Citation Nr: 1304409	
Decision Date: 02/07/13    Archive Date: 02/19/13

DOCKET NO. 10-01 551	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a cervical spine condition.

2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a lumbar spine condition.

3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) as due to personal assault and schizophrenia variously diagnosed.  

4. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD as due to personal assault and schizophrenia variously diagnosed. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

C. Bruce, Counsel


INTRODUCTION

The Veteran had active service from July 1974 to November 1974.

These claims come before the Board of Veterans' Appeals (Board) on appeal of March 2008 and April 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. 

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).

The issue of entitlement to service connection for PTSD, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1. In a rating decision dated in June 2005, the RO denied the Veteran entitlement to service connection for a cervical spine condition and entitlement to reopen for a claim of service connection for a lumbar spine condition.

2. The RO notified the Veteran of the decision and of his appellate rights with regard to the decision, but he did not file a notice of disagreement.

3. The evidence received since June 2005 is neither cumulative, nor redundant of the evidence previously of record but, by itself or when considered with the evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a cervical spine condition and does not raise a reasonable possibility of substantiating that claim.

4. The evidence received since June 2005 is neither cumulative, nor redundant of the evidence previously of record but, by itself or when considered with the evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a lumbar spine condition and does not raise a reasonable possibility of substantiating that claim.

5. In a decision dated in November 2005, the Board denied the Veteran entitlement to service connection for a psychiatric disorder. 

6. The evidence received since November 2005 is neither cumulative, nor redundant of the evidence previously of record and by itself or when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for PTSD and schizophrenia variously diagnosed and raises a reasonable possibility of substantiating that claim.


CONCLUSIONS OF LAW

1. The June 2005 rating decision, in which the RO denied the Veteran entitlement to service connection for cervical and lumbar spine conditions, is final. 38 U.S.C.A. 
§ 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005).

2. New and material evidence has not been received to reopen a claim of entitlement to service connection for a cervical spine condition. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 

3. New and material evidence has not been received to reopen a claim of entitlement to service connection for a lumbar spine condition. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).

4. The November 2005 Board decision, in which the Board denied the Veteran entitlement to service connection for a psychiatric disorder, is final. 38 U.S.C.A. §§ 7103, 7104 (West 2002); 38 C.F.R. § 20.1100 (2005).

5. New and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD as due to personal assault. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).


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 Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (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. See 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.

The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the issues on appeal. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).

The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 

Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet.App. 183 (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, e.g., Barr v. Nicholson, 21 Vet.App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet.App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet.App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). 
Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet.App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet.App. 518 (1996).

Duties to Assist and Notify

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1).

September 2007 and October 2008 pre-adjudication letters explained the evidence necessary to substantiate claims for service connection. The letters also notified the Veteran how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006). The letters were provided to the Veteran prior to the respective initial adjudications of his claims, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004).
With regard to claims to reopen, VA must inform the claimant of the evidence and information necessary to reopen his claim and to establish entitlement to the underlying claim. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). In notifying the claimant of what evidence would be considered new and material, VA must examine the basis of the denial in the prior decision and identify the evidence that would substantiate the element(s) of a service connection claim found lacking in that case. Id.

These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006).

The RO provided the Veteran VCAA notice on the claims being decided in the September 2007 and October 2008 letters. The RO notified the Veteran of the evidence needed to substantiate his claims, identified the type of evidence that would best do so, notified him of VA's duty to assist and indicated that it was developing his claims pursuant to that duty. The RO also provided the Veteran all necessary information on disability ratings and effective dates. The RO noted the bases of the last denials of his claims for service connection for a cervical spine condition, a lumbar spine condition, and PTSD. The RO identified the evidence it had received in support of the Veteran's claims and the evidence it was responsible for securing. The RO noted that it would make reasonable efforts to assist the Veteran in obtaining all other outstanding evidence provided he identified its source. The RO also noted that it was the Veteran's ultimate responsibility to ensure VA's receipt of all pertinent evidence.

VA has a duty to assist veterans in obtaining evidence necessary to substantiate their claims. The claims file contains reports of post-service medical treatment, but no VA examination with regard to recent appeal; however, in claims involving new and material evidence, an examination is not required if there is no new and material evidence obtained. See 38 C.F.R. § 3.159 (c)(4)(C)(iii) (2012); see also Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). Given that no new and material evidence was presented regarding the issues of a cervical spine condition and a lumbar spine condition, no examination is required. 

The applicable duties to notify and assist have been satisfied. There is sufficient evidence on file in order to decide this appeal and the Veteran has been given ample opportunity to present evidence and argument in support of his claims. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); see also Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of these issues has been obtained and the case is ready for appellate review. See 38 C.F.R. § 3.103 (2012).

Merits of the Claims

The Veteran has petitioned to reopen previously denied claims of service connection for a cervical spine disorder, a lumbar spine disorder, and PTSD. 
According to various statements by the Veteran, including the most recent September 2012 statement, he alleges that he was harassed physically, mentally, and sexually while in the military and as a result currently has cervical and lumbar spine conditions, as well as PTSD. However, as part of his current petition to reopen his claims for a psychiatric disorder, the Veteran has submitted medical opinion evidence that he has a schizoid-related disorder (i.e., schizophrenia and schizo-affective disorder) that was caused by service. 

Given the recently-submitted evidence pertaining to a psychiatric disorder, the claim on appeal has been recharacterized to reflect the reasonable expectations of the Veteran in pursuing his claim for service connection. Clemons v. Shinseki, 23 Vet.App. 1 (2009) (holding claimant seeking service connection for psychiatric disability who has no special medical expertise is not competent to provide diagnosis requiring application of medical expertise to facts, which include claimant's description of history and symptoms, and VA should construe claim for service connection based on reasonable expectations of non-expert claimant).

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. When the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support a claim of service connection. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). 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). 

Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) 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 or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Hickson elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Savage, 10 Vet. App. at 495-96; see also Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).

There must be objective indications of chronic disability, and this includes "signs" in the medical sense of objective evidence perceptible to an examining physician and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). A disability is considered chronic if it has existed for six months or more, even if exhibiting intermittent episodes of improvement and worsening throughout that six-month period. 38 C.F.R. § 3.317(a)(4).

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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d).

Service connection may be presumed for certain chronic conditions such as arthritis if a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, and the condition manifested to a degree of 10 percent within one year of the date of discharge. 38 U.S.C.A. §§ 1101, 1112(a), 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012).

The RO previously denied the Veteran's claim for entitlement to service connection for a cervical spine disorder in a rating decision dated in June 2005. In deciding this claim, the RO considered the Veteran's service treatment records, post-service VA treatment records, and various statements by the Veteran. The RO denied the Veteran's claim for service connection for a cervical spine disorder because there was no evidence that the Veteran was diagnosed with a cervical spine condition that began in or was aggravated by his military service. 

The RO originally denied the Veteran's claim for entitlement to service connection for a lumbar spine condition in a February 1978 rating decision because the Veteran had a pre-existing lumbar spine condition that was noted on entry and was not permanently aggravated during active duty service. The Veteran was subsequently denied reopen of the claim for lack of new and material evidence in May 1996, May 2002, and most recently in June 2005. The last final denial for the claim was in the June 2005 rating decision. In deciding the claim, the RO considered the reason for the initial denial in 1978, the Veteran's service treatment records, post-service VA treatment records, and various statements by the Veteran. The claim was denied by the RO because the Veteran failed to provide new and material evidence indicating that his current lumbar spine condition was related to or aggravated by his military service. 

The Veteran attempted to reopen his claims for service connection for a cervical spine condition and a lumbar spine condition by written statement received in April 2008. An April 2009 rating decision denied reopen of both claims for lack of new and material evidence. 

The Veteran was initially denied service connection for PTSD in the June 2005 RO decision because the evidence failed to show that the Veteran had a diagnosis of PTSD that was related to or aggravated by his military service. Essentially, the Veteran had alleged that he was generally mistreated during his four months of active military duty when he was unable to perform physical training due to a pre-existing back disorder. He alleged that he was sent to a "motivational" training unit, where he was forced to do repeated pushup exercises and that when he reported that he was physically unable to do so, he was overmedicated with pain killers to the point where he became chemically addicted.

The Veteran's psychiatric claim was denied in June 2005 because the Veteran's personnel records failed to show any indication of assault and because there was no competent evidence linking any mental disorder to service. The Veteran appealed the claim to the Board which denied the Veteran's claim for entitlement to service connection for a psychiatric disorder in a November 2005 Board decision. 

The Veteran's petition to reopen his claim for an acquired psychiatric disorder was received in August 2006 which was denied in a February 2007 rating decision because the Veteran failed to provide new and material evidence. The last final denial was therefore the November 2005 Board decision. In deciding this claim, the Board considered the Veteran's service treatment and personnel records, post-service VA treatment records, and a VA examination report. The Board found that the evidence failed to establish that the Veteran's diagnosed chronic undifferentiated schizophrenia and major depressive disorder, current with psychotic features were caused by or aggravated by his military service. 

A claim that is the subject of a prior final denial may be reopened if new and material evidence is received with respect to that claim. Once a claim is reopened, the adjudicator must review it on a de novo basis, with consideration given to all of the evidence of record. 38 U.S.C.A. § 5108 (West 2002); Evans v. Brown, 9 Vet. App. 273 (1996).

New evidence means existing evidence not previously submitted to agency decisionmakers. 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) (2012).

The evidence that is considered to determine whether new and material evidence has been received is the evidence associated with the claims file since the last final disallowance of the appellant's claim on any basis. Evans, 9 Vet. App. at 273. This evidence is presumed credible for the purposes of reopening an appellant's claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992).

The pertinent evidence that has been associated with the claims file since the RO's June 2005 rating decision, pertaining to his claims for cervical and lumbar spine, includes service treatment records, post-service VA treatment records, internet research, and various written statements from the Veteran and his mother. With the exception of the service treatment records and some of the post-service VA treatment records, this evidence is new in that it is neither cumulative, nor redundant of the evidence previously of record.

With regard to the claims of entitlement to service connection for cervical and lumbar spine conditions, this evidence is not material. By itself or when considered with the evidence previously of record, it does not relate to an unestablished fact necessary to substantiate these claims and does not raise a reasonable possibility of substantiating them.

The Veteran's written statements and testimony reflect his continuing and not new belief that these conditions are related to the in-service incidents described above.

While the VA treatment records show continued treatment for his cervical and spine pain, and are therefore "new" they contain no new information with regard to diagnoses and evidence that any current diagnoses are related to or were aggravated by his active duty service. See generally Morton v. Principi, 3 Vet. App. 508 (1992); Mingo v. Derwinski, 2 Vet. App. 51 (1992) (observing that evidence of a claimant's current condition is not generally relevant to the issue of service connection, absent some competent linkage to military service); see generally Leshore v. Brown, 8 Vet.App. 406 (1995) (the mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional).

Essentially, the Veteran has reiterated prior contentions regarding his cervical and lumbar spine. However, these contentions were previously considered and rejected in the prior rating decisions which denied him service connection for these claimed conditions. Because there is still an absence of evidence linking any current diagnoses of cervical or lumbar spine conditions with his active duty service, to include aggravation, the Board finds that new and material evidence has not been received in support of the claims of entitlement to service connection for these disorders. The Board may not therefore reopen his claims and his appeal, with regard to his claims for cervical and lumbar spine must be denied.

As to a psychiatric disorder, the pertinent evidence added to the claims file since the Board's November 2005 includes service treatment records, post-service VA treatment records, internet research, and various written statements from the Veteran and his mother. With the exception of the service treatment records and some of the post-service VA treatment records, this evidence is new in that it is neither cumulative, nor redundant of the evidence previously of record.

However, in an August 2006 statement, the Veteran alleged for the first time that members of his military unit, as opposed to his training command, threatened him with physical violence and "sexually based threats." He alleged that there were no records of these incidents because of a "cover up;" that after he was pushed down a flight of stairs he requested but was denied medical help; and was then reassigned to a "motivational" training unit. 

The Veteran also submitted two "Physician's Questionnaires," with the letterhead of his National Service Organization, but completed by two mental health care professionals, Robert A. Greenstein, M.D., and J. Maary, M.D. Both physicians marked pre-printed forms to indicate that the Veteran had schizoid-related disorders that were related to military service.

The two "Physician's Questionnaire" are both new and material. They were not previously of record, and they both facially indicate that competent medical examiners have linked a diagnosed psychiatric disorder to service. 

Further with regard to the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD as due to personal assault, the above noted evidence is also material. By itself or when considered with the evidence previously of record, it relates to an unestablished fact necessary to substantiate this claim and raises a reasonable possibility of substantiating the claim. More specifically, the new VA treatment records establish that the Veteran has received treatment for, and been diagnosed with, PTSD. While the previous final denial, the November 2005 Board decision did not specifically deny the claim based on the absence of a diagnosis, that decision did not address the claim of entitlement to service connection for PTSD. However, as the Court determined in Clemons, with regard to psychiatric claims, it is symptomatology and not actual diagnoses that should be considered when determining the scope of the claim. The Veteran has alternatively claimed entitlement to service connection for an acquired psychiatric disorder as well as entitlement to service connection for PTSD using the same symptomatology as a basis for the claim. As the claim has previously been denied due to absence of a diagnosis of PTSD and no competent evidence linking any diagnosed psychiatric disorder to service, both new and material evidence has been submitted. 

Having determined that new and material evidence has been received, the Board may reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include a schizoid-type disorder and PTSD as due to personal trauma. The Board may not, however, decide this claim on its merits as VA has not yet satisfied its duty to assist the Veteran in the development of this claim.


ORDER

New and material evidence not having been received, the claim of entitlement to service connection for a cervical spine condition is denied. 

New and material evidence not having been received, the claim of entitlement to service connection for a lumbar spine condition is denied.

New and material evidence having been received, the claim of entitlement to service connection for a psychiatric disorder to include PTSD and schizophrenia variously diagnosed is reopened.

REMAND

Prior to adjudicating the claim of entitlement to service connection for PTSD, additional development is necessary. See 38 C.F.R. § 19.9 (2012).

When the Board reopens a claim after the RO denied reopening the same claim, the matter generally must be returned to the RO for consideration of the merits of the claim. Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010). This is so because the RO generally does not assess the credibility of the evidence or determine the need for a medical examination or opinion when reopening is denied. Id. at 403 (internal citations omitted). For the Board to then discuss the merits of the claim, it would be considering law that the RO had not already considered, possibly implicating 38 C.F.R. § 20.903(b). Id. In any event, the RO should consider the new evidence in the first instance and decide the claim on its merits so as to preserve for the Veteran the one review on appeal as provided by 38 U.S.C.A. § 7104 (West 2002). Id. at 399.

During the course of this appeal, VA did not assist the Veteran in the development of his claim for service connection for an acquired psychiatric disorder, to include PTSD as due to personal assault. Under 38 U.S.C.A. § 5103A (West 2002), VA's duty to assist generally includes providing a claimant a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim and the claims file contains competent evidence that the claimant has a current disability and indicates that the disability may be associated with the claimant's service.

With respect to the Veteran's claim for an acquired psychiatric disorder to include PTSD as due to personal assault, the Board notes that generally service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor(s). 38 C.F.R. § 3.304(f) (2012). With regard to the second PTSD element as set forth in 38 C.F.R. § 3.304(f), evidence of an in-service stressor, the evidence necessary to establish that the claimed stressor actually varies depending on the circumstances of the stressor and the nature of a Veteran's service.

In PTSD cases, such as this one, in which the Veteran asserts personal assault as the in-service stressor, VA has provided for special evidentiary-development procedures, including interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis. See Patton v. West, 12 Vet.App. 272, 280 (1999); see also VA ADJUDICATION MANUAL M21-1, Part III, para. 5.14c (February 20, 1996). Specifically, in claims concerning in-service personal assault, alternative forms of evidence (i.e., evidence other than service records) may be used to corroborate the Veteran's account of an in-service assault. Examples of such evidence include records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted disease; statements from family members, roommates, fellow service-members, or clergy; evidence of behavioral changes following the claimed assault, such as a request for a transfer to another military occupational specialty (MOS) or duty assignment, deterioration in work performance, substance abuse, unexplained economic or social behavior changes, or episodes of depression, panic attacks, or anxiety without an identifiable cause. See 38 C.F.R. § 3.304(f)(3); see also Gallegos v. Peake, 22 Vet. App. 329 (2008). 

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.)

1. Ascertain if the Veteran has any further lay or medical evidence that is not presently in the claims file pertaining to the claim being remanded. Provide the Veteran with appropriate releases of information to obtain any evidence cited and advise him that he may submit such evidence on his own.

IN PARTICULAR, ADVISE THE VETERAN THROUGH HIS REPRESENTATIVE THAT HE MUST COMPLETE AND SUBMIT AUTHORIZATIONS FOR THE RELEASE OF TREATMENT RECORDS AUTHORED BY MENTAL HEALTH CARE PROVIDERS ROBERT A. GREENSTEIN, M.D.; J. MAARY, M.D.; BRIAN BORA, M.D. 

PROVIDE THE VETERAN WITH APPROPRIATE RELEASE OF INFORMATION FORMS AND OBTAIN THE RECORDS INDICATED. ALL ATTEMPTS TO OBTAIN THE RECORDS, INCLUDING THE VETERAN'S RESPONSE, MUST BE FULLY DOCUMENTED FOR THE RECORD. 

ALSO ADVISE THE VETERAN IN ACCORDANCE WITH VA ADJUDICATION MANUAL M21-1, Part III, para. 5.14c (February 20, 1996) THAT HE MAY SUBSTANTIATE THE PARTICULAR CLAIM OF SERVICE CONNECTION FOR A MENTAL DISORDER BASED ON PERSONAL ASSAULT THROUGH SUBMISSION OF ALTERNATIVE FORMS OF EVIDENCE AS SPECIFIED. 

2. Once all available records have been received, forward the Veteran's claims file to an appropriate VA clinician TO DETERMINE WHETHER THE VETERAN HAS PTSD, SCHIZOPHRENIA, SCHIZOAFFECTIVE DISORDER, OR ANY MENTAL DISORDER that was caused or aggravated by active military service from July to November 1974. Although the examiner must review the claims folder and conduct all appropriate testing and clinical interviews, the examiner's attention is called to the following:

Service personnel records indicated that the Veteran was medically discharged after being found physically disqualified for a low back disability that pre-existed service. Service treatment records indicated that the Veteran entered service with prominent lumbar lordosis. See May 1974 Report of Medical Examination (entrance examination).

Records further indicated that the Veteran had no problems during basic training, but after being placed in Motivation Flight due to an inability to perform, he complained about severe back pain after performing 65 push-ups his first day. He was provided a medical waiver and returned to his original squadron. After determining that no group could properly train him with the medical waiver, it was determined he should be discharged. 

A September 1974 medical board report noted that the Veteran had sacralization of L-5 and mechanical low back pain that started in 1973 prior to entrance into service. 
None of the service treatment records indicated any complaints about harassment or his injury being related to an assault.

During a July 2003 VA examination (accompanied by the examiner's review of the Veteran's claims files, medical records, pre-enlistment and discharge physical examinations), the Veteran was diagnosed with chronic undifferentiated schizophrenia, PTSD from childhood sexual abuse, pain disorder, polysubstance abuse in early remission, and a recurrent major depressive disorder with psychotic features. 

The examiner noted that in July 1995, an examiner had noted the Veteran was subjected to "prolonged sexual abuse" as a child, but that no mention of this pre-service event was noted in the claims folder. It was also noted that the Veteran had reported being hospitalized for two weeks when he was a child, after he had heard voices" and had depression. 

As to military service, the examiner noted the Veteran's account of a "slip and fall" accident, and that the Veteran had alleged that he was then "drugged up" by military medical authorities, which in turn led to him being discharged from service. He alleged that as a result of medications prescribed to him by military medical authorities, he was unaware that he was signing military discharge concurrences, which he alleged were presented to him as "transfer orders." The Veteran alleged that after his discharge from active service, he became increasingly depressed, anxious, and subject to auditory hallucinations. 

In September 2003, the Veteran underwent reexamination by another VA physician who also reviewed the Veteran's claims folder and medical records, including the July 2003 VA mental examination report. The examiner noted that the Veteran then denied having reported any childhood sexual abuse, and reported that he had a "good childhood." 

Specifically as to military service, the September 2003 examiner observed that when the Veteran underwent his service entrance physical examination, he denied any psychosis or drug use or any other medical history. However, while the Veteran reported during the pre-discharge examination that he once was or then was "depressed and nervous with excessive worry," the service department examiner noted that the Veteran's psychiatric condition was "normal," and no psychiatric treatment or hospitalization was noted during the Veteran's approximately 4 months of active service. The examiner noted that although the Veteran was prescribed Valium in service, it was unclear whether this was intended as a muscle relaxant to relieve the Veteran's then back pain or as an anxiety-relieving medication. 

The September 2003 VA examiner observed that the record demonstrated the Veteran made a poor adjustment to military life as evidenced by his transfer to a "motivational" training unit; and that any psychiatric symptoms the Veteran had in service were "transient and situational and related to the stressors of being in a state of mutual dissatisfaction, i.e., the Veteran's needs versus the needs of the Air Force." He opined that it was unlikely that the Veteran's subsequent psychiatric and behavioral problems were caused or exacerbated by military service. 

In an August 2006 statement, the Veteran alleged for the first time that members of his unit, as opposed to his training command, threatened him with physical violence and "sexually based threats." He alleged that there were no records of these incidents because of a "cover up;" that after he was pushed down a flight of stairs he requested but was denied medical help; and was then reassigned to a "motivational" training unit. 

The Veteran also submitted two "Physician's Questionnaires," with the letterhead of his National Service Organization, but completed by two mental health care professionals, Robert A. Greenstein, M.D., and J. Maary, M.D. Both physicians marked pre-printed forms to indicate that the Veteran had schizoid-related disorders that were related to military service. In April 2011, the Veteran also submitted a similar form, signed by Brian Bora, M.D., who opined that the Veteran has PTSD with panic disorders that is the result of military service. 

AT THE TIME OF THE WRITING OF THIS REMAND DIRECTIVE, Dr. Greenstein, Dr. Maary, and Dr. Bora have not provided any bases for their opinions, other than conclusions. 

The mere statement of the examiner's expertise and/or a bare summary conclusion is not alone sufficient under the law to accomplish VA's legal obligation to assist the Veteran. By law, the Board must evaluate multiple factors in determining whether medical opinions are sufficient to evaluate a claim. These factors include but are not limited to whether the examiner was aware of all facts of record; reviewed the claims folder; conducted any necessary clinical testing or interview with the Veteran, and whether the examiner explained the factual and medical bases for any opinion.

The examiner must provide any applicable diagnoses for the Veteran's psychiatric condition, if any exists. For each diagnosis rendered, provide an opinion as to whether any of the Veteran's acquired psychiatric disorders began during active service or are related to his claimed in-service assault. The examiner must address the Veteran's assertion of continuity of symptomatology, and whether it is consistent with the medical evidence of record.

The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles.

3. The RO/AMC and the examiners are advised that the courts of appellate jurisdiction (i.e., those that review Board decisions) have imposed increasing requirements in the obtaining and review of medical opinion evidence. The courts have directed that when VA (either the RO or the Board) obtains a medical opinion, it must be fully explained with specific reference to both medically and factually relevant evidence in the record. The courts have generally focused on the following questions: Whether the examiner showed a knowledge of the claimant's correct medical history; Whether the examiner provided a fully reasoned explanation, as opposed to a summary conclusion - the latter not being legally sufficient; Whether the examiner used clinical data (e.g., previous and current objective and clinical test results, laboratory findings, blood tests, etc.) in explaining his or her findings; Whether the examiner responded to the Board or the RO's inquiry; Whether the examiner cited to, and discussed other medical opinions of record; Whether the examiner discussed, as opposed to merely cited, his or her own expertise; specializations if any, and clinical experience.

4. The RO/AMC will review each examination report to ensure that it includes all requested information and, if not, return it to the examiner for correction pursuant to 38 C.F.R. § 4.2.

5. The RO/AMC will then readjudicate the claims on appeal based on all of the evidence of record, including that which is now on Virtual VA. If any benefit sought on appeal is not granted to the Veteran's satisfaction, issue a supplemental statement of the case. List the additional evidence the RO considered and identify the relevant actions the RO took and the evidence and applicable law and regulations it considered in support of the appeal. Allow an appropriate period of time for a response. Thereafter and subject to current appellate procedure, return this case to the Board for further consideration.

The Board intimates no opinion as to the ultimate outcome in this case, but advises the Veteran that he has the right to submit additional evidence and argument on the remanded claims. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999).

This claim must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs