Citation Nr: 1325264 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 10-07 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for degenerative joint disease (DJD) of the lumbosacral spine. 2. Whether new and material evidence has been received to reopen a previously denied claim for service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. FINDINGS OF FACT 1. A February 2006 Board decision denied the Veteran's original claim for service connection for PTSD, and most recent petition to reopen a claim of service connection for a low back disability. 2. Since February 2006, no additional evidence has been received on an unestablished fact necessary to substantiate the claim for service connection for a low back disability. 3. Since February 2006, new evidence has been received as to the claim of service connection for PTSD. 4. No verified stressor is of record to support the claim of service connection for PTSD. 5. There is no competent evidence linking any psychiatric disorder other than PTSD to the Veteran's military service. CONCLUSIONS OF LAW 1. The Board's February 2006 decision denying service connection for PTSD, and a petition to reopen service connection for a low back disability is a final and binding decision. 38 U.S.C.A. § 7104 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.104(a), 20.1100 (2013). 2. New and material evidence has not been received since the February 2006 decision to reopen the claim for service connection for a low back disability. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156(a) (2013). 3. New and material evidence has been received to reopen the claim for service connection for PTSD. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156(a) (2013). 4. The criteria are not met to establish service connection for an acquired psychiatric disorder, including PTSD. 38 U.S.C.A. §§ 1110 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist the Veteran The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2013). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on the claimant's behalf. A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 3008), later codified at 38 C.F.R. § 3.159(b)(1) (2013). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims (Court) established additional criteria as to the content of the notice to be provided in connection with a petition to reopen, requiring that VA provide a claim-specific and comprehensive definition of "new and material" evidence. The RO has issued April 2009 VCAA notice correspondence which notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The VCAA notice further indicated the joint obligation between VA and the Veteran to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The VCAA letter also provided an explanation of what would satisfy the requirement of "new and material" evidence, in accordance with the Kent decision. The relevant notice information must have been timely sent. The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In this instance, the August 2009 VCAA notice correspondence was issued following the August 2008 RO rating decision on appeal and did not meet the criteria for timely notice. However, the Veteran has had the opportunity to respond to the August 2009 VCAA correspondence before issuance of the February 2013 Supplemental SOC (SSOC) continuing the denial of his claims. Moreover, there is no indication of any further available information or evidence to obtain to support the Veteran's claims. Thus, the Veteran has had the full opportunity to participate in the adjudication of these claims. Mayfield, supra. The RO has complied with the duty to assist the Veteran through obtaining extensive VA outpatient treatment records, service treatment records (STRs), personnel records, and records regarding a claim for disability benefits from the Social Security Administration (SSA). The Veteran has undergone a May 2009 VA Compensation and Pension examination of the lumbar spine, and while no opinion was provided on the etiology of a diagnosed back disorder, the adequacy of a VA examination cannot be contested where involving a petition to reopen, as the duty to provide such examination did not legally exist in the first place. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). No VA examination is required on the claim for service connection for an acquired psychiatric disorder, including PTSD (following reopening), because the Veteran does not have a confirmed in-service stressor, nor other mental health symptomatology from service. There is no possibility that a psychiatric may be due to an incident of the Veteran's military service, as to warrant an examination. See McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran has provided several personal statements. He has not requested a hearing. There is no indication of further available evidence or information which has not already been obtained. In sum, the record reflects that the facts pertinent to the claims being decided have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. "The record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claims on the merits. Analysis Petition to Reopen Service Connection for Low Back Disorder The RO denied the Veteran's original claim for service connection for a low back disorder in an October 1975 rating decision. The RO considered the Veteran as having had two distinct back conditions, first determining that his lumbosacral strain manifested acutely and briefly in service, but resolved with no residuals. The RO further found that post-service diagnosed spondylolysis and spondylolisthesis of the lumbar spine was a constitutional or developmental abnormality, and not recognized as a disability under VA law. The Veteran did not file a timely Notice of Disagreement (NOD) with that decision, and hence it became final and binding on the merits. See U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.200, 20.302. The Veteran filed several petitions to reopen the claim over the next several years, which were denied pursuant to RO rating decisions. In February 2006, the Board considered the petition to reopen the claim of service connection for a low back disability, denying the matter because no new evidence had been submitted to establish a causal nexus between the post-service diagnosed low back disability and the Veteran's military service. The Veteran had provided only statements purporting to link his back disorder to service, but these statements were cumulative of evidence already of record. Following this denial, the Veteran did not appeal to the Court, and the Board's decision became final on the merits. 38 U.S.C.A. § 7104; 38 C.F.R. §§ 3.104(a), 20.1100. The February 2006 Board decision is the last final denial of the Veteran's claim. See generally, Juarez v. Peake, 21 Vet. App. 537, 542 (2008) (in adjudicating a petition to reopen consideration must be provided to evidence received since the last final rating decision on a claim, whether a denial of the original claim or a petition to reopen). When a claim to reopen is presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence means existing evidence not previously submitted to agency decisionmakers. 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. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also Evans v. Brown, 9 Vet. App. 273, 283 (1996). The basis upon which the claim for service connection for a low back disorder was denied was the lack of a causal relationship between this condition and an incident of military service. A causal nexus is an essential element to substantiate a claim for service connection. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). See also Duenas v. Principi, 18 Vet. App. 512, 516 (2004); Pond v. West, 12 Vet. App. 341, 346 (1999). There are numerous sources of evidence added to the claims file since February 2006, however, none of them help substantiate the Veteran's claim. The voluminous records of VA outpatient treatment, to the extent they reference a lower back disorder, are limited in scope to the continuing diagnosis and treatment of the Veteran's condition, and do not concern the subject of etiology. Similarly, a May 2009 VA Compensation and Pension examination reiterated a diagnosis for a back disability, but did not address whether that condition was of service origin. See generally Morton v. Principi, 3 Vet. App. 508 (1992); Mingo v. Derwinski, 2 Vet. App. 51 (1992) (observing that evidence of a claimant's current condition is not generally relevant to the issue of service connection, absent some competent linkage to military service). The records from a Social Security Administration disability benefits claim contain private medical records from the mid-1980s through 1990 pertaining to orthopedic and neurologic back conditions, however, in each instance the cause cited is associated with various post-service work-related injuries, rather than an incident of military service. Generally, documented medical history following service would help show a continuity of symptomatology since service discharge (for a chronic condition, such as degenerative joint disease). See 38 C.F.R. § 3.303(b). In this instance, however, the lower back symptomatology demonstrated is clearly linked to post-service intercurrent injury, and consequently does not help establish a causal nexus to military service. The remaining additional evidence consists of the Veteran's lay statements. To the extent these are cumulative of the Veteran's existing assertions, the statements do not comprise new evidence. See e.g., Untalan v. Nicholson, 20 Vet. App. 467 (2006) (the presentation of new arguments based on evidence already of record as of the previous decision does not constitute new evidence). In addition, the Court has held that a claimant's lay testimony does not comprise a basis to reopen a claim where the determinative issue is that involving medical causation. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). In sum, the Veteran's lay testimony does not offer the new pertinent evidence necessary to reopen this claim. Consequently, there has been no showing of "new and material" evidence sufficient to reopen the claim presented before the Board. As the criteria to reopen service connection for a back disorder have not been met, the benefit-of-the-doubt doctrine does not apply, and the petition to reopen must be denied. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Petition to Reopen the claim of Service Connection for PTSD The Board's February 2006 decision denied service connection for PTSD, for lack of clinical diagnosis of the condition claimed. It was then observed that the VA outpatient treatment records were absent a diagnosis of PTSD, and some of the records even ruled out such a diagnosis. The Veteran did not appeal this denial to the Court, and the decision became final. 38 U.S.C.A. § 7104; 38 C.F.R. §§ 3.104(a), 20.1100. Under VA law, the first criterion to establish service connection is competent evidence of the current disability claimed. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability."); Hicks v. West, 12 Vet. App. 86, 89 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Since the February 2006 Board decision, VA treatment records have been obtained dated from March 2006 which on outpatient mental health evaluation indicate a diagnosis of "non-combat related PTSD." Though the treatment provider did not elaborate on the basis for the diagnosis, the credibility and probative weight of this evidence are to be presumed at the reopening stage. Accordingly, new and material evidence has been received to reopen the Veteran's claim for service connection for PTSD. See 38 C.F.R. § 3.156(a). Service Connection for an Acquired Psychiatric Disorder, Including PTSD The record is sufficient to permit a decision on the Veteran's reopened claim for service connection for PTSD. The Board will consider this issue as part of the more general claim for service connection for any acquired psychiatric disorder. Service connection may be granted for any current disability that is the result of a disease contracted or an injury incurred while on active duty service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303(a) (2013). The elements of a valid claim for direct service connection are as follows: (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) medical 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). Also of application to claims for direct service connection, is the principle that where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. Conversely, continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. Under the latter circumstances, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim. 38 C.F.R. § 3.303(b). The U. S. Court of Appeals for the Federal Circuit (Federal Circuit) since has clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), that this theory of continuity of symptomatology is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a). Moreover, certain chronic diseases, such as mental disorders where involving psychosis may be presumptively service connected if manifested to a compensable degree in the first post-service year. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. See also 38 C.F.R. § 3.384 (defining the term of psychosis for VA compensation purposes). Where the presumption of service connection applies, the Veteran does not need to indicate by competent evidence that his or her claimed condition was incurred or aggravated in service, as required to establish direct service connection. Generally, VA law and regulations preclude granting service connection for a disability that originated due to substance abuse, as this is deemed to constitute willful misconduct on the part of the claimant. See U.S.C.A. § 105; 38 C.F.R. § 3.301(d). See also VAOPGCPREC 7-99, 64 Fed. Reg. 52,375 (June 9, 1999). The United States Court of Appeals for the Federal Circuit ("Federal Circuit"), however, held in Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2011) that there is a limited exception to this doctrine when there is "clear medical evidence" establishing that a claimed condition involving alcohol or drug abuse was acquired secondary to a service-connected disability, itself not due to willful misconduct. The criteria for establishing service connection for PTSD are: (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. A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which provides that all psychiatric diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). 38 C.F.R. § 3.304(f) (2013). 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," as established by recognized military combat citations or other official records. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 66 (1993); Cohen v. Brown, 10 Vet. App. 128 (1997). If VA determines the veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required provided that such testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions, or hardships of service." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d); Dizoglio v. Brown, 9 Vet. App. 163, 164 (1996); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Under the former version of applicable law, if the veteran's stressor was unrelated to participation in combat, his lay testimony, in and of itself, was categorically insufficient to establish the occurrence of the alleged stressor. Instead, the record must have had contained credible supporting information from an independent source that corroborated his testimony or statements, such as service records, or even competent lay testimony from a third-party. See Cohen, 10 Vet. App. at 146-47. See also Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996). Effective July 13, 2010, VA revised the regulation governing adjudication of claims for service connection for PTSD. See 75 Fed. Reg. 39,843 (later codified at 38 C.F.R. § 3.304(f)(3)). This regulation involves the requirement that there be objective corroboration of a claimed in-service stressor. Under the new standard, 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 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, 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. The alleged stressor to substantiate service connection for PTSD in this case, is that the Veteran was involved in a physical altercation in January 1970 while in basic training in Fort Bragg, in which he came to the assistance of another serviceman who was being assaulted during a racially motivated incident. The Veteran maintains that he received an Article 15 nonjudicial punishment for his role in this incident. He has contended on one occasion that he in fact received a military court martial. Service personnel records are absent mention of receipt of any form of disciplinary action during service. An inquiry to the U.S. Armed Services Center for Research of Unit Records (USASCRUR) resulted in a June 2000 response that the incident could not be verified based on the limited information provided. The Board must deny service connection for PTSD for lack of a verified stressor. There is no documentation in service personnel records of the incident, or reason to believe that further inquiry into unit records would assist with stressor verification. Moreover, it is likely that had the Veteran been convicted by courts-martial in 1969, he would have not completed basic training, apart from his full tour of 3 years of voluntary, enlisted service. Nor does the claimed incident, based on very limited detail provided, appear to be capable of independent objective verification. It also does not fall within the category of having been related to the fear of hostile military or terrorist activity, as to warrant application of the revised regulation on PTSD claims. It follows that while at least one VA treatment provider has found PTSD, there is no confirmed stressor of record that would support a clinical diagnosis of this condition. There is also no competent evidence to substantiate that any other present psychiatric disorder is of service origin. The Veteran has an ongoing diagnosis of substance abuse disorder, for which VA compensation is not payable. See U.S.C.A. § 105; 38 C.F.R. § 3.301(d). Moreover, his intermittently diagnosed mood disorder did not have its origin until recently, and there is no record of depressive symptoms during or within one-year of service discharge. The primary focus of the Veteran's claim remains that of attempting to establish service connection for PTSD, and not for any other psychiatric disorder, and for reasons already indicated, the requirements for service connection for PTSD are not met. For these reasons, service connection for an acquired psychiatric disorder including PTSD is being denied. The preponderance of the evidence is against the claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER The petition to reopen service connection for degenerative joint disease of the lumbosacral spine is denied. New and material evidence having been received, the claim for service connection for PTSD is reopened; the appeal to this extent is granted. Service connection for an acquired psychiatric disorder, to include PTSD is denied. ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs