Citation Nr: 1414259 Decision Date: 04/02/14 Archive Date: 04/11/14 DOCKET NO. 10-39 345 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for depression and anxiety. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. J. Dempsey, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from December 1966 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Although the RO adjudicated the issues on appeal as a single issue, the Board recognizes that the issue of service connection for PTSD is based on a separate and distinct disability (see 38 C.F.R. § 4.25) for which service connection was not previously denied; therefore, PTSD not considered to be a part of the claim to reopen service connection for depression and anxiety. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (finding that a claim based on a new diagnosis is treated as a new claim, obviating the need for new and material evidence). The Board has reviewed the Veteran's physical claims files, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. FINDINGS OF FACT 1. A RO decision in December 2008 denied service connection for depression and anxiety, finding that the anxiety disorder preexisted service and was not permanently worsened by service, and that the depression disorder was neither incurred in nor caused by service. 2. The Veteran did not appeal the December 2008 rating decision after being notified of his appellant rights, and no additional evidence was received within one year of the decision. 3. Since the December 2008 RO decision denying service connection for depression and anxiety, the additional evidence that was not previously considered is cumulative or does not relate to an unestablished fact necessary to substantiate the claim regarding either the preexistence of the anxiety disorder, aggravation of the anxiety disorder by service, or a nexus between the depression disorder and service, so does not raise a reasonable possibility of substantiating the claim. 4. The Veteran does not have a current DSM-IV diagnosis of PTSD. CONCLUSIONS OF LAW 1. The December 2008 RO decision which denied service connection for depression and anxiety is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. § 20.1103 (2013). 2. New and material evidence has not been received to reopen service connection for depression and anxiety. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156 (2013). 3. The criteria for service connection for PTSD are not met. 38 U.S.C.A. § 1110, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103 , 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102 , 3.159, 3.326(a) (2013). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. In Kent v. Nicholson, 20 Vet. App. 1, 11-12 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, in the context of claims to reopen, VCAA notice (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. The Court elaborated that, in response to an application to reopen, VA is required to look at the bases for the denial in the prior decision and send a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. The Veteran was provided notice in May 2010 regarding the date and bases of the previous denial of the claim for service connection for depression and anxiety. The notice informed the Veteran of the basis for the prior denial of the claim; specifically, that the evidence did not show that the anxiety disorder was permanently worsened by service, or that the depression disorder was either incurred in or caused by service. The Veteran was informed of the appropriate definitions of new and material evidence and of the evidence needed to substantiate the underlying claim for service connection; therefore, the May 2010 letter provided the notice required by the Kent decision. Regarding the appeal for service connection for PTSD, the May 2010 notice letter also included notice about what information and evidence is necessary to substantiate a claim for service connection for PTSD, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The May 2010 notice letter contained information regarding how disability ratings and effective dates are assigned; therefore, VA satisfied its duty to notify under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, service personnel records, VA treatment records, and the Veteran's statements. The Veteran was afforded a VA psychiatric examination in June 2010. The VA examiner reviewed the Veteran's claims file, medical history, and interviewed the Veteran to discuss medical history and complaints regarding his psychiatric disorder. The VA examiner also observed the Veteran in a clinical setting and provided diagnoses, observations, and all required opinions, along with supporting rationale. Accordingly, the Board finds that the June 2010 VA examination is adequate and no further medical examination or medical opinion is needed. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. Legal Criteria to Reopen Service Connection Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c), (d)(3); 38 C.F.R. § 20.1103. An 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 which has been disallowed, VA 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g, 8 Vet. App. 1 (1995)). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384. Any finding entered when new and material evidence has not been submitted "is a legal nullity." Butler v. Brown, 9 Vet. App. 167, 171 (1996) (applying an identical analysis to claims previously and finally denied, whether by the Board or the RO). See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). Reopening of Service Connection for Depression and Anxiety In a December 2008 rating decision, the RO denied service connection for depression and anxiety, finding that the preexisting anxiety disorder was not permanently worsened by service, and that the depression disorder was neither incurred in nor caused by service. The record does not demonstrate that the Veteran initiated an appeal of the December 2008 rating decision or that VA received additional evidence within one year of the December 2008 rating decision; therefore, the Board finds that the December 2008 rating decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). The evidence at the time of the December 2008 rating decision included service treatment records, VA treatment records through September 15, 2008, the October 2008 VA examination report, and the August 2008 VA Form 21-4138. The July 1966 service medical examination reflects a diagnosis of mild anxiety but no other psychiatric disorders. No additional treatment, complaints, or symptoms of a psychiatric disorder are shown in the service treatment records, and the Veteran denied a history of "nervous trouble of any sort" on the September 1968 report of medical history. The Veteran received a normal psychiatric evaluation during the September 1968 service separation examination. The October 2008 VA examiner diagnosed depressive disorder, alcohol dependence, and polysubstance dependence, all of which were noted to be in remission. The VA examiner opined that it is less likely than not that the Veteran had an anxiety disorder that was aggravated by service. VA treatment records showed treatment for depression. In the December 2008 rating decision, the RO found that the evidence did not show that the preexisting anxiety disorder was permanently worsened by military service, or that the depression disorder was incurred in or caused by service. As such, for evidence to be new and material in the current appeal to reopen service connection, the evidence would have raise a reasonable possibility that the pre-existing anxiety disorder did not preexist service, that the pre-existing anxiety disorder was permanently worsened by service, that is, that it permanently increased in severity beyond that of its normal progression during service, or that the depression disorder was incurred in or caused by service. The cumulative evidence assembled after the December 2008 final rating decision includes VA treatment records through August 2010, a June 2010 VA examination report, service personnel records, a July 2010 VA Form 21-4138 regarding a PTSD stressor, and additional statements submitted by the Veteran and the representative. The Board finds that the evidence that is new is not material evidence upon which the claim may be opened. Cox v. Brown, 5 Vet. App. 95 (1993). As to the anxiety disorder, the new evidence does not raise a reasonable possibility that the preexisting anxiety disorder did not preexist service or that it was permanently worsened by service. Similarly, the evidence does not raise a reasonable possibility that the depression disorder was incurred in or caused by service. The June 2010 VA examiner stated that the Veteran's mixed depressive anxiety disorder appears to have begun before service and has continued "on/off in response to psychosocial stressors" that include family discord, betrayal, witnessing violence, jail time, extensive substance abuse history, and thoughts related to service. Evidence, such as this, which supports the previous denial, does not trigger a reopening. See Villalobos v. Principi, 3 Vet. App. 450, 452 (1992). To the extent that the Veteran has asserted that the mixed depressive anxiety disorder permanently increased in severity beyond that of its normal progression during service, the Board finds that this contention is cumulative of evidence previously before the RO and VA medical professionals. In particular, the Board considered the Veteran's statement included with the July 2010 VA Form 21-4138. In the July 2010 statement, the Veteran reported psychiatric disorder symptoms related to the experience of being shot in service including isolation, bad dreams, and vigilant behavior that have been present for "over 43 years." The Veteran discussed this shooting incident with the October 2008 VA examiner and reported psychiatric symptoms including loneliness and distrust of others. VA treatment records reviewed by the October 2008 VA examiner and RO include descriptions of isolation and edgy feelings. The record reflects that the Veteran has been receiving psychiatric care from VA since December 2004. Although the Veteran has not previously presented his psychiatric symptoms in the same form as the July 2010 statement, as he asserts that the these symptoms have been present for "over 43 years" and the record reflects significant psychiatric treatment by VA and two examinations of the Veteran's psychiatric symptoms in October 2008 and June 2010, the Board finds that the Veteran's statement of symptoms relating to his military service are cumulative of information shared with VA before the December 2008 final rating decision. Moreover, to the extent that the Veteran's statements can be construed as an opinion of permanent worsening of the preexisting anxiety disorder caused by service, the evidence does not demonstrate that the Veteran has the knowledge, training, or experience necessary to provide a competent medical opinion about the natural progression of the anxiety disorder, how that progression was permanently worsened by service, or how to differentiate the impact of other psychosocial factors noted by the June 2010 VA examiner, including family discord, betrayal, witnessing violence, jail time, and extensive substance abuse history. For these reasons, the Board finds that the Veteran's statements are both cumulative of evidence previously considered in the final December 2008 rating decision, and not probative of whether the mixed depressive anxiety disorder was aggravated by service. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that required a medical opinion to diagnose and to relate to service). In sum, none of the evidence received since the December 2008 final rating decision denying service connection for depression and anxiety raises a reasonable possibility of substantiating the claim. Specifically, the new evidence is not material because it does not raise a reasonable possibility that the anxiety disorder was permanently worsened by service, or that the depression disorder was incurred in or caused by service. As a result, the newly received evidence does not raise a reasonable possibility of substantiating the claim on the basis of the final denial in the December 2008 rating decision. Accordingly, the evidence received since the final denial of the claim in December 2008 is not new and material, and reopening of service connection for depression and anxiety is not warranted. Until the evidence meets the threshold of new and material evidence sufficient to reopen the claim, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection for PTSD requires the following three elements: (1) a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor), (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred, and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). 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 mandates that, for VA purposes, all mental disorder 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). DSM-IV provides that a valid diagnosis of PTSD requires that a person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others, and (2) the person's response involved intense fear, helplessness, or horror. In adjudicating a claim for service connection for PTSD, the evidence necessary to establish the incurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the Veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, a veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records, and "consistent with the circumstances, conditions, or hardships of such service." 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f); Doran v. Brown, 6 Vet. App. 283, 289 (1994). To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C.A. § 1154(b) requires that a veteran have actually participated in combat with the enemy. See VAOPGCPREC 12-99. If a veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, and the stressor is not related to "fear of hostile military or terrorist activity," then the veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors and his testimony must be corroborated by credible supporting evidence. See Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). Furthermore, service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors. Doran, 6 Vet. App. 283. If a claim for service connection for PTSD is based on allegations of in-service personal assault, evidence from sources other than a veteran's service records may corroborate a veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor and such evidence include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5). The regulation specifically provides that VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than a veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza, 7 Vet. App. 498. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for PTSD The Veteran asserts that he has PTSD due to being shot in the chest while on active duty. Specifically, the Veteran contends that nightmares began while he was in the hospital being treated for the gunshot wound, and that these nightmares and other symptoms including a tendency to isolate and weariness of crowds have persisted ever since. See July 2010 letter. Initially, the Board finds that the Veteran was shot in the chest during active duty. Service personnel records include a copy of a criminal complaint from December 1967 identifying the Veteran as victim in a shooting incident outside a nightclub. Service treatment records reflect that the Veteran was treated for a gunshot wound to the chest in January 1968. That notwithstanding, the Board finds that the weight of the evidence of record demonstrates that the Veteran does not have a currently diagnosed PTSD disability in accordance with the DSM-IV criteria. As noted above, the Veteran underwent a VA PTSD examination in June 2010. PTSD was not included among the diagnoses provided by the VA examiner. The VA examiner stated that "there is some distress when he thinks about the shooting," but that the Veteran "does not meet the criteria for PTSD related to the confirmed stressor." The VA examiner explained that most of the Veteran's psychiatric symptoms "do not appear to be organized around the trauma but rather related to multiple difficult life experiences," including family discord, betrayal, witnessing violence, jail time, and extensive substance abuse history. The threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Therefore, without a current disability of PTSD, the criteria for service connection for the claimed PTSD are not met. The weight of the evidence of record is against a finding of current disability of PTSD. Because the Veteran does not have a current diagnosis of PTSD, the Board does not reach the additional questions of in-service stressor and nexus to an in-service stressor. In making this determination, the Board has also considered the Veteran's contentions that he has PTSD as a result of service. While lay persons are competent to report on their own symptoms, the Veteran does not possess the medical training and expertise necessary to render a medical diagnosis of PTSD in accordance with the DSM-IV, especially in this context where there is a need to differentiate between symptoms and diagnoses of depression, anxiety, and the history of alcohol and polysubstance abuse. See Kahana, 24 Vet. App. at 437 (recognizing ACL injury is a medically complex disorder that required a medical opinion to diagnose and to relate to service). For these reasons, the Board finds that the weight of the evidence demonstrates that the criteria for service connection for PTSD have not been met. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER New and material evidence not having been received, the appeal to reopen service connection for depression and anxiety is denied. Service connection for PTSD is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs