Citation Nr: 1529316 Decision Date: 07/09/15 Archive Date: 07/16/15 DOCKET NO. 11-13 781 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In the March 2010 rating decision, the RO continued the denial of service connection for PTSD. The Board notes that the RO has considered the claim on the merits; however, regardless of what the RO has decided, the Board must address the question of whether new and material evidence to reopen the claim of service connection has been received because the issue goes to the Board's jurisdiction to reach the underlying claim. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The Board also notes that the U.S. Court of Appeals for Veterans Claims (Court) has held that a claimant is generally not competent to diagnose his own psychiatric disability. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness). Here, although the Veteran has claimed entitlement to service connection for PTSD, the Board must also consider any other psychiatric disorders that have been diagnosed. FINDINGS OF FACT 1. In a November 2002 rating decision, the RO denied the claim for PTSD on the basis that there were no verifiable stressors of record that supported a nexus to service. The Veteran did not timely appeal the decision, nor did he submit new and material evidence within the one-year period. 2. Evidence received since the November 2002 rating decision denying service connection for PTSD is cumulative. CONCLUSIONS OF LAW 1. The November 2002 rating decision denying service connection for PTSD is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.156(b), 20.1103 (2014). 2. Evidence received since the November 2002 rating decision is not new and material and the claim for PTSD is not reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. § 3.159 (2014). VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, not of 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In an application to reopen based on new and material evidence, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claims for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In this case, the RO sent the Veteran a letter dated in July 2009 that complied with statutory notice requirements. Therein, the RO notified the Veteran of the evidence obtained, the evidence VA was responsible for obtaining, and the evidence necessary to establish entitlement to the benefits sought including the types of evidence that would assist in this matter. The letter also notified the Veteran of the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why the claim for PTSD was previously denied. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). For a claim to reopen a finally adjudicated claim, VA will provide a medical examination or obtain an opinion only if new and material evidence is presented or secured. Id. During the April 2015 Travel Board hearing, the undersigned VLJ clarified the issues on appeal, identified potential evidentiary defects, and clarified the type of evidence that would support the Veteran's claims. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. See 38 C.F.R. § 3.103. For these reasons, the Board concludes that there is no additional evidence which needs to be obtained. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Governing Laws & Regulations Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). 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 and material evidence is defined as evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration; such 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). The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held 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 to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted 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." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 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 service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) and 38 C.F.R. § 4.125. If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f); 38 U.S.C.A. § 1154(b). If the Veteran did not serve in combat, or if the claimed stressor is not related to combat, there must be independent evidence to corroborate a Veteran's statement as to the occurrence of the claimed stressor. See Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). Effective on July 13, 2010, VA amended 38 C.F.R. § 3.304, governing service connection for PTSD, by changing, in certain circumstances, the evidentiary standard for establishing the required in-service stressors. The rule now provides that 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 the Veteran's symptoms are related to the claimed stressors, 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 stressors. 38 C.F.R. § 3.304(f)(3). Pursuant to 38 C.F.R. § 3.304(f)(3), "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. Analysis The last final denial of the claim for service connection for PTSD was a November 2002 rating decision. The evidence of record at the time of that decision consisted of lay statements, service medical records, personnel records, and post-service VA treatment records. With regard to specific stressors, the Veteran averred that he was ambushed while driving a truck in Vietnam (his military occupational specialty was heavy truck driver), and that he witnessed the deaths of U.S. soldiers. In July 1999, he reported having "faint recollections" of helicopters flying overhead. In the November 2002 decision, the RO conceded that the Veteran had a current PTSD diagnosis. The RO denied the claim, however, because none of his claimed stressors had been verified, and because the evidence was insufficient to show that he had engaged in combat with the enemy. In June 2009, the Veteran sought to reopen his claim for PTSD. The evidence received since the final November 2002 decision includes VA treatment records, lay statements, and an arrest record demonstrating criminal behavior since separation. In August 2009, the Veteran submitted a statement in which he claimed that he had "17 confirmed kills in Vietnam." Thereafter, the RO sent the Veteran letters, in July 2009, January 2010, and February 2010, asking that he provide details such as his unit number, locations in Vietnam, and a 60-day window in which his alleged stressors occurred. The Veteran never provided this information. (The Veteran indicated that he earned a Bronze Star, but such evidence was already of record at the time of the November 2002 rating decision, and in any case is not dispositive of exposure to combat.) During his April 2015 Travel Board hearing, when asked what he remembered from Vietnam, the Veteran stated: "I don't know. I know I was there. I don't know dates. I don't know where. I don't know what I did. I don't know anything, but I do know that I have all the bells and whistles of . . . Vietnam." He did report shooting people and being chased, but was vague regarding the circumstances. The Board finds that with respect to the claim for PTSD, the evidence submitted since the November 2002 final decision is cumulative, and reopening is not warranted. See Anglin, 203 F.3d at 1347. Although VA medical records indicate a possible diagnosis and continued treatment for PTSD, the RO had previously conceded a positive PTSD diagnosis in its November 2002 decision; hence, that issue does not relate to the basis for the prior denial of the claim for PTSD. Rather, the basis for the prior denial was that the probative evidence was against a finding of combat exposure or a verified stressor. To that end, none of the newly-submitted evidence persuasively establishes that the Veteran was in combat, or corroborates his alleged stressors. To the extent that the Veteran has continued to aver that he was in combat in Vietnam, his statements are vague and redundant, and in any event are not credible. A review of the record shows that he has given inconsistent reports of his stressors, and has even admitted that he has basically no memory of his experiences in Vietnam. In addition, a March 2010 VA formal finding indicated that the information the Veteran provided to verify his claimed stressors was insufficient to send to the Joint Services Records Research Center (JSRRC) for further development. Thus, pursuant to VA regulations, there cannot be a nexus to warrant a suggestion of service connection. The Board has specifically considered whether reopening is warranted under 38 C.F.R. § 3.304(f). In this regard, VBA Training Letter 10-05 (July 16, 2010) states, "To reopen a claim under new § 3.304(f)(3), VA will accept a Veteran's lay statement regarding an in-service stressor-'fear of hostile military or terrorist activity'-as sufficient to constitute new and material evidence for the purpose of reopening a previously denied claim, if the Veteran's record otherwise shows service in a location involving exposure to 'hostile military or terrorist activity.' If review of the record discloses a previously submitted lay statement demonstrating 'fear of hostile military or terrorist activity,' such statement will be sufficient for reopening a claim if the Veteran's record otherwise demonstrates service in a location involving exposure to 'hostile military or terrorist activity.'" Here, the Veteran previously made vague allegations involving a fear of hostile military activity-for example, he claimed to have been ambushed and attacked while driving a truck in Vietnam. However, for reasons stated above, the Board finds that these statements about his experiences in Vietnam are not credible evidence of a fear of hostile military or terrorist activity. Moreover, there is no indication that a VA or other psychiatrist or psychologist has confirmed that a stressor claimed by the Veteran is related to his fear of hostile military or terrorist activity. Notably, a November 2010 VA evaluation report opined that it is less likely as not that the Veteran has PTSD caused by or as a result of fear of enemy combat and activity. The examiner further noted that the Veteran "[did] not report any direct combat experiences." In any event, as there is no diagnosis of PTSD based on fear of hostile military or terrorist activity, 38 C.F.R. § 3.304(f)(3) is inapplicable. With respect to any acquired psychiatric disorders other than PTSD, the evidence received since the November 2002 final decision is likewise cumulative. At the time of that decision, the record demonstrated that the Veteran had other mental health diagnoses, to include anxiety and depression, in addition to PTSD. See, e.g., January 2002 VA Mental Health Intake and Assessment Note; Fremont Correctional Facility Psychological Evaluation (December 1988). However, the evidence suggested no link between such symptoms and service. In light of Clemens, the Board finds that the November 2002 decision constituted an implied denial of a claim for service connection for an acquired psychiatric disorder other than PTSD. See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (if a new claim is not based upon a diagnosed disease or injury that is distinct from a claim previously considered, then VA must evaluate whether the evidence submitted since the last final decision tends to substantiate an element of a previously adjudicated matter). The evidence received since the November 2002 decision reveals continuing treatment for various psychiatric disorders, such as depression, mood disorder, and personality disorder. However, the new evidence does not relate to a previously unestablished fact necessary to substantiate the claim-i.e., a nexus to service-as there is still no link between the Veteran's mental health-related symptoms and service. On VA examination in November 2010, for example, the examiner found that the Veteran's psychiatric symptoms predated service and were more likely due to a personality disorder. In addition, an April 2013 letter submitted by a VA physician indicated that the Veteran has current diagnoses of mood disorder (not otherwise specified), PTSD by history, psychosis (not otherwise specified), and polysubstance dependence, but there was no indication of a nexus between these symptoms and service. In sum, none of the evidence submitted since the November 2002 decision suggests symptomatology not already of record at the time of the previous decision. Furthermore, the weight of the new evidence is against a link between the underlying psychiatric symptomatology and service. Consequently, with respect to an acquired psychiatric disorder other than PTSD, the newly submitted evidence does not relate to the bases for the prior implied denial-that is, a nexus to service. For the foregoing reasons, the evidence submitted since the November 2002 decision denying service connection for PTSD is cumulative of the evidence already of record and does not relate to any of the bases for the prior denial. The evidence is therefore not new and material and reopening of the claim, to include for an acquired psychiatric disorder other than PTSD, is not warranted. Although the threshold to reopen is low, such threshold is not met in this case. See Shade, 24 Vet. App. at 118. The benefit-of-the-doubt doctrine is therefore not for application. Annoni v. Brown, 5 Vet. App. 463, 467 (1993) (the benefit-of-the-doubt doctrine is not applicable to applications to reopen unless the threshold burden of submitting new and material evidence has been met). ORDER The application to reopen the claim of service connection for PTSD is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs