Citation Nr: 1640270 Decision Date: 10/07/16 Archive Date: 10/19/16 DOCKET NO. 03-20 706 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). 2. Whether new and material evidence has been received to reopen the claim for service connection for right hemicolectomy. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Stephen LoGerfo, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. He died in November 2014. The appellant is his surviving spouse and she was successfully substituted for the Veteran's appeal in December 2015. Although the December 2015 correspondence indicated that the appellant was being substituted for the issue involving the right hemicolectomy, her basic eligibility for substitution applies to all pending claims to include the matter involving service connection for an acquired psychiatric disorder. These matters come before the Board of Veterans' Appeals (Board) from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, for the Veteran's PTSD claim and an October 2011 Rating Decision for the Veteran's right hemicolectomy claim. This matter was initially before the Board in October 2005, when the Board reopened the claim for service connection for PTSD and then denied it on de novo review. The Veteran filed a timely appeal of the Board's decision and, pursuant to a judgment of the United States Court of Appeals for Veterans Claims (Court) dated December 2007, the Board's decision was remanded in accordance with the November 2007 Memorandum Decision. The Board remanded the matter in November 2008, July 2012, and April 2013. When the case came before the Board in December 2013, the Board denied the claim for service connection for an acquired psychiatric disorder. The Veteran filed a timely appeal of the Board's December 2013 decision. In an April 2015 Memorandum Decision, the Court vacated the Board's December 2013 decision and remanded the matter to the Board for further proceedings consistent with the decision. The right hemicolectomy claim comes before the Board from an October 2011 Rating Decision by the RO. A subsequent July 2013 Rating Decision found that the claim continued to be denied because the evidence submitted was not new and material. The Board then remanded both matters back to the RO for further development in December 2015. A Supplemental Statement of the Case was issued in March 2016 that further denied the claims. FINDINGS OF FACT 1. During the appeal period the Veteran does not have PTSD in accordance with DSM-IV or V. 2. The Veteran does not have any other psychiatric disorder that is related to service. 3. The October 2011 rating decision denying service connection for a right hemicolectomy is final. 4. New and material evidence sufficient to re-open the claim for service connection for a right hemicolectomy has not been received. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD have not been met. 38 U.S.C.A. §§ 1101, 1110, 1154, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2015). 2. The evidence received since the October 2011 rating decision is not new and material, and the claim for service connection for hemicolectomy is not reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. 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); 38 C.F.R. § 3.303(a) (2015). A. PTSD The Veteran is seeking entitlement to service connection for an acquired psychiatric disability, to include PTSD. Establishing service connection for PTSD requires specific findings. These are (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in- service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. See 38 C.F.R. § 3.304(f) (2015). The Board finds that the evidence does not support a finding that the Veteran has a PTSD diagnosis that fully meets the DSM-IV or V criteria. Moreover, even if the Veteran does have such a diagnosis, the weight of the evidence is against finding a causal nexus between the current symptomatology and the specific claimed in-service stressor. Prior to 2009, the Veteran had at least 10 acute admissions to mental health treatment. His December 1997 admissions note reported that the Veteran had no psychiatric symptoms until age 30 when he began hearing voices after a motor vehicle accident with loss of consciousness. The Veteran had mental health emergency admissions in November 2009 that reported diagnoses of mood disorder. A few days later, he was examined and diagnosed with poly substance abuse and malingering. The Veteran had a June 2011 VA examination that acknowledged that the alleged in-service stressor was conceded. The examiner noted that the Veteran's account of the events was very "vague and rambling" and without any specifics. The examiner administered several tests that showed significant exaggeration of symptoms and invalid results. The Veteran's reports of symptoms were not considered accurate due to likely malingering. The examiner found that while the Veteran's stressor qualified as a Criterion A event, the Veteran did not meet the full DSM-IV criteria. The Veteran had a May 2013 VA examination that found an Axis I diagnosis for cocaine dependence. The examiner concluded that the Veteran failed to meet the full DSM-IV diagnostic criteria for PTSD. The examiner noted that the Veteran had two previous examinations that failed to diagnose the Veteran with PTSD. Furthermore, the examiner found that the Veteran presented with "atypical PTSD symptoms" such as visual hallucinations of butterflies and frogs. The Veteran also reported auditory hallucinations but was able to follow all conversations to logical conclusions. The May 2013 examiner also considered the Veteran's reported stressor which was that he was shot at by a sniper and witnessed fires burning and people being injured during a riot in Chicago in 1968. The examiner found that the Veteran met Criterion A in that he experienced, witnessed or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others. However, the Veteran did not meet Criterion B because the traumatic event is not persistently re-experienced. The Veteran did not meet Criterion C because there is no persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness. The Veteran did not meet Criterion D because there were no persistent symptoms of increased arousal. Therefore, the Veteran did not meet Criterion E or F in that he did not meet the full criteria for PTSD. The Veteran's May 2013 VA examination was found by the Court to not be sufficiently compliant with the Board's April 2013 remand instructions. Specifically, the May 2013 examiner was asked to provide nexus opinions for any acquired psychiatric disorder diagnosed during the pendency of the appeal. The Court noted that the Veteran had an Axis I PTSD diagnosis in VA treatment records from September 2002. Furthermore, treatment records from February and March 2014 also show a diagnosis of PTSD. Therefore, the Court found that the examination was deficient for not providing a nexus opinions for these diagnoses. The Board will briefly summarize the evidence from February 2002, February 2014 and March 2014 before considering the February 2016 addendum opinion. In February 2002, the Veteran had a PTSD assessment. It was noted that the Veteran had a long-standing history of schizophrenia and substance abuse with some periods of incarceration. The Veteran had multiple admissions to acute psychiatry for substance abuse and suicidal ideation. He has a history of auditory hallucinations. He was admitted to acute psychiatry in 1990 following the death of a friend in a motor vehicle accident and was diagnosed with PTSD at that time. At the February 2002 assessment, the Veteran reported encountering sniper fire in Chicago in 1967 and 1968. He reported symptoms of night sweats, waking after sleeping two hours, flashbacks three to four times a week, intrusive thoughts one to two times a day, irritability, poor concentration and social avoidance. The Board notes that this diagnosis appears to be "by history" only without a review of the Veteran's C-file or any other detailed and reliable history. The Veteran was noted to have "stable PTSD" in September 2013 and March 2014. A March 2014 treatment notes that the Veteran has a diagnosis of "non-military related PTSD" and has active treatment for depression. In April 2014, the Veteran was noted to have diagnoses of PTSD and depression with a history of substance abuse. It was noted that the Veteran had had 18 admissions to acute mental health care from 1993 until 2007 and at least 5 of those admissions were for substance abuse treatment. The Veteran had no current mental health complaints and was alert, calm, cooperation, pleasant and presented with organized thoughts. The Board's December 2015 remand instructions directed the addendum examiner to address the likely etiology of the Veteran's PTSD. The examiner should also consider the Veteran's verified stressor of his unit patrolled the 1968 Chicago riots for the purposes of determining whether exposure to an in-service stressor has resulted in diagnosed PTSD. The examiner was ordered to then opine as to whether it is least as likely as not that the Veteran's PTSD was incurred in or due to the Veteran's active duty service. The VA examiner issued a February 2016 addendum opinion. The examiner noted that he failed to diagnose the Veteran with PTSD or any other mental health diagnosis in March 2013 other than cocaine dependence and cluster B personality disorder traits. The examiner noted that the February 2002 PTSD assessment "failed to adequately assess for all PTSD criteria necessary to make a PTSD diagnosis". Specifically, the examiner noted that a "nexus" between the reported stressor failed to suggest PTSD symptomatology. Furthermore, the examiner reiterated that the Veteran endorsed "atypical PTSD symptoms". The examiner also considered the March 2014 treatment note that indicated a diagnosis for "non-military related PTSD" and notes that a non-military related PTSD diagnosis and post military depressive symptoms appear to have been the focus of the treatment". The examiner further goes to state the Veteran failed to meet the full DSM-V diagnostic criteria for PTSD based on military events and his reported stressor. Finally, the examiner noted that the Veteran's primary psychiatric disorder at the time of the May 2013 examination was related to his history of cocaine addiction and personality disorder traits. The Board is cognizant of the Court's holding that the "current" disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McLain v. Nicholson, 21 Vet. App. 319 (2007). Here, however, the Board finds that the evidence in the record does not support a diagnosis for PTSD that satisfies the DSM-IV or V criteria at any point during the appeal period. Even if a diagnosis is accepted to exist, the evidence does not support a nexus between the claimed stressor and any PTSD symptoms. The May 2013 VA examination clearly outlines that the Veteran does not meet any of the criteria linking his claimed stressor to any current symptoms. Additionally, while the Veteran has had numerous mental health hospital admissions, the Veteran has minimal treatment records to suggest he has PTSD related to his military service. Moreover, his February 2002 PTSD assessment notes that the Veteran was initially diagnosed with PTSD after losing a friend in a motor vehicle accident. Additionally, the 1997 admission note also indicates that psychiatric symptoms began after this motor vehicle accident. This evidence would support the March 2014 treatment note that says the Veteran has a history of "non-military related PTSD". Finally, there is significant evidence of a history of malingering which affects the credibility and weight to be afforded to the Veteran's lay testimony. Therefore, based on the evidence, even if the Veteran has a current PTSD diagnosis for VA purposes, he cannot meet the nexus element for service connection. Finally, the Board notes that the February 2016 addendum opinion diagnosed the Veteran with a history of cocaine dependence and personality disorder traits. These conditions are the primary causes of the Veteran's significant impairments in social and occupational interactions but they are not related to service. Therefore, the Veteran does not have service connection for any other psychiatric disorder. II. New and Material Evidence Historically, the Veteran was denied service connection for hemicolectomy in an October 2011 rating decision. Although the RO denied reopening the Veteran's hemicolectomy in a July 2013 decision, the Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2015). Thus, October 2011 decision became final because the appellant did not file a timely appeal. The claim for entitlement to service connection may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). 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 a claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior 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). Only evidence presented since the last final denial on any basis will be considered in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In determining whether new and material evidence has been received to reopen a claim, the Court has indicated that there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should in reaching a determination on whether the claim should be reopened, the reason for the prior denial should be considered. In essence, at the time of the prior denial, the evidence of record did not establish that a right hemicolectomy surgery in September 2008 was related to service. Since the prior final decision, additional evidence has been added to the claims file. Specifically, there is an October 4, 2011 Statement in Support of Claim that indicates that the Veteran wants to file a claim for "bowel and colon conditions". Furthermore, there are treatment records from the Dallas VAMC from December 6, 2012 until the present. These treatment records are not relevant to the issue of connecting the hemicolectomy to service. Furthermore, this claim was remanded in December 2015 to allow the Appellant and her representative the opportunity to submit any new or material evidence. There is no evidence in the record that is new or material to establishing service connection for the right hemicolectomy condition. As the claim is not reopened, the benefit-of-the-doubt standard of proof does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). III. Duties to Notify and Assist When VA received a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Here, the Veteran was provided with the relevant notice and information in a March 2011 letter. VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, SSA records and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with several VA examinations which, contained a description of the history of the disability at issue; documented and considered the relevant medical facts and principles; and recorded the relevant findings for his psychiatric conditions. Finally, the February 2016 addendum opinion was substantially compliant with remand directives in that it fully answered all the Board's questions with detail and appropriate rationale. ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. The petition to reopen the claim for service connection for residuals of a right hemicolectomy is denied. ____________________________________________ M. Tenner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs