Citation Nr: 1337716 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 10-18 247 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for peripheral neuropathy, to include as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for an acquired eye disability (claimed as vision problems), to include as secondary to service-connected diabetes mellitus. 3. Entitlement to service connection for post-traumatic stress disorder (PTSD). 4. Whether new and material evidence has been submitted to reopen a claim for service connection for an anxiety disorder; and if so, whether the criteria for service connection are met. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from May 1964 to May 1966, to include a period of active service in the Republic of Vietnam. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions in November 2007 and in October 2008 that, in pertinent part, denied service connection for peripheral neuropathy and for an eye disability; from rating decisions in August 2009 and in April 2010 that, in pertinent part, declined to reopen a claim for service connection for an anxiety disorder on the basis that new and material evidence had not been received; and from a May 2011 rating decision that denied service connection for PTSD. The Veteran timely appealed. Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. The issue of entitlement to service connection for diabetic nephropathy has been raised by the record (March 2008 VA treatment record), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The reopened claim for service connection for an anxiety disorder is addressed in the REMAND portion of the decision below, and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The evidence supports a link between current diabetic neuropathy and the diabetes mellitus the Veteran sustained in service. 2. An acquired eye disability was not present during active service, and is not otherwise related to service, nor is it due to or aggravated by a service-connected disability. 3. The Veteran does not have PTSD that is related to a disease or injury during active service. 4. In a November 2007 rating decision, the RO declined to reopen a claim for service connection for an anxiety disorder. Although the Veteran initiated an appeal within one year of being notified, he did not submit a substantive appeal. 5. Evidence associated with the claims file since the November 2007 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim for service connection for an anxiety disorder; and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. Diabetic neuropathy was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. An acquired eye disability was not incurred in service and is not secondary to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). 3. PTSD was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2013). 4. The evidence received since the RO's November 2007 denial is new and material; and the claim for service connection for an anxiety disorder is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). Through September 2008 and December 2010 letters, the RO notified the Veteran of elements of service connection and the evidence needed to establish each element. These documents served to provide notice of the information and evidence needed to substantiate the claims. VA's letters notified the Veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claims, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. In each letter, the RO specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because each the Veteran's claims decided on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO has obtained copies of the service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claims decided on appeal, reports of which are of record and appear adequate. The opinions expressed therein are predicated on a substantial review of the record and consideration of the Veteran's complaints and symptoms. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. In view of the Board's favorable decision in this appeal for reopening the claim for service connection for an anxiety disorder, further assistance is unnecessary to aid the Veteran in substantiating the claim. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claims. 38 U.S.C.A. § 5103A(a)(2). II. Service Connection Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). With respect to the showing of chronic disease, there must be a combination of sufficient manifestations to identify the disease entity and sufficient observation at the time, as distinguished from isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303 (2013). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (non-precedential). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a 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. Jandreau, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App 370, 374 (2002). Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time. 38 U.S.C.A. § 1111. In this case, the Veteran did not report; and no examiner had found, any physical defects or diseases at the time of induction in March 1964. Moreover, the record reflects that the Veteran was first diagnosed with peripheral neuropathy and with vision problems many years after his military discharge from service. He is not entitled to direct service connection for peripheral neuropathy or for an acquired eye disability because there is no competent evidence linking his claimed disabilities to any disease or injury in active service. Service treatment records do not reflect any findings or complaints of peripheral neuropathy or of any eye disease or trauma. The Veteran underwent no treatment for peripheral neuropathy or for vision problems in service. Neither condition was noted at the time of the Veteran's separation examination from active service in May 1966, nor within the first post-service year. Thus, the evidence of record weighs against a finding that either peripheral neuropathy or an acquired eye disability was present during active service. The Board is within its province to make a determination as to whether the evidence supports a finding of service incurrence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As indicated above, the first credible showing of pertinent disability or manifestations is many years after service with no competent evidence that it is in any way related to active service. Here, the Veteran asserts that both peripheral neuropathy and his vision changes are secondary to his service-connected diabetes mellitus. 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. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310(a), (b), as amended effective October 10, 2006. When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A. Peripheral Neuropathy Neurological findings on VA examination in June 1968 reveal no significant deficits. VA records show complaints of bilateral leg numbness of two weeks' duration in June 2006. Clinical assessments in June 2007 were peripheral neuropathy and underlying diabetic peripheral polyneuropathy. The Veteran then was instructed in diabetes foot care. In November 2007, the RO concluded that the evidence of record did not reflect neuropathy manifesting to a compensable degree within one year after the Veteran's last exposure to herbicides; and that the objective evidence did not reflect current neuropathy. Moreover, nerve conduction studies in September 2008 revealed no evidence of peripheral neuropathy. During a September 2008 VA examination, the Veteran reported noticing chronic progressive pain in the arms and legs; and complained of numbness in the extremities, cramps, and burning pain, more so in the legs. Motor examination was within normal limits. Sensory examination revealed decreased vibration on the left lower extremity. Following examination, the diagnosis was peripheral neuropathy; nerve dysfunction was noted. Based on results of the nerve conduction studies, however, the examiner opined that the Veteran's peripheral neuropathy was not caused by or a result of diabetes mellitus because there was no evidence of peripheral neuropathy; and that the only positive factor was the Veteran's subjective complaint. The examiner explained that, if there is no peripheral neuropathy, then it cannot be related. VA records show an assessment of diabetes mellitus, not well controlled, and evidence of peripheral neuropathy in July 2009. In October 2009, the assessment was polyneuropathy in diabetes, and painful diabetic neuropathy in lower extremities. During an August 2010 VA examination, the Veteran reported that his neuropathy had progressively worsened. Neurological examination revealed loss of sensation by monofilament. Nerve conduction studies were abnormal, and revealed evidence of axonal neuropathy of right peroneal nerve. The examiner noted that the Veteran's diabetic neuropathy is a bilateral condition and not a single nerve pathology. VA records show an assessment of diabetes mellitus with diabetic neuropathy, not optimally controlled, in May 2011; and of diabetic polyneuropathy in August 2013. It appears that the only reason given by the September 2008 examiner for not finding a positive nexus association between diabetes mellitus and neuropathy was the lack of objective evidence in nerve conduction studies of peripheral neuropathy. There is now competent medical evidence of record showing that the Veteran has diabetic polyneuropathy, which the Board finds has been associated, implicitly rather than explicitly, with the Veteran's diabetes mellitus. Given that service connection has been granted for diabetes mellitus, and the December 2010 examiner diagnosed diabetic neuropathy, the Board finds the evidence as to causation at least in equipoise, permitting a grant of secondary service connection. Under the circumstances, the Veteran prevails as to his claim for service connection for a diabetic neuropathy, with application of the benefit of the doubt in his favor. 38 U.S.C.A. § 5107. B. Eye Disability VA records show that glasses were ordered for the Veteran in June 2006. Both refractive error and incomplete cataracts were noted. No diabetic changes were found. A VA examiner in August 2007 noted findings of an April 2006 ophthalmology evaluation, indicating a healthy optic nerve in both eyes; and that macula in both eyes was within normal limits, and without hemorrhage or exudates. The fondus cup-to-disc ratio was 0.3 for both eyes. During a September 2008 VA examination, the Veteran denied ocular surgeries, traumas, or diseases. He also denied any retina laser treatment. He had no ocular complaints, and denied ocular pain. Corrected vision at distance was 20/40-1 for the right eye, and 20/25+2 for the left eye. The Veteran did not have diplopia. Diagnoses included refractive error (hypermetropia, astigmatism, presbyopia); blepharitis; left eye incipient pterygium; bilateral combined senile cataracts, right eye more than left; and no diabetic retinopathy observed at the posterior pole. The examiner opined that the Veteran's loss of vision was caused by or a result of his refractive error and combined senile cataracts. The examiner also opined that the Veteran's loss of vision and incomplete cataracts were not caused by or a result of diabetes mellitus. Ophthalmologist follow-up was recommended. VA ophthalmology consultation in March 2010 revealed that visual acuity (uncorrected) was 20/200 for each eye; both visual fields were full. Intraocular pressure was 20/18; lids revealed dermatochalasis. Neither pinguecula nor pterygium was noted. Fundus cupping was .3/.3. There were neither diabetic changes nor neovacularization. The macular in each eye was normal. No edema was found. Incomplete cataract in each lens and refractive error were again noted. The Board finds the September 2008 opinion to be persuasive in finding that the Veteran's current loss of vision and incomplete cataracts were not caused by or a result of diabetes mellitus. The VA examiner reviewed the medical history and provided a rationale, which considered whether there was any diabetic retinopathy. A March 2010 VA ophthalmologist also found no evidence of diabetic changes. The medical evidence shows that, without any diabetic changes on examination, there is no basis for the Veteran's loss of vision to be caused or aggravated by the service-connected diabetes mellitus. Hence, the Board finds the September 2008 opinion is factually accurate, fully articulated, and contains sound reasoning. Therefore, the opinion is afforded significant probative value. Nieves-Rodriguez, 22 Vet. App. at 304. Moreover, the evidence, including the service separation examination, does not show that any eye disability was present in service. Under 38 C.F.R. § 3.303(c), congenital or developmental abnormalities, and refractive error of the eye, are not considered diseases or injuries within the meaning of applicable legislation governing the awards of compensation benefits. See McNeely v. Principi, 3 Vet. App. 357, 364 (1992); Parker v. Derwinski, 1 Vet. App. 522 (1991). While the Veteran contends that his vision changes were caused by or had worsened due to his diabetes mellitus, he is not shown to have the medical expertise to offer an opinion on such a complex medical question. He is not shown to be competent to render an opinion as to the nature of his underlying vision changes, or to identify that a disability is related to service or due to or aggravated by his service-connected diabetes mellitus. In essence, the Board finds that the issue presented in the case is not one in which the Veteran's lay contentions can serve to support an award of service connection. In short, for the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against granting service connection for an acquired eye disability, to include as secondary to diabetes mellitus. On this matter, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. PTSD The Veteran contends that service connection is warranted for PTSD on the basis that its onset was in active service. Service connection for PTSD requires a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (1994) (DSM-IV)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible evidence that the claimed in-service stressor actually occurred. See 38 C.F.R. § 3.304(f). In the case of a Veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of the VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304. Here, the Veteran reported being present in an artillery unit in Vietnam as a crewman, stationed in the top of a mountain. The Veteran reported that while his unit was firing, he heard a loud explosion and was "glad to be alive." VA has amended its regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing in-service stressors. 75 Fed. Reg. 39843 (July 13, 2010). If a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3) (effective July 13, 2010). The primary effect of the amendment of 38 C.F.R. § 3.304(f) is the elimination of the requirement for corroborating evidence of a claimed in-service stressor if it is related to the Veteran's fear of hostile military or terrorist activity. In place of corroborating any reported stressor, a medical opinion must instead be obtained from a VA, or a VA contracted, psychiatrist or psychologist. The Veteran's Form DD 214 confirms his service in Vietnam and his duty assignment in an artillery unit. Notably, the Veteran's military occupational specialty also reflects field artillery. Moreover, a VA examiner in April 2011 found that the Veteran's stressor was adequate to meet the Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) stressor criterion. What is missing to award service connection in this case is competent evidence showing the presence of current PTSD that had its onset in active service or within the first post-service year; or competent evidence of current PTSD and evidence linking current PTSD to active service. The evidence does not reveal a diagnosis of PTSD. The report of an April 2011 VA examination reflects that the Veteran has not had any mental health treatment for PTSD or for any other psychiatric disability. The Veteran reported working as a salesman in home furniture for twenty years until he retired in 2010. He described his marital and family relationships, and the examiner found no evidence of psychosocial dysfunction. His current social life revolved around outings with his family and visiting relatives, and taking care of his animals and raising ducks and chickens. The Veteran reported no sleep impairment, no obsessive behavior, no panic attacks, and no problems with activities of daily living. The examiner found no PTSD symptoms present. Following mental status examination, no Axis I diagnosis was shown. The examiner found that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD. A global assessment of functioning (GAF) score of 85 was assigned, which is indicative of minimal symptoms. The examiner opined that mental disorder symptoms were not severe enough to interfere with occupational and social functioning. In assessing the probative value of the April 2011 examiner's opinion, the Board finds that it weighs against a finding that PTSD is related to disease or injury in active service. Specifically, no psychiatric disability was found. Moreover, the April 2011 examiner explained that the Veteran's current symptomatology does not meet criteria for an Axis I diagnosis of PTSD. The Board finds the April 2011 examination report is factually accurate, fully articulated, and contains sound reasoning. Therefore, the April 2011 opinion is afforded significant probative value. The Board has considered that the evidence of record does not reflect treatment for PTSD. Hence, the conclusions of the VA examiner, which are based on the results of diagnostic testing and supported by rationale, are more probative than the Veteran's lay statements. The Veteran is not shown to meet the diagnostic criteria for PTSD. Thus, a basis for compensation is not established. The Board finds a clear preponderance of the evidence is against a finding that the Veteran currently has PTSD. Here, the evidence weighs in favor of the conclusions made by the VA examiner in April 2011. The Veteran is not shown to have the medical expertise to diagnose PTSD. Lastly, while there likely were stressors in active service, the competent evidence fails to link PTSD with those stressors in active service. Because the competent evidence does not link PTSD to service, the weight of the evidence is against the claim. In short, for the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against granting service connection for PTSD. On this matter, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Petition to Reopen A decision promulgated by the Board in November 1970 denied service connection for anxiety reaction on the basis that the nervous condition diagnosed as anxiety reaction was first reported about two years after service, and was not incurred in or aggravated by active service. The Veteran did not appeal, and the decision is final. 38 U.S.C.A. § 7104. A summation of the evidence of record at the time of the denial of the claim in November 1970 reveals no findings or complaints of nervousness or anxiety or of any psychiatric disability in service treatment records; reveals findings of a nervous system within normal limits on VA examination in November 1967; reveals complaints by the Veteran of confusion, unfounded worry, fears of impending danger, memory impairment, insomnia, and loss of hair in April 1968; reveals a provisional diagnosis of severe anxiety reaction, and an evaluation for admission for psychiatric treatment in April 1968; reveals statements by the Veteran that he was under treatment for his nervous condition within five months of his discharge from active service; and reveals statements by the Veteran of suffering "several attacks of minor intensity" while in Vietnam; reveals private records of treatment first rendered for nervousness in May 1968; and reveals testimony by the Veteran in May 1970 that he was treated one month after his discharge from active service for nervousness, and that he was given pills and never hospitalized. Based on this evidence, the Board concluded in November 1970 that a nervous condition recently diagnosed as anxiety reaction was not incurred in or aggravated by wartime service. The Veteran did not appeal, and the decision is final. 38 U.S.C.A. § 7104. In July 2007, the Veteran attempted to reopen the claim for service connection for an anxiety disorder. Additional VA treatment records then revealed that the Veteran was being followed in the mental health clinic, and included assessments of depression not otherwise specified in October 2006 and anxiety in February 2007. In November 2007, the RO concluded that the evidence did not show a psychiatric disability was incurred in or aggravated by active service, and denied reopening the claim. The Veteran was informed of the RO's denial in December 2007, and he did submit a notice of disagreement in January 2008. The RO issued a statement of the case in November 2008; the Veteran did not submit a substantive appeal. Additional VA treatment records, dated in March 2008, showed an assessment of depressive disorder; and indicate that the Veteran was presenting with a gradual decline in memory and symptoms of depression. Again, there was no evidence showing a psychiatric disability was incurred in or aggravated by active service. The present claim was initiated by the Veteran in June 2009. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Under 38 C.F.R. § 3.156(a), "new evidence" is existing evidence not previously submitted; "material evidence" is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Furthermore, new and material evidence is "neither cumulative nor redundant" of evidence of record at the time of the last prior final denial, and must "raise a reasonable possibility of substantiating the claim." 38 C.F.R. § 3.156(a). New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence added to the record since November 2007 includes the report of an April 2011 VA examination, showing that no mental condition was found in current examination and that mental disorder symptoms were not severe enough to interfere with occupational and social functioning; additional VA treatment records showing an assessment of dementia with behavioral alterations in July 2010; and statements by the Veteran in June 2009 and in July 2010, indicating that his anxiety condition is related to his service while in Vietnam and related to the stressors he suffered which caused intense fear, helplessness, or horror. While much of this evidence is new in that it was not previously of record, the bulk of the evidence tends to show current mental disorder symptoms, and the presence of in-service stressors. New evidence that is not cumulative and is related to the previous denial of the claim for service connection consists of VA records showing mental disorder symptoms and an assessment of dementia, and the Veteran's statements of in-service stressors causing his anxiety. Given the presumed credibility, the additional evidence is both new and material because it raises a reasonable possibility of substantiating the claim. Hence, the Veteran's claim for service connection for a psychiatric disability, to include an anxiety disorder, is reopened. 38 U.S.C.A. § 5108. ORDER Service connection for diabetic neuropathy is granted. Service connection for an acquired eye disability, to include as secondary to diabetes mellitus, is denied. Service connection for PTSD is denied. The application to reopen the previously denied claim of service connection for an anxiety disorder is granted. REMAND Psychiatric Disability, to Include an Anxiety Disorder VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Veteran claims that an acquired psychiatric disability, to include an anxiety disorder, had its onset in active service and is related to his wartime service in Vietnam. As noted above, the Veteran's Form DD 214 confirms his service in Vietnam and his duty assignment in an artillery unit. Moreover, the report of an April 2011 VA examination reflects that the Veteran's in-service stressor was adequate to meet the DSM-IV stressor criterion (although the other criteria to establish PTSD were not met). The Board is required to analyze the credibility and probative value of the evidence of record. In general, the occurrence of an in-service stressor must be corroborated by other evidence in the record. However, in Pentecost v. Principi, 16 Vet. App. 124, 128 (Vet. App. May 24, 2002), the Court held that, in order to show presence during a stressful event, evidence need not demonstrate that a Veteran actually was present during the event if the evidence shows that his unit was present during the event. To this extent, the Board concludes that the Veteran was exposed to an event in service that may have led to a current psychiatric disability. Under these circumstances, the Board finds that an examination is needed to determine whether the Veteran has a current psychiatric disability, to include an anxiety disorder, (but not to include PTSD) that either had its onset during service or is related to his active service. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4) (2013). While the further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA psychiatric examination to identify all current disability underlying the Veteran's current complaints of anxiety and depression; and to obtain information as to the current nature and likely etiology of any current psychiatric disability. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. Based on the examination and review of the record, the examiner should offer opinions as to whether it is at least as likely as not (50 percent probability or more) that any psychiatric disability other than PTSD had its onset in service, or is the result of disease or injury incurred or aggravated during service-to specifically include credible reports of serving in an artillery unit in Vietnam, as reported by the Veteran. If other causes are more likely, those should be noted. The examiner should reconcile any opinion with the service treatment records and the Veteran's lay testimony. Note that the lack of mental health treatment in service does not diminish the credibility of the Veteran's statements that he experienced anxiety attacks in service. The examiner is asked to explain the reasons behind any opinions offered. The examiner is also reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The Veteran's claims file, to include a complete copy of this REMAND, and any pertinent records contained in any electronic claims file, must be made available to the examiner designated to examine the Veteran, and the examination report should note review of the file. 2. Thereafter, readjudicate the claim on appeal. If the benefits sought are not fully granted, furnish the Veteran and his representative a supplemental statement of the case (SSOC), and allow the appropriate response time before the claims file is returned to the Board, if otherwise in order. No action is required of the Veteran and his representative until they are notified by VA; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2013). The Veteran 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). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs