Citation Nr: 1312331 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 12-12 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether the Veteran submitted a timely substantive appeal to the February 2008 rating decision that denied entitlement to service connection for bilateral hearing loss and tinnitus. 2. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for PTSD. 4. Entitlement to service connection for an acquired psychiatric disorder other than PTSD. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from November 2009, and April 2011 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Board observes that as an initial matter, the Veteran's September 2010 claim specifically sought service connection for PTSD and the April 2011 rating decision denied service connection for PTSD without addressing the issue of entitlement to service connection for any other acquired psychiatric disability. However, a decision by the United States Court of Appeals for Veterans Claims (Court), in Clemons v. Shinseki, 23 Vet. App. 1 (2009) clarified the scope of a claim on appeal by holding that when a claimant makes a claim, he/she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. The Court in Clemons held that that the scope of a disability claim includes any disability that may reasonably be encompassed by the Veteran's description of the claim, reported symptoms, and other information of record. Accordingly, the Board has reframed the issues as shown on the title page of this decision. Thus, while, as indicated above, the RO has limited its adjudication of the Veteran's psychiatric claim to the matter of his entitlement to service connection for PTSD in this decision, for reasons explained below, the Board has now characterized the appeal as encompassing other diagnosed psychiatric disorders. The issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD is remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant when further action, on his part, is required. FINDINGS OF FACT 1. The Veteran's October 2009 VA Form 9 was not submitted within one year of the February 2008 RO decision that denied entitlement to service connection for bilateral hearing and tinnitus or within sixty days of the date of the August 2009 letter accompanying the Veteran's statement of the case. 2. A December 2008 RO decision denied entitlement to service connection for PTSD; the Veteran did not appeal or submit new and material evidence related to his claim within one year of the decision. 3. New and material evidence has been received since the December 2008 RO decision, and the Veteran's claim for entitlement to service connection for PTSD is reopened. 4. PTSD was not incurred in service and was not caused by the Veteran's active military service. CONCLUSIONS OF LAW 1. A timely substantive appeal of the February 2008 RO decision that denied entitlement to service connection for bilateral hearing loss and tinnitus was not filed, and the Board lacks jurisdiction to consider these issues. 38 U.S.C.A. §§ 7104(a), 7105(a), 7105(d)(3), 7108 (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.203 (2012). 2. The December 2008 RO decision that denied entitlement to service connection for PTSD is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2010); 38 C.F.R. § 20.1103 (2012). 3. New and material evidence has been received since the December 2008 RO decision, and the Veteran's claim for entitlement to service connection for PTSD is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156 (2012). 4. The criteria for service connection for PTSD have not been met. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. Timely Substantive Appeal On February 29, 2008, the RO issued a rating decision that denied entitlement to service connection for bilateral hearing loss and tinnitus. Notification of that decision was sent on March 6, 2008. The appellant filed a timely notice of disagreement that was received by the RO on March 20, 2008. A statement of the case (SOC) was issued on July 22, 2009; the date stamp on the transmittal letter was August 4, 2009. The appellant's VA Form 9, dated October 8, 2009, was received by the RO on October 15, 2009. The threshold question to be answered is whether the appellant entered a timely substantive appeal following the February 2008 rating decision. If the appellant has not filed a timely substantive appeal, then his appeal fails. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). A substantive appeal consists of a properly completed VA Form 9 or correspondence containing the necessary information. See 38 C.F.R. § 20.202. As a general rule, a substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction (AOJ, which, here, is the RO) mails the SOC to the appellant or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later, to perfect an appeal of any claim adjudicated by the RO. See 38 U.S.C.A. § 7105(a), (b)(1); 38 C.F.R. § 20.302. If an appeal is not perfected within the time specified, the RO's determination becomes final and binding on the Veteran based on the evidence then of record. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.1103. And once an RO's decision becomes final and binding, absent submission of new and material evidence, the claim may not be reopened or readjudicated by VA. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. An extension of the 60-day period for filing a substantive appeal may be granted for good cause. A request for such an extension, however, must be made in writing and must be made prior to expiration of the time limit for filing the substantive appeal. See 38 C.F.R. § 20.303 (2012). Except in cases where the submission of additional evidence requires the issuance of a supplemental SOC (SSOC) pursuant to 38 C.F.R. § 19.31 (2012), the filing of additional evidence after receipt of notice of an adverse determination does not extend the time limit for initiating or completing an appeal from that determination. See 38 C.F.R. §§ 20.303(b), 20.304. The Court has held that the formality of perfecting an appeal to the Board is part of a clear and unambiguous statutory and regulatory scheme that requires the filing of both an NOD and a formal appeal (VA Form or equivalent statement). When an appellant fails to file a timely appeal, and does not request an extension of time in writing before the expiration of time for the filing of the substantive appeal, the Court has held that he is statutorily barred from appealing the decision of the AOJ. Roy v. Brown, 5 Vet. App. 554, 556 (1993). Under 38 U.S.C.A. § 7105(d)(3), questions as to timeliness or adequacy of response shall be determined by the Board. Here, the Veteran's VA Form 9 was not submitted within either one year of the date the February 29, 2008 rating decision denying entitlement to service connection for bilateral hearing loss and tinnitus was mailed to the Veteran or within sixty days of the date the SOC was mailed to the Veteran, August 4, 2009. As noted above, the appellant's VA Form 9, dated October 8, 2009, was received by the RO on October 15, 2009. No postmark is available, but VA regulations provide that where a postmark is not of record, it will be presumed to be five days before the date of receipt by VA, excluding weekends and legal holidays. See 38 C.F.R. § 20.305 (2012). Excluding weekends and legal holidays, which in 2009 included Columbus Day which fell on Monday, October 12, the date of mailing would be October 7, 2009. However, assuming that the Veteran mailed his Form 9 on October 7, 2009 is not logical, as the Form 9 is actually dated October 8, 2009, one day later. The Veteran could not have mailed his Form 9 before he signed and dated it. Regardless, even assuming a postmark of October 7, the Veteran's Form 9 was not received within sixty days of the date the RO mailed the SOC or within one year of the February 29, 2008 RO decision. While the Veteran has blamed the untimely nature of his VA Form 9 on an error by the United States Postal Service, claiming that he never received the SOC and did not know that the Decision Review Officer had rendered a decision on his claim, he has submitted no evidence to support this theory. A long line of case law establishes a presumption of regularity that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926); Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). This presumption of regularity in the administrative process may be rebutted only by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999). Accordingly, applying this presumption of regularity to both the employees of VA and the United States Postal Service (USPS), the Board must assume absent clear evidence to the contrary that the Veteran's SOC was promptly processed and mailed by VA employees following its issuance and then delivered to its intended destination after it was mailed by USPS employees, not lost. The Board finds that the Veteran's unsubstantiated testimony that he never received his SOC is not sufficient evidence to overcome the presumption of regularity. Additionally, the Veteran has also claimed that when he called VA to check on the status of his claim, he was told by VA employees that his claim was lost and later that it was closed and denied. However, the Board can find no Reports of Contact in the Veteran's claim folder which would support the Veteran's allegations that he contacted VA regarding the status of his hearing loss and tinnitus claims. Furthermore, even assuming, for purposes of argument, that the Veteran was mistakenly informed at some point in the appellate process that his claim was closed, when he received his SOC, he was on notice that his claim was still active and was informed of what steps he would need to take to perfect his appeal. Here, the RO informed the appellant in the August 4, 2009 letter accompanying his statement of the case that in order for him to complete his appeal, he needed to file the VA Form 9 or a substantive appeal within either sixty days of the date of the letter or within the remainder of the one year period from the date of the letter notifying the Veteran of the action he was appealing, if any time remained. The Board can find no evidence that supports the Veteran's claims that his reliance on something VA did or said prevented him from perfecting his appeal. Finally, the Board notes that while in December 2009 the Veteran requested an extension of time to file his substantive appeal, this request was not timely filed as it was not submitted before the period for filing a substantive appeal had expired. The Board has considered whether there are any "extraordinary circumstances" which might justify an equitable tolling of the time limits for filing a substantive appeal. However, there is no evidence of an extraordinary circumstance that prevented the Veteran from perfecting his appeal. See McCreary v. Nicholson, 19 Vet. App. 324 (2005) (Listing the following three requirements that must be met for equitable tolling: (1) extraordinary circumstance which must be beyond the appellant's control, (2) the appellant must demonstrate that the untimely filing was a direct result of the extraordinary circumstances, and (3) the appellant must exercise "due diligence" in preserving his/her appellate rights such that a reasonably diligent appellant under the same circumstances also would not have filed a timely appeal.). In conclusion, the Board finds that the Veteran did not submit a timely substantive appeal to the February 2008 rating decision that denied entitlement to service connection for bilateral hearing loss and tinnitus nor did he submit a timely request for an extension of time to submit a substantive appeal. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). New and Material Evidence The Veteran's original claim for entitlement to service connection for PTSD was denied in a December 2008 RO decision; the Veteran did not appeal. In September 2010, the Veteran filed new claim for PTSD. The RO reopened the Veteran's claim, but denied entitlement to service connection for PTSD in an April 2011 rating decision. The Veteran appealed. Effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. These amendments pertain to claimed stressors that are related to a veteran's fear of hostile military or terrorist activity. See 75 Fed. Reg. 39852 (July 13, 2010); 38 C.F.R. § 3.304(f)(2012). It is well-established that where there is an intervening change in the law or regulation creating a new basis for entitlement to benefits, a claim under the liberalizing regulation is a claim separate and distinct from the claim previously denied and may be reviewed de novo. Spencer v. Brown, 4 Vet. App. 283 (1993). However, changing an evidentiary standard for establishing an element of a claim does not affect a substantive change in the law. It does not create a new cause of action, since no new basis of entitlement is created. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). Thus, liberalization of the evidentiary standard for substantiating an in-service stressor does not constitute a new basis of entitlement such that the Veteran's PTSD claim must be reconsidered as an original claim, rather than a claim to reopen. 75 Fed. Reg. 39843 (July 13, 2010). Accordingly, the Board must still determine whether new and material evidence has been received with respect to this claim. Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002 & Supp. 2010). However, 38 U.S.C.A. § 5108 provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Hence, before reaching the issue of whether service connection is warranted, the Board must first determine whether the claim may be reopened. See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). New and material evidence means evidence not previously submitted to agency decisionmakers which is neither cumulative nor redundant, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). The Court has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim. Evans v. Brown, 9 Vet. App. 273 (1996). Rather, the reasons for the final disallowance must be considered in determining whether the newly submitted evidence is material. Id. Such evidence must tend to prove the merits of the claim as to each essential element that was a reason for that last final disallowance of the claim. Id. In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court 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. The Board denied the appellant's prior claim because there was no evidence that the Veteran had a diagnosis of PTSD or that he had a confirmed stressor. At the time of the December 2008 RO decision, the Veteran's service treatment records were reviewed and were negative for complaints of or treatment for an acquired psychiatric disability. There was no evidence of record showing post-service treatment for an acquired psychiatric disability, including PTSD. The Veteran submitted a statement describing some of his traumatic experiences in service, but it lacked sufficient detail to be corroborated under the prior regulations. Thus, for evidence in this case to be considered new and material, it must show that the Veteran has a diagnosis of PTSD or that he has a confirmed stressor that is related to his active military service. The Veteran submitted treatment records from the Veteran Center, as well as VA outpatient treatment records which include a Psychiatry Consult. These records show that the Veteran has sought treatment for complaints of sleep problems, anxiety, intrusive thoughts about combat experiences, and anger and irritability. The Veteran described a number of traumatic experiences in service that could be the basis of a PTSD diagnosis under the revised regulations. This evidence is new and material since it at least triggers VA's duty to assist by providing a medical examination to determine if the Veteran's meets the criteria for PTSD under the revised regulations. Accordingly, the Veteran's prior claim is reopened. The issue of entitlement to service connection for PTSD is addressed in the section below. Service Connection The Veteran is seeking entitlement to service connection for PTSD. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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) (2012). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 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. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Establishing service connection for PTSD requires specific findings. These are (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in- service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. See 38 C.F.R. § 3.304(f) (2012). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM-IV). Id.; see also 38 C.F.R. § 4.125(a) (2012). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans); Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the veteran engaged in combat). The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99 (Oct. 18, 1999). Service in a combat zone does not establish that a veteran engaged in combat with the enemy. Id. Whether the veteran engaged in combat with the enemy is determined through the receipt of certain recognized military citations or other supportive evidence. West v. Brown, 7 Vet. App. 70 (1994). Previously, if VA determined either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor was not combat related, the veteran's lay testimony, by itself, was not sufficient to establish the occurrence of the alleged stressor. Instead, the record had to contain credible supporting evidence that corroborates the veteran's testimony or statements. Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). However, VA has recently amended its regulations governing service connection for PTSD by liberalizing the evidentiary standard for establishing the required in-service stressor where the following requirements are satisfied: First, the veteran must have experienced, witnessed, or have been confronted by an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, and the veteran's response to the event or circumstance must have involved a psychological or psycho-physiological state of fear, helplessness, or horror. 75 Fed. Reg. 39852 (July 13, 2010) (codified at 38 C.F.R. § 3.304(f)). Second, a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor. Id. Additionally, there must be in the record no clear and convincing evidence to the contrary, and the claimed stressor must be consistent with the places, types, and circumstances of the veteran's service. Id. These revised regulations became effective July 13, 2010, and apply in cases like the Veteran's, which was filed after the revised regulation became effective. 75 Fed. Reg. 41092 (July 15, 2010) (codified at 38 C.F.R. § 3.304(f)). Here, the Veteran has described symptoms of difficulty sleeping, depressed mood, anxiety, intrusive thoughts, anger , and irritability which he attributes to traumatic combat experiences in Vietnam, including frequent exposure to enemy fire from small arms, sniper rifles, rockets, and mortars, as well as witnessing the death of friend. His service personnel records confirm service in the Republic of Vietnam as a field artilleryman. His DD-214 lists his military occupational specialty as a motor carriage driver. The Veteran's spouse, J.B., submitted a statement in November 2010 in which she described witnessing symptoms of agitation, disturbed sleep, isolation, loss of interest in activities, anger, and impatience. The Veteran's service treatment records are negative for any complaints of or treatment for an acquired psychiatric disability, to include PTSD. The Veteran's July 1969 separation examination was psychiatrically normal. Post-service, there is no evidence of complaints of or treatment for an acquired psychiatric disability, to include PTSD, until 2010. The Veteran was seen at the VA in November 2010 for a Psychiatry Consult. At that time, he complained of difficulty sleeping two to three times a week and reported that since his retirement, thoughts of his military service would pop into his head seemingly without any reason. The Veteran exhibited some mild psychomotor agitation and anxiety, but did not endorse symptoms of depression. He reported a good relationship with his spouse and was active in his church. He also reported a long history of stable employment. The Veteran was diagnosed with adjustment disorder with anxiety and sleep disorder, which the examiner attributed to his recent retirement. The Veteran also began attending individual counseling sessions at the Shreveport Veterans Center in October 2010 for "symptoms related to his Vietnam combat experience"; however, the records from the Veterans Center do not show a diagnosis of PTSD. In December 2010, the Veteran was afforded a VA examination. At that time, the Veteran reported symptoms which the examiner characterized as "very mild and transient symptoms of intermittent severity." While he reported that since his retirement, he has been remembering things that he had repressed for many years, he did not describe a persistent pattern of intrusive thoughts about his traumas. He reported that his wife felt that he was more withdrawn and did not want to go anywhere or do anything. However, he admitted that he did not feel that this was the case and reported that he was a deacon in his church and described himself as active in his church and community. He described himself as somewhat shy and "mild-mannered" even before his military service. He denied any anger problems or outbursts. He did complain of some insomnia and increased anxiety since retirement. He denied any history of occupational problems prior to his retirement and described a stable employment history. He reported a good relationship with his spouse of more than forty years, as well as frequent socialization with his brother and with fellow members of his church. The Veteran was independent and able to perform all activities of daily living without any significant impairment. The examiner described the Veteran as very pleasant, outgoing, and humorous during his interview. He was articulate and verbal and cooperated fully with the interviewer. His social skills were good and rapport was easily developed. The Veteran was well-oriented and his thought processes were logical, coherent, and relevant. Affect was generally spontaneous and positive, but the Veteran did become tearful when describing the death of a close friend in service. His fund of general information and verbal comprehension were characterized as poor with limited comprehension and insight; however, simple arithmetic skills were good. The Veteran's short-term memory and long-term memory were somewhat below average. The Veteran reported suffering from what may have been a stroke or a heart attack and it was unclear to the examiner if there were neurological issues that might be impacting the Veteran's cognitive functioning. After interviewing the Veteran and reviewing his claims file, the examiner concluded that while the Veteran did have valid stressors for PTSD, he did not describe sufficient symptoms or impairment to meet the criteria for a PTSD diagnosis or any Axis I diagnosis. The examiner noted that the Veteran had been able to function quite well, maintaining long-term employment for many years until his voluntary retirement, as well as a long and positive marriage and a number of very close relationships. The Veteran also continued to remain active in the community. The examiner acknowledged that the Veteran had experienced some insomnia following his retirement; however, he had not described significant impairment related to this issue. The examiner concluded that the Veteran's insomnia was "best characterized as a phase of life problem." Based on all the above evidence, the Board finds that entitlement to service connection for PTSD cannot be granted. There is no competent and credible evidence that the Veteran has been treated for PTSD. Furthermore, even after the Veteran sought treatment in 2010, neither the December 2010 VA examiner nor the Veterans Center counselor diagnosed the Veteran with any Axis I disability, to include PTSD. The only psychiatric diagnosis of record was given by the VA mental health nurse practitioner who evaluated the Veteran in November 2011. Significantly, she diagnosed the Veteran with an adjustment disorder, which she attributed to the Veteran's recent change in life circumstances following his retirement. Thus, the Veteran's mental health treatment providers have all concluded that he does not have PTSD and to the extent that there is a psychiatric diagnosis of record, that the disability was not incurred in or caused by his military service. While the Veteran himself has insisted that he has PTSD caused by his military service, he has not demonstrated that he has any knowledge or training in diagnosing or determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the Federal Circuit drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the question of whether the Veteran currently has PTSD is too complex to be addressed by a layperson. This matter is not amenable to observation alone. Rather it is common knowledge that the symptoms and etiologies of mental illness are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion as to the existence and etiology of PTSD is not competent evidence and is entitled to low probative weight. For all the above reasons, entitlement to service connection for PTSD is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. The letter must also inform the Veteran of the bases of the prior denial. Here, the VCAA duty to notify was satisfied by letters sent to the Veteran in November 2007 and October 2010. These letters informed the Veteran of what evidence was required to reopen his previously denied claim and what evidence is required to substantiate his claims, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records. The Veteran submitted private medical records, including medical records from the Vet Center. The Veteran was afforded a VA medical examination for PTSD in December 2010. The examination is adequate and probative for VA purposes because the examiner relied on sufficient facts and data, provided a rationale for the opinion rendered, and there is no reason to believe that the examiner did not reliably apply reliable scientific/medical principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). (Continued On The Next Page) ORDER The Veteran's substantive appeal of a February 2008 RO decision that denied entitlement to service connection for bilateral hearing loss and tinnitus was not timely, and the appeal as to this issue is denied. New and material evidence having been received, the Veteran's previously denied claim for PTSD is reopened, and service connection for PTSD is denied. REMAND In light of the current record and recent United States Court of Appeals for Veterans Claims (Court) precedent, the Board finds that further RO action on the issue of service connection for an acquired psychiatric disorder other than PTSD is warranted. As noted above, in Clemons, supra, the Court held that the Board erred in not considering the scope of a Veteran's claim for service connection for PTSD as including any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, psychiatric diagnoses of record and other information. In this case, although the RO only adjudicated a claim for service connection for PTSD, the record reflects at least one psychiatric diagnosis of record other than PTSD-specifically, a November 2010 diagnosis of adjustment disorder with anxiety and sleep disorder. Although the examiner went on the attribute the disorder to the Veteran's recent retirement, consistent with Clemons, the record raises the matter of the Veteran's entitlement to service connection for a psychiatric disability other than PTSD. To avoid any prejudice to the Veteran, a remand for RO consideration of this matter, in the first instance, is warranted. See Bernard v. Brown, 3 Vet. App. 384, 393 (1993). In adjudicating this claim, the RO should attempt to obtain any additional relevant evidence for which the Veteran provides sufficient information and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012) and should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD is hereby REMANDED to the RO, via the AMC, for the following action: 1. The AMC/RO should obtain all outstanding pertinent records of mental health evaluation and/or treatment of the Veteran, to include any relevant records dated since December 2010 and especially from the Shreveport, LA VA medical facility and/or Shreveport Veterans Center. The AMC/RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The AMC/RO should request that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. In its letter, the AMC/RO should explain how to establish entitlement to service connection for psychiatric disability other than PTSD. If the Veteran responds, the AMC/RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After completing the requested action, and any additional notification and/or development deemed warranted, the AMC/RO should adjudicate the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD in light of all pertinent evidence and legal authority. If the benefit sought is not granted, the Veteran must be furnished a supplemental statement of the case (SSOC) and afforded the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified. 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). This claim 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. 2012). ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs