Citation Nr: 1333237 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 13-00 191A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include bipolar disorder, depression, and psychosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and E.G. ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from August 1993 to November 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied service connection for bipolar disorder and psychosis; and found that new and material evidence had not been received to reopen a claim of service connection for PTSD. The Board is cognizant that the United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, in the instant case, the Board finds that the Veteran's diagnoses of bipolar disorder, depression, psychosis, etc., are more appropriately viewed as a separate claim because only PTSD was denied in the past. In this regard, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that, for purposes of determining whether a new claim has been submitted under 38 U.S.C.A. § 7104(b), the "factual basis" of a service connection claim is the Veteran's disease or injury, rather than the symptoms of that disease or injury. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). Moreover, in Clemons, the Court determined that the scope of Boggs and Ephraim is limited to claims to reopen. Specifically, the Court stated that Boggs, as well as Ephraim, relies upon a diagnosis to define the scope of a claim only retrospectively-after there has been a finding of fact based upon competent medical evidence. See Clemons at 8. In contexts of section 5108 and requests to reopen, this accomplishes a balancing effect that preserves the finality of agency decisions while not precluding Veterans from pursuing claims based on evidence of injuries or diseases distinct from those upon which benefits have been denied. Id. Therefore, the Board finds that the Veteran's claim of service connection for an acquired psychiatric disorder, to include bipolar disorder and psychosis, is more appropriately viewed as a separate claim from that of the previously denied PTSD. The RO in Reno, Nevada, currently has jurisdiction over the Veteran's VA claims folder. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in September 2013. For the reasons addressed in the REMAND portion of the decision below, the Board finds that further development is required regarding the claim of service connection for an acquired psychiatric disorder other than PTSD. Accordingly, this claim is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. As an additional matter, the Board notes that increased ratings were denied for the Veteran's service-connected back and right knee disorders by an August 2013 rating decision, and nothing in the record available for review indicates he appealed that decision. However, following this decision he indicated at the September 2013 hearing that these disabilities had gotten worse. As such, it appears he raised new increased rating claims at that time. He has also indicated that he is unemployable due to a combination of these service-connected disabilities and his psychiatric disorder. In this case, the Board finds that service connection is warranted for PTSD. Therefore, this raises a claim of entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability. Since these claims have not been adjudicated by the agency of original jurisdiction (AOJ), the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Service connection was previously denied for PTSD by rating decisions promulgated in December 1996, October 1998, August 2000, July 2002, and August 2008. The Veteran was informed of these decisions, including his right to appeal, and did not appeal. New and material evidence was not received within the appeal period of any of these decisions. 2. The evidence received since the last prior denial of service connection for PTSD was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim. 3. The Veteran's PTSD with alcohol dependence is due to a confirmed in-service stressor. CONCLUSIONS OF LAW 1. New and material evidence having been received to reopen the claim of entitlement to service connection for PTSD, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013). 2. The criteria for a grant of service connection for PTSD with alcohol dependence are met. 38 U.S.C.A. §§ 105, 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.303, 3.304, 3.310 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board finds that new and material evidence has been received to reopen the PTSD claim, and that service connection is warranted for this disability. As this represents a complete grant of the benefit sought on appeal with respect to this claim, no discussion of VA's duty to notify and assist is necessary. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See 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). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. 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, 1376-77 (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. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). 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 which 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. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In addition to the general rules of service connection noted above, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Further, there are special provisions regarding claims of PTSD based upon fear of hostile military or terrorist activity (38 C.F.R. § 3.304(f)(3)), as well as claims based upon in-service personal assault (38 C.F.R. § 3.304(f)(5)). Also, 38 C.F.R. § 4.125(a) requires that diagnoses of mental disorders conform to the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and that if a diagnosis is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis. The DSM-IV provides two requirements as to the sufficiency of a stressor: (1) A person must have been "exposed to a traumatic event" in which "the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others" and (2) "the person's response [must have] involved intense fear, helplessness, or horror". DSM-IV at 427-28. These criteria are no longer based solely on usual experience and response but are individualized (geared to the specific individual's actual experience and response). Hence, under the DSM-IV, the mental illness of PTSD would be treated the same as a physical illness for purposes of VA disability compensation in terms of a predisposition toward development of that condition. Cohen v. Brown, 10 Vet. App. 128, 141 (1997). Service connection was previously denied for PTSD by rating decisions promulgated in December 1996, October 1998, August 2000, July 2002, and August 2008. The Veteran was informed of these decisions, including his right to appeal, and did not appeal. The Board acknowledges that Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). However, a review of the record does not reflect that new and material evidence was received within the appeal period of any of these decisions. Therefore, the prior denial is final. See 38 U.S.C.A. §§ 7103, 7104; 38 C.F.R. §§ 20.1100, 20.1103. Despite the finality of a prior decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Further, the Court has also held that in order to reopen a previously and finally disallowed claim there must be new and material evidence presented since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996) (overruled on other grounds). 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(a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The evidence of record at the time of the prior denials includes statements from the Veteran, his service treatment records, and various post-service medical records. In his statements, the Veteran contended that he had PTSD due to various in-service stressors, to include the circumstances surrounding his mother's suicide. Several of these stressors were either unconfirmed or disproved to include a plane crash into the ship aboard which he was serving- the plane crash actually occurred prior to his active duty period. However, his mother's suicide while he was on active duty is documented as true by the evidence of record. The post-service medical records reflect treatment for psychiatric problems on multiple occasions over the years, and include diagnoses of PTSD, depression, mood disorder, personality disorder, psychosis, and malingering. Service connection was denied for PTSD for various reasons in the aforementioned rating decisions, to include lack of verified stressor, and no "clear diagnosis" of PTSD. It is noted that provisions of 38 C.F.R. 3.304(f) used to require that there be a "clear diagnosis" of PTSD, but this requirement was eliminated as part of a June 1999 amendment to this regulation. Further, in regard to the confirmed in-service stressor of the suicide of the Veteran's mother, a March 2002 VA examiner did not believe there was a causal link or a confirmed diagnosis of PTSD which could be related to her death. The evidence received since the last prior denial includes additional post-service medical records; additional statements from the Veteran; his testimony, and the testimony of his Vet Center counselor at the September 2013 Board hearing. His Vet Center counselor testified that the Veteran did have PTSD, at least in part, due to his mother's suicide while he was on active duty. Further, the Vet Center counselor testified the Veteran's alcohol dependence was the result of his PTSD. Simply put, there is now competent medical evidence linking a diagnosis of PTSD to a confirmed in-service stressor. The Board finds that this goes to one of the bases of the prior denials. Moreover, the evidence received to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been submitted, without regard to other evidence of record. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In view of the foregoing, the Board finds that the evidence received since the last prior denial of service connection for PTSD was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim. As such, new and material evidence has been received pursuant to 38 C.F.R. § 3.156(a), and the claim is reopened. Adjudication of the Veteran's PTSD claim does not end with the determination that new and material evidence has been received. The Board must now address the merits of the underlying service connection claim. In the adjudication that follows, the presumption that the evidence received to reopen is true without regard to the other evidence of record no longer applies. The service treatment records show that the Veteran was seen for psychiatric evaluation due to a suicide gesture. As noted above, he has been diagnosed as having PTSD due to his mother's suicide while he was on active duty, which is documented by the record and which the Board finds that medical evidence both competent and credible, e.g., the September 2013 testimony offered by his treating VA counselor. On that basis alone, service connection for PTSD is warranted. In reaching this conclusion, however, the Board acknowledges that there are competent medical opinions that both support and refute a finding that the confirmed stressor of the suicide of the Veteran's mother during his active service was sufficient to result in PTSD. Specifically, the March 2002 VA examiner did not believe it was sufficient to link the mother's suicide to PTSD, while the Vet Center counselor testified at the September 2013 hearing that his PTSD was due, at least in part, to his mother's suicide. Because the evidence supports the Veteran's claim, service connection for PTSD is warranted. In addition, the evidence, in the form of September 1997 and March 1999 VA evaluation reports prepared by a board of VA examiners reflects that the Veteran also had PTSD due to his Somali-related experiences while serving on active duty. This evidence likewise supports his claim of service connection for PTSD. Finally, the Board also wishes to reiterate that the Veteran's Vet Center counselor testified at the September 2013 hearing that he has alcohol dependence due to his PTSD. The significance as to whether the alcohol dependence is secondary to the service-connected PTSD is because service connection may not be granted for substance abuse on the basis of service incurrence or aggravation. However, the law does not preclude a veteran from receiving compensation for an alcohol disability acquired as secondary to, or as a symptom of, a veteran's service-connected disability. 38 U.S.C.A. § 105; 38 C.F.R. §§ 3.301(a), 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). The Board has already determined that the Vet Center counselor is qualified to render a competent medical opinion in this case, and is familiar with the Veteran's medical history. Further, no competent medical opinion is of record which refutes the finding that the Veteran's alcohol dependence is secondary to his PTSD. Therefore, the Board finds that alcohol dependence must be considered as part of the now service-connected PTSD. ORDER New and material evidence having been received to reopen the claim of entitlement to service connection for PTSD, the claim is reopened. Service connection for PTSD with alcohol dependence is granted. REMAND Although the Board has determined that service connection is warranted for PTSD, pursuant to the holdings of Clemons; Boggs; and Ephraim, it must still determine whether service connection is warranted for an acquired psychiatric disorder other than PTSD. The Board finds that given the various diagnoses for the Veteran's psychiatric disorder over the years, it is not clear to what extent his symptomatology is due to the PTSD for which service connection has been established by this decision as opposed to the other diagnoses of record. Further, if different symptoms are due to different diagnoses, it is not clear to what extent service connection is also warranted for these disabilities. In Amberman v. Shinseki, 570 F.3d 1377, 1381 (2009), the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that two psychiatric disabilities "could have different symptoms and it could therefore be improper in some circumstances for the VA to treat these separately diagnosed conditions as producing only the same disability." The Court has indicated that competent medical evidence is required to distinguish the symptomatology of a service-connected disability from a nonservice-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Therefore, it appears that a remand is required for a competent medical examination to clarify this matter. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). The Board also notes that it was indicated at the September 2013 hearing that at least some of the Veteran's psychiatric symptomatology, such as depression, may be secondary to the problems he has experienced due to his service-connected back and right knee disorders. Under the law, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Id; see also Allen, 7 Vet. App. at 448. Here, it appears that the issue of secondary service connection was raised for the first time at this hearing, and was not considered or adjudicated below. Therefore, a remand is required in order to ensure the Veteran receives adequate notification and development on this matter. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Send the Veteran notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish secondary service connection pursuant to 38 C.F.R. § 3.310. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service psychiatric symptoms and of any medical evidence addressing a relationship between his psychiatric disability and his service-connected back and right knee disabilities. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Obtain the names and addresses of all medical care providers who have treated the Veteran for psychiatric problems since January 2013. After securing any necessary release, obtain those records not on file. Even if the Veteran does not respond, the AMC/RO should obtain any outstanding VA treatment records not on file. 4. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to evaluate his current psychiatric disorder. The claims folder should be made available to and reviewed by the examiner. The examiner should diagnose all psychiatric disabilities found to be present. The examiner must state whether it is at least as likely as not that any psychiatric disability found to be present (other than PTSD with alcohol dependence) is related to or had its onset in service. The examiner must also state whether it is at least as likely s not that the Veteran has a psychiatric disability that was either caused by or aggravated by his service-connected mental and/or physical disabilities. By aggravation, the Board means an increase in severity that is beyond natural progress. A complete rationale for any opinion expressed should be provided. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. See Jones v. Shinseki, 23 Vet. App. 382 (2010). As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Then readjudicate whether service connection is warranted for any psychiatric disability other than PTSD with alcohol dependence. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the January 2013 SOC, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs