Citation Nr: 1617824	
Decision Date: 05/03/16    Archive Date: 05/13/16

DOCKET NO.  11-25 790	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to nonservice-connected pension benefits.  

2.  Whether new and material evidence has been received to reopen a claim for service connection for a bilateral eye disorder (claimed as semi-blindness).

3.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).   


WITNESSES AT HEARING ON APPEAL

The Veteran and D.S.

ATTORNEY FOR THE BOARD

Paul S. Rubin, Counsel



INTRODUCTION

The Veteran had active duty service in the United States Army from November 1977 to November 1980.  He also served in the Alabama Army National Guard from September 1991 to November 1992.

The service connection issue comes to the Board of Veterans' Appeals (Board) on appeal from February 2010 and August 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  

The new and material evidence issue comes before Board on appeal from a March 2015 rating decision issued by the RO in Montgomery, Alabama.  

The pension issue comes before the Board on appeal from a November 2010 decision issued by the VA Pension Management Center in Milwaukee, Wisconsin.  Jurisdiction of the pension issue was subsequently transferred to the RO in Montgomery, Alabama.  

In March 2014, the Veteran and D.S. presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is associated with the Veteran's VBMS file.  

In a May 2014 Board decision, the Board reopened the claim for service connection for an acquired psychiatric disorder and remanded the underlying merits of that claim for further development.  That development was completed, and the case has since been returned to the Board for further appellate consideration.  

After the most recent May 2015 supplemental statement of the case (SSOC), the Veteran submitted additional private medical evidence without a waiver of the RO's initial consideration.  However, a review of this medical evidence reveals that it is either duplicative of evidence previously of record or not pertinent to the issues on appeal.  Therefore, a waiver from the Veteran or a remand to the RO for an additional SSOC is not required.  See 38 C.F.R. §§ 19.31, 19.37, 20.1304 (2015).    

During the course of the appeal, in March 2012, the Veteran executed a VA Form 21-22a, Appointment of Individual as Claimant's Representative, in favor of D.S.  This is a special power of attorney, pursuant to 38 C.F.R. § 14.630, which allows for one-time representation by an individual who is not accredited by VA as required in 38 C.F.R. § 14.629.  However, in April 2012, the Veteran executed a VA Form 21-22, "Appointment of Veterans Service Organization as Claimant's Representative," in favor of the American Legion (this is located on Virtual VA).  Under VA law, only one organization, agent, or attorney will be recognized at one time in the prosecution of a particular claim.  See 38 C.F.R. § 14.631(e)(1) (2015).  As such, in March 2016, the Board sent the Veteran a letter asking him to clarify his choice of representative before the VA.  The Veteran responded a few days later in March 2016 that he wished to represent himself.  A veteran may revoke his power of attorney at any time.  38 C.F.R. § 14.631(f)(1) (2015).  Consequently, the Veteran is not represented by any organization before the Board at this time.  

This appeal was processed using Virtual VA and the Veterans Benefits Management System (VBMS).  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The Veteran did not serve during a period of war for 90 days or more and was not separated from service due to a service-connected disability.  

2.  In August 2010 and May 2013 rating decisions, the RO previously considered and denied service connection for bilateral eye semi-blindness.

3.  The Veteran was notified of the August 2010 and May 2013 rating decisions and of his appellate rights, but he did not appeal.  There was also no evidence received within one year of the issuance of those decisions. 

4.  The additional evidence received since the May 2013 rating decision does not relate to an unestablished fact necessary to substantiate the bilateral eye disorder claim and does not raise a reasonable possibility of substantiating the claim.

5.  There is no verified in-service stressor

6.  The Veteran has been diagnosed with PTSD due to a post-service April 2007 traumatic brain injury (TBI) rather than due to an in-service stressor.

7.  An acquired psychiatric disorder other than PTSD did not manifest in service and is not otherwise related thereto.  Nor is there evidence of a psychosis within one year of service.  


CONCLUSIONS OF LAW

1.  The criteria are not met for establishing basic eligibility for VA nonservice-connected pension benefits.  38 U.S.C.A. §§ 101, 1501(4), 1521, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.1, 3.2, 3.3(a)(3), 3.6, 3.102, 3.159, 3.203 (2015).  

2.  The May 2013 rating decision, which denied service connection for bilateral eye semi-blindness, is final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156, 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2015).

3.  New and material evidence has not been received since the May 2013 rating decision to reopen the claim for service connection for bilateral eye semi-blindness.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015).

4.  PTSD was not incurred in active service.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125 (2015).

5.  An acquired psychiatric disorder was not incurred in active service, nor may a psychosis be presumed to have been so incurred.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.384 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).  

VA is required to notify the claimant and his or her 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).  As part of this duty, the Veteran should be advised of the elements of a disability rating and an effective date.  Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  

In this case, the duty to notify for the bilateral eye issue on appeal was satisfied by notice letters sent to the Veteran in July 2014 and September 2014.  These letters informed him of the evidence needed to substantiate claims involving new and material evidence and service connection; advised him of the division responsibilities in obtaining evidence; and explained how disability ratings and effective dates are determined.

In this case, for the psychiatric disorder issue on appeal to include PTSD, the duty to notify was satisfied by letters sent to the Veteran in May 2009, June 2010, March 2014, July 2014, and September 2014.  These letters addressed service connection and secondary service connection, and the March 2014 letter also included a copy of a VA form with specific instructions for identifying PTSD stressors.  In addition, the letters advised the Veteran of the division responsibilities in obtaining evidence and explained how disability ratings and effective dates are determined.

With regard to new and material evidence, in a recent opinion, VA's Office of General Counsel concluded that 38 U.S.C.A. § 5103(a)(1) did not require VA, upon receipt of a previously denied claim, to provide notice of the information and evidence necessary to substantiate the element or elements that were found insufficient in the previous denial of the claim.  See VAOPGCPREC 6-2014 (November 21, 2014).  The Office of General Counsel determined that Kent v. Nicholson, 20 Vet. App. 1 (2006), was no longer controlling insofar as it construed former 38 U.S.C.A. § 5103(a) to require that VA provide case-specific notice to a claimant who had filed an application to reopen a previously denied claim.  To summarize, in a claim to reopen, while VA is not required to provide notice of the information and evidence necessary to substantiate the element or elements that were found insufficient in the previous denial of the claim, it is still required "to explain what 'new and material evidence' means."  Akers v. Shinseki, 673 F.3d 1352, 1358 (Fed. Cir. 2012).  In any event, in this case, the July 2014 and September 2014 notice letters both explained and defined the term "new and material evidence."  The notice letters also informed the Veteran of the division responsibilities in obtaining evidence and explained how disability ratings and effective dates are determined.

With regard to the wartime pension issue on appeal, no VCAA notice was provided to the Veteran.  Regardless, the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter.  Manning v. Principi, 16 Vet. App. 534, 542-543 (2002).  See also Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOGCPREC 5-2004 (June 23, 2004).  The present pension case, based on alleged wartime service, as is further discussed below, is decided as a matter of law.  Therefore, the Board finds that no further action is necessary under the statutory and regulatory duties to notify and assist for this particular issue.  

Moreover, with regard to the timing of notice, the issues were readjudicated by the RO in a May 2015 SSOC and July 2015 SOC, such that any timing error was cured.  Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV).  See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  

Accordingly, the Veteran has received all required notice for the issues on appeal, such that there is no prejudicial error in the content or timing of VCAA notice.  See also Shinseki v. Sanders, 556 U.S. 396 (2009) (an error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis).  There has been no allegation of any error in the VCAA notice provided to the Veteran.  

With respect to the duty to assist, the RO has secured the Veteran's service treatment records, service personnel records, Army National Guard medical and personnel records, VA treatment records, Social Security Administration (SSA) disability records, VA examinations, and private medical evidence as authorized by the Veteran.  For his part, the Veteran has submitted personal statements, statements from his former representative, hearing testimony, and additional private medical evidence.  

In a January 2015 Report of General Information (VA Form 27-0820), the Veteran indicated that certain private physician records no longer existed.  In a July 2014 Medical Authorization (VA Form 21-4142), the Veteran stated that the halfway house near Ft. Ord, California, where he allegedly had mental health treatment during service in 1978 to 1979 had been destroyed.  As such, there is further basis to attempt to secure any of these records, as such efforts would be futile.  

The Board acknowledges that the Veteran was not afforded a VA examination and that a medical opinion was not obtained in connection with his bilateral eye disorder claim.  However, the duty to provide a VA examination and opinion only apply once there is new and material evidence to reopen the previously denied claim.  See 38 C.F.R. § 3.159(c)(4)(C)(iii); Paralyzed Veterans of America, et al. v. Secretary of Veterans Affairs, 345 F.3d 1334, 1342-43 (Fed. Cir. 2003).  In the decision below, the Board has determined that there is no new and material evidence to reopen the claim for service connection for a bilateral eye disorder.

The Veteran was also afforded a VA psychological examination in January 2010 with an addendum opinion in May 2015 for his claimed psychiatric disorder.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  As will be discussed below, this examination and addendum opinion was thorough, supported by explanations, based on a review of the claims folder, and supported by clinical evidence of record.  The VA examination also considered the Veteran's lay assertions.  As such, there is adequate medical evidence to decide the claim.

With regard to the March 2014 videoconference hearing, in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010), the Court held that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2).  These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal; and (2) suggesting the submission of evidence that may have been overlooked.  See also 38 C.F.R. § 3.103(c)(2); Procopio v. Shinseki, 26 Vet. App. 76 (2012).  At the hearing, the Veterans Law Judge, the Veteran, and his witness outlined the issues on appeal and engaged in a discussion as to substantiation of those claims.  Pension based on wartime service was defined.  See hearing testimony at page 9.  The basic elements for service connection were also identified.  See hearing testimony at pages 2-3.  In addition, the Veteran's psychiatric symptomatology was discussed in detail by the parties.  The Veteran provided argument as to why he believed his psychiatric problems should be service-connected.  Potential favorable outstanding medical evidence was discussed, but the Veteran denied treatment for psychiatric problems from 1980 to 2007.  He was also advised that medical nexus evidence would be helpful to establish service connection.  See hearing testimony at pages 6-8.  The actions of the Veterans Law Judge supplement the VCAA and comply with any related duties owed during a hearing.  Overall, the hearing was legally sufficient, and there has been no allegation to the contrary.  

With regard to the previous May 2014 Board remand, the Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance would be required, not strict compliance).  Specifically, pursuant to the remand, the AOJ provided additional corrective VCAA notice to the Veteran for his PTSD claim; secured Army National Guard medical and personnel records; secured service personnel records for his period of active duty; afforded the Veteran a VA addendum opinion to determine the etiology of his current psychiatric problems; and issued an SSOC with a citation and discussion of the relevant regulation for service connection for PTSD (38 C.F.R. § 3.304(f)).  As such, the AOJ has substantially complied with the Board's instructions.  

For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case.  Hence, there is no error or issue that precludes the Board from addressing the merits of the above issues on appeal.


I.  Pension

The law authorizes the payment of a nonservice-connected disability pension to a wartime veteran who has the requisite service and who is permanently and totally disabled.  Basic entitlement exists if a veteran:  (1) served in the active military, naval or air service for ninety (90) days or more during a period of war; (2) is permanently and totally disabled from nonservice-connected disability not due to his/her own willful misconduct; and (3) meets the net worth requirements under 38 C.F.R. § 3.274, and does not have an annual income in excess of the applicable maximum annual pension rate specified in 38 C.F.R. §§ 3.3, 3.23.  38 U.S.C.A. 
§§ 1502, 1521 (West 2014); 38 C.F.R. § 3.3(a)(3) (2015). 

The term "veteran" is defined as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable."  38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d).  The term "active military, naval, or air service" includes active duty; or any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty while performing ACDUTRA; or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred or aggravated in the line of duty while performing INACDUTRA, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during INACDUTRA.  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a).  

As to the requirement of wartime service, a veteran meets the service requirements of this section if he or she served in the active military, naval, or air service 1) for ninety days or more during a period of war; 2) during a period of war and was discharged or released from such service for a service-connected disability; 3) for a period of ninety consecutive days or more and such period began or ended during a period of war; or 4) for an aggregate of ninety days or more in two or more separate periods of service during more than one period of war.  38 U.S.C.A. § 1521(j) (West 2014); 38 C.F.R. § 3.3(a)(3).  

The term "period of war" for pension purposes means the Mexican Border Period, World War I, World War II, the Korean conflict, the Vietnam era, the Persian Gulf War, and the period beginning on the date of any future declaration of War by the Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress.  38 U.S.C.A. § 1501(4) (West 2014); 38 C.F.R. § 3.2.  With regard to the Vietnam era, the period beginning on February 28, 1961, and ending on May 7, 1975, inclusive, is the established period of war in the case of a Veteran who actually served in the Republic of Vietnam during that period.  The period beginning August 5, 1964, and ending on May 7, 1975, inclusive, is the established period of war in all other cases.  38 C.F.R. § 3.2(f).  

In computing the 90 days required above, active service which began before or extended beyond the war period will be included if such service was continuous.  Broken periods of service during a period of war may be added together to meet the requirement for length of service.  38 C.F.R. § 3.17.

VA's determination of whether a claimant's service meets the threshold statutory requirements is dependent upon service department records verifying the character of a claimant's service.  VA does not have the authority to alter the findings of the service department.  38 C.F.R. § 3.203(a); Spencer v. West, 13 Vet. App. 376, 380, (2000); Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Manlincon v. West, 12 Vet. App. 238 (1999).  

The threshold issue to initially address in a pension case is whether a veteran has the requisite period of wartime service.  If that issue is answered in the affirmative, the additional issues of permanent and total disability and net worth and income requirements will then be addressed.  However, if he does not have the requisite wartime service, there is no need to proceed further or address any other issue.

In this case, the Veteran's DD Form 214 and his service personnel records reveal that he had active service in the United States Army from November 1977 to November 1980, which was during a period of peacetime.  There is simply no evidence of active service during the Vietnam era from February 28, 1961, to May 7, 1975.  Rather, he served subsequent to that period of time.  There is also no allegation or evidence that the Veteran had active service during any other period of time, including a period of war.  

The Board acknowledges the Veteran's assertion that his unit "was preparing for war" in 1980.   However, even assuming that his unit was preparing for war, such service would not constitute wartime service under VA laws and regulations.  Periods of war are clearly defined in 38 C.F.R. § 3.2, which does not include any dates in 1980.

Furthermore, the Veteran was not discharged from service during a period of war with a disability adjudicated as service-connected.  

With regard to the Persian Gulf War, the period beginning on August 2, 1990, through a date to be prescribed by Presidential proclamation or law, is also an established period of war.  38 C.F.R. § 3.2(i).  In this regard, the Board observes that Veteran served in the Alabama Army National Guard from September 1991 to November 1992.  However, the service personnel records do not show that he served on a period of active duty.  Moreover, his service during this period of time does not otherwise constitute "active military, naval, or air service."  See 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d).  That is, the evidence of record does not establish that any disability was incurred in or aggravated by any period of ACDUTRA or INACDUTRA during his service in the Alabama Army National Guard from September 1991 to November 1992.  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a).  

With regard to lay evidence, at the March 2014 hearing, the Veteran testified there were no other periods of service aside from his period of active duty with the Army from November 1977 to November 1980 and his service in the Alabama Army National Guard from September 1991 to November 1992.  See hearing testimony at pages 9-10.  Thus, the Veteran's own lay assertions provide no basis for the establishment of wartime service for purposes of VA pension benefits.  

The Board is bound by the law and without authority to grant benefits on an equitable basis.  38 U.S.C.A. §§ 503, 7104 (West 2014).  No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress.  Smith v. Derwinski, 2 Vet. App. 429 (1992).  As there is no legal basis upon which to award nonservice-connected pension benefits, the appeal must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).


II.  New and Material Evidence

In an August 2010 rating decision, the RO denied service connection for bilateral eye "semi-blindness" because there was no current diagnosis for an eye condition in the record.  In a May 2013 rating decision, the RO reopened the claim based on the submission of new and material evidence (evidence of a current eye condition), but denied service connection for bilateral eye "semi-blindness" on the merits because there was no evidence of a nexus between the Veteran's current bilateral eye problems and his military service.  There was also no in-service evidence of bilateral eye problems.  The Veteran was notified of both decisions and of his appellate rights, but he did not submit a notice of disagreement.  He also did not submit any additional evidence relevant to that claim within one year of the decisions.  Therefore, the August 2010 and May 2013 rating decisions became final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2015).  

The Veteran filed his current application to reopen his claim in July 2014.  The RO has denied reopening the claim.  Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)). See also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992).  Accordingly, the Board must initially determine whether there is new and material evidence to reopen the bilateral eye disorder issue before proceeding to adjudicate the underlying merits of the claim.  If the Board finds that no new and material evidence has been offered, that is where the analysis must end. 

A claimant may reopen a finally adjudicated claim by submitting new and material evidence.  New evidence means existing evidence not previously submitted to agency decision makers.  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) (2015).  

A finally decided claim must be reopened where the claimant submits new and material evidence relative to a fact that was unestablished at the time of the prior final decision on the claim.  Shade v. Shinseki, 24 Vet. App. 110, 119 (2010).  In Shade, the Court held that 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. at 118-19.  There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim, for purposes of reopening the claim.  Id. at 117.

In determining whether evidence is new and material, the credibility of the evidence in question is presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible").  

The evidence of record at the time of the final May 2013 rating decision consisted of the Veteran's service treatment records, Army National Guard records, VA treatment records, private medical evidence, a January 2010 VA psychological examination, SSA disability records, and various statements made by the Veteran.  

The evidence received since the final May 2013 rating decision consists of service personnel records, additional VA examination reports, additional VA treatment records, additional SSA disability records, additional private medical evidence, additional National Guard personnel records, additional lay statements made by the Veteran, and March 2014 hearing testimony. 

The Board finds that the various lay statements and claims submitted by the Veteran, as well as the Veteran's hearing testimony, are cumulative of evidence that was previously of record.  Specifically, the Veteran's statements and hearing testimony merely repeat and summarize his contention that he has current visual problems, resulting in near blindness at times, which is related to his military service.  This assertion was already raised in his earlier statements and claims and was previously considered by the RO.  Cumulative or redundant evidence is not new and material.  38 C.F.R. § 3.156(a).  In this regard, a lay statement which is cumulative of previous contentions that were considered by the decision maker at the time of the prior disallowance of the claim is not "new" evidence.  Bostain v. West, 11 Vet. App. 124, 127 (1998).  According to the plain language of the regulation, 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 (Fed. Cir. 2000).  

With respect to the additional medical evidence obtained after the final May 2013 rating decision, the Board finds that it is not material within the meaning of 38 C.F.R. § 3.156(a).  Specifically, additional VA examination reports, additional VA treatment records, additional SSA disability records, and additional private medical evidence, dated from 2013 to 2015, as well as additional National Guard personnel records, discuss psychological disorders and other medical conditions that are not relevant to the Veteran's claim for bilateral eye problems.  As such, these records do not pertain to the current bilateral eye claim.  

The Board has considered whether 38 C.F.R. § 3.156(c) applies in light of the additional National Guard personnel records.  However, such records are not relevant to the claim for service connection for a bilateral eye disorder.  As discussed above, they have no bearing on this particular issue.  Thus, 38 C.F.R. § 3.156(c) does not apply.

Additionally, although the Board notes that there are some VA medical records, private medical records, and SSA disability records that document complaints, treatment, and a diagnosis of severe vision impairment due to both his post-service welding job and his post-service April 2007 traumatic brain injury (TBI), these medical records do not show that the Veteran's current vision impairment was incurred during his military service from 1977 to 1980.  Prillaman v. Principi, 346 F.3d 1362 (Fed. Cir. 2003); Hickson v. West, 11 Vet. App. 374, 378 (1998).  In other words, these additional medical records do not present any evidence of a nexus to service or any in-service evidence of a bilateral eye problem.  Thus, the additional VA medical records, private medical records, and SSA disability records do not relate to an unestablished fact necessary to substantiate the claim and do not raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  Indeed, the fact that the Veteran has current visual impairment has not been in dispute.  As previously noted, the Veteran's claim was previously denied because he was not shown to have a bilateral eye condition in service and there was no nexus otherwise relating his current vision impairment to his military service.  Significantly, the evidence missing at the time of the prior final May 2013 rating decision continues to be absent, and there remains no evidence, other than the Veteran's continued lay assertions, that his current vision impairment is related to his military service.  Accordingly, the Board finds that new and material evidence has not been submitted to reopen the claim for service connection for a bilateral eye disorder.  


III.  Service Connection

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, 1131; 38 C.F.R. § 3.303(a).  In addition, disorders diagnosed after discharge may also still be service-connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service.  38 C.F.R. § 3.303(d).   See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  As a general matter, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  

Under 38 C.F.R. § 3.303(b), where the evidence shows an enumerated "chronic disease" in service (or within the presumptive period under § 3.307), or "continuity of symptoms" of such a disease after service, the disease shall be presumed to have been incurred in service.  Walker v. Shinseki, 708 F.3d 1331, 1335-37.  A psychosis is an enumerated "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) would apply if a psychosis is noted or shown in the record.  Walker, 708 F.3d at 1338-39.  Service connection for an enumerated "chronic disease" listed under 38 C.F.R. § 3.309(a) can also be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  

VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits.  38 U.S.C.A. § 1154(a) (West 2014).  The Federal Circuit has held that medical evidence is not always or categorically required in every instance to establish a medical diagnosis or the required nexus between the claimed disability and the Veteran's military service.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

That is, lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson, 581 F.3d at 1316.  See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  In short, when considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and medical causation.  Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011).  For instance, a layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet.  38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995).  In contrast, a layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma.  38 C.F.R. § 3.159(a)(1); Layno v. Brown, 6 Vet. App. 465, 469 (1994).  

The Board must assess the competence and credibility of lay statements.  Barr, 21 Vet. App. at 308.  The Federal Circuit has held that the Board can favor competent medical evidence over lay statements offered by the veteran, as long as the Board neither deems lay evidence categorically incompetent nor improperly requires a medical opinion as the sole way to prove causation.  King v. Shinseki, 700 F.3d 1339, 1344 (2012).

In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine.  38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991).


A.  PTSD

The Veteran has contended that he has PTSD attributable to "personal trauma" during his active service from 1977 to 1980.  The Veteran has not described the specifics of his alleged in-service trauma.  Instead, he has vaguely indicated that his unit was "preparing for war" in 1980.  He indicated that there was a lot of anxiety and that he feared for his life.  He has also stated that he had mental health treatment during service in 1978 or 1979 at a halfway house near Ft. Ord, California.  See March 2014 stressor statement; June 2010 Veteran's statement; August 2012 Veteran's statement; March 2014 hearing testimony at pages 7-9.    

Service connection for PTSD has unique evidentiary requirements.  It generally requires:  (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor.  38 C.F.R. § 3.304(f).  See also Cohen v. Brown, 10 Vet. App. 128 (1997).  

If it is established through military citation or other supportive evidence 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 that 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)(2). See also 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d); Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the veteran engaged in combat).  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 the veteran have actually participated in combat with the enemy.  See VAOPGCPREC 12-99. 

If VA determines either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor is not combat related, the veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor.  Instead, the record must contain credible supporting evidence that corroborates the veteran's testimony or statements.  38 C.F.R. § 3.304(f); Stone v. Nicholson, 480 F.3d 1111 (Fed. Cir. 2007); Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996).  

However, corroboration of every detail of a claimed stressor, including the veteran's personal participation, is not required; rather, a veteran only needs to offer independent evidence of a stressful event that is sufficient to imply his or her personal exposure.  See Pentecost v. Principi, 16 Vet. App. 124, 128 (2002) (quoting Suozzi v. Brown, 10 Vet. App. 307 (1997)).  In other words, a veteran's presence with the unit at the time such attacks occurred corroborates his statement that he experienced such attacks personally.  Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). 

The final requirement of 38 C.F.R. § 3.304(f) is medical evidence of a nexus between the claimed in-service stressor and the current disability.  However, such after-the-fact medical nexus evidence generally cannot also be the sole evidence of the occurrence of the claimed stressor.  Moreau, 9 Vet. App. at 396.

Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the recently updated Diagnostic and Statistical Manual (Fifth Edition) (the DSM-5).  See 79 Fed. Reg. 45,094 (August 4, 2014).  VA adopted as final, without change, this interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014.  See Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14,308 (March 19, 2015).  In the present case, the RO certified the Veteran's appeal to the Board in January 2014, prior to August 4, 2014.  Thus, the amended 38 C.F.R. § 4.125 conforming to the DSM-5 is not applicable in the present case.  

Effective July 13, 2010, if a stressor claimed by a veteran is related to that veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of that veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 C.F.R. § 3.304(f)(3) (2015).

"[F]ear 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.  See id.  

A veteran must have experienced, witnessed, or have been confronted by an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of that veteran or others, and that veteran's response to the event or circumstance must have involved a psychological or psycho-physiological state of fear, helplessness, or horror.  The occurrence of an actual event or circumstance is necessary.  In making this determination, VA must duly consider the places, types, and circumstances of a veteran's service as shown by the service record, the official history of each organization in which such a veteran served, a veteran's medical records, and all pertinent medical and lay evidence.  The new rule is limited to cases in which the claimed stressor is related to a veteran's fear of hostile military or terrorist activity.  See 75 Fed. Reg. 39,843 (Jul. 13, 2010).

The Veteran's alleged stressor in the present case does not involve "fear of hostile military or terrorist activity," as contemplated by the amended regulation, 38 C.F.R. § 3.304(f)(3).  Indeed, according to the Federal Register, the occurrence of an actual event or circumstance is necessary, yet the Veteran has not identified any particular event.  Instead, he has made a general assertion that they were preparing for a war in 1980.  As noted above, there was no period of war between the Vietnam era and the Persian Gulf War.  Therefore, his alleged stressor does not fit within the parameters of the regulation change, such that the regulation change is of no benefit to this particular Veteran's case.  As such, corroborating evidence of the claimed in-service stressor is still required here.

Upon review of the evidence of record, the Board concludes that the Veteran is not entitled to service connection for PTSD.  

Initially, the Veteran's service personnel records and Report of Separation from the Armed Forces (DD Form 214) do not reflect receipt of medals, badges, or decorations that specifically denote combat with the enemy.  His military occupational specialty (MOS) was a radio teletype operator, which is not indicative of combat.  Moreover, his service personnel records indicate he participated in no combat campaigns and received no wounds due to combat.  The Veteran has not made any allegation regarding participation in combat.  Thus, the combat provisions are not for application.  38 C.F.R. § 3.304(f)(2).  See also 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat Veterans). 

In addition, there is no credible supporting evidence that a claimed in-service stressor actually occurred.  38 C.F.R. § 3.304(f); Cohen, 10 Vet. App. at 147; Moreau, 9 Vet. App. at 395.  In fact, the Veteran did not identify any particular in-service stressor with any type of specificity, despite submitting a March 2014 VA Form 21-0781 (Statement in Support of Service Connection for PTSD).  In this regard, in the case of records requested to corroborate a claimed stressful event in service, the Veteran must provide information sufficient for the records custodian to conduct a search of the corroborative records.  38 C.F.R. § 3.159(c)(2)(i).  The Veteran has not done so in the instant case.  Thus, no alleged stressor has been verified.  

The Veteran's service treatment records show that he did report a medical history of frequent trouble sleeping, depression and excessive worry, and stomach pain during his September 1980 separation examination.  However, the Veteran's service treatment records do not reveal any treatment or diagnosis of PTSD or any other acquired psychiatric disorder.  There is also no supporting evidence that he was placed in a halfway house at Ft. Ord in 1978 or 1979 during service.  In any event, as to PTSD, an in-service diagnosis is not required.  See 38 C.F.R. § 3.304(f).  

Post-service, with respect to the criteria of a current diagnosis of PTSD, the threshold consideration for any service connection claim is the existence of a current disability.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303; Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225.  In particular, aside from corroboration of an in-service stressor (which is not present here), current medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV) is required, as well as competent evidence of a nexus between current PTSD symptomatology and his verified in-service stressor.  38 C.F.R. § 3.304(f).  See also Cohen v. Brown, 10 Vet. App. 128 (1997).  

With regard to a current diagnosis of PTSD, a November 2011 private hospital record and private treatment records from Dr. J.P., MD. dated from 2011 to 2015 document a diagnosis of PTSD.  A VA clinic note dated in October 2011 also showed a positive PTSD screen, and a VA mental health progress note dated in February 2012 noted symptoms of PTSD.  

Nevertheless, the evidence of record has not established a nexus between a current PTSD diagnosis and any verified in-service stressor.  See 38 C.F.R. § 3.304(f).  See also Cohen v. Brown, 10 Vet. App. 128 (1997).  As noted above, there is no verified in-service stressor.  In addition, the November 2011 private hospital records indicated that the Veteran has experienced PTSD with related symptoms, such as anxiety, nightmares, and flashbacks, subsequent to an April 2007 post-service traumatic brain injury (TBI) from a tanker explosion.  Numerous other SSA, private, and VA treatment records also rendered psychiatric diagnoses for the Veteran in the context of his post-service April 2007 TBI.  In a March 2009 SSA disability determination report, the Veteran admitted feeling quite depressed since the April 2007 TBI accident.  He admitted that he thinks about the April 2007 accident frequently and has nightmares about the explosion and the hospitalization.  Thus, to the extent the Veteran has a current diagnosis of PTSD, it has only been associated with a post-service intercurrent cause.  

With regard to lay evidence, lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  The Board must consider the type of condition specifically claimed and whether it is readily amenable to lay diagnosis or probative comment on etiology.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).  In this regard, the Federal Circuit recently held that "PTSD is not the type of medical condition that lay evidence . . . is competent and sufficient to identify."  Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014).  Regardless, the Board acknowledges the Veteran is competent to report psychiatric symptoms both during and after service.  See 38 C.F.R. § 3.159(a)(2); Jandreau, 492 F.3d at 1377 (discussing that Veteran is competent to report a contemporaneous medical diagnosis); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (discussing general competency of a Veteran to report psychiatric symptoms).  

That notwithstanding, in the instant case, the Board has found the Veteran's lay statements are vague and less probative or persuasive than the post-service medical evidence establishing a diagnosis of PTSD as the result of a post-service TBI.  Indeed, those health care providers considered the Veteran's medical history, including his own reports, and relied on their own knowledge, expertise, and training.  The Federal Circuit has held that the Board can favor competent medical evidence over lay statements offered by the Veteran, as long as the Board neither deems lay evidence categorically incompetent nor improperly requires a medical opinion as the sole way to prove causation.  King, 700 F.3d at 1344.  

In summary, the Veteran has not identified any particular in-service stressor; there is no credible evidence corroborating the existence of any in-service stressor; and there is no nexus between the Veteran's current PTSD diagnosis and any in-service stressor.  

Accordingly, the preponderance of the evidence is against the Veteran's claim for service connection for PTSD.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


B. Psychiatric Disorder (other than PTSD)

The Veteran has also attributed his other current psychiatric diagnoses of record to his military service.  He has stated that he had mental health treatment for nervousness and cocaine abuse during service for 14 days in 1978 or 1979 at a halfway house near Ft. Ord, California.  See e.g., the Veteran's reported history in Eliza Coffee Memorial Hospital record dated in November 2011.  He has asserted continuity of symptomatology for psychiatric symptoms since separation from service in 1980, but admitted that he did not seek any mental health treatment from 1980 to 2007.  See January 2003 and January 2009 claims for service connection; March 2010 and June 2015 NODs; June 2013 VA Form 9; and March 2014 hearing testimony at pages 5-9. 

The Veteran meets the first requirement for any service-connection claim - proof of a current mental health disability.  Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225.  In the present case, during the course of the appeal, the Veteran has been diagnosed with depressive disorder, a mood disorder, an anxiety disorder, and a cognitive disorder.  See VA mental health treatment records dated from 2011 to 2015; SSA disability records; and VA psychological examination dated in January 2010 with a May 2015 addendum opinion.  Thus, there is some indication that the Veteran's current symptoms arise from a psychiatric disorder other than PTSD.  As such, in the present case, the Board cannot limit its analysis of the Veteran's claim solely to PTSD.  That is, his claim potentially encompasses psychiatric conditions other than PTSD that are reasonably raised by the record.  

Upon review of the evidence of record, Board finds that the Veteran is not entitled to service connection for an acquired psychiatric disorder other than PTSD.  

The Veteran's service treatment records show that he reported having a medical history of frequent trouble sleeping, depression and excessive worry, and stomach pain during his September 1980 separation examination.  However, the Veteran's other service treatment records do not reveal any treatment or diagnosis of an acquired psychiatric disorder.  There is also no supporting evidence that he was placed in a halfway house at Ft. Ord in 1978 or 1979 during service.  In addition, no psychiatric disorder was objectively found at the Veteran's September 1980 separation examination.  

The term "psychosis" means any of the following disorders listed in Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, of the American Psychiatric Association (DSM-IV-TR): (a) Brief Psychotic Disorder; (b) Delusional Disorder; (c) Psychotic Disorder Due to General Medical Condition; (d) Psychotic Disorder Not Otherwise Specified; (e) Schizoaffective Disorder; (f) Schizophrenia; (g) Schizophreniform Disorder; (h) Shared Psychotic Disorder; and (i) Substance-Induced Psychotic Disorder.  38 C.F.R. § 3.384 (2014).  This definition of a psychosis is effective for claims filed on or after August 28, 2006.  See 71 Fed. Reg. 42,758-60 (July 28, 2006).  

Under 38 C.F.R. § 3.303(b), with an enumerated "chronic disease" shown in service (or within the presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  See also Groves v. Peake, 524 F.3d 1306, 1309 (2008).  As relevant to the current appeal, this list of "chronic diseases" includes psychoses.  See 38 C.F.R. § 3.309(a).  However, none of the Veteran's claimed disorders - a depressive disorder, a mood disorder, an anxiety disorder, a cognitive disorder, or PTSD - are listed as a psychosis under 38 C.F.R. § 3.384.  In fact, in comments accompanying 38 C.F.R. § 3.384, VA specifically excluded major depressive disorder, bipolar disorder, mood disorder with psychotic features, and anxiety disorders from the definition of "psychosis" because they did not conform to the terminology employed in American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV).  See 71 Fed. Reg. 42758-60 (July 28, 2006).  Thus, in the present case, because the Veteran has no diagnosis of a psychosis, he cannot establish service connection for an enumerated "chronic disease" as set forth in 38 C.F.R. § 3.303(b).  See also 38 U.S.C.A. § 1101; 38 C.F.R. § 3.309(a); Walker, 708 F.3d at 1336-37.  

Following his military service, there is also no objective indication of a psychosis within one year of the Veteran' military service in 1980 or 1981.  Thus, the Veteran is not entitled to service connection for a psychosis on a presumptive basis as a chronic disease within one year of service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a), 3.384; Walker, 708 F.3d 1335-37. 

Following his military service, the Board does acknowledge the assertions made by the Veteran that he has had continuity of symptomatology or frequent or persistent symptoms of psychosis or depression or nervousness continuing after his separation from service in 1980.  See March 2010 NOD; March 2014 hearing testimony at page 6.  The Veteran is competent to report observable psychiatric symptoms.  Layno, 6 Vet. App. at 469.  See also 38 C.F.R. § 3.159(a)(2).  However, as previously noted above, his current psychiatric disorders are not a psychosis listed under 38 C.F.R. § 3.384.  Therefore, it follows that the Veteran also may not establish continuity of symptomatology for any chronic disease in lieu of medical nexus, as this avenue to service connection is only available for enumerated "chronic diseases," which the Veteran does not have.  38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1336-37.  

Following his military service, the Board has still considered the relevance of the Veteran's allegations of frequent or persistent symptoms of depression and anxiety continuing after his separation from service in 1980.  However, the Board finds the Veteran's lay assertions regarding continuous or frequent symptoms after his separation in 1980 to be not credible or probative.  See Barr, 21 Vet. App. at 308 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  In this regard, the post-service medical evidence is inconsistent with the Veteran's lay assertions regarding frequent or persistent psychiatric symptoms from the time of his military service.  See Gardin v. Shinseki, 613 F.3d 1374, 1379 (Fed. Cir. 2010); Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (the Board can use inconsistent statements, among other factors, to impeach the credibility of a witness).  The Board emphasizes that contemporaneous evidence can have greater probative value than inconsistent testimony provided by the claimant at a later date.  Curry v. Brown, 7 Vet. App. 59, 68 (1994).

In particular, following service, the Veteran denied having a medical history frequent trouble sleeping, depression or excessive worry, or nervous trouble of any sort during his September 1991 enlistment examination for the Alabama Army National Guard.  A clinical evaluation also found no psychiatric abnormalities at that time.

Moreover, at a February 2008 SSA consultation, the Veteran reported that he had become more depressed and irritable since his April 2007 TBI injury and had difficulty with attention and memory.  

A March 2008 private record from Dr. J.R.H., PhD., noted depressive and anxiety symptoms since the April 2007 TBI.

A February 2009 Cochran Firm letter noted a Dr. Haney also assessed the Veteran with a mood disorder due to the April 2007 TBI.  It was noted that the Veteran had no work restrictions prior to his April 2007 TBI.  

Moreover, a March 2009 SSA disability determination report stated that the Veteran was a poor historian.  It was noted that he had been arrested multiple times mostly for fighting and domestic violence with more frequency after his April 2007 TBI.  He admitted feeling quite depressed since the April 2007 TBI accident.  He admitted that he thinks about the April 2007 accident frequently and has nightmares about the explosion and the hospitalization.  The Veteran applied for disability due to the feeling that he is unable to work from severe headaches and visual, mood, anger, and memory problems since the April 2007 TBI accident.

An official SSA disability determination found that the Veteran was disabled since December 2008 for a cognitive disorder due to the TBI; a mood disorder due to the TBI; and consideration of a personality disorder due to the TBI.  

In addition, a July 2011 private report from Dr. J.P. described the Veteran as having anxiety for the past four years, with no mention of earlier psychiatric problems.

A November 2011 private hospital report noted PTSD, anxiety, nightmares, flashbacks after the Veteran's April 2007 TBI.

A November 2011 VA mental health progress note remarked that the Veteran reported chronic moderate depressed mood ongoing "for several years."  Notably, in this record, the Veteran did not report psychiatric symptoms persisting for decades after separation from service in 1980.  

A February 2012 VA mental health progress note diagnosed depression as result of the April 2007 TBI.  

A July 2012 VA mental health progress note diagnosed depression as result of the April 2007 TBI and the Veteran's "physical limitations."  

A March 2013 VA mental health progress note diagnosed him with depression secondary to the April 2007 TBI.  The Veteran admitted that he had depression since the April 2007 TBI accident.  The Veteran also reported consuming six packs of beer per week.  He was diagnosed with alcohol dependence.  

All of these reports generated for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth in order to receive proper care at the time.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997).  The above medical evidence of record, including VA treatment records, private medical evidence, and SSA disability records, all strongly indicate the Veteran's current psychiatric problems began shortly after his post-service April 2007 TBI accident, as opposed to military service.  Indeed, the Veteran himself also told some of these providers that his symptoms began after the 2007 accident.

The Board acknowledges the Veteran's report that he sustained a previous TBI in a 1970 jeep accident during service.  See October 2011 VA mental health consultation.  However, he also inconsistently reported that he sustained this TBI from a jeep accident during military service in 1987.  See January 2013 VA clinic note.  The Board has considered these reports, but the Veteran's service personnel records confirm that he was not serving on active duty in either 1970 or 1987.  Furthermore, the Veteran has not been consistent on the timeframe of any additional TBI.  The Board finds that he is not a reliable historian on this particular issue.  See Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (notwithstanding the declarant's intent to speak the truth, statement may lack credibility because of faulty memory).  The Board further notes that the Veteran has not been service-connected for any underlying TBI injury.  See May 2013 rating decision.  

With regard to a nexus, there is probative medical evidence of record that clearly weighs against a relationship between the Veteran's present psychiatric disorders and his period of military service.  Holton, 557 F.3d at 1366.  See also 38 C.F.R. § 3.303(a), (d).  Specifically, the Veteran was afforded a VA psychological examination in January 2010 with an addendum opinion in May 2015 from the same VA examiner.  The VA examiner opined the Veteran's mood disorder was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness.  The VA examiner's rationale for this conclusion was that, per the Veteran's report, he sustained a severe head injury during an accident on the job in April 2007.  Since that time, the Veteran noted that he has experienced significant anger/irritability, depression, appetite loss, and sleep disruption.  The VA examiner observed that notes from the Veteran's treating psychologist indicate a diagnosis of mood disorder secondary to TBI.  The Veteran did not report any history of mental health treatment prior to sustaining the April 2007 head injury.

The VA examiner also remarked that the Veteran has been diagnosed with depression secondary to the TBI by his current mental health providers.  The VA examiner considered that the Veteran endorsed some mental health symptoms at separation from service in September 1980, but nevertheless, no mental disorder diagnosis was noted in the service treatment records and no information was located regarding the mental health symptoms the Veteran endorsed.  In fact, the September 1980 separation examination was noted to be normal (for psychiatric problems).  In addition, the VA examiner found that mental health symptoms were not endorsed at the National Guard enlistment examination in September 1991, and the National Guard examination did not reveal any psychiatric abnormalities.  Based on the available information, the Veteran first sought mental health treatment around 2008 (subsequent to his injury on the job in 2007).  The VA examiner concluded that there is no evidence of a chronic persisting mental disorder occurring from the Veteran's service period to the present time.  

The May 2015 VA addendum opinion was thorough, supported by an explanation, based on a review of the claims folder, and supported by the Veteran's in-service and post-service medical records.  There is no contrary medical opinion of record.  

The Board further notes that, since service, the Veteran has also been diagnosed with a history of alcohol abuse, as well as cocaine abuse during and after the time of his military service.  See November 2011 private hospital report; March 2013 VA MH progress note.  However, the Board emphasizes that service-connected disability compensation is precluded for disability or death that is the result of the Veteran's willful misconduct or the abuse of alcohol or drugs.  38 U.S.C.A. § 1131.  See also 38 C.F.R. §§ 3.1(m), (n), 3.301; VAOPGCPREC 7-99 (June 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998).  

The Board does acknowledge the Veteran's lay assertions relating his current psychiatric disorders to his military service.  However, even assuming that a layperson is competent to opine on this medical matter, the Board finds that the specific, reasoned opinion provided by the VA examiner is of greater probative weight than the general lay assertions.  As discussed above, the VA examiner reviewed the evidence of record, including the Veteran's statements and reported history, and provided a rationale supported by the evidence and his own knowledge, training, and medical expertise.  

Accordingly, the preponderance of the evidence is against the Veteran's claim for service connection for an acquired psychiatric disorder other than PTSD.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

Entitlement to nonservice-connected pension benefits is denied.  

New and material evidence not having been submitted as to the claim for service connection for a bilateral eye disorder (claimed as semi-blindness), the claim is denied.

Service connection for an acquired psychiatric disorder, to include PTSD, is denied.  



____________________________________________
J.W. ZISSIMOS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs