Citation Nr: 1340126 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 11-15 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depressive disorder, not otherwise specified, and polysubstance abuse in remission. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Journet Shaw, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1974 to July 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. A review of the Virtual VA claims file reveals VA treatment records dated through March 2013, which have been considered by the RO in the March 2013 supplemental statement of the case. FINDINGS OF FACT 1. In a final April 2007 rating decision, the RO denied entitlement to service connection for PTSD. 2. Evidence added to the record since the April 2007 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection. 3. The Veteran's reported non-combat stressors have been corroborated. 4. The preponderance of the evidence shows that the Veteran's PTSD, depressive disorder, not otherwise specified, and polysubstance abuse in remission, are not related to his active duty service. CONCLUSIONS OF LAW 1. The April 2007 rating decision that denied the Veteran's entitlement to service connection for PTSD is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.159(a) (2013). 3. The criteria for establishing service connection for an acquired psychiatric disorder, to include PTSD, depressive disorder, not otherwise specified, and polysubstance abuse have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board must apply statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d) (West 2002); see also 38 C.F.R. § 19.7 (2013) (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Although the law provides that the credibility of new evidence is presumed in the context of reopening claims, the Board must assess the credibility and weight of all evidence during merits decisions, 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 claimant. 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, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant 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. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA satisfied its duty to notify by issuing pre-adjudication notice letters in February 2007 and February 2009. Dingess, 19 Vet. App. at 473. The letters advised the Veteran of what evidence was required to substantiate his claim, and of his and VA's respective responsibilities in obtaining evidence. The letters also informed him of what constituted new and material evidence. He was informed that new evidence must be evidence that was submitted to VA for the first time and that was not cumulative or redundant of evidence already considered. He was informed that material evidence must relate directly to substantiation of the claim. The letters also explained that his claim was previously denied because he did not submit evidence of a current PTSD diagnosis that related to a supported in-service stressor. Kent v. Nicholson, 20 Vet. App. 1 (2006). The duty to assist provisions of the VCAA have also been met. The claims file contains service treatment records, service personnel records, VA treatment records, Social Security Administration (SSA) records, and lay statements. See 38 C.F.R. § 3.159(c). The Veteran was afforded VA examinations in June 2009, April 2011, and November 2012. The VA examinations are adequate, as they are predicated on a review of the claims file, including the Veteran's in-service and post-service treatment records, an interview of the Veteran, and examination findings supported by a complete rationale for the opinions stated. Id; see 38 U.S.C.A. § 3.159(c)(4). VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim. The Veteran and his representative have not identified any outstanding evidence that needs to be obtained. All relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. II. New and Material Evidence In an April 2007 rating decision, the RO denied the Veteran's petition to reopen his previously denied claim for service connection for PTSD on the basis that the Veteran did not submit new and material evidence of a diagnosis of PTSD related to a supported in-service stressor. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a) (2013). Additionally, 38 C.F.R. § 3.156(b) provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal. See also Bond v. Shinseki, 659 F.3d. 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-162 (1999). In April 2007, the Veteran was advised of the rating decision and his appellate rights. However, he did not submit a notice of disagreement (NOD) within one year of the rating decision. No evidence pertaining to the Veteran's claim for service connection for PTSD was received prior to the expiration of the appeal period stemming from the April 2007 rating decision. Therefore, the April 2007 rating decision is final. 38 U.S.C.A § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b) 20.302, 20.1103 (2013). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the April 2007 rating decision, additional evidence has been added to the claims file. The additional evidence of record includes VA treatment records which diagnosed PTSD. The newly-received evidence since the last final denial of the claim is material because it relates to an unestablished fact necessary to substantiate the Veteran's claim. Specifically, an August 2007 VA treatment record is new and material because it establishes a diagnosis of PTSD by the Veteran's VA treating psychiatrist. The diagnosis offered by the VA treating psychiatrist is presumed credible for the purposes of evaluating whether to reopen a claim for service connection for PTSD. Justus, supra. Therefore, the Board finds that the new evidence tends to prove a previously unestablished fact necessary to substantiate the underlying claim of service connection. Consequently, the newly received evidence raises a reasonable possibility of substantiating the Veteran's claim. Accordingly, the claim of entitlement to service connection for PTSD is reopened. III. Acquired Psychiatric Disorder Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) the presence of a current disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) the nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). For purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F. 3d. 1331 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The law holds that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (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 profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). Once evidence is determined to be competent, the Board must determine whether it is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board has reviewed the record to determine if he has any psychiatric disorder as a result of his active duty service. However, the preponderance of the evidence is against the claim and the appeal will be denied. Service connection for PTSD requires medical evidence diagnosing the condition; 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). 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). See 38 C.F.R. § 3.304(f). The Veteran's Report of Separation from the Armed Forces (DD 214) reflects that his military occupational specialty (MOS) was electrical/mechanical equipment repairmen in the Navy. There are no records that show that the Veteran engaged in combat. In a June 2010 memorandum of formal finding, the RO was unable to obtain sufficient information from the Veteran to verify his claimed stressors. In a May 2011 statement of the case, the RO found that three of the Veteran's claimed non-combat stressors were corroborated, on the basis of a fellow serviceman's March 2010 statement. The serviceman reported that he and the Veteran witnessed a recruit committing suicide by jumping off a building. They also saw a pilot eject from a plane and fatally land on a runway. The serviceman also described seeing a truck with marines that lost control and fell into a ravine - one marine was killed when a piece of the framing struck him through his abdomen. In addition, the Veteran submitted statements from family and friends that discussed the Veteran's symptoms and his behavior since service. His mother wrote that the Veteran was a happy person and then changed when he returned from service. She explained that she worried about him because he was "depressed." His sister described the Veteran as "different...from the man [she] once knew," "moody," and wanted to be left alone. She also wrote that he had "nightmares as if something was after him." The Veteran's friend, from before he went into the military, wrote how he used to be friendly and outgoing, but now he was "sad," "depressed," "nervous," and "jumpy." He explained that the Veteran did not want to socialize and told him he had trouble sleeping from nightmares. The medical evidence of record provides contrasting opinions for the Veteran's current psychiatric condition. Specifically, the Veteran's VA treating psychiatrist diagnosed the Veteran with PTSD and depressive disorder, not otherwise specified. Two subsequent VA examinations in June 2009 and April 2011 diagnosed the Veteran with depression. However, the Veteran's most recent VA examination in November 2012 did not find that the Veteran had PTSD or depression and diagnosed the Veteran with polysubstance abuse, in remission. The Veteran's service treatment records reflect no reports of mental health treatment while in service. VA Progress Notes from July 1998 to September 1999 reflected that the Veteran had previously been married in 1978, had a daughter, custody of his three-year-old son, and lived with his mother. The Veteran reported prior drug use and incarceration for possession and dealing drugs. The Veteran explained that he attends group therapy at the Vet Center. He complained of having problems sleeping due to nightmares from incidents in service. The Veteran was described as "depressed" and having PTSD symptoms. He was prescribed medication to help him sleep. Social Security Administration records show that the Veteran had been receiving disability benefits as the result of a motorcycle accident in May 1999, where collided with a fire engine and sustained burns to 40 percent of his left and right lower extremities and a fractured right ankle with ligament disruption. A June 1999 medical report reflects that a CT scan showed a left subdural hematoma. A May 2007 VA treatment record reported the Veteran's complaints of nightmares related to his military experiences. He said he had nightmares once a week. The Veteran described his mood as "don't care." The record reflects that he had a slightly flat affect, "not sad, but poor motivation." The VA treating psychiatrist reported that the Veteran had a long history of losing his temper. The VA treatment record reflects a diagnosis of "Axis I: depressive disorder not otherwise specified, r/o PTSD." An August 2007 VA treatment record reflects the Veteran's first diagnosis of PTSD and his continued diagnosis of depressive disorder, not otherwise specified. The VA treating psychiatrist reported that the Veteran had a mildly flat affect, nervous and intermittently irritable mood, but also described the Veteran as being pleasant, good hygiene, and no abnormal movements. The Veteran did not exhibit any evidence of delusions or paranoia and did not report any suicidal or homicidal ideation. From December 2007 through July 2009 VA treatment records reflect the Veteran's continued diagnoses for PTSD, depressive disorder, not otherwise specified and included alcohol and cocaine dependence in remission. The record noted the Veteran's symptoms as problems sleeping, hypervigilance, and difficulty avoiding confrontations. The Veteran reported his involvement with gangs and engaging in violent acts upon leaving service. He also described several recent incidents of violence - he pulled out a gun to defend himself after being threatened by gang members, he was approached by several men who told him to leave a yard and he stopped his nephew from going back with a gun, and he grabbed a knife after his sister startled him awake. His has also reported having problems with his son. In a February 2009 record, the VA treating psychiatrist noted the Veteran's mood was stable, but intermittently down, had near full affect, and had some problems with memory regarding his medications. There were no reports of alcohol or drug abuse and no suicidal or homicidal ideation. A July 2009 record noted that the Veteran said his sleep was worse, but he said it was because of leg pain. From June 2011 through June 2012 VA treatment records reflect that the Veteran was experiencing legal and family problems after a illegal weapons conviction, where he received three and half years' probation. He reported that he remains at home, not depressed, but tense and nervous. He described having difficulty sleeping after watching a documentary portraying the ship he was onboard in service. He said the prescribed sleeping medications help. He also said he was staying clean and sober on his own after leaving his group therapy. A July 2012 VA treatment record reported that the Veteran was in a motorcycle collision, while under the influence of cocaine, and sustained injuries to his brain and a fractured right hand. A brain scan revealed the Veteran had a traumatic brain injury resulting in a left subdural hematoma and a left subarachnoid hemorrhage. The Veteran's VA occupational therapist reported that the Veteran exhibited impaired cognition, speech, and communication and deficits with comprehension, mobility, and self-care. An October 2012 VA treatment record reflects that the Veteran had not been on his outpatient psychiatric medication since his accident. The record noted that the Veteran had visual hallucinations, but did not hear voices. There was no report of auditory or depressive symptoms. In December 2012 and February 2013, VA treatment records reflect the Veteran's complaint of problems staying asleep, but also doing better with medication. He reported experiencing improved ability with speech and finding words through his speech therapy. He also reported feeling isolated and confused. He relied on his family to take him places. He said he argued with his mom and sister and he felt upset that his son was not visiting him enough. In the June 2009, April 2011, and November 2012 VA examinations, the examiners reviewed the Veteran's past psychiatric treatment and other medical records, interviewed the Veteran about his social, occupational and military history, considered his symptoms upon examination, and evaluated his in-service stressors concluding that the Veteran did not meet the DSM-IV criteria for a PTSD diagnosis. In a June 2009 VA examination report, the examiner noted that the Veteran experienced chronic pain from complications of his May 1999 motorcycle accident. The Veteran reported that he experienced feelings of frustration and depression. He attributed those feelings to his concerns that his son may be using drugs, being burglarized "plenty of times," and his limited mobility and pain. Since his accident, he no longer worked. He spent most of his time at his home with his mother and son, who he lived with. He occasionally left the house to walk his dog and to attend church. He described his past drug and alcohol abuse, which he said began in the military. The Veteran described the traumatic events that he witnessed in service. The examiner noted the Veteran's report of experiencing nightmares once a week, but found that the Veteran did not persistently re-experience his traumatic events. The examiner noted that the Veteran avoids stimuli associated with the trauma, such as airplanes and large groups of people. The examiner also noted that the Veteran said his symptoms have improved due to medication. The examiner opined that the Veteran had some symptoms of PTSD, but diagnosed him with depression, nonmilitary related. Although the examiner did not find that the Veteran met the diagnostic criteria for PTSD, the examiner opined that even if the Veteran had PSTD, his most significant stressor was not his military experiences, but his physical disabilities and his relationship with son. In an April 2011 examination report, the Veteran reported having nightmares, anger, frustration, stress and feelings of helplessness and hopelessness that he attributed to the effects of his motorcycle accident. The Veteran avoided thoughts and conversations about the military, but also reported having pleasant memories of his time in service. The Veteran said he had intrusive recollections of traumatic events in service and reacted to sirens because it reminded him of being in the military as well as his motorcycle accident. He reported symptoms of hypervigilance, but the examiner found this symptom unrelated to his military service; he had been robbed twice and he was able to attend his son's basketball games surrounded by people. The examiner found that the Veteran showed signs of non-military depression and post trauma symptoms related to his non-combat military experiences and his post-military motorcycle accident and history of drug and alcohol abuse. In a November 2012 examination report, the examiner noted that since his accident, the Veteran lived with his mother, sister, and son. The Veteran reported his mood as "better since I've been home." His mother and sister, who accompanied the Veteran to the examination, explained that he was close with family and friends, attended church, and worked on a truck even though he no longer drove. The examiner found that his speech and cognitive impairment was the result of the traumatic brain injury he sustained in his June 2012 motorcycle accident and not related to service. The examiner noted that the Veteran was not on his psychiatric medication since his accident and that an October 2012 treatment record showed no depressive symptoms. The examiner also found no behavior or indications of current depression. The examiner diagnosed the Veteran with polysubstance abuse, which was in remission since his June 2012 motorcycle accident. The examiner opined that the none of the in-service stressors were adequate to support a PTSD diagnosis. The Board finds the June 2009 and November 2012 examination reports highly probative and entitled to more weight than the VA treating psychiatrist's PTSD diagnosis. Apart from being generated with the specific purpose of determining whether the Veteran had PTSD, these reports were authored by examining psychiatrists who clearly reviewed examined the Veteran in depth and reviewed the Veteran's claims file and medical records. Furthermore, the June 2009 examination report also considered that if the Veteran had PTSD, the condition was not related to service. Finally, in the Veteran's most recent VA examination, the November 2012 examiner found no symptoms of depression, no PTSD diagnosis, and a diagnosis of polysubstance abuse, in remission. By contrast, there is no indication that the VA treating psychiatrist made his PTSD diagnosis on the basis of his in-service stressors. Although the treating psychiatrist did not use a compensation and pension report to document his diagnosis as the VA examiners did, the Board does not contend that the psychiatrist's PTSD diagnosis is insufficient. As a mental health professional, the PTSD diagnosis is presumed to have been made in accordance with DSM-IV criteria. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997) ("Mental health professionals are experts and are presumed to know the DSM requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis."). However, the VA treatment records do not reflect whether the treating psychiatrist's diagnosis was based on the Veteran's in-service stressor or his post-service experiences. The record shows that since service, the Veteran had experienced two traumatic motorcycle accidents, threats of violence in his community, years of drug and alcohol abuse that resulted in legal problems, and problems with his son. The treating psychiatrist, having treated the Veteran since 2007, knew the Veteran's prior medical history, however, he did not provide a fully articulated opinion or reasoned analysis as to whether the Veteran had PTSD related to his in-service stressors, therefore the Board assigns his opinion less weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that the preponderance of the evidence weighs against a diagnosis of PTSD related to his in-service stressors. The Board has also considered whether the Veteran's other psychiatric diagnoses of depression and polysubstance are related to service. As discussed above, the June 2009 and November 2012 VA examination reports are more probative and these reports did not find that these conditions related to service. The Board has considered the Veteran's contention that he has PTSD and the lay statements that described his symptoms since service. However, while the Veteran and the other lay persons are competent to report his symptoms and service history, a lay person is not competent to determine whether the Veteran has PTSD, as this is a finding that is medically complex and cannot be based on lay observation alone. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that unlike varicose veins, rheumatic fever is not a condition capable of lay diagnosis). Barr v. Nicholson, 21 Vet. App. 303, 309 (2011) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"). Accordingly, the Veteran's contention that he has PTSD, along with the other lay statements are not probative and do not support his claim as they are outweighed by the findings to the contrary of the June 2009 and November 2012 VA examiners. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Unlike the Veteran, the VA examiners are mental health professionals and therefore have the appropriate expertise to make this determination. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for an acquired psychiatric disorder, to include PTSD, depressive disorder, not otherwise specified, and polysubstance abuse, in remission, must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER New and material evidence has been received, and the petition to reopen a claim of entitlement to service connection for PTSD is granted. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depressive disorder, not otherwise specified, and polysubstance abuse, in remission, is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs