Citation Nr: 1340143 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 11-31 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for PTSD. 2. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for residuals of a head injury, to include migraine headaches. 3. Entitlement to service connection for residuals of a head injury, to include migraine headaches. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Chris Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1987 to March 1993. (VA has found that the Veteran's discharge covering the period from September 16, 1991, to March 31, 1993, was dishonorable in nature and constitutes a bar to VA benefits relative to that period. 38 C.F.R. § 3.12 (2013).) This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2009 and June 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The December 2009 rating decision reopened claims of service connection for PTSD and residuals of a head injury. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this virtual file were reviewed in conjunction with this appeal. The Board also notes that, in March 2013, the RO granted service connection for an anxiety disorder not otherwise specified (NOS). However, as the Veteran has not withdrawn his claim for service connection for PTSD, which is a psychiatric diagnosis different from anxiety disorder NOS, it remains pending. In February 2004, service connection for PTSD was denied. Although the Veteran did not appeal, and the 2004 decision became final, in June 2007, VA received service hospital records from September 1991 that were previously not of record. The service hospital records concern inpatient treatment for lacerations of the head due to an assault. As the Veteran asserts that his PTSD arose from the September 1991 assault, the Board finds that these newly received service hospital records are pertinent to the PTSD claim. Under 38 C.F.R. § 3.156(c), because service department records have been received after the 2004 denial, the claim must be reconsidered without regard to finality of the prior decision. The decision below addresses this issue de novo. Although the RO reopened the Veteran's claim of service connection for residuals of a head injury, the Board must also address the question of reopening before proceeding to the merits. A threshold consideration in any case concerning a previously denied claim is whether new and material evidence has been received to reopen the claim. 38 U.S.C.A. § 5108 (West 2002); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). By the decision below, the Board is reopening the claim of service connection for residuals of a head injury because new and material evidence has been submitted. The underlying issue of entitlement to service connection for residuals of a head injury is addressed in the remand that follows the decision. FINDINGS OF FACT 1. In an unappealed November 2007 decision, the RO denied an application to reopen a previously denied claim of service connection for residuals of a head injury. 2. The evidence submitted since the November 2007 RO decision is neither cumulative nor redundant of the record at the time of the prior final denial, and it raises a reasonable possibility of substantiating the claim of entitlement to service connection for residuals of a head injury. 3. The Veteran does not have PTSD that is attributable to his military service. CONCLUSIONS OF LAW 1. The November 2007 decision denying reopening of a claim of service connection for residuals of a head injury is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.200, 20.201, 20.302 (2013). 2. The additional evidence received since the November 2007 decision is new and material, and the claim of service connection for residuals of a head injury is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. The Veteran does not have PTSD that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Claim to Reopen Service Connection for Residuals of a Head Injury In an unappealed decision issued in November 2007, the RO continued a prior denial of service connection for residuals of a head injury. (The claim was originally denied in July 2000.) Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The Veteran's claim of service connection for residuals of a head injury was denied because there was no evidence indicating that the Veteran incurred a head injury during his period of honorable service, and because there was no evidence that he had a current disability due to an in-service injury or incident. A July 2012 VA examination diagnosed the Veteran with anxiety disorder NOS due to his September 1991 assault. This is of import due to the fact that the Veteran's headaches had previously been described as due to stress, tension, sleeplessness, or psychosocial issues. See, e.g., August 1998 VA treatment record; May 2001 VA treatment record; June 2006 VA treatment record. Thus, this is new evidence that is also material, inasmuch as it indicates that his headaches may be due to his now service-connected anxiety disorder NOS. Therefore, the July 2012 VA examination that diagnosed the Veteran with anxiety disorder NOS containing evidence of a current disability due to an in-service injury or incident is new and material. New and material evidence having been received, reopening of the claim for service connection for residuals of a head injury is granted. II. Service connection for PTSD Upon receipt of a complete or substantially complete application for benefits, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating the claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These requirements apply to all elements of a claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Proper notice must be provided prior to the initial unfavorable decision. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In this case, an August 2009 letter notified the Veteran of the evidence and information necessary to substantiate his claim, the responsibilities of the Veteran and VA in obtaining such evidence, and the evidence and information necessary to establish a disability rating and an effective date, in accordance with Dingess/Hartman. This was prior to the initial adjudication of the Veteran's claim in December 2009. This letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). As such, VA satisfied its duty to notify the Veteran. VA has also satisfied its duty to assist the Veteran in the development of his claim. First, VA satisfied its duty to seek relevant records. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records, and to provide a medical examination or opinion when required. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All identified, available VA and non-VA records have been obtained and considered. There is no indication or argument that any pertinent medical records remain outstanding. Secondly, VA satisfied its duty obtain a medical opinion. The Veteran was afforded VA examinations in October 2009, September 2011, and July 2012, and there is no argument or indication that the opinions are inadequate for adjudication purposes. Thus, the medical evidence is sufficient. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A , or 38 C.F.R. § 3.159. Turning to the merits of the claim, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(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-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). To make these determinations, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Entitlement to service connection for PTSD requires medical evidence diagnosing PTSD in accordance with the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV); 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); 4.125(a). Where the claimed stressor is not related to combat, the Veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates the Veteran's account as to the occurrence of the claimed stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f) (2013); Cohen v. Brown, 10 Vet. App. 128 (1997). An evaluation of the probative value of medical opinion evidence is based on the medical expert's knowledge and skill in analyzing the data, and the medical conclusion reached. The weight to be attached to such opinions is within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not, and the extent to which, they considered prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). The Veteran's service treatment records (STRs) from Portsmouth Naval Hospital indicate that he was assaulted on September 1, 1991, by a group of five to six men who knocked him down, struck him in the head with concrete, and robbed him. The Veteran reported no memory loss, nausea, or vision changes. He had lacerations on his head. X-rays of the Veteran's skull and chest revealed no fractures. Accordingly, as the Veteran's STRs indicate that he was assaulted, there is credible supporting evidence of an in-service stressor. However, there is no medical evidence diagnosing the Veteran with PTSD in accordance with the DSM-IV. The Veteran underwent mental health examinations for his PTSD claim in October 2009, September 2011, and July 2012. The Veteran was not diagnosed with PTSD or any other disorders at his October 2009 examination. The examiner noted that the Veteran focused on his sleeplessness, and also discussed disturbing dreams; with regards to the latter, the Veteran stated that he did not necessarily think that his dreams were related to his in-service stressor. The Veteran also noted persistent symptoms of increased arousal that he stated were not present before his assault. The examiner concluded that the symptoms described by the Veteran did not meet the DSM-IV criteria for PTSD or any other mental health diagnosis. In September 2011, the Veteran was diagnosed with a not otherwise specified sleep disorder and alcohol abuse. The Veteran reported nightmares once again, as well as anxiety. In finding that the Veteran did not have PTSD, the examiner noted that the Veteran did not persistently re-experience his traumatic event, and did not persistently avoid stimuli associated with his trauma, or numb his general responsiveness. The Veteran's most recent mental health examination occurred in July 2012, where he was given a diagnosis of anxiety disorder. At that examination, it was again noted that the Veteran did not persistently re-experienced his traumatic event. The examiner stated that the Veteran did not exhibit obvious symptoms sufficient to warrant a diagnosis. His nightmares were not stressor-specific; he did not describe intrusive thoughts surrounding his stressor; he did not have flashbacks, but rather paranoia from crowds; he associated with family and was able to show affection. The fact that PTSD was not diagnosed at the VA examinations is, with a few exceptions, reiterated by VA treatment records where the Veteran was found not to have PTSD. See, e.g., April 6, 2010, record. The Veteran also denied any PTSD due to service at a March 2001 VA appointment. The Board notes that several of the Veteran's VA treatment records contain a PTSD assessment. See VA treatment records from September 13, 2011; January 19, 2012; and June 4, 2012. Nevertheless, these assessments are insufficient for the same reason mentioned by the examiner in the Veteran's September 2011 VA examination: there is no indication that these assessments were made in accordance with the DSM-IV. Further, no reasons and bases were given for why the Veteran has PTSD. Rather, Dr. S.P., the treatment provider who made all three assessments, simply made the conclusory statement that the Veteran has PTSD. As such, the Board gives greater weight to the three examinations, which were undertaken with a specific charge to determine the correct diagnosis and which gave detailed explanations for why the Veteran cannot be diagnosed with PTSD. In summary, the evidence does not establish that the Veteran has PTSD that was incurred or aggravated during his military service. The preponderance of the evidence is against the claim. As such, the benefit-of-the-doubt doctrine is not helpful to the claimant. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER As new and material evidence has been received, a previously denied claim of service connection for residuals of a head injury is reopened; to this limited extent, the appeal of this issue is granted. Entitlement to service connection for PTSD is denied. REMAND A review of the Veteran's claims file reveals that further development is necessary on the matter of entitlement to service connection residuals of a head injury, to include migraine headaches. The Veteran's last examination for his head injury claim was in November 2009. At the examination, the Veteran was diagnosed with chronic migraine headaches, and the examiner opined that they were less likely than not related to a in-service assault. The examiner noted that there was no evidence of traumatic brain injury at the time of the assault, that the first instance in the record of the Veteran reporting headaches was in 1998, and that the Veteran's headache symptomatology fit those of migraine headaches. However, as noted above, the record contains numerous instances where the Veteran's headaches were thought to be due to stress, tension, sleeplessness, or psychosocial issues. This is of importance because the Veteran was service connected for anxiety disorder NOS in March 2013, following a July 2012 VA examination. The November 2009 examination is not sufficient because it did not address the question of secondary service connection that the record now seems to raise. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004) (when determining service connection, all theories of entitlement-direct, presumptive and secondary-must be considered); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). A new VA examination is warranted to determine whether the Veteran is entitled to service connection on a secondary basis. The Board also notes that there may be outstanding treatment records. Currently, there are no records dated prior to 1998, and the Veteran has stated that he has had headaches since service. Therefore, any records from that period need to be obtained, as do any pertinent outstanding VA treatment records. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify any headache treatment providers since service and to complete the necessary forms (VA Form 21-4142) for VA to obtain any non-VA records. After obtaining the necessary authorizations, request copies of any outstanding private records and any outstanding VA treatment records. 2. All efforts to obtain the above-described records must be documented in the claims file. Such efforts shall continue until federal records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. Reasonable efforts are necessary for non-federal records. If any records cannot be obtained after appropriate efforts have been expended, the Veteran should be given notice and allowed an opportunity to provide such records. 3. Following completion of the above-requested actions, schedule a VA examination. The examination should include all necessary diagnostic testing and/or evaluation. The claims file, including a complete copy of this remand, must be made available for review. Based on review of the record and examination of the Veteran, the examiner should respond to the following: (a) Is it at least as likely as not (probability of 50 percent or more) that the Veteran's headaches are attributable to his military service-September 1987 to September 16, 1991? (b) Is it at least as likely as not that the Veteran's headaches have been caused or aggravated (made chronically worse) by his service-connected anxiety? A rationale, with consideration of both lay and medical evidence, must be provided for all opinions provided. If any opinion cannot be provided without resorting to speculation, the examiner should so state and explain why such an opinion would be speculative. Medical reasons for accepting or rejecting the Veteran's history should be set forth in detail. 4. When the development requested has been completed, the case should be reviewed on the basis of additional evidence. If the benefit sought is not granted, furnish a Supplemental Statement of the Case and afford the Veteran a reasonable opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs