Citation Nr: 1322169 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 11-08 802A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for posttraumatic stress disorder. REPRESENTATION Veteran represented by: Charles D. Romo, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1970, including service in the Republic of Vietnam from July 1968 to July 1969. He also received the Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which confirmed and continued a previous denial of service connection for posttraumatic stress disorder (PTSD). In a letter dated two days later in the same month, the RO in Atlanta, Georgia notified the Veteran of that determination. Due to the location of the Veteran's residence, jurisdiction of his appeal remains with the RO in Atlanta, Georgia. On his April 2011 VA Form 9, the Veteran requested a hearing before a Veterans Law Judge (VLJ) at the RO. He was scheduled for a hearing in Atlanta, Georgia in September 2012. Unfortunately, the Veteran was unable to attend the hearing due to illness. He requested that his attorney present his case to the undersigned VLJ in lieu of his personal appearance at the hearing. A transcript of the September 2012 hearing has been associated with the Veteran's claims file. To establish jurisdiction over the issue of entitlement to service connection for PTSD, the Board must first consider whether new and material evidence has been received to reopen the claim. See 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012). The Board must proceed in this fashion regardless of the RO's actions. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92. As discussed fully under the analysis section, new and material evidence has been received sufficient to reopen the claim for service connection for PTSD. In May 2012, the Veteran submitted claims for service connection for residuals of Agent Orange exposure; lesions/melanomas of the skin, to include as a result of in-service exposure to herbicides; a bilateral lower extremity disability; a back disability; and hypertension. Thus, the claims for service connection for a bilateral lower extremity disability, a back disability, and hypertension, as well as the issue of whether new and material evidence has been received sufficient to reopen the previously denied claims for service connection for residuals of Agent Orange exposure and for lesions/melanoma, to include as a result of in-service exposure to herbicides have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. In an unappealed rating decision dated in November 2004, the RO denied service connection for PTSD on the basis that the evidence did not establish that the Veteran had PTSD or that there was a nexus between any such diagnosis and his military service. 2. Evidence submitted subsequent to the RO's November 2004 decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD. 3. The Veteran's currently diagnosed PTSD is the result of his active duty service. CONCLUSIONS OF LAW 1. The November 2004 decision denying service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104(a), 20.1103 (2012). 2. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for PTSD has been received. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156(a) (2012). 3. The Veteran's PTSD was incurred in active service. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). 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 Veteran. 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, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran 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). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's application to reopen his previously denied claim for service connection for PTSD and the reopened claim for service connection for PTSD, this application and claim are being granted, as is discussed in detail below. As such, the Board finds that any error related to the VCAA with regard to the application to reopen or claim for service connection is moot. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim A. New and Material Evidence The initial issue before the Board is whether new and material evidence has been received sufficient to reopen the previously denied claim for service connection for PTSD. After a review of the evidence of record, the Board finds that new and material evidence has been received with regard to this claim. Where service connection for a disability has been denied in a final decision, a subsequent claim for service connection for that disability may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. The Board must consider the new and material question because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett, supra. If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384; Butler v. Brown, 9 Vet. App. 167, 171 (1996). New evidence means evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). According to the United States Court of Appeals for Veterans Claims (Court), VA law requires that, to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). "[T]he determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156(a), does not create a third element in the reopening process but is a component of the question of what is new and material evidence, rather than a separate determination to be made if evidence is new and material." Shade v. Shinseki, 24 Vet. App. 110 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). The Court further explained in Shade that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element. The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. Evans, supra at 283; see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant the claim). Here, the Veteran previously sought service connection for PTSD. Specifically, he filed his original claim for service connection for this disability in January 2004. A November 2004 rating decision from the VA RO in Atlanta, Georgia denied this issue on the basis that the evidence did not establish that the Veteran had PTSD or that such disability was related to his military service. The RO had scheduled the Veteran for a VA examination in October 2004 to attempt to obtain such a diagnosis and nexus opinion, but he failed to report for his scheduled examination or to provide contact information for the rescheduling of the examination. At the time of that decision, statements from the Veteran and his wife as well as VA treatment records were considered. The Veteran did not appeal the November 2004 rating decision, nor did he submit any new and material evidence within a year of notice of that determination. 38 C.F.R. § 3.156(b) (2012); Buie v. Shinseki, 24 Vet. App. 242 (2011). The November 2004 rating decision is the last final denial of the claim for service connection for PTSD. The new evidence submitted since the November 2004 denial consists of additional statements and hearing testimony from the Veteran and his wife as well as VA and private treatment records. VA treatment records received since the November 2004 show that the Veteran has received psychiatric treatment, has undergone psychiatric evaluation, and has been diagnosed with depression, anxiety disorder NOS, and chronic PTSD. Additionally, a September 2005 VA treatment record links the Veteran's PTSD symptoms to his combat experiences. As these treatment records are probative of reasons for the prior denial (and provide evidence of PTSD and a link between that disability and the Veteran's service), the Board concludes that this medical evidence satisfies the low threshold requirement for new and material evidence. Accordingly, the claim for service connection for PTSD is reopened. B. Service Connection The Veteran claims that he has PTSD as a result of combat experiences in Vietnam. Therefore, he believes service connection is warranted. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (2012). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for a disability, there must be (1) competent 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) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). With regard to psychiatric disability claims, mental retardation and personality disorders are not diseases or injuries for compensation purposes, and disability resulting from them may not be service-connected, except as provided in 38 C.F.R. § 3.310(a) for disabilities that are proximately due to or the result of a service-connected disease or injury. However, disability resulting from a mental disorder that is superimposed upon mental retardation or a personality disorder may be service connected. 38 C.F.R. § 4.127 (2012). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2012). If the evidence establishes that a 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)(2) (2012); see also 38 U.S.C.A. § 1154(b) (West 2002). Receipt of various medals and decorations, including the Purple Heart medal, is accepted as proof of participation in combat. See VA Adjudication Procedures Manual M21-1MR, Part IV, Subpart ii, 1.D.13.e (M21-1MR). The medical evidence of record reflects that the Veteran has been diagnosed with several psychiatric disorders, including anxiety disorder NOS, depression, and PTSD. During the appeals period, the Veteran has been diagnosed with anxiety disorder NOS by an October 2008 VA examiner who also concluded that the Veteran no longer met the criteria for a diagnosis of PTSD. However, a May 2012 VA treatment record indicates that the Veteran had been diagnosed with PTSD during the preceding 12 months. Although the May 2012 record does not specifically state that the diagnosis of PTSD was made in compliance with the DSM-IV, the Court has held that mental health professionals making diagnoses "are presumed to know the DSM requirements applicable to their practice and to have taken them into account." Cohen v. Brown, 10 Vet. App. 128, 140 (1997). The Veteran's noted diagnoses of PTSD were presumably made by a VA mental health professional after interviewing and evaluating the Veteran and there is no indication that the diagnoses were made other than in line with DSM criteria. As such, the Board accepts the diagnosis of PTSD referenced in the Veteran's May 2012 VA treatment record. Further, and in this regard, the Board notes that a record of a VA outpatient treatment session completed just last month (in June 2013) provides confirmation of the diagnosis of chronic PTSD. As noted above, where a veteran has served in combat and his claimed stressor is consistent with the circumstances of his combat service, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2) (2012); see also 38 U.S.C.A. § 1154(b) (West 2002). Here, the Veteran received the Purple Heart for shrapnel wounds received while serving in combat in Vietnam. As referenced above, receipt of a Purple Heart medal is sufficient proof of participation in combat. M21-1MR. As such, the Veteran's combat-related stressors is conceded. The remaining question is whether a medical nexus exists between the Veteran's current PTSD and his combat stressors. Hickson, supra. In this regard, the Board notes that the Veteran was afforded a VA examination in October 2008 to address his psychiatric complaints. The examiner diagnosed the Veteran with anxiety disorder NOS and concluded that the Veteran did not meet the diagnostic criteria for PTSD. As the examiner did not diagnose the Veteran with PTSD, the examiner did not provide a nexus opinion. As noted in the new and material evidence discussion above, a September 2005 VA treatment record notes the Veteran's diagnosis of PTSD. The VA mental healthcare provider noted the Veteran's in-service combat experiences and linked his PTSD symptoms, including nightmares, insomnia, irritability, difficulty in concentration, flashbacks, and exaggerated startle response, to these combat experiences. In supporting the diagnosis of PTSD, the examiner acknowledged the Veteran's receipt of the Purple Heart as well as his experiences of losing fellow service members. Although the examiner did not specifically state that the Veteran's PTSD was related to these combat stressors, it is implied from her discussion of the Veteran's combat stressors in conjunction with the PTSD diagnosis. Thus, the Board accepts this treatment record as sufficient evidence of a medical nexus between the Veteran's combat service and his current PTSD. In addition to the medical evidence, the Veteran has submitted personal statements as well as statements from his wife indicating that his psychiatric problems began after service and in response to his combat experiences. Laypersons, such as the Veteran and his wife, are generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom; Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran and his wife are competent to report that he has experienced psychiatric symptoms, including depression and anxiety, since service. Although they are not competent to link these symptoms to his service, the September 2005 VA mental healthcare provider is competent and has provided such a link. In light of the September 2005 VA treatment record with positive nexus opinion, the lack of sufficiently probative evidence to contradict this opinion, and the supporting lay evidence reporting continuous psychiatric symptoms since service, the Board finds that the evidence is, at minimum, in equipoise regarding the question of whether the Veteran's current PTSD is related to his active duty service. As such, the Board will give the Veteran the benefit of the doubt, and conclude that service connection for PTSD is warranted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER As new and material evidence sufficient to reopen the previously denied claim for service connection for PTSD has been received, the application to reopen is granted. Entitlement to service connection for PTSD is granted. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs