of the PTSD was not indicated. Correspondence was received from a lay person, R.C., who stated that he was stationed during service at Camp Pendleton in California where he met the Veteran who had just returned from Vietnam. This person stated that one night, they encountered friendly fire going into his barracks during one of the riots, he was shot and the Veteran took him to the hospital and saved his life. R.C.'s service records indicate he sustained a gunshot wound to the left calf by an unknown party while in the barracks on September 17, 1976. In January 2002, VA afforded the Veteran a psychiatric examination. It was noted that the Veteran had service in Vietnam and saw active combat. The Veteran also reported a traumatic event during race riots at Camp Pendleton. The examiner initially noted that the Veteran's history was reviewed and the examiner found the Veteran to have been an accurate historian but then noted that it was hard to assess the accuracy of the information the Veteran gave and there was a definite possibility the Veteran was exaggerating or attempting to manipulate. The examiner reviewed the Veteran's service and post-service treatment records. He reviewed the letter from R.C. that the Veteran saved his life after being struck by friendly fire during a riot at Camp Pendleton. A mental status examination was performed. The diagnosis was dysthymic disorder. A diagnosis of PTSD was not rendered, and the examiner noted he could not find evidence of true PTSD and that the Veteran's current psychiatric disorder was not related to his service. In January 2002, the Veteran was afforded a VA orthopedic examination. He gave a history of injury to his knees when a grenade exploded during the evacuation of Saigon. No psychiatric diagnosis was made. Thereafter, the Veteran submitted an article which stated that Marines Battalions would be landing in the Far East. Also, copies of two certificates showing that the Veteran completed a course of study for Overseas School and that he served with a maintenance battalion from April 11, 1975 to April 24, 1976. In addition, copies of information pertaining to his orthopedic claims were received. Also, an April 1994 orthopedic report was received. Copies of prescriptions were received which showed that the Veteran was medicated for insomnia and orthopedic complaints. The Veteran also submitted copies of pictures of him and other service members from service as well as a periodical article showing his position in a prior employment. In an August 2002 decision, the Board again denied service connection for dysthymia. A September 2004 treatment record was received which reflected treatment for a left leg disability. It listed PTSD in the medical history and as an active problem; no further information was given. No etiology or other basis for the listing of PTSD was provided. A form for vocational rehabilitation purposes listed PTSD under service or nonservice connected disabilities as determined by VA. In an April 2008 VA mental health initial evaluation note the Veteran described the incident at Camp Pendleton in which he and a fellow Marine were accosted by four other Marines who fired on them; they fired back and his buddy was hit in the leg. He also reported involvement in combat in Vietnam and being assigned to an Army unit during the evacuation of Saigon in 1975 when he was assigned to "get some POW's that were stranded." He complained of startle reaction, hypervigilance, distressing dreams, intrusive thoughts, social isolation, estrangement and detachment. After examination the psychologist entered an initial diagnosis of PTSD and alcohol abuse in remission and referred the Veteran to a psychiatrist. In a May 2008 psychiatric evaluation the psychiatrist reported that he reviewed the old records, including the April 2008 evaluation. The psychiatrist concluded that it was likely the Veteran had schizophrenia and that it was not possible to evaluate regarding PTSD in the presence of the severe psychosis. Thereafter, in August 2008 the psychiatrist again noted that the Veteran likely had a chronic psychotic disorder, likely schizophrenia. Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). When "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The legal standard of what constitutes "new and material" evidence was recently amended. This amendment is inapplicable in the instant case as the amendment applies prospectively to claims filed on or after August 29, 2001. See 38 C.F.R. § 3.156(a). The Veteran's current application to reopen the claim of service connection was received prior to that date. New and material evidence is evidence which has not been previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant and which, by itself, or in connection with evidence previously assembled, is so significant that it must be considered to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Medical evidence which merely documents continued diagnosis and treatment of disease, without addressing the crucial matter of medical nexus (i.e., a connection to an in-service event), does not constitute new and material evidence. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993); Mintz v. Brown, 6 Vet. App. 277, 280 (1994). The last final disallowance of record is the September 1997 RO rating decision which determined that the Veteran had not submitted new and material evidence to reopen the claim of service connection for PTSD. The RO did not reopen the claim because there was no diagnosis of PTSD and no nexus of PTSD to service. As noted previously, a statement was received within one year of the denial, but the Veteran specified that he was pursuing one issue which was service connection for dysthymia which he then did pursue. Thus, the issue of whether new and material evidence had been submitted to reopen the claim of service connection for PTSD was not appealed. The September 1997 rating decision is final. 38 U.S.C.A. § 7105. Since the prior final decision, evidence has been added to the claims file. The additional evidence of record included various medical records and diagnoses. The initial evaluation report of April 2008 noted the Veteran's claimed stressors and reported symptoms and diagnosed PTSD. Since that evaluation tends to show a diagnosis of PTSD and a relationship to reported stressors, the Board concludes that it must be considered to fairly decide the merits of the claim. The claim, therefore, is reopened. Service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). A review of the record, however, shows no chronic psychiatric disorder in service. Postservice psychiatric problems were first indicated in the 1990s, many years after service. The bulk of the records pertaining to the Veteran's mental health since that time show no diagnosis of PTSD. On several occasions, physicians have included in the diagnoses, "rule out PTSD," and have not made any definitive diagnosis of PTSD. On other occasions, it has been determined that the Veteran has a psychotic disorder, not otherwise specified, or dysthymia. With regard to PTSD, examinations have noted a history of PTSD or stated "rule out PTSD." There is an August 2001 VA referral record, signed by a physician, which noted that the Veteran had PTSD. In addition, there is a September 2004 medical record listing PTSD as a problem. However, the examiners did not provide an etiology or any basis for the notation or relate PTSD to service. Therefore, these medical reports do not establish a diagnosis of PTSD related to inservice stressors. Similarly, the vocational rehabilitation form which listed PTSD under service or nonservice-connected disabilities does not indicate that the entry was made by a medical professional. A VA psychologist diagnosed PTSD on an initial evaluation in April 2008 but referred the Vetern to a psychiatrist for further evaluation. The psychiatrist did not find PTSD in either May or August 2008, and the Board concludes that the initial evaluation, when further considered by a psychiatrist who did not find PTSD, is insufficient to establish a diagnosis of chronic PTSD. However, even if the Board accepts that the Veteran has PTSD for the purposes of this decision, the Board does not find the weight of the competent, credible and probative evidence either relates PTSD to inservice stressors or places such issue in equipoise as to raise a reasonable doubt concerning any such relationship. While the April 2008 initial psychologist's evaluation is competent evidence, it is of little probative value. To the extent that the examiner's diagnosis was based on the Veteran's report of combat service in Vietnam, the diagnosis was not based on a credible stressor. The evidence shows that although the Veteran did serve in the Far East, he did not serve in Vietnam. He has reported serving in Okinawa. His accounts of Vietnam service in numerous statements are inconsistent and not credible. There is no evidence even tending to corroborate combat service, involvement in the evacuation of Saigon or service in Cambodia. His military occupational specialties of motor vehicle operator and assistant training on-commissioned officer are not consistent with the service he has alleged. The Board finds that the April 2008 PTSD diagnosis based on combat or Vietnam service has no probative value as it not based on a credible stressor. The Veteran has provided lay evidence that he witnessed a friend being injured, but prior to April 2008 there is no medical diagnosis of PTSD based on this incident even though the incident was considered by the examiner in January 2002. It is unclear that the April 2008 examiner based his diagnosis of PTSD solely on, or to what extent on, the reported incident of injury to the Veteran's service comrade at Camp Pendleton. However, the psychiatrist in May 2008 reviewed some of the Veteran's medical records, including the April 2008 report, and he did not find PTSD related to that incident. As noted, the January 2002 examiner also noted the incident but did not find PTSD related to the incident. Since it is likely that the April 2008 examiner relied to a large extent on the Veteran's report of combat and Vietnam service, the Board finds that his indication of PTSD related to service is of little probative value and is far outweighed by the many mental health evaluations that did not find the Veteran suffering from PTSD. The Board further concludes that another examination of the Veteran is not required under McLendon v. Nicholson, 20 Vet. App. 79 (2006). Although the credibility of the April 2008 psychologist's evaluation must be presumed for purposes of reopening the Veteran's claim, its credibility and probative value need not be conceded for purposes of determining whether another VA examination is required. The Veteran was afforded a VA examination in 2002, and in light of the follow-up evaluations by a psychiatrist in May and August 2008 and the low probative value accorded the April 2008 evaluation, as explained above, further examination is not warranted. In conclusion the Board finds that the preponderance of the evidence is against a finding that the Veteran has PTSD related to stressors in service. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim is denied. II. Ankylosis of the Knees The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. (CONTINUED ON NEXT PAGE) ORDER The application to reopen the claim of service connection for PTSD is granted. To this extent, the appeal is allowed. Service connection for PTSD is denied. The appeal regarding service connection for ankylosis of the knees is dismissed. HOLLY E. MOEHLMANN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs