Citation Nr: 1120784 Decision Date: 05/27/11 Archive Date: 06/06/11 DOCKET NO. 08-11 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a pyschiatric disability, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a psychiatric disability, to include PTSD. REPRESENTATION Appellant represented by: Dale J. Starkes, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and Dr. R. C. ATTORNEY FOR THE BOARD C. M. Powell, Counsel INTRODUCTION The Veteran had active service from January 1968 to September 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Indianapolis, Indiana Regional Office (RO) of the Department of Veterans Affairs (VA) in which the RO reopened the Veteran's previously denied claim. However, the United States Court of Appeals for Veterans Claims (Court) has made it clear that even if an RO makes an initial determination to reopen a claim, the Board must still review the RO's preliminary decision in that regard. Barnett v. Brown, 8 Vet. App. 1, 4 (1995). Therefore the issues on appeal have been recharacterized at those which are on the coversheet of the decision. The claim was previously before the Board in June 2010, at which time it was remanded to address procedural concerns. The matter is again before the Board for additional appellate review. The Veteran testified before the undersigned Veterans Law Judge in March 2011. A transcript of that hearing is in the record. FINDINGS OF FACT 1. In April 1998, the Board determined that new and material evidence had not been received to reopen a previously denied claim for entitlement to service connection for a psychiatric disability, to include PTSD. The Veteran was notified of his right to appeal, but a timely appeal was not filed. 2. Evidence added to the record since the April 1998 Board decision, considered in conjunction with the record as a whole, is new, relates to an unestablished fact necessary to substantiate the Veteran's claim, and raises a reasonable possibility of substantiating the Veteran's claim. 3. PTSD has been shown by competent evidence to be causally related to the Veteran's active service. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim for entitlement to service connection for a psychiatric disability, to include PTSD, is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156(a) (2010). 2. PTSD was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit other evidence that may be relevant to the claim. The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In addition, in Kent v. Nicholson, 20 Vet. App. 1 (2006), Court specifically addressed VCAA notice requirements in the context of a veteran's request to reopen a previously and finally denied claim. The Court found that VA must notify a claimant of the evidence and information that is necessary to reopen the claim, and must provide notice that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were not found in the previous denial. In light of the decision herein reopening the claim and granting service connection for the benefit sought on appeal, the Board finds that any errors with regard to the VCAA duties to notify and/or assist are harmless. Consequently, the case is ready for appellate review. Legal Criteria and Analysis The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, extensive evidence submitted by the veteran or on his behalf. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010). New and Material Evidence Pursuant to 38 U.S.C.A. § 7105(c) and 38 C.F.R. § 3.105 (2010), a final decision by the RO may not thereafter be reopened and allowed, in the absence of clear and unmistakable error (CUE), except as provided by 38 U.S.C.A. § 5108, which indicates that "[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim." Therefore, once an RO decision becomes final under section 7105(c), in the absence of CUE, and absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C.A. §§ 5108, 7105(c)(West 2002); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); 38 C.F.R. § 3.105. In general, a decision of the Board is final and binding on the veteran if not timely appealed. 38 U.S.C.A. § 7104 (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is received the claim shall be reopened and the former disposition of the claim reviewed. See also 38 C.F.R. § 3.156(a) The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384. See also Butler v. Brown, 9 Vet. App. 167, 171 (1996). VA promulgated amended regulations implementing the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). There was a new provision, 38 C.F.R. § 3.156(a), which redefined the definition of "new and material evidence." This provision is applicable only for claims filed on or after August 29, 2001. The Veteran filed his claim to reopen in August 2006. Therefore, the Board finds that the post August 29, 2001 standard of review should be applied. "New" evidence is existing evidence not previously submitted to agency decision makers. "Material" evidence is existing evidence that, 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 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). 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). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2010). Present disability resulting from disease or injury in service is required to establish entitlement to service connection. Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997). To establish service connection for a disability, there must be competent evidence of a current disability (medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 507 (1995). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2010). Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946 and a psychosis becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in, or aggravated by, such service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f)(2010). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994). Further relating to claims of service connection for PTSD, in Zarycki v. Brown, 6 Vet. App. 91 (1993), the United States Court of Appeals for Veterans Claims (Court) set forth the analytical framework and line of reasoning for determining whether a veteran was exposed to a recognizable stressor during service, which, as discussed above, is an essential element in solidifying a claim for service connection for PTSD. In Zarycki, it was noted that, under 38 U.S.C.A. 1154(b); 38 C.F.R. 3.304(d) and (f), and the applicable provisions contained in VA Manual 21-1, the evidence necessary to establish the incurrence of a recognizable stressor during service to support a claim of service connection for PTSD will vary depending on whether the veteran "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60 (1993). The determination as to whether the veteran "engaged in combat with the enemy" is made, in part, by considering military citations that expressly denote as much. Doran v. Brown, 6 Vet. App. 283, 289 (1994). However, the Court has held that the Board may not rely strictly on combat citations or the veteran's military occupational specialty to determine if he engaged in combat; rather, other supportive evidence of combat experience may also be accepted. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996); West v. Brown, 7 Vet. App. 70, 76 (1994). If combat is affirmatively indicated, then the veteran's lay testimony regarding claimed combat- related stressors must be accepted as conclusive as to their actual occurrence and no further development or corroborative evidence will be required, provided that the veteran's testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions, or hardships of such service." Zarycki, 6 Vet. App. at 98. If there is no combat experience, or if there is a determination that the veteran engaged in combat but the claimed stressor is not related to such combat, there must be independent evidence to corroborate the veteran's statement as to the occurrence of the claimed stressor. Doran, 6 Vet. App. at 288-89 (1994). The veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. Dizoglio, 9 Vet. App. at 166 (1996). Further, an opinion by a mental health professional based on a post-service examination of the veteran cannot be used to establish the occurrence of a stressor. Moreau v. Brown, 9 Vet. App. at 395-96 (1996); Cohen v. Brown, 10 Vet. App. 128 (1997). During the pendency of this appeal, effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by adding a new paragraph (f)(3), which reads as follows: If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.... Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39843 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3)) (emphasis added). The provisions of this amendment apply to applications for service connection for PTSD that, among others, were appealed to the Board before July 13, 2010 but have not been decided by the Board as of July 13, 2010. Accordingly, the provisions apply to this case. 1. New and Material Evidence to Reopen-Psychiatric Disability The Veteran asserts that new and material evidence has been submitted to reopen his claim for entitlement to service connection for a psychiatric disability, to include PTSD. The record reflects that in a March 1989 rating decision, the RO denied the Veteran's claim for a psychiatric disability, to include PTSD, psychosis and neurosis. He perfected an appeal with respect to the RO's denial and in a May 1990 decision, the Board affirmed the RO's denial. The reasons for the Board's denial was that symptoms of the Veteran's pyschiatric condition, which was variously classified as an adjustment disorder with depressed mood, episodic alcohol abuse, adult antisocial behavior, an antisocial personality disorder, and paranoid schizophrenia were first manifested many years after service discharge and the Veteran was not shown to have a chronic psychiatric disorder related to his period of active service. The Board also found that PTSD was not shown by the evidence of record and paranoid schizophrenia was not shown to have been disabling to a compensable degree during the first post service year. No appeal was taken from that determination, and there has been no allegation of CUE in that regard. As such, it is final. 38 U.S.C.A. § 7104. In a November 1990 decision, the RO found that new and material evidence had not been submitted to reopen the Veteran's claim. The RO's reasoning was that the evidence that had been presented showed depression several years after discharge, which was related to marital problems. No evidence had been presented to show treatment and diagnosis for a chronic psychiatric condition while in service or within the one year presumptive period following discharge or that the Veteran was ever diagnosed with PTSD. No appeal was taken from that determination, and there has been no allegation of CUE in that regard. As such, it is final. 38 U.S.C.A. § 7105. In an August 1995 rating decision, the RO again determined that new and material evidence had not been submitted to reopen the Veteran's claim for PTSD because the newly submitted evidence contained no findings regarding PTSD. No appeal was taken from that determination, and there has been no allegation of CUE in that regard. As such, it is final. 38 U.S.C.A. § 7105. In a September 1996 rating decision, the RO denied the Veteran's claim for PTSD on the basis that the Veteran had not been diagnosed with the disability. The Veteran appealed the RO's decision to the Board, which in an April 1998 decision, affirmed the RO's denial The cited reasons for the Board's denial was that there was no competent medical evidence that the Veteran currently suffered from a psychiatric disorder, including PTSD, which was related to his period of active service. No appeal was taken from that determination, and there has been no allegation of CUE in that regard. As such, it is final. 38 U.S.C.A. § 7104. The evidence of record at the time of the April 1998 Board denial included the Veteran's service treatment records which were negative for complaints of, or treatment for a psychiatric disability, to include PTSD. Also of record were the Veteran's service personnel records and DD Form 214 which show that the Veteran served as a light weapons infantryman in Vietnam between December 1968 and August 1969. Such records also show that the Veteran participated in a "9th Campaign Unnamed" and that he received an Air Medal and a Combat Infantryman Badge. Also of record were post service VA examination reports and private and VA treatment records that showed that the Veteran was diagnosed with and treated for (including hospitalization) psychiatric disabilities that had been variously diagnosed as depression, anxiety, adjustment disorder, bipolar disorder, paranoid schizophrenia, and antisocial disorder. The evidence received since the final April 1998 Board decision includes VA inpatient and outpatient treatment records showing diagnoses of, and treatment for, psychiatric disabilities, to include PTSD, bipolar disorder, anxiety, antisocial personality disorder, and depression. Such evidence also includes private and VA opinions as to whether the Veteran met the criteria for PTSD. The Board finds this additional evidence is new, in that it was not previously of record, and it is also material as it relates to a prior basis for denial of the claim, (i.e., whether the Veteran has a current psychiatric disability that is related to service), including whether the Veteran has a current PTSD diagnosis that is based on a verified in-service stressor. Thus, new and material evidence has been submitted, and the claim is reopened. To this extent, the appeal is allowed. 2. Service Connection--Pyschiatric Disability The Veteran contends that service connection is warranted for a psychiatric disability, to include PTSD. The record reflects that the Veteran has been diagnosed with, and treated for a psychiatric disability that has been variously diagnosed as PTSD, bipolar disorder, anxiety, antisocial personality disorder, and depression. The Veteran contends that such conditions are due to his combat experience while stationed in Vietnam, including being fired upon by the enemy, firing upon the enemy, and seeing others, including fellow servicemen and Vietnamese children killed. In order to establish a claim of entitlement to service connection for PTSD, it is necessary to show that an in-service stressor occurred. The Veteran's service personnel records show that the served in Vietnam between December 1968 and August 1969. Such records also show that the Veteran, whose military occupational specialty was that of a light weapons infantryman, participated in an unnamed campaign with the 9th Infantry Division and received several badges and medals, including a Combat Infantryman Badge and an Air Medal. Therefore, based on this evidence and resolving all reasonable doubt in the Veteran's favor, the Board concludes that the Veteran engaged in combat with the enemy while he was in Vietnam. The Board notes that if combat is affirmatively indicated, then the veteran's lay testimony regarding claimed combat- related stressors must be accepted as conclusive as to their actual occurrence and no further development or corroborative evidence will be required, provided that the veteran's testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions, or hardships of such service." Zarycki, 6 Vet. App. at 98. Here, the Board finds that the Veteran's statements in the record regarding his combat-related stressors to be credible and consistent with the circumstances of his military combat activity. Thus, the next inquiry is whether the Veteran has a current PTSD diagnosis and whether such diagnosis is causally related to the Veteran's service. A November 2006 VA examination report shows that the examiner indicated although the Veteran reported a stressor that met the DSM-IV stressor criteria, he did not report psychological symptoms that met DSM-IV PTSD symptom criteria. The examiner also indicated that while the Veteran did report psychosocial dysfunction, such psychosocial dysfunction was not seen as attributable to PTSD-like symptoms, but rather they seemed to be attributable to other disorders, including antisocial personality disorder and a past history of alcohol dependence. However, the record reflects that the Veteran has been diagnosed by VA examiners since March 2008 with PTSD and undergone treatment for his disability. Such diagnosis was based on the Veteran's reported in-service combat-related stressors. Additionally, in April 2010, R. B. C., Ph.D., a Consulting Psychologist, after discussing the Veteran's combat stressors and evaluating the Veteran using various tests and techniques, including the Minnesota Multiphasic Personality Inventory-2, Millon Clinical Multiaxial Inventory, Combat Exposure Survey, The Mississippi Scale, the Posttraumatic Checklist-Military, and the Clinician Administered PTSD Scale for DSM-IV, found that the Veteran met the DSM-IV criteria for PTSD. According to Dr. C.: [The Veteran] shows sufficient target signs for an unequivocal diagnosis of Posttraumatic Stress Disorder, as designated by the Diagnostic and Statistical Manual- IV TR. He meets the A criteria based on his Viet Nam combat exposure and his response of horror on seeing his Lieutenant severely injured and the other bloody exposures. The horrors involved to the killing of enemy combatants by himself, a combat infantryman, in 1968 during the height of escalation of the Viet Nam War. This PTSD was the result of the accumulated effects of his horrors over his entire tour of duty and were not solely caused by a single event. The MMPI, MCMI, Mississippi, and other psychometric scales are positive for symptomatology consistent with Posttraumatic Stress Disorder. The collateral information and his self reports are consistent with PTSD and he is found to be a fully credible reporter of fact. There is nothing in the evidence to suggest an earlier life trauma that could account for the development of his Posttrauma stress symptoms. Looking at the B through F criteria of PTSD, he clearly meets B1, B4, C1, C2, C5, C6, C7, D2, D3, and DV; all at a moderate or higher intensity level. The onset of symptoms were gradual during his tour of duty with immediate recognition on returning to the United States. This mental disturbance has caused clinically significant distress in his social, occupational, and personal life over the years. The data is so consistent and complete as to suggest that it is more likely than not that there is a causal nexus between his conscripted service in Viet Nam and his current diagnosis of PTSD. His personal pride and attempts at personally denying that he could be so weak as to fall pray to mental illness, has delayed a diagnosis of PTSD for 40 years. His past diagnoses of anxiety and depression were symptomatic of the larger Posttraumatic Stress Disorder. The record reflects that during the Veteran's March 2011 videoconference hearing, Dr. R B.C. provided testimony regarding his April 2010 opinion and reiterated his reasons as to why the Veteran has PTSD. The Board notes that in cases such as this where there are conflicting statements from medical professionals regarding the whether the Veteran meets the DSM-IV criteria for PTSD, it is within the Board's province to weigh the probative value of those opinions. In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the U.S. Court of Veterans Appeals stated: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators . . . . So long as it provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). In addition, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In this case, the Board finds that Dr. R. B. C., both in his examination report as well during his March 2011 videoconference hearing testimony, provided a more detailed and thorough rationale as to how and/or why the Veteran met each one of the DSM-IV criteria for PTSD, as compared to the opinion and rationale provided by the November 2006 VA examiner against such a finding. Thus, Dr. C's April 2010 opinion will be given more probative weight that the November 2006 VA opinion. Accordingly, the Board finds that the Veteran has a current PTSD diagnosis that meets the DSM-IV criteria. Therefore, because the Veteran has been diagnosed as having PTSD, which is linked to his in-service combat experiences in Vietnam, and resolving all benefit of doubt in the Veteran's favor, the Board finds that the evidence of record is sufficient to support a finding of service connection for PTSD. Accordingly, the Veteran's claim for service connection for PTSD is granted. The Board again notes that the record reflects diagnoses other than PTSD, specifically anxiety, and depression. Nevertheless, manifestations of such conditions have not been clinically distinguished from manifestations of PTSD, for which service connection has been established herein. (CONTINUED ON NEXT PAGE) ORDER As new and material evidence was received to reopen a claim of entitlement to service connection for a psychiatric disability, the appeal, to this extent, is granted. Entitlement to service connection for PTSD, is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs