Citation Nr: 1310122 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-23 016 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and dysthymic disorder 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and dysthymic disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to May 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Portland, Oregon, Department of Veterans Affairs (VA) Regional Office (RO), which found new and material evidence had been submitted to reopen the claim, but ultimately denied the claim for service connection on the merits. Although the RO reopened the claim, it is the Board's jurisdictional responsibility to consider whether a claim should be reopened, no matter what the RO has determined. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). As will be discussed in detail below, the Veteran filed a request to reopen the previously denied claim for entitlement to service connection for PTSD. Case law provides that a claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Brokowski v. Shinseki, 23 Vet. App. 79 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009). The record reflects mental disorders other than PTSD, including chronic dysthymic disorder and depression. Thus, pursuant to the holding in Clemons, the Board has more broadly characterized the psychiatric claims on appeal. In doing so, the Board acknowledges that a change in diagnosis or the specificity of the claim must be carefully considered in determining whether the claim is based on a distinct factual basis. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). In Boggs, the United States Court of Appeals for the Federal Circuit found that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury, when it is an independent claim based on distinct factual bases. However, the Court clarified in Velez v. Shinseki, 23 Vet. App. 199 (2009) that the focus of the analysis must be whether the evidence truly amounted to a new claim based upon a different diagnosed disease or whether the evidence substantiates an element of a previously adjudicated matter. In this case, the Board is broadening the scope of the claim because the present claim turns upon essentially the same history, factual bases, and claimed symptomatology as were considered in the prior final rating decisions - that the Veteran experiences a chronic psychiatric disorder as a result of his active service. As such, the threshold question of whether new and material evidence had been submitted must be addressed. It is also noted that in light of the Board's decision to reopen the claim and grant the claim for service connection for PTSD there is no discernable prejudice to the Veteran. In September 2012, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A transcript of that hearing is of record and associated with the claims file. FINDINGS OF FACT 1. Service connection for PTSD was denied by an unappealed rating decision of December 1982. 2. Evidence received subsequent to the December 1982 rating decision raises a reasonable possibility of substantiating the claim of service connection for PTSD. 3. The Veteran served in combat and has a Purple Heart. 4. The competent and credible evidence of record shows the Veteran has been diagnosed with PTSD linked to his active service. 5. The competent and credible evidence of record does not show the Veteran has dysthymic disorder as a result of service. CONCLUSIONS OF LAW 1. The December 1982 RO decision which denied service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (2012). 2. Evidence submitted subsequent to the December 1982 denial of service connection for PTSD, is new and material. 38 U.S.C.A. §§ 5107, 5108 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2012). 3. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(d), 3.304(f) (2012). 4. The criteria for entitlement to service connection for dysthymic disorder have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(d) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify In the issue for whether new and material evidence has been submitted to reopen the claim for service connection for PTSD and service connection for PTSD, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. As for a claim for service connection for an acquired psychiatric disorder, other than PTSD, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In claims to reopen based on new and material evidence, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Notably, the Board has found that new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. He has also been provided with the requisite notice for establishing the underlying claim for service connection. No additional discussion of VA's duty to notify and assist is necessary with respect to that issue. VA also has a duty to assist a veteran in the development of the claims. This duty includes assisting him or her in the procurement of service treatment records, private treatment records, and other pertinent VA treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The RO associated the Veteran's service treatment records and private medical records with the claims file. No outstanding evidence has been identified. The Veteran underwent a VA examination in March 2009. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examination was adequate, as it was predicated on a full reading of the Veteran's medical records in the claims file. All of the pertinent evidence of record was considered, to include the statements of the Veteran, and the examiner provided a rationale for the opinion stated, relying on and citing to the records reviewed. The Veteran was offered an opportunity to provide hearing testimony on behalf of his claim. He testified at a Travel Board hearing in September 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issues on appeal. He sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of either hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. In view of the foregoing, the Board finds no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet.App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet.App. 143 (2001); see also Quartuccio v. Principi, 16 Vet.App. 183 (2002). New and Material Evidence Unappealed rating decisions are final with the exception that a claim may be reopened by submission of new and material evidence. When an appellant seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new and material." Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of the appellant's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). The question of whether a claimant has submitted new and material evidence to reopen a claim and the question of whether upon such reopening, a claimant is entitled to VA benefits, are questions relating to a single 'matter' for purposes of the Board's jurisdiction under 38 U.S.C.A. § 7104(a). Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). It is the Board's jurisdictional responsibility to consider whether a claim should be reopened, no matter what the RO has determined. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Court held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Veteran's claim for service connection for PTSD was denied in an December 1982 rating decision. The RO determined that the evidence of record failed to show a disability for which compensation could be established. Specifically, the Veteran was found to have a passive-aggressive personality as opposed to a diagnosis of PTSD. Notice was provided to the Veteran in a January 1983 letter. Following receipt of a notice of disagreement, the RO provided the Veteran with a Statement of the Case in February 1984. A substantive appeal was not received within the requisite 60 days. The December 1982 thereby became final. The Veteran filed to reopen the claim for PTSD in December 2008. A May 2009 rating decision continued to deny the claim. The evidence received since the December 1982 final decision includes a March 2009 VA contract psychiatric examination, a September 2012 private psychological evaluation report, and hearing testimony provided during a September 2012 Travel Board hearing. A June 2012 private psychological evaluation report and September 2012 Travel Board hearing testimony are new and material to reopen the claim for service connection for PTSD. The June 2012 private psychological evaluation report indicated, in pertinent part, a diagnosis of PTSD. The report also indicates that the root of the Veteran's PTSD was implanted in the experience of the horror of the Vietnam War. This evidence is new, as it has not presented before, it also is material, as it is evidence of an unestablished fact, which is the diagnosis of PTSD. The September 2012 Travel Board hearing testimony is also new and material. The hearing testimony presented by the Veteran indicates inservice stressors which relate to his diagnosis of PTSD. He testified to performing body counts after shelling a village, he related that he sustained multiple shell fragment wounds as a result of his service in Vietnam, and he also indicated that he received a Purple Heart as a result of the action he was involved in Vietnam. This testimony, related to his stressors, is evidence of an unestablished fact. Therefore, according to Shade, this evidence, along with the June 2012 private psychological evaluation report, is new and has never been before agency decisionmakers before, is also material, because it would raise a reasonable possibility of substantiating the claim because when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Therefore, since the Board finds this evidence to be new and material, the claim will be reopened. Having reopened the claim, the Board finds the claim may now be given a de novo review. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. § 4.125(a). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a) , which mandates that, for VA purposes, all mental disorder diagnoses must conform to the American Psychiatric Association 's DSM-IV. 38 C.F.R. § 3.304(f). The Court has taken judicial notice of the mental health profession's adoption of the DSM-IV. See Cohen v. Brown, 10 Vet.App. 128, 140-41 (1997). According to the current criteria, a diagnosis of PTSD requires exposure to a traumatic event, or stressor. A stressor involves exposure to a traumatic event in which the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, and the person's response involved intense fear, helplessness, or horror. The sufficiency of a stressor is a medical determination, and the occurrence of a claimed stressor is an adjudicatory determination. Id. With respect to the stressor element, the general rule is that there must be credible evidence to support the Veteran's assertion that the stressful event occurred. A medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen, 10 Vet.App. at 142; Moreau v. Brown, 9 Vet.App. 389, 395-396 (1996). Exceptions to this general rule are when the claimed in-stressors occurred during combat, while being held as a prisoner of war (POW), due to a personal assault, or due to "fear of hostile military or terrorist activity." 38 C.F.R. 3.304(f). Service treatment records show no findings, treatment, or diagnosis of a psychiatric disorder. The Veteran was seen by psychiatry in service for fighting and other acting out behavior, but was noted to have a passive-aggressive personality disorder. It was noted that he had problems prior to service when he and his brother stole a car. He had several Article 15s in service. He was once seen for questionable dissociative reaction. The psychiatrist indicted that the Veteran's symptoms were a "life long thing," a little worse now since Vietnam, which was to be expected. On separation examination, he was psychiatrically evaluated as normal. It was also noted in his medical records that he was hospitalized and treated for multiple shell fragment wounds sustained while in Vietnam. His DD 214 indicates that he was awarded the Purple Heart. After service, in May 1982, a letter was received from the Veteran's private psychiatrist indicating that he was seen on a weekly basis for atypical psychosis. The psychiatrist indicated that the Veteran's atypical psychosis was secondary to his involvement in Vietnam. The psychiatrist also indicated that from an extensive psychological history, there was no indication of any behavior of this sort prior to his Vietnam, service. He described the Veteran as extremely extroverted and social in high school and that he now presented violent behavior. A June 1982 VA psychiatric examination diagnosed the Veteran as having PTSD. In March 2009, the Veteran underwent a contract psychological examination. The examiner diagnosed the Veteran with chronic dysthymic disorder. He also indicated that although the Veteran had experienced some low-grade symptoms of PTSD with intermittency in the past including low-grade depression, his low-grade current stress level, was related to a variable shift on the job and loneliness since his divorce in 2007. In September 2012, the Veteran underwent a private psychological evaluation. The psychologist interviewed the Veteran and administered several psychological tests. It was noted that he served in Vietnam, he was in combat, and sustained numerous injuries when the convoy he was riding in was blown up by a buried mine. He was noted to currently experience flashbacks, nightmares, and daytime images of the savages of war. He was found to endorse items in a manner consistent with a DSM-IV diagnosis of PTSD. All six criteria required for the diagnosis were met. The psychologist indicated that the root of the Veteran's PTSD was implanted in the experience of the horror of war. The Veteran testified at a Travel Board hearing before the undersigned VLJ in September 2012. He stated that while on active duty, he had feelings of nervousness and was given a psychiatric examination. He related he was involved in a mortar attack wherein he sustained multiple injuries and was later awarded a Purple Heart. While in Vietnam, he volunteered to do body count of a village they had shelled during an attack. He stated that he blacked out events that occurred at that time. After convalescence from the multiple injuries sustained, he was assigned to escort duty, escorting corpses to funerals and providing widows with flags. He was later reassigned because he could not take the emotional sorrow involved in this duty. After a thorough review of the aforementioned evidence, the Board finds that the evidence supports the claim that the Veteran has PTSD as a result of service. It appears that the Veteran has met all three elements of a PTSD claim. First, he has a PTSD diagnosis in accordance with 38 C.F.R. § 4.125(a), despite conflicting opinions regarding whether the Veteran meets the DSM-IV criteria for a diagnosis of PTSD. Specifically, the May 2009 VA contract examination indicates that the Veteran has chronic dysthymic disorder, rather than PTSD. The examiner attributes this dysthymic disorder to a variable shift at work and the his loneliness since his 2007 divorce. However, the examiner does indicate that the Veteran has experienced some low-grade symptoms of PTSD. The examiner also stated that the Veteran has not displayed significant symptoms of PTSD during recent years. The examiner did address the Veteran's service in Vietnam and his shell fragment wounds sustained therein; however, he did not address whether the Veteran exhibited all of the criteria for PTSD, only that his symptoms of PTSD had not been significant in recent years. That leans more to the severity of the condition, not whether or not the Veteran has the condition or not. Therefore, since this psychological report does not contain sufficient detail, it is inadequate for rating purposes. See 38 C.F.R. § 4.2 (2012). The September 2012 private psychological examination report diagnosed PTSD within the parameters of the DSM IV. The psychologist specifically interviewed the Veteran, discussed the injuries sustained by the Veteran in Vietnam, discussed his symptomatology of PTSD, rendered testing specifically regarding PTSD, and indicated that the Veteran met all six criteria of the PTSD Diagnostic Scale, designed to aid in the diagnosis of PTSD based on the DSM-IV criteria. The Court has held that to have probative value, a medical examination submitted to the Board must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 300-1 (2008); see Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) (a medical opinion must support its conclusions with an analysis that can be considered and weighed against contrary opinions). The September 2012 private examination provides such information. The Board therefore affords significant probative value to the September 2012 private psychological examination report. Second, evidence also establishes that the Veteran's PTSD is related to a verified in-service stressor. While the Veteran claims to have been involved in combat, which is noted in his diagnosis, this has not been confirmed by his service records. However, he was awarded the Purple Heart Medal which is reflected on his DD 214. He is already service-connected for injuries associated with shell fragment wounds of the left leg, knee, thigh and upper arm. Therefore, the Board finds that there is sufficient credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Finally, the September 2012 psychological examination provides a link between the in-service stressor and the current symptoms. The examination report indicates, in pertinent part, that the Veteran currently experiences flashbacks, nightmares, and daytime images of the ravages of war. The convoy that was blown up by a buried mine was discussed and the injuries sustained and hospitalization in connection with the same was noted. These injuries are the basis for the award of his Purple Heart medal. Finally, the Veteran experiences avoidance, as he did not want to discuss details of what he witnessed during that conflict. As the Veteran's stressors have been shown to have occurred in service, and are substantiated by the award of a Purple Heart, and the September 2012 private psychological examination has confirmed that the Veteran's current symptoms combined with his experiences in Vietnam are sufficient to support a diagnosis of PTSD, the Board finds that the doctrine of reasonable doubt supports a grant of service connection for PTSD. However, the evidence does not tend to support a finding that the Veteran's dysthymic disorder is related to service, to include his Vietnam experiences. The March 2009 VA contract examination diagnosed the Veteran's psychiatric disorder as chronic dysthymic disorder. The examiner also indicated that this disorder was the result of a variable shift at work and his loneliness over his 2007 divorce. The examiner did not at all attribute this psychiatric diagnosis to an event in service or related thereto. The September 2012 private psychiatric report contains no pertinent findings with respect to any psychiatric disorder, other than PTSD. Consideration has been given to the Veteran's assertion, if such was even made, that his dysthymic disorder is attributable to his military service. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, determining cause of a psychiatric disorder falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Veteran lacks that level of expertise; and, as noted, a VA examiner has clearly attributed the Veteran's dysthymic disorder to post-service events. Service connection for chronic dysthymic disorder, as an acquired psychiatric disorder is not warranted. Moreover, and while not outcome determinative, the Board notes that the rating criteria for PTSD (Diagnostic Code 9411) and the rating criteria for dysthymic disorder (Diagnostic Code 9433) are exactly the same under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130 (2012). The Federal Circuit has held that two defined diagnoses constitute the same disability for purposes of section 4.14 if they have overlapping symptomatology. See Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009). While it was possible for two mental disabilities to have different symptoms and therefore be evaluated separately, if the manifestations of the two mental disabilities were the same, a separate evaluation was not warranted. Here, as in Amberman, the Veteran's PTSD, and alleged dysthymic disorder, are evaluated under the same rating criteria, and as such the symptomatology associated with the disorders would be consequently and necessarily duplicative and overlapping. There would be no basis for separate evaluations. See Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009). ORDER New and material evidence to reopen the claim for service connection for an acquired psychiatric disorder, to include PTSD, depression, and chronic dysthymic disorder, having been received, the claim, to this extent has been granted. Service connection for PTSD is granted. Service connection for chronic dysthymic disorder is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs