Citation Nr: 1124564 Decision Date: 06/29/11 Archive Date: 07/06/11 DOCKET NO. 08-30 837 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen a claim for service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shana Z. Siesser, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. The Veteran appeared before the undersigned Veterans Law Judge at a Travel Board hearing in March 2011; a transcript of which is of record. FINDINGS OF FACT 1. The Veteran's original claim of service connection for PTSD was denied by an unappealed rating decision in May 2000. 2. The evidence received since the May 2000 rating decision relates to an unestablished fact necessary to substantiate the claim for PTSD and raises a reasonable possibility of substantiating the claim. 3. The preponderance of the competent and probative evidence of record is against a finding that the Veteran has a PTSD diagnosis that is in conformity with DSM-IV. 4. The Veteran's contention that he currently has a diagnosis of PTSD that is related to his period of military service is not competent evidence. CONCLUSIONS OF LAW 1. The May 2000 rating decision which denied entitlement to service connection for PTSD is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2010). 2. Evidence received since the final May 2000 determination denying the Veteran's claims of entitlement to service connection for PTSD is new and material, and the Veteran's claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 20.1103 (2010). 3. The criteria for the establishment of service connection for PTSD are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f)(2010). 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 the 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 (as noted by citations to "Fed. Cir.") and the 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. Duty 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 a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant 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 claimant 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 claimant is expected to provide; and (4) VA must ask the claimant to provide any evidence in her or 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), as was done in this case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran dated in May 2006, July 2006, and September 2006 that fully addressed all notice elements. In compliance with the duty to notify the Veteran of what information would substantiate his claim, the Veteran was advised that VA used a Schedule for Rating Disabilities (Schedule) that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the service treatment records, VA outpatient treatment records and private medical records. Additionally, the Veteran was afforded VA examinations in April 2000 and January 2007. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). New and Material Evidence The record reflects that a May 2000 rating decision denied the Veteran's claim of entitlement to service connection for PTSD. The RO sent notice of the decision to the Veteran at his last address of record. The Veteran did not appeal that decision. Therefore, the May 2000 rating decision became final. 38 U.S.C.A. § 7105(c). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence 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. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A review of the statement of the case shows that the RO denied reopening the claims; however, the Board is not bound by the RO's actions. The Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Thus, the Board must initially determine whether there is new and material evidence to reopen the claim for service connection for PTSD. The evidence of record at the time of the May 2000 rating decision consisted of service treatment records, a December 1999 psychological evaluation, and an April 2000 VA examination. The Veteran's claim was denied on the basis of the RO's determination that the Veteran had neither a diagnosis of PTSD, nor a verified stressor. The evidence submitted in support of reopening the claim includes the Veteran's competent and, under Justus, presumed to be credible account of an in-service stressor, verification of that stressor by the Center for Unit Research of Records (CURR), treatment records for PTSD, and the Veteran's testimony at a March 2011 Board hearing. The Board finds that this evidence raises a reasonable possibility of substantiating the Veteran's claim. Service connection for PTSD The Veteran contends that service connection is warranted for PTSD that was incurred as a result of his active service. The preponderance of the evidence is against a finding of a diagnosis of PTSD. Therefore, the Veteran's claim is denied. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2010). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d) (2010); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Entitlement to service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304. A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which requires that, for VA purposes, all mental disorder diagnoses must conform to DSM-IV. 38 C.F.R. § 3.304(f). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328 (1997). It is well-settled that in order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. See also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). The Veteran submitted his petition to reopen his claim for service connection for PTSD in April 2006. Therefore, the Veteran must show a diagnosis of PTSD during the period on appeal, e.g. between April 2006 and the present. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran served in Vietnam from January 1970 to February 1971. His service treatment records are negative for any diagnosis of PTSD or other psychiatric disorder. The Veteran was first referred to treatment for mental health in 1999. In a Vet Center psychological evaluation in December 1999, the Veteran was diagnosed with major depression; PTSD, chronic and severe; substance abuse, in remission; and alcohol problems. The psychologist based this diagnosis on testing including the PTSD Checklist - Military (PCL-M) and the Clinician Administered PTSD Scale (CAPS). The Veteran underwent a VA examination in April 2000. The examiner reviewed the claims file and performed an examination of the Veteran and determined that the Veteran does not have a diagnosis of PTSD. Specifically, the examiner stated that although the stressful events cited by the Veteran qualify as a stressor, "[The Veteran] does not re-experience those events. He revisits Vietnam by means of an imagination, claiming that he thinks about what he could have done differently and says these in battle fighting with the enemy when in fact he did not experience combat when he was over there. Such thoughts seem to be provoked by feelings of guilt over the fact that he survived and others, who did have a family, did not survive. The Veteran's impulsive behavior and inability to delay gratification has caused him considerable difficulty, both with his temper and with his abuse of drugs. His abuse of drugs does not seem to be secondary to any depression of Vietnam, but rather are taken for their enjoyment. His losing his temper has caused him to lost his job and have difficulty with his marriage. Again, this stems from his personality rather than from any PTSD symptomatology." The examiner diagnosed the Veteran with polysubstance abuse (in partial remission), alcohol abuse, and personality disorders, not otherwise specified. The Veteran sought treatment from a VA clinical nurse specialist (CNS) via a telephone appointment in April 2006. The Veteran reported that he was having fiscal problems and that he was taking medication for his PTSD, but he felt it was not working and he continued to have symptoms of "losing temper, blue, sad." The CNS noted that the Veteran had documented PTSD and depression and was requesting treatment. The record also indicates diagnoses of PTSD and depression. A June 2006 VA examination showed a past history for PTSD, but did not contain a current diagnosis. In an August 2006 mental health assessment, the CNS who conducted the April 2006 assessment considered the Veteran's symptomology diagnosed the Veteran with dysthymic disorder. A diagnosis of PTSD was specifically excluded. In November 2006, the Veteran's stressors were verified in a CURR memorandum. In January 2007, the Veteran underwent a VA examination by the same VA examiner who conducted the April 2000 examination. The examiner noted that the Veteran's stressors had been confirmed. The examiner reviewed the claims folder and conducted a thorough examination of the Veteran. The examiner found that there was no evidence or data to support a diagnosis of PTSD. There was no evidence that the Veteran re-experiences the stressor events from Vietnam and no evidence of avoidance of public places. Additionally, while the Veteran was depressed due to being unemployed, restless, easily irritated, and nervous, the examiner found these symptoms consistent with an anxiety disorder due to his medical problems and not due to his military experience. The examiner diagnosed the Veteran with polysubstance abuse, in full remission; alcohol abuse, apparently in full remission, generalized anxiety disorder, secondary to medical health problems and not related to military experiences; and a personality disorder, not otherwise specific. The examiner specifically ruled out a diagnosis of PTSD. The April 2000 and January 2007 VA examination reports and the December 1999 Vet Center report present differing opinions as to whether the Veteran meets the criteria for PTSD and whether a psychiatric disability is related to the Veteran's military service. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider is weighed by such factors as its thoroughness and degree of detail, and includes whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444 (2000). Equally important is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). In order for a medical opinion to be probative, the medical examiner must have correct information regarding the relevant facts of the case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Guerrieri v. Brown, 4 Vet. App. 467 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, 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); see Flash v. Brown, 8 Vet. App. 332 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the Veteran's claims folder); but see D'Aries v. Peake, 22 Vet. App. 97, 106 (2008) (holding that it is not necessary for a VA medical examiner to specify review of the claims folder where it is clear from the report that the examiner has done so and is familiar with the claimant's extensive medical history). The opinions of the VA examiner are more probative. The VA examinations are geared towards ascertaining a diagnosis, whereas the Vet Center report was for treatment purposes. Additionally, it is apparent from the text of the January 2007 report that the examiner had reviewed the claims file and knew the Veteran's history, including his treatments for PTSD and the prior opinions (noting that the 1999 opinion was based on treatment). The examiner also provided the Veteran with an opportunity to have another examiner, which the Veteran declined, notwithstanding his mentioning on his petition to reopen that he could not communicate with the VA examiner. Finally, the examiner specifically discussed the absence of symptoms generally found in a Veteran with PTSD, and found the Veteran had an anxiety disorder due to medical problems and unemployment. Furthermore, even assuming the Veteran had a diagnosis of PTSD in December 1999, at the time of the Vet Center assessment, the Veteran must show a diagnosis of PTSD during the period on appeal. The Veteran filed his petition to reopen in April 2006. While the April 2006 telephone consultation made an initial diagnosis of PTSD, that diagnosis was modified upon a full assessment by the same nurse in August 2006. The VA examiner in January 2007 again found no evidence to support a PTSD diagnosis. Therefore, the Board finds that that Veteran does not have a diagnosis of PTSD during the period on appeal. The Board has also considered the Veteran's lay statements that he had PTSD due to his period of service. An analysis of lay evidence requires consideration of both the credibility and the competency of the lay witness. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also 38 C.F.R. § 3.159(a)(2). The Board must make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Here, the Board finds the Veteran credible to testify as to his symptoms of depression, anxiety, and irritability. Additionally, the Board finds his stressor statement that his unit received incoming fire to be credible. The Board notes that the VA examination report notes inconsistency in his statements regarding additional stressors, including that he saw a headless body in Vietnam. Therefore, the Board does not find the Veteran credible in that respect. In ascertaining the competency and probative value of lay evidence, recent decisions of the United States Court of Appeals for Veterans Claims (Court) have underscored the importance of determining whether a layperson is competent to identify the medical condition in question. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran has been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). Moreover, the Board must consider the weight of the lay statement, particularly if such statement is a mere conclusory generalized lay statement. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In assessing the competency and weight of lay statements, evidence of a prolonged period without medical complaint after service can be considered along with other factors. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Here, the Veteran has not been shown to possess any training, expertise, or credentials in the field of medicine to diagnose PTSD and the Board finds the VA examination reports to be more probative as to a PTSD diagnosis. As the preponderance of the evidence is against a finding that the Veteran has a diagnosis of PTSD, service connection for PTSD is denied. ORDER As new and material evidence has been presented sufficient to reopen a claim of entitlement to service connection for PTSD, the claim is granted to this extent. Service connection for PTSD is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs