Citation Nr: 1319904 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 11-02 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE 1. Whether new and material evidence has been received to reopen a previously denied claim for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. 3. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include major depressive disorder and anxiety disorder, not otherwise specified (NOS). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service in the Army from May 1966 to July 1970. The matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Portland, Oregon that reopened the claim for service connection for PTSD but denied the claim based on the merits. The Board is required to consider the question of whether new and material evidence has been received to reopen this claim without regard to the RO's determination. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim is not limited to the diagnosis identified by the Veteran. In this case, the Veteran has filed a claim for PTSD but the record shows other psychiatric diagnoses. As a result, the issue on appeal has been re-characterized on the title page. FINDINGS OF FACT 1. In a rating decision issued in October 2006, the RO denied service connection for PTSD. The Veteran did not appeal that decision. 2. Evidence submitted since the October 2006 RO rating decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. The most persuasive evidence of record establishes that the Veteran does not have PTSD. 4. Major depressive disorder and anxiety disorder, NOS, had their onset in service. CONCLUSIONS OF LAW 1. The RO's October 2006 decision denying service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302(a), 20.1103 (2012). 2. New and material evidence has been received since the October 2006 decision warranting the reopening of the Veteran's claim for service connection for PTSD. 38 U.S.C.A. § 5108 (West 2002 & 2012); 38 C.F.R. § 3.156(a) (2012). 3. The criteria for service connection for PTSD are not met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f). 4. The criteria for service connection for major depressive disorder and anxiety disorder, NOS, are met. §§ 1110, 1154(a), (b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specific to requests to reopen, a Veteran must be notified of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In this decision, the Board reopens the Veteran's claim for service connection for PTSD. As such, no discussion of VA's duty to notify and assist is necessary with respect to reopening the claim. The notice requirements regarding the criteria for establishing the underlying claim for service connection for PTSD were accomplished in a letter sent in June 2006 prior to the initial adjudication of the Veteran's claim. The letter also provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disabilities under consideration, pursuant to Dingess/Hartman v. Nicholson, 19 Vet App 473 (2006). VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Here, the Veteran's statements, his service treatment records, and post-service VA treatment records have been associated with the claims folder. The Veteran was provided with a VA examination in May 2010. The Board finds that the VA examination report was adequate because the examiner conducted a clinical evaluation, reviewed the Veteran's medical history, and described the acquired psychiatric disorders in sufficient detail so that the Board's evaluation is an informed determination. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). Reopened Claim The Veteran seeks to reopen a previously denied claim of service connection for PTSD. Under 38 U.S.C.A. § 5108, "[i]f 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." See 38 U.S.C.A. § 7105. Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decisionmakers. "Material" evidence is evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court held that when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. In an October 2006 rating decision, the RO denied a claim for service connection for PTSD, on the basis that the evidence did not contain a verified stressor, a clinical diagnosis of PTSD in accordance with DSM-IV, or a nexus between the symptomology and the in-service event. The Veteran was notified of that decision and of his appellate rights by way of letter sent to him on October 14, 2006. He did not appeal that rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2011); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the October 2006 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1105 (2012). The evidence of record at the time of the October 2006 rating decision included the Veteran's service treatment records, personnel records, an April 2006 stressor statement, VA treatment records dated November 2002 to April 2006, and statements from the Veteran. The Veteran submitted an application to reopen his claim in October 2009. The evidence received since the October 2006 rating decision includes VA treatment records dated April 2006 to September 2012, a January 2010 stressor statement from the Veteran, lay statements from the Veteran's former commanding officer and fellow unit soldier dated January 2010 regarding the Veteran's in-service stressors, internet printouts titled "The Second Korean Conflict- A Chronology of Key Events" and "Significant U.S. KPA Firefights, November 1966-December 1969", and a May 2010 Compensation and Pension examination report. The Board observes that some of the evidence received since the October 2006 rating decision is new, as it was not previously of record. Of note, the January 2010 lay statements submitted by the Veteran's former commanding officer and fellow unit soldier concerning the Veteran's claimed in-service stressors. The statements serve to corroborate the Veteran's reported in-service stressor events. As previously noted, the credibility of such evidence is presumed for the purpose of reopening the claim. Since the lack of evidence demonstrating a verified stressor was one of the bases for the denial of the claim in the prior rating decision, the new evidence is also material. As new and material evidence to reopen the claim for service connection for PTSD has been received, the claim is therefore reopened. The Veteran's appeal to this extent is allowed. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for psychoses may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Establishing service connection for PTSD generally requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2012); see also Cohen v. Brown, 10 Vet. App. 128 (1997). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the Veteran engaged in "combat with the enemy." 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. See 38 C.F.R. § 3.304(d) (2012); see also, 38 U.S.C.A. § 1154(b) (West 2002). 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. 38 C.F.R. § 3.304 (f) (3) In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. Background In this case, the Veteran asserts that he developed PTSD due to his military service in Korea. As emphasized in Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009), though a Veteran may only seek service connection for one specific psychiatric disorder, the Veteran's claim "cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Id. Therefore, the Board must analyze the Veteran's current claim under this expanded framework, based on the Clemons ruling and appropriate review of the evidence of record. The Veteran's service treatment records do not reflect a diagnosed psychiatric disorder. The Veteran's DD Form 214 reflects that the Veteran's military occupational specialty (MOS) was wheel vehicle mechanic. The DD Form 214 does not document any decorations, medals or ribbons indicative of combat. The Veteran's personnel records show that he was stationed in Korea from October 1966 to May 1968. From November 1966 to July 1967 the Veteran was assigned to Headquarters and Company A, Second Medical Battalion. From July 1967 to March 1968 the Veteran was assigned to Headquarters Second Infantry Division and from March 1968 until May 1968 he was assigned to the 79th Infantry Division. Post-service VA outpatient records reflect diagnoses and treatment for PTSD and major depressive disorder. The Veteran was first diagnosed with PTSD by a VA nurse practitioner in April 2006 based on the Veteran's responses to a PTSD screening. In March 2009 the Veteran was diagnosed with major depressive disorder by a VA psychiatric nurse practitioner. In an April 2006 "Post-Traumatic Stress Disorder Questionnaire" the Veteran identified five in-service stressors. First, the Veteran reported being on high alert after the North Koreans seized the USS Pueblo in international waters and took American soldiers captive. He stated that he did not know the fate of the men captured or if he was going to be attacked. Second, the Veteran reported that his fellow service men at Camp Walley had their barracks satchel charged by North Korean infiltrators. He reported that two men were killed and 18 were wounded. The Veteran stated that his unit was once again put on high alert status and he never knew if they were next or not. Third, the Veteran reported that a medical ambulance was attacked by North Korean infiltrators. He stated that shots were fired and grenades were used. He reported that the driver, a G.I., and two KATUSAs (Korean Augmentation to the United States Army) were killed in the attack. The Veteran stated that he never knew if his unit was next or not and this concern was always on his mind. Fourth, the Veteran reported that 31 North Korean infiltrators infiltrated South Korea in an attempt to assassinate the South Korean President. Once he again his unit was put on high alert and placed on guard duty with live ammunition in an attempt to stop the infiltrators from returning to North Korea. He stated that he never knew if he was going to engage the North Koreans or if he was going to be the next one to be killed. Finally, the Veteran reported that he never knew if he was going to be killed or transferred to Vietnam. He stated that he was always thinking of this fact and the possibilities of what could happen. In October 2006 and December 2009 the RO issued Formal Findings of a lack of Information required to Document the Claimed Stressor(s). In a January 2010 PTSD stressor statement the Veteran reported seeing wounded personnel coming in by helicopter and ambulances from the attacks on the 1st and 23rd barracks along the DMZ (demilitarized zone). In January 2010 the Veteran also submitted internet printouts of key events in the Second Korean Conflict and lay statements from his former commanding officer and a fellow unit soldier in which they describe the incidents that occurred while they were stationed in Korea. The former commanding officer reported that he served with the 2nd Medical Battalion and was the Officer in Charge of Headquarters and Company A, 2nd Medical Battalion. He stated that he knew the Veteran from September 1967 to September 1968. He also reported increased hostilities from September 1966 to April 1968 which included the capture of the USS Pueblo in January 1968 and the Blue House Raid. He stated that the Blue House Raid was a 31 man North Korean Commando Team that infiltrated South Korea in an attempt to assassinate the South Korean President. He reported that the infiltrators attempted to return to North Korea and where just over the ridge behind the 2nd Medical Battalion. He stated that a large firefight ensued which could be heard as if it was in their own backyard. The former commanding officer also reported that many wounded were brought to the 2nd Medical Battalion. He reported that these times were very stressful to those at the 2nd Medical Battalion as the only protection they had between them and the North Koreans was a chain link fence. He also reported that the enemy threw satchel charges over the fence to try and injure them. He reported that ambulance drivers and mechanics were very busy keeping the ambulances running. He also stated that he knew for a fact that the Veteran made many runs to find wounded and make repairs on outlying medical clinics. He stated that many ambulances were shot at during these runs. The fellow unit soldier stated that he was stationed in Korea with the 2nd Medical Battalion from September 1966 to April 1968 and the Veteran was stationed with him from October 1966 to April 1968. He reported that they were fellow mechanics until March 1967 when he was promoted. He stated that during his time in Korea there were 20 incidents, the most significant being the capture of the USS Pueblo and the Blue House Raid, both in January 1968. He reported that during the North Koreans' retreat after the Blue House Raid they came within a quarter of a mile of the 2nd Medical Battalion compound. He stated that gunfire could be heard as they were hunted down. He reported that two days later the USS Pueblo was captured. He stated that this was an unnerving time and after each incident US forces were placed on high alert status which would last for a week or more. He also reported that a large number of wounded were brought by helicopter or ambulance to the 2nd Medical Battalion. He stated that he and the Veteran made many trips to the DMZ checking on the ambulances stationed at the outlying aid stations. He reported that these trips were nerve racking due to the past attacks and vehicles hitting mines planted in the road by the North Koreans. The Veteran was afforded a VA psychiatric examination in May 2010. The Veteran reported being exposed to high levels of threat during the Korean conflict. He denied being in direct combat but he reported that he heard explosives, gunfire, and saw wounded bodies. He stated that this terrified him. He reported being about six miles away from explosions and that explosions were sometimes aimed at his location. He also reported that he would sometimes go out to these high conflict areas and retrieve personnel and/or ambulances. The Veteran stated that he saw wounded personnel that needed to be taken to the 2nd Medical Battalion for treatment. He stated that the most traumatic stressor for him was the attack on the 1st and 23rd barracks. He reported that the wounded were transported to his compound and that seeing people with wounds was the worst. He stated that he felt sick when he saw those people and was scared to death when he went to the demilitarized zone because there might be a mine on the road. He also stated that there was always the fear that something was going to happen. He reported experiencing decreased and interrupted sleep related to nightmares involving bloodied and wounded bodies and intrusive recollection of Korea ever since he left Korea. The Veteran was administered testing to assess levels of depression and PTSD symptoms. The examiner stated that although the Veteran was reporting persistent symptoms his depressive symptoms were minimal. The examiner found there was no diagnosis of PTSD because DSM-IV criteria C, D, and F were not met. The examiner did find that the Veteran had major depressive disorder and anxiety disorder NOS. The examiner opined that the Veteran's viewing of wounded soldiers and indirect combat exposure was a contributing factor to his anxiety disorder, and to a lesser extent, his major depressive disorder. PTSD After a review of the cumulative evidence, the Board finds that service connection for PTSD is not warranted. As noted, a diagnosis of PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (2012); a link, established by medical evidence, between current symptomatology and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred. The Board notes that there are two competing medical opinions of record regarding a diagnosis of PTSD. The Veteran was first diagnosed with PTSD by a VA nurse practitioner in April 2006. In contrast the May 2010 VA examiner concluded that the Veteran does not currently carry a diagnosis of PTSD. The Court has held that it is the Board's duty to determine the credibility and weight of evidence. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). While the Board may not ignore the opinion of a physician, it is certainly free to weigh the credibility of that physician's statement. Sanden v. Derwinski, 2 Vet. App. 97 (1992). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Here, the Board finds the April 2006 opinion of the VA nurse practitioner, in favor of the Veteran's PTSD diagnosis, is of lesser probative value than the latter May 2010 VA examination report. In this regard, the VA nurse practitioner's opinion does not indicate which, if any, psychological tests were conducted in support of the diagnosis and as such, the scope of his examination appears to be limited. The VA nurse practitioner also failed to provide an adequate explanation for the basis of his opinion. The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999); see also Black v. Brown, 5 Vet. App. 177, 180 (1995). In contrast, the Board finds that the opinion provided at the VA psychological examination in May 2010 is of greater probative weight. The examiner opined that the Veteran's symptoms are more consistent with a diagnosis of major depressive disorder and anxiety disorder than PTSD. First, the examiner is a licensed clinical psychologist and is therefore well qualified to determine whether the Veteran meets the criteria for PTSD. Sklar v. Nicholson, 21 Vet App. 120, 124 (1993). The Board notes that the VA psychologist indicated that her assessment consisted of the PCL-S PTSD Stressor Checklist psychometric clinical test. In addition, the examiner reviewed the claims file in its entirety. The VA psychologist's discussion of her opinion was also more thorough and detailed than the nurse practitioner's report. The opinion was based on a detailed and comprehensive examination of the Veteran, which reflected knowledge of his in-service stressors and post-service mental health history. For these reasons, the Board finds that the VA psychologist's opinion outweighs the opinion of the VA nurse practitioner. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). In sum, in order for the Veteran to be awarded service connection for PTSD, there must be medical evidence linking a current diagnosis of PTSD to an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2012). Based on the VA examination, the Board finds that the Veteran lacks a current diagnosis of PTSD, and the Board emphasizes that without a diagnosis of PTSD in accordance 38 C.F.R. § 4.125(a). The only other evidence of record that the Veteran has PTSD comes from his own contentions. The Board notes, however, that, as a lay person, the Veteran is not competent to establish a medical diagnosis or show a medical etiology merely by his own assertions; such matters require medical expertise. 38 C.F.R. § 3.159(a)(1); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Thus, the criteria for establishing service connection for PTSD have not been met. Major Depressive Disorder and Anxiety Disorder, NOS Although service connection for PTSD is not warranted, the record reflects diagnoses of major depressive disorder and anxiety disorder. The May 2010 VA examiner opined that the Veteran's viewing of wounded soldiers and indirect combat exposure was a contributing factor to the Veteran's anxiety disorder and to a lesser extent his major depressive disorder. The May 2010 opinion is probative and is not contradicted by other competent and probative evidence. The Board finds that the opinion is also consistent with the evidence of record. The Board finds that the totality of the evidence supports finding the Veteran's major depressive disorder and anxiety disorder are associated with events that occurred during service. Thus, the required nexus is met. For these reasons, and in resolving all doubt in the Veteran's favor, the competent and probative evidence shows that he is entitled to service connection for major depressive disorder and anxiety disorder, NOS. In reaching this conclusion, the Board has applied the benefit- of-the-doubt doctrine. 38 U.S.C.A. 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER New and material evidence has been received to reopen the claim for service connection for PTSD. Service connection for PTSD is denied. Service connection for major depressive disorder and anxiety disorder, NOS, is granted. ____________________________________________ Wayne M. Braeuer Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs