Citation Nr: 1316146 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 07-28 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), and if so, whether service connection is warranted for accrued benefits purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1967. The Veteran died in December 2005. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In her substantive appeal to the Board, received in September 2007, the appellant requested a hearing. In a letter to VA dated in August 2009, the appellant's representative clarified that she did not want a hearing. Accordingly, the request for a hearing is withdrawn and the Board will proceed with consideration of this appeal based on the evidence of record. 38 C.F.R. § 20.704(e). In March 2011, the Board granted service connection for the Veteran's cause of death and remanded for additional development the claims seeking entitlement to burial benefits and to accrued benefits. All development has been completed. Stegall v. West, 11 Vet. App. 268 (1998). In May 2011, the RO granted entitlement to burial benefits; therefore, that issue is no longer before the Board. FINDINGS OF FACT 1. At the time of the Veteran's death, he had a petition to reopen a claim for service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), pending. 2. The appellant filed a claim for accrued benefits within a year of the Veteran's death. 3. The Board denied the Veteran's petition to reopen his claim for entitlement to service connection for a psychiatric disorder, to include PTSD, in April 2003 and that decision is final. 4. New and material evidence has been received since April 2003 to reopen the Veteran's claim for entitlement to service connection for a psychiatric disorder, to include PTSD, for accrued benefit purposes. 5. The Veteran did not have a valid diagnosis of PTSD or have a psychiatric disorder that was causally or etiologically related to his military service. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim of entitlement to service connection for a psychiatric disorder, to include PTSD, is reopened for the purpose of accrued benefits. 38 U.S.C.A. §§ 5108, 5121 (West 2002); 38 C.F.R. §§ 3.156, 3.1000 (2012). 2. The criteria for entitlement to service connection for a psychiatric disorder, to include PTSD, for accrued benefit purposes are not met. 38 U.S.C.A. §§ 1110, 5121 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duty to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Here, the duty to notify was satisfied by way of a letter sent to the appellant in May 2006 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claim for accrued benefits and of her and VA's respective duties for obtaining evidence. The Board also finds that the duty to assist requirements have been fulfilled. Outstanding VA treatment records have been obtained and associated with the claims file. Notably, accrued benefits claims are based on the evidence of record at the time of the Veteran's death and evidence acquired after that date cannot be considered unless it was constructively of record at the time of death, such as VA treatment records. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the appellant is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Accrued Benefits When a veteran has a claim pending at the time of his death, his surviving spouse may be paid periodic monetary benefits, which were due and unpaid, to which he was entitled at the time of his death based on existing ratings or decisions, or other evidence that was on file when he died. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. Although the appellant's claim for accrued benefits is separate from any claims that the Veteran filed prior to his death, the accrued benefits claim is "derivative of" the Veteran's claims and the appellant takes the Veteran's claims as they stood on the date of his death. Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). There is no basis for an accrued benefits claim, unless the individual from whom the accrued benefits claim derives had a claim for VA benefits pending at the time of death. See Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998). In a claim for accrued benefits, the Board is prohibited from considering medical evidence received after the date of the Veteran's death. There is an exception for outstanding service treatment records or VA records, as they are considered to be in the constructive possession of VA at the time of death. 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a), (d)(4); see Hayes v. Brown, 4 Vet. App. 353, 360-61(1993). The statute concerning accrued benefits claims was amended on October 10, 2008. Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212 (2008). Section 212 created a new statute, which provides that if a claimant died while a claim or appeal for any benefit under a law administered by VA was pending, a living person who would be eligible to receive accrued benefits due to the claimant may, not later than one year after the date of the death of the claimant, request to be substituted as the claimant for the purposes of processing the claim to completion. See 38 U.S.C.A. § 5121A. The new statute allows a person who could be considered an accrued benefits claimant to substitute for a deceased claimant to continue adjudication of the deceased claimant's claim. The provisions of the new statute apply with respect to the claim of any claimant who dies on or after October 10, 2008. See Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). In this case, the Veteran died in December 2005. Accordingly, the former provisions concerning accrued benefits apply. Initially, the Board observes that the appellant's claim for entitlement to accrued benefits, which was filed in March 2006, is timely, as it was filed within one year of the Veteran's death in December 2005. 38 C.F.R. § 3.1000(c). Because the appellant's claim is for the purpose of accrued benefits, the Board is barred from considering evidence received after the date of the Veteran's death other than service or VA records that were constructively of record at the time of death. Pending at the Veteran's death was a petition to reopen a claim for entitlement to service connection for a psychiatric disorder, to include PTSD. The RO reopened and subsequently denied the claim. The Veteran submitted a notice of disagreement, thus starting the appellate process. Notwithstanding the RO's actions, it is incumbent on the Board to adjudicate the new and material issue before considering the claim on its merits for accrued benefit purposes. The question of whether new and material evidence has been received is one that must be addressed by the Board. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (before considering a previously adjudicated claim, the Board must determine that new and material evidence was presented or secured for the claim, making RO determination in that regard irrelevant). New and Material Evidence Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C.A § 5108; 38 C.F.R. § 3.156. "New" evidence means evidence" not previously submitted to agency decisionmakers." 38 C.F.R. § 3.156(a). "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim." Id. In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). 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). It is the specified bases for the final disallowance that must be considered in determining whether newly submitted evidence is probative. Id. Such evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for that last final disallowance of the claim. Id. If new and material evidence is submitted, the claim will be reopened and adjudicated on the merits. 38 U.S.C.A. § 5108. "The Board does not have jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The Board is neither required nor permitted to analyze the merits of a previously disallowed claim if new and material evidence has not been submitted. Butler v. Brown, 9 Vet. App. 167, 171 (1996). No other standard than that articulated in the regulation applies to the determination whether evidence is new and material. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Board notes that it has considered the applicability of 38 C.F.R. § 3.156(b), which provides that when new and material evidence is received prior to the expiration of the appeal period it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, the previous denial was issued by the Board, and Board decisions are final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). The RO denied the Veteran's initial claim for entitlement to service connection for a psychiatric disorder in September 1990 because the evidence did not show evidence that a nervous condition, including PTSD, was incurred during or aggravated by service or that the condition was treated within one year of service. The RO also found that the Veteran did not have a verified PTSD stressor or a diagnosis of PTSD. The Veteran was notified of his right to appeal and he submitted a notice of disagreement in September 1990. The Board denied his claim in June 1991, finding no evidence of a psychiatric disorder during service and no current diagnosis of PTSD. Over the years, the Veteran filed numerous petitions to reopen his claim for service connection for a psychiatric disorder. All claims were denied. The most recent final decision in this matter was issued by the Board in April 2003 wherein the Board denied the Veteran's petition to reopen his claim for entitlement to service connection for a psychiatric disorder, to include PTSD, due to the lack of submission of new and material evidence. Id. Since April 2003 and prior to the Veteran's death, in March 2004 the Veteran submitted a letter from Dr. W. E. and R.D.C., a licensed professional clinical counselor, dated December 2003, which indicates that the Veteran had severe PTSD symptoms due to service. This document is presumed credible solely for determining whether to reopen the claim. Since this document is presumed credible and it indicates a diagnosis of PTSD and a relationship between PTSD and service, the Board finds that the Veteran submitted new and material evidence pertinent to his claim and that the claim must be reopened for consideration on the merits. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. This presumption of sound condition attaches only where there has been an induction examination in which a disease or injury was not noted but which manifested or was incurred in service. Gilbert v. Shinseki, 26 Vet. App. 48, 53 (2012) ("Once the presumption of soundness is applied, if the Secretary is unable to rebut the presumption, the disease or injury that manifested in service is deemed incurred in service, such that the second element of service connection is established."); see also Holton v. Shinseki, 557 F.3rd 1362, 1366 (Fed.Cir. 2009) (noting that to establish a right to compensation for a present disability, a veteran must show: (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). History provided by the Veteran of the preservice existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). Since the Veteran in this case has alleged, and VA examiners have opined, that he had a psychiatric disorder that preexisted service, the Board must consider whether the presumption of soundness is for application. In this case, service treatment records include the Veteran's June 1965 pre-induction examination and accompanying report of medical history form. On his medical history form, the Veteran said he currently or previously had dizziness or fainting spells, foot trouble, and nervous trouble. Concerning this history, the part of the examiner's notes that appear to address the Veteran's notation about nervous trouble is not completely legible, but he noted with regard to the dizziness or fainting spells, foot trouble, and nervous trouble as follows: "Occ[asional] postural hypotension" and "Dropped cross tie on 3rd R[ight] toe" and "Mildly [illegible]". The accompanying examination report reflected a clinical evaluation of the psychiatric system of "normal". Accordingly, because only a history of nervous trouble provided by the Veteran was shown on the entrance examination report, the Board finds that a psychiatric disorder was not "noted" at entry to service. The remaining question with regard to whether the presumption of soundness applies in this case is whether a psychiatric disorder manifested or was incurred in service. Gilbert v. Shinseki, 26 Vet. App. 48, 53 (2012) (noting that before the presumption of soundness is for application, there must be evidence that a disease or injury that was not noted upon entry to service manifested or was incurred in service), citing Holton, 557 F.3d at 1367 (the presumption of soundness does not "relieve the veteran of the burden of showing that [he] suffered from a disease or injury while in service"); Horn, 25 Vet.App. at 236 ("In order to invoke the presumption of soundness, a claimant must show that he or she suffered from a disease or injury while in service."); see also Dye v. Mansfield, 504 F.3d 1289, 1293 (Fed. Cir. 2007) (presumption of soundness involves question of preexistence of "medical problems that arose during service"); Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004) (disability compensation requires "'personal injury suffered or disease contracted in line of duty'" (quoting 38 U.S.C. § 1110)). In this case, the evidence does not show that PTSD, depression, or any other psychiatric disorder was treated or diagnosed during service. At separation from service, the Veteran indicated nervous trouble on his report of medical history form; however, the reviewing physician indicated that positive answers on the report were not of medical significance. The accompanying examination report shows a normal psychiatric evaluation. The only evidence of onset of a psychiatric disorder during service is the Veteran's conflicting post-service statements to VA and private medical providers regarding the onset of his psychiatric disorder. He has stated that his condition had its onset prior to service, during his first physical for basic training, upon leaving Vietnam, and after service in the 1970s. He has also said he was treated for his condition with sleeping pills while serving in Vietnam; however, service treatment records do not support his contention. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Credible testimony is that which is plausible or capable of being believed. See Indiana Metal Prods. v. NLRB, 442 F.2d 46, 52 (7th Cir. 1971) (citing Lester v. State, 370 S.W.2d 405, 408 (1963)); see also Weliska's Case, 131 A. 860, 862 (Me. 1926); Erdmann v. Erdmann, 261 P.2d 367, 369 (Mont. 1953) ("A credible witness is one whose statements are within reason and believable . . . ."). The term "credibility" is generally used to refer to the assessment of oral testimony. See, e.g., Anderson v. Bessemer City, 470 U.S. 564, 575 (1985) ("only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said"); NLRB v. Walton Manufacturing Co., 369 U.S. 404, 408 (1962) (trier of fact "sees the witnesses and hears them testify, while the [NLRB] and the reviewing court look only at cold records"); Jackson v. Veterans Admin., 768 F.2d 1325, 1331 (Fed. Cir. 1985) (trier of fact has opportunity to observe "demeanor" of witness in determining credibility). The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character. See State v. Asbury, 415 S.E.2d 891, 895 (W. Va. 1992); see also Burns v. HHS, 3 F.3d 415, 417 (Fed. Cir. 1993) (testimony was impeached by witness' "inconsistent affidavits" and "expressed recognition of the difficulties of remembering specific dates of events that happened . . . long ago"); Mings v. Department of Justice, 813 F.2d 384, 389 (Fed. Cir. 1987) (impeachment by testimony which was inconsistent with prior written statements). Although credibility is often defined as determined by the demeanor of a witness, a document may also be credible evidence. See, e.g., Fasolino Foods v. Banca Nazionale Del Lavoro, 761 F. Supp. 1010, 1014 (S.D.N.Y. 1991); In Re National Student Marketing Litigation, 598 F. Supp. 575, 579 (D.D.C. 1984). Caluza v. Brown, 7 Vet. App. 498, 511 (1995). [D]efinitions of credibility do not necessarily confine that concept to the narrow peg of truthfulness. It has been termed as "the quality or power of inspiring belief." Webster's Third New International Dictionary (1966). "Credibility involves more than demeanor. It apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence." Carbo v. United States, 314 F.2d 718, 749 (9th Cir. 1963). Indiana Metal Prods. v. NLRB, 442 F.2d 46, 51-52 (7th Cir. 1971) The Board has considered the Veteran's post-service statements regarding the onset of a psychiatric disorder in service and finds that his inconsistent statements are not sufficient evidence on which to base a finding that a psychiatric disorder manifested during service. Further, as discussed below, none of the medical evidence indicates that a psychiatric disorder had its onset during service, and psychiatric disorders are complex matters requiring medical evidence for diagnosis; they are not the kind of disorders that subject to lay observation. Therefore, the Board concludes that the presumption of soundness is not for application in this case with regard to a psychiatric disorder since such a disorder did not manifest in service. Gilbert, 26 Vet. App. at 53 (presumption of sound condition attaches only where there has been an induction examination in which a disease or injury was not noted but which manifested or was incurred in service) (emphasis added). For service connection for PTSD, a diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a) (2012), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the 4th edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). See 38 C.F.R. § 3.304(f) (2012). The U.S. Court of Appeals for Veterans' Claims (Court) has taken judicial notice of the mental health profession's adoption of the DSM-IV as well as its more liberalizing standards to establish a diagnosis of PTSD. The Court acknowledged the change from an objective "would evoke . . . in almost anyone" standard in assessing whether a stressor is sufficient to trigger PTSD to a subjective standard (e.g., whether a person's exposure to a traumatic event and response involved intense fear, helplessness, or horror). Thus, as noted by the Court, a more susceptible person could have PTSD under the DSM-IV criteria given his or her exposure to a traumatic event that would not necessarily have the same effect on "almost everyone." Cohen v. Brown, 10 Vet. App. 128, 140-141 (1997). The VA regulation governing claims for service connection for PTSD has recently been amended. Effective July 13, 2010, VA has amended its adjudication regulations by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: (f)(3) If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with 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, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The provisions of this amendment apply to applications for service connection for PTSD, like the one in this case, that were appealed to the Board before July 13, 2010, but have not been decided by the Board as of July 13, 2010. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt that exists because of an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. In this case, service records show that the Veteran served in the Republic of Vietnam as an aircraft instrument repairman. His awards and decorations include the Vietnam Service Medal and the Vietnam Campaign Medal. Service treatment records do not show that the Veteran complained of or was treated for any acquired psychiatric disorders or symptoms during service; however, at separation from service, the Veteran indicated nervous trouble on his report of medical history form. However, the physician indicated that positive answers on the report were not of medical significance. The accompanying examination report did not indicate psychiatric abnormalities. The first indication of a psychiatric disorder is dated December 1989, approximately 22 years after separation from service, and is located in a treatment record from MCC Center. The treatment record shows the Veteran reported having been treated for mental health symptoms since the 1970s. He noted that while in Vietnam, he was stationed in an area that received mortar fire. The diagnosis was adjustment disorder with depressed mood and generalized anxiety disorder. In April 1990, MCC Center discussed changing the diagnosis to generalized anxiety disorder due to the reported history of treatment for nerves and increased symptoms pervasive in daily functioning. MCC Center staff did not discuss the etiology of the disorder. The Veteran had VA examinations in June and July 1990. The examiners interviewed the Veteran but did not indicate that the claims file was available for review; therefore, opinions provided in the examination reports are not adequate for rating purposes. Briefly, the June 1990 VA examination report shows the Veteran said he had been treated by a psychiatrist since service for his mental health. The diagnosis was generalized anxiety disorder. Psychosocial stressors included finances and his unemployment. The July 1990 VA examination report shows testing indicated mild depression but not PTSD. The examiner said the Veteran experienced mild levels of depression, which could have been in reaction to current stressors. The examiner said testing and past history showed a chronic state of anxiousness and that while the Veteran said his tension and anxiety began when he attended his first physical for basic training, the examiner had no way to know whether the condition was a direct result of his involvement in Vietnam. In September 1992, the Veteran had a psychiatric evaluation performed at CVPC. The examiner interviewed the Veteran and documented his current symptoms and reported history. The diagnosis was dysthymic disorder; however, the examiner did not indicate the etiology of the disorder. The Veteran had another VA examination in May 1993. The examiner did not have the claims file for review and did not provide an etiology opinion. The examiner interviewed the Veteran and diagnosed generalized anxiety disorder with panic attacks. The examiner indicated that chronic PTSD needed to be ruled out. In April 1999, the Veteran had a VA comprehensive mental health evaluation. The Veteran said he had been "nervous" since leaving Vietnam. Screens were negative for PTSD, bipolar disorder, and psychosis. The diagnosis was depression; however, the provider did not indicate the etiology of the disorder. In a December 1999 statement, the Veteran said he was treated with sleeping pills for a nerve problem while serving in Vietnam. However, this treatment is not documented in service treatment records. VA treatment records dated from 1999 to 2002 show a diagnosis of depression, not otherwise specified (NOS); however, the records do not address etiology of the disorder. The Veteran had a VA examination in December 2002. The examiner reviewed the claims file and examined the Veteran. The Veteran said he had a nervous problem before entering service but was not treated for it. After service, he was treated by a local family physician and had been prescribed medications for his mental health since 1970. The diagnosis was depressive disorder NOS. The examiner said the Veteran did not meet the stressor criteria for a diagnosis of PTSD. The examiner noted that the Veteran had nerve problems prior to and subsequent to service but that he did not seek treatment until 1970. The examiner found no service treatment records showing treatment of a mental health disorder. The examiner opined that the onset of the psychiatric disabilities and depression most likely started before service and were not likely related to or aggravated by service. In March 2004, the Veteran submitted a letter from R.D.C., M.A., a licensed professional clinical counselor. In this letter, which is dated December 2003, R.D.C. said the Veteran had been treated at MCC Center since July 2003 for PTSD, which was due to the Veteran's tour in Vietnam. R.D.C. described the Veteran's symptoms and said his PTSD was severe. This letter was reviewed and approved by Dr. W.E., a staff psychologist at MCC Center. The Veteran had a VA examination in July 2004. The examiner reviewed the claims file and examined the Veteran. The examiner found that the Veteran met some but not all of the criteria for a diagnosis of PTSD. The diagnosis was depressive disorder, NOS. The examiner said the Veteran had a history of anxiety and depression dating prior to service. The examiner did not address the December 2003 letter from R.D.C. VA treatment records show negative PTSD screens in October 2004 and July 2005. Subsequent to the Veteran's death, the appellant submitted private treatment records from various providers, including updated treatment records from MCC Center. Unfortunately, the Board cannot consider those records for accrued benefit purposes since they are not VA records and were not associated with the claims file prior to the Veteran's death in December 2005. 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a), (d)(4); see Hayes, 4 Vet. App. at 360-61. Based on the evidence of record at the time of the Veteran's death, the Board finds that the Veteran did not have a diagnosis of PTSD based on verified stressors or under the revised criteria of 38 C.F.R. § 3.304(f)(3). Specifically, while MCC Center diagnosed PTSD based on the Veteran's experiences in Vietnam, a VA or VA contracted provider did not confirm prior to the Veteran's death that his stressor was related to fear of hostile military or terrorist activity and that it was adequate to support a diagnosis of PTSD. Further, the VA examination conducted one month after the letter was submitted found that the Veteran did not meet all criteria for a diagnosis of PTSD. Notably, subsequent VA PTSD screens were negative. Consequently, without a diagnosis of PTSD, service connection for PTSD for accrued benefits purposes must be denied. During the pendency of his claim, the Veteran continued to have a diagnosis of depression. However, the Board finds that the preponderance of the evidence does not show a relationship between depression and service. The only evidence indicating a nexus between service and acquired psychiatric disorders are his statements. However, as noted above, the Veteran's statements regarding the onset and treatment of his acquired psychiatric disorders are inconsistent. Specifically, he said his condition had its onset prior to service, during his first physical for basic training, upon leaving Vietnam, and after service in the 1970s. While laypersons are generally competent to report symptoms of disorders, in this case, the Board finds that the Veteran's recollections of his medical history are not consistent and therefore, not credible. The Board has considered the medical evidence, but finds that it also fails to indicate a relationship between service and any psychiatric disorders. At most, VA examiners opined that acquired psychiatric disorders other than PTSD had their onset prior to service. The opinions, which are not supported by rationale, appear to be based on the Veteran's statements alleging pre-service onset of his disorders. However, because the Board finds that the Veteran's statements regarding his medical history are not credible, the Board, in turn, finds that the VA examiners' opinions are not credible or persuasive and are entitled to no probative value as they are based on the Veteran's reported history. Generally, the Board would remand this case to obtain an adequate VA examiner's opinion; however, because this claim is solely for the purpose of accrued benefits, the Board is not permitted to undertake development subsequent to the Veteran's death. Therefore, based on the evidence of record at the time of the Veteran's death, the Board finds that the preponderance of the evidence weighs against a finding of service connection for a psychiatric disorder, to include PTSD, for accrued benefits purposes. The benefit of the doubt doctrine is not for application. See Gilbert, 1 Vet. App. at 55. The appeal is denied. ORDER The claim for service connection for a psychiatric disorder is reopened; service connection for accrued benefits purposes is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs