Citation Nr: 1016477 Decision Date: 05/04/10 Archive Date: 05/13/10 DOCKET NO. 08-25 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a bilateral shoulder disability. 2. Entitlement to service connection for a psychiatric disability, other than anxiety neurosis, and to include post- traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Jeng, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1942 to January 1946 and October 1950 to January 1951. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which in part, declined to reopen the Veteran's claim for service connection for a bilateral shoulder disability and denied service connection for PTSD. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) clarified how the Board should analyze claims, specifically to include those for PTSD. As emphasized in Clemons, though a Veteran may only seek service connection for PTSD, the Veteran's claim "cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed...." Id. In essence, the Court found that a Veteran does not file a calm to receive benefits for a particular psychiatric diagnosis, such as PTSD, that is named on a claims form, but instead makes a general claim for compensation for the affliction posed by the Veteran's mental condition. The Board will analyze the Veteran's current claim under this framework and has recharacterized the issue accordingly as noted on the first page of this decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In a December 2004 rating decision, the RO denied service connection for a bilateral shoulder disability; the Veteran did not appeal this determination within one year of being notified. 2. Evidence received since the December 2004 rating decision does not raise a reasonable possibility of substantiating the claim of service connection for a bilateral shoulder disability. 3. The Veteran does not have a psychiatric disability, other than anxiety neurosis, related to service. CONCLUSIONS OF LAW 1. The December 2004 RO decision that denied service connection for a bilateral shoulder disability is final. 38 U.S.C. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004). 2. New and material evidence has not been received sufficient to reopen the claim for service connection for a bilateral shoulder disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). 3. A psychiatric disability, other than anxiety neurosis, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in June 2007 and August 2007, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2009). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. Both letters also notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specific to requests to reopen, the Veteran must be notified of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, the June 2007 notice letter included the criteria for reopening the previously denied claim, the criteria for establishing service connection, and information concerning why the claim was previously denied. Consequently, the Board finds that adequate notice has been provided, as the Veteran was informed about what evidence is necessary to substantiate the elements required to establish service connection for a bilateral shoulder disability that was found insufficient in the previous denial. VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2009). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. As the Board will discuss in detail in its analysis below, the Veteran was provided with VA examinations. The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate examinations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board therefore concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2009); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes the Veteran's contention that the July 2009 VA examination report for his shoulders failed to take into account his assertions that his shoulder disability could have been incurred on a direct basis (i.e. due to his duties in service). However, the Board finds that since new and material evidence has not been received sufficient to reopen the previously denied service connection claim for a bilateral shoulder disability, an examination report addressing direct service connection is not necessary. As discussed below, the claim was previously denied on a direct service connection basis, and the current claim to reopen is primarily premised on the Veteran's theory on a secondary basis. The statutory duty to assist the Veteran does not arise if the Veteran has not presented new and material evidence to reopen his claim. Anderson v. Brown, 9 Vet. App. 542, 546 (1996). Accordingly, VA has fulfilled the duty to notify and assist to the extent possible. Additionally, the Veteran declined to have a hearing before a Veterans Law Judge. Thus, the duties to notify and assist have been met. Analysis A Bilateral Shoulder Disability In a rating decision dated in December 2004, the RO denied the Veteran's claim of service connection for a bilateral shoulder disability. He was notified of the rating decision in a January 2005 letter. The Veteran did not perfect an appeal of this decision. The Board notes that the Veteran's claim for service connection was denied in December 2004 on a direct service connection basis; he now contends that he has a bilateral shoulder disability including due to frostbite in service and secondary to service-connected residuals of frostbite of the upper extremities. In the alternative, he asserts that his disability was incurred during service as a result of his duties being in a gun squad. A claim based on a new theory of entitlement is not a new claim, but constitutes an application to reopen the previously denied claim. Ashford v. Brown, 10 Vet. App. 120 (1997). Therefore, new and material evidence is required. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. See §§ 3.104, 20.302, 20.1103 (2004). Thus, the December 2004 decision became final because the Veteran did not perfect an appeal of that denial. The claim of entitlement to service connection for a bilateral shoulder disability may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108 (West 2002); Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran filed this application to reopen his claim in May 2007. Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2009). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence before VA at the time of the prior final decision consisted of the Veteran's service treatment records, VA examination reports, book excerpts of various military operations, and the Veteran's statements. In denying the Veteran's service connection claim in December 2004, the RO noted that there was no diagnosis of a shoulder disability in service or evidence that arthritis manifest to a compensable degree within a year of service separation. To reopen the claim, the new evidence must show that the Veteran had a shoulder disability in service, arthritis manifest to a compensable degree within a year of service separation, or that the disability is related to service or a service-connected disability. Evidence received since the last final decision for the claim of service connection for a bilateral shoulder disability includes duplicate book excerpts of various military operations already of record and VA examination reports. Notably, a July 2009 VA joints examination report noted a diagnosis of degenerative joint disease of the bilateral shoulders. In reviewing the evidence of record, the examiner noted that Veteran was treated for frostbite of the feet in 1945 without mention of the hands or other areas of the body. The Veteran later claimed frost bite of the hands and feet for which he is now service-connected. The examiner observed that there was no evidence in the record to suggest that the Veteran had frostbite except of the hands and feet per the Veteran's letters and VA examination reports. She added that arthritis incurred by frostbite would be arthritis related to those body parts that were frostbitten, and there was no evidence suggesting that the Veteran had frostbite of the entire bilateral upper extremities to include the shoulders, only the hands and fingers. In conclusion, the examiner stated that the Veteran's bilateral shoulder arthritis was less likely than not related to the Veteran's frostbite of the hands incurred in service. This evidence does not constitute evidence that raises a reasonable possibility of substantiating the claim for service connection. Neither may the claim be reopened on the basis of the statements submitted by the Veteran and his representative indicating that he currently has a bilateral shoulder disability related to service, or service-connected disabilities. As lay people, the are without ostensible medical expertise and are not competent to provide a diagnosis or opine on a matter requiring knowledge of medical principles. Bostain v. West, 11 Vet. App. 124 (1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Routen v. Brown, 10 Vet. App. 183 (1997) (noting that a layperson is generally not capable of opining on matters requiring medical knowledge). While the Veteran can describe symptoms that he experiences, he lacks the medical competence to relate any current bilateral shoulder disability to a particular circumstance, to include secondary to any service-connected disability. Although the Veteran has submitted new evidence that was not before the RO in December 2004, such evidence is not material to the claim and does not warrant reopening of the previously denied claim. Significantly, there are no additionally received service treatment records showing that a bilateral shoulder disability was manifested in service, arthritis manifest to a compensable degree within a year of service separation, or competent medical evidence showing that current disability is related to service or secondary to a service-connected disability. Thus, the claim for service connection for a bilateral shoulder disability is not reopened, and the benefit remains denied. A Psychiatric Disability The Veteran contends that he has a psychiatric disability, to include PTSD, due to service, specifically due to his combat experiences. The Board notes that the Veteran is currently service-connected for anxiety neurosis; therefore, it will consider the Veteran's claim for psychiatric disabilities other than anxiety neurosis. As an initial matter, the Board notes that a combat Veteran's assertions of an event during combat are to be presumed true if consistent with the time, place and circumstances of such service. See 38 U.S.C.A. § 1154(b); Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). The Veteran's service record reflects he was a squad leader in infantry and is the recipient of the Combat Infantryman Badge. Therefore, the Board finds that the Veteran had combat service, and his assertions as to combat events are presumed true. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). When seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a). Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. § 3.303(b). A claim for service connection for PTSD requires (1) medical evidence establishing a diagnosis of the condition; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see Cohen v. Brown, 10 Vet. App. at 136-7 (1997). The DSM-IV sets forth specific criteria which must be met to establish a diagnosis of service connection for PTSD. These are as follows: A. The person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others (2) the person's response involved intense fear, helplessness, or horror. . . . B. The traumatic event is persistently reexperienced in one (or more) of the following ways: (1) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions. . (2) recurrent distressing dreams of the event. . . . (3) acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociate flashback episodes, including those that occur on awakening or when intoxicated). . . (4) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event (5) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event C. Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following: (1) efforts to avoid thoughts, feelings, or conversations associated with the trauma (2) efforts to avoid activities, places, or people that arouse recollections of the trauma (3) inability to recall an important aspect of the trauma (4) markedly diminished interest or participation in significant activities (5) feeling of detachment or estrangement from others (6) restricted range of affect (e.g., unable to have loving feelings) (7) sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span) D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following: (1) difficulty falling or staying asleep (2) irritability or outbursts of anger (3) difficulty concentrating (4) hypervigilance (5) exaggerated startle response E. Duration of the disturbance (symptoms in Criteria B, C, and D) is more than 1 month. F. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. DSM-IV, DC 309.81. The DSM-IV provides two requirements as to the sufficiency of a stressor: (1) A person must have been "exposed to a traumatic event" in which "the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others;" and (2) "the person's response [must have] involved intense fear, helplessness, or horror." DSM-IV at 427-28. These criteria are no longer based solely on usual experience and response but are individualized (geared to the specific individual's actual experience and response). In this case, there is no evidence of a psychiatric disability, other than currently service-connected anxiety neurosis. Significantly, on VA examination in July 2009, the examiner noted a diagnosis of anxiety disorder, not otherwise specified. The examiner noted that the Veteran had a number of PTSD symptoms; however, she found that a diagnosis of anxiety, not otherwise specified, was most consistent with the DSM-IV diagnostic criteria on examination. Because there is no other psychiatric diagnosis other than service-connected anxiety neurosis, the claim is denied. Congress has specifically limited entitlement to service- connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, service connection for a psychiatric disability, other than anxiety neurosis, is not warranted. The Veteran is competent to give evidence about what he experiences. See e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, the Veteran's statements may be competent to support a claim for service connection where the events or the presence of disability, or symptoms of a disability are subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). To the extent that the Veteran ascribes any current psychiatric disability, other than anxiety neurosis, to service, however, his opinion is not probative. The Veteran is not competent to ascertain a current diagnosis, as this is not one of the disabilities, such as tinnitus or varicose veins, that is readily subject to lay observation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (noting that a layperson is generally not competent to opine on matter requiring knowledge of medical principles); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence not having been received, the application to reopen a claim for service connection for a bilateral shoulder disability is denied. Service connection for a psychiatric disability, other than anxiety neurosis, and to include PTSD is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs