Citation Nr: 1310093 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 08-30 712 ) DATE ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been presented to reopen the claim of service connection for a back disability. 2. Whether new and material evidence has been presented to reopen the claim of service connection for posttraumatic stress disorder. 3. Entitlement to service connection for posttraumatic stress disorder. 4. Entitlement to service connection for hypertension. 5. Entitlement to recognition of JRW, the Veteran's child, as a helpless child for the purpose of VA benefits, on the basis of permanent incapacity for self-support before attaining the age of 18 years. REPRESENTATION Veteran represented by: Joseph R. Moore, Attorney at Law ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from May 1968 to March 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in November 2007 of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2012, the Veteran withdrew his request for a hearing. In January 2013, except for the issues listed on the first page of this decision, the Veteran withdrew all the other claims on appeal. The new and material evidence claim of service connection for a back disability, the claim of service connection for hypertension, and the claim of recognition of JRW, the Veteran's child, as a helpless child are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. In a May 2001 rating decision, the RO denied the claim of service connection for posttraumatic stress disorder; after the Veteran was notified of the adverse determination and of his appellate rights, he did not appeal the rating decision and no new and material evidence was submitted within one year of the rating determination; and the rating decision became final on the evidence of record. 2. The additional evidence presented since the rating decision in May 2001 by the RO pertaining to service connection for posttraumatic stress disorder, raises a reasonable possibility of substantiating the claim. 3. The diagnosis of posttraumatic stress disorder is related to the in-service stressor of the Veteran's combat action in Vietnam. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen the claim of service connection for posttraumatic stress disorder. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156 (2012). 2. The criteria for service connection for posttraumatic stress disorder have been met. 38 U.S.C.A. §§ 1110, 1154(b), 5107(b) (West 2002), 38 C.F.R. §§ 3.303, 3.304(f) (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). In a new and material evidence claim, the VCAA notice must include the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish the underlying claim for the benefits sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). As the Board is reopening the claim of service connection for posttraumatic stress disorder and granting the benefit, VCAA compliance as to the claim need not be further addressed. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Procedural History and Evidence Previously Considered In a rating decision in May 2001, the RO denied service connection for posttraumatic stress disorder. The evidence of record at the time of the rating decision consisted of the service treatment records and private medical records, which contained no complaint, finding, history, treatment, or diagnosis of posttraumatic stress disorder. There was also a statement from the Veteran describing his experiences in Vietnam. The service personnel records show that the Veteran received the Combat Action Ribbon. The RO denied service connection for posttraumatic stress disorder because the evidence did not show that the Veteran had a diagnosis of posttraumatic stress disorder. After the Veteran was notified of the rating decision and of his appeal rights, the Veteran did not appeal the denial of the claim and new and material evidence was not received by VA within one year of the rating decision, and the rating decision became final as a matter of law. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104. In May 2007, the Veteran applied to reopen the claim of service connection for posttraumatic stress disorder. In a rating decision in November 2007, the RO denied the application to reopen the claim on the grounds that new and material evidence had not been presented. The Veteran then appealed to the Board. While on appeal, the RO reopened the claim and considered the claim on the merits and the Veteran was notified the reopening of the claim by the Supplemental Statement of the Case in November 2008. Whether or not the RO reopened the claim is not dispositive, as it is the Board's jurisdiction responsibility to consider whether it is proper for a claim to be reopened. Jackson, 265 F.3d 1366. Where, as here, a claim of service connection has been previously denied, a subsequent claim of service connection for the same disability may not be considered on the merits unless new and material evidence has been presented. As the application to reopen the claim was received after August 29, 2001, the current regulatory definition of new and material evidence under 38 C.F.R. § 3.156 applies. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means 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 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. In order that the additional evidence may be considered new and material, the evidence must relate to the basis for the prior denial of the claim. In determining whether evidence is new and material, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). Additional Evidence and Analysis The additional evidence presented since May 2001 includes service personnel records, VA records, private medical records, and statements of the Veteran. The service personnel records show the Veteran's unit assignments and primary duties in Vietnam. VA and private records show a diagnosis of PTSD in October 2006, definitely PTSD in December 2007, signs and symptoms of PTSD in September 2008, and a diagnosis of PTSD in November 2008, which were related to the Veteran's Vietnam experiences. As the additional evidence relates to an unestablished fact necessary to substantiate the claim, that is, a diagnosis of PTSD, resulting from the Veteran's Vietnam experiences, and as the lack of such evidence was the basis for the previous denial of the claim, the additional evidence to this extent is new and material under 38 C.F.R. § 3.156, and the claim of service connection for PTSD is reopened. As the claim is reopened, the Board is proceeding to decide the claim on the merits because the outcome is favorable to the Veteran. Service Connection Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also 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). Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV); 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). Facts and Analysis The Veteran served in Vietnam for about 10 months in 1969 and in 1970. His decorations included a Combat Action Ribbon. The Veteran has submitted evidence that two officers and one senior NCO in his unit were killed by enemy fire. VA and private medical records show a diagnosis of posttraumatic stress disorder related to the Veteran's Vietnam experiences, which included the deaths by enemy fire of 2 officers and a senior NCO in his unit. Under 38 C.F.R. § 3.304(f), the diagnosis of posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance 38 C.F.R. § 4.125, that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). For this reason, posttraumatic stress disorder is not a simple medical condition that the Veteran as a lay person is competent to identify or a condition as to which the Veteran as a lay person can offer an opinion as to the cause of posttraumatic stress disorder. Where, as here, there is a question of a medical diagnosis or of causation, that is, the origin of posttraumatic stress disorder, not capable of lay observation, and condition is not a simple medical condition, competent medical evidence is needed to substantiate the claim. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or opinion. 38 C.F.R. § 3.159. And there are medical opinions in favor of the claim and against the claim. With regard to a medical opinion, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, whether the opinion is the product of reliable principles, and whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). A mere conclusory opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to the opinion against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). The evidence in favor of the claim consists of the opinions a private psychiatrist and a private psychologist, who have followed the Veteran since 2008 and to whom VA had referred the Veteran for diagnostic evaluation. Earlier in his career, the private psychiatrist was the Chief of Psychiatry at the Irwin Army hospital at Fort Riley, Kansas. The private psychiatrist and private psychologist expressed the opinion that the Veteran has posttraumatic stress disorder related to in-service stressors in Vietnam. The evidence against the claim consists of the opinions in October 2007 and in October 2010 with addendum in 2012 of two VA examiners, who have expressed the opinion that the Veteran did not have posttraumatic stress disorder because the psychological testing for PTSD did not support the diagnosis of PTSD or the results of the testing for PTSD were invalid as the Veteran over reported his symptoms. One VA examiner explained that while the Clinician Administered PTSD scale (CAPS) and the Structured Clinical Interview for DSM-IV (SCID) were suggestive of PTSD, the CAPS test did not have a validity scale and that the testing with validity scales, Structured Interview of Reported Symptoms (SIRS) and the Structured Interview of Malingered Symptomatology (SIMS), indicated that the Veteran was feigning symptoms and therefore the results of the CAPS testing were not an accurate description of the Veteran's PTSD symptoms. The private psychologist explained that the CAPS, SCID, SIRS, and SIMS tests were brief screening tools and were not as comprehensive as the Minnesota Multiphase Personality Inventory-2 (MMPI-2) with validity scales, the results of which were reliable and valid. The private psychologist, who practiced with the private psychiatrist, and representing both, stated that with over 40 years of experience of working with Veterans they were able to identify Veterans, who pretended to have PTSD, but this Veteran was not a pretender and the Veteran had PTSD, which was supported MMPI-2, which provided a reliable and valid assessment of the Veteran's PTSD symptoms. In October 2012, the private psychiatrist explained that the Veteran's failure to cooperate, that is, invalid testing for PTSD, was due to the Veteran's avoidance of places or people that aroused recollections of the in-service stressors. As the opinions of the private psychologist and private psychiatrist are based on the facts of the case and the opinions applied medical analysis to reach the conclusions submitted in the opinions, the Board finds that opinions are persuasive evidence in favor of the claim and outweighs the opinions of the VA examiners, evidence against the claim. And the Veteran prevails. ORDER The application to reopen the claim of service connection for posttraumatic stress disorder is granted. On the merits of the claim, service connection for posttraumatic stress disorder is granted. REMAND On the new and material evidence claim of service connection for a back disability, spondylolisthesis of L5 on S1 and degenerative disc disease at L5-S1, in a statement in September 2007, the Veteran identified additional evidence to support his claim. As the evidence of record is incomplete, further development under the duty to assist is needed. 38 C.F.R. § 3.159(c). On the claim of service connection for hypertension, in December 2010, VA records note that hypertension was more likely than not related to Agent Orange exposure. As the opinion is merely conclusionary it is insufficient to allow the Board to make an informed decision and further development under the duty to assist is needed. On the claim to recognize JRW as a helpless child, a decision is deferred until the claims of service connection for PSTD and for hypertension are finally adjudicated. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran through his attorney either to submit or to authorize VA to obtain on his behalf the report of physical examination for the Jacksonville Electric Authority in 1971 and X-rays of the back from 1977. 2. Afford the Veteran a VA examination to determine: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability approximately 50 percent), or less likely than not (probability less than 50 percent) that: a). Hypertension is actually caused by exposure to Agent Orange; or b). Hypertension is caused by or aggravated by service-connected PTSD. The term "aggravation" means a permanent increase in severity; that is, an irreversible worsening of hypertension beyond its natural clinical course due to service-connected PTSD. The Veteran's file must be provided to the VA examiner for review. 3. After the development has been completed, adjudicate the claims. On the claim to recognize JRW as a helpless child, consider the claim in light of the grant of service connection for PTSD. If any benefit sought is denied, furnish the Veteran and his attorney a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs