Citation Nr: 1642964 Decision Date: 11/09/16 Archive Date: 12/01/16 DOCKET NO. 13-12 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for a lung disorder (claimed as lung cancer) to include as secondary to Agent Orange exposure. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and anxiety disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1969 to March 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. By this rating action, the RO, in part, confirmed and continued its previous denials for service connection for PTSD and lung disability. The Veteran appealed the RO's adverse determination to the Board. The Veteran did not perfect an appeal of a claim of service connection for a skin disorder which he had initiated with the other appealed issues. Hence this matter is not before the Board. The Veteran's claim of entitlement to service connection for an acquired psychiatric disorder includes any current psychiatric disorder that is reasonably encompassed by his reported symptomatology. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In the instant claim, the Veteran has continued to seek service connection for a mental disability to include PTSD, as due to events he experienced during military service, notably having been exposed to hostile combat conditions including exposure to rockets and mortars while serving in Vietnam. See Stressor Stmt Correspondence received in VBMS on July 15, 2004. Although the RO denied service connection for PTSD in September 2004, a liberalizing July 2010 amendment to 38 C.F.R. § 3.304 (f) (2015) creates a new factual basis for adjudicating the claim for service connection for PTSD. See Ervin v. Shinseki, 24 Vet. App. 318 (2011); see also 75 Fed. Reg. 39843 (Jul. 19, 2010). Therefore, the Veteran's claim for an acquired psychiatric disorder, to include PTSD will be reviewed on a de novo basis as opposed to a new and material evidence basis. Ervin v. Shinseki, 24 Vet. App. 318, 320-21 (2011) (discussing a "liberalizing" amendment to 38 C.F.R. § 3.304 (f) that allows, in some circumstances, for a veteran's lay testimony to establish the occurrence of a claimed stressor so long as a VA psychiatrist or psychologist confirms that the testimony is sufficient to support a PTSD diagnosis and that symptoms are related to that stressor). The lung disorder claim will be adjudicated on a new and material basis. FINDINGS OF FACT 1. By a final September 2004 rating action, the RO most recently denied service connection for a lung disability because there was no evidence of a nexus between the Veteran's diagnosed lung disability and his period of military service. 2. New evidence received since the final September 2004 rating decision is either duplicative or not pertinent to the lung disability and fails to relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a lung disability. 3. The Veteran has not been diagnosed with PTSD nor has been shown by objective evidence to have any currently diagnosed psychiatric disability that has been manifested as a result of active service, including due to conceded in-service stressors. CONCLUSIONS OF LAW 1. The September 2004 rating decision, wherein the RO denied service connection for a lung disability, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104 (a), 20.200, 20.202 (2015). 2. New and material evidence has not been received to reopen the claim for service connection for a lung disability. 38 U.S.C.A. §§ 5103, 5013A, 5107, 5108, 7105 (West 2014); 38 C.F.R. §§ 3.156 , 3.159, 20.1103 (2015). 3. The criteria for establishing service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. Proper VCAA notice must inform the claimant of any information and 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)(1). In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a March 2011 letter, sent prior to the May 2011 rating decision, advised the Veteran of the evidence and information necessary to substantiate an increased rating claim, of his and VA's respective responsibilities in obtaining such evidence and information, and of the process by which disability ratings and effective dates are assigned. Relevant to the duty to assist, the Veteran's VA treatment records and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide this pending appeal. Additionally, he was afforded a VA examination in April 2011 to address the etiology of his claimed PTSD, the reports of which are responsive to the questions posed and therefore adequate for adjudication purposes. In regards to the lung disorders claim, no examination is necessary as no new evidence to reopen the claim was submitted. Thus, the Board finds that VA has fully satisfied the duty to assist, and the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran seeks to reopen a previously denied claim of service connection for a lung disability secondary to Agent Orange exposure. He contends that he received surgery to treat lung cancer due to his exposure to Agent Orange. Service connection for a lung disorder claimed as cancer was denied in prior multiple rating decisions. The first rating decision dated in December 1996 denied service connection for lung cancer secondary to Agent Orange exposure, finding that the veteran has submitted no evidence showing a diagnosis of lung cancer. This rating noted medical tests in 1986 showing a chronic granuloma but no diagnosis of lung cancer. The service treatment records (STRS) were not reviewed in this rating. The following month a January 1997 rating confirmed receipt of the STRs and noted that they were negative for the claimed lung cancer. The most recent rating of September 2004 denied service connection for a "lung condition," noting that STRS showed no treatment for any chronic lung condition and that no current medical evidence was furnished to show a lung disorder that is the result of exposure to Agent Orange. The Veteran did not appeal these ratings, nor was any new and material evidence received within one year following any prior decision. See 38 C.F.R. § 3.156 (b) (2015). Thus, the rating decisions became final, most recently in September 2004. In February 2011, the Veteran sought to reopen his previously denied claim for service connection for a lung disability. See Fully Developed Claim form received February 10, 2011. A finally decided claim may be reopened if the claimant presents new and material evidence with respect to a claim which has been previously denied and which is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. If the claim is so reopened, it will be reviewed on a de novo basis. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273 (1996); 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 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); but cf. Shade v. Shinseki, 24 Vet. App. 110 (2010) (finding that regulations do not require new and material evidence as to each previously unproven element of a claim). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). Evidence received prior to September 2004 included service personnel records confirming service in Vietnam, thus Agent Orange exposure was conceded by the VA. The service treatment records previously before the RO did not show any objective evidence or subjective complaints suggestive of lung problems, including on the June 1968 entrance and February 1971 separation examinations and reports of medical history. See 27 pg STRs at pgs 5-7 and 17-19. The post service evidence received prior to September 2004 included X-ray evidence showing a mass in the lower lobe of the right lung shown in July 2005, along with complaints of a cough, chest pain and shortness of breath diagnosed as acute bronchitis. See 29 pg private medical records received in June 24, 2004 in VBMS at pages 2, 4, 10, 12. The evidence discloses that in May 1986 he was hospitalized and underwent exploratory surgery of thoracotomy and right lower lobectomy to address the findings of abnormal chest X-ray and symptoms of chronic cough suspected to be bronchogenic carcinoma. The chest lesion was biopsied, revealing chronic granuloma with caseating necrosis in the lower lobe of the right lung. See 15 pg private records received in VBMS in September 5, 1996 at page 2. Later, a January 1989 chest X-ray diagnosed status post thoracotomy right lung with no evidence of active parenchymal disease. See 29 pg private medical records received in June 24, 2004 at page 22. Evidence received since the RO's final rating action of September 2004 includes duplicate records of lung treatment leading up to and including the May 1986 surgery. The evidence also includes a January 1985 Agent Orange Registry examination received on March 22, 2011, which disclosed normal examination of the respiratory system but included X-ray findings from January 1985 and April 1985 confirming a small density in the right lower lobe of the lung. The cause of this finding was described as unknown, although granulomatous disease was possible. Such X-ray findings are essentially the same as those noted in July 1985 which triggered the May 1986 surgery. The rest of the evidence received after September 2004 pertains to other medical issues besides lung problems. The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as enabling rather than precluding the reopening of a claim. The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence as to each previously unproven element of a claim. It was indicated that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would force the Veteran to provide medical nexus evidence to reopen the claim so that the Veteran could be provided with a medical nexus examination by VA. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). In determining whether the submitted evidence is new and material, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Having reviewed the evidence the Board finds that the newly received evidence is either duplicative of the prior evidence or is otherwise not pertinent to the claimed lung disorder. Although the chest X-rays attached to the January 1985 Agent Orange examination were not previously before the RO in September 2004, they are duplicative of other X-ray evidence before the RO, and provided an opinion that the causation of such findings was unknown. Such evidence fails to meet the low threshold to reopen the previously denied claim, as it does not raise a reasonable possibility of substantiating the claim. As new and material evidence has not been received to reopen the claim, the claim for entitlement to service connection for a lung disorder is not reopened. II. Service Connection Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection for certain chronic diseases, including psychosis and may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year (or in the case of tuberculosis, three years) from the date of separation from service. 38 U.S.C.A. § 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In addition to the above criteria, claims of service connection for PTSD require medical diagnosis conforming to the requirements of section 4.125(a), an in-service stressor accompanied by credible and supporting evidence that the stressor claimed to be the cause of the disorder occurred in service, and established medical evidence connecting the current disability to the stressor. 38 C.F.R. § 3.304(f); see also 38 C.F.R. §4.125(a); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). If the evidence shows that a veteran engaged in combat with the enemy and the claimed stressor is consistent with the circumstances of service, lay statements alone may be enough to prove the in-service stressor. 38 C.F.R. § 3.304(f)(2). Additionally, a stressor may be proven with lay statements alone if the veteran claims a stressor due to fear of hostile military or terrorist activity, the claimed stressor is consistent with the circumstances of service, and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a PTSD diagnosis and that the veteran's symptoms are related to the claimed stressor. 38 C.F.R. § 3.304(f)(3). In the absence of proof of present disability, there can be no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Veteran is competent to report symptoms and experiences observable by his senses; however, he is not competent to diagnose psychiatric conditions or determine their cause, as this requires specialized medical training and testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The Board finds him credible as his statements are detailed and consistent. The VA has conceded the Veteran's claimed stressors based on to fear of hostile military or terrorist activity via a February 2011 decision, which confirmed his service in Vietnam with a MOS of Field Artillery Repairman and receipt of military awards such as the Vietnam Service Medal and the Vietnam Campaign Medal. Service treatment records contain objective evidence or subjective complaints suggestive of psychiatric problems including on the June 1968 entrance and February 1971 separation examinations and reports of medical history. See 27 pg STRs at pgs 5-7 and 17-19. Post service records contain no evidence of treatment for a chronic psychiatric disorder, nor is there any evidence suggestive of a diagnosed chronic psychiatric disorder. There is some evidence in the 1980s that he received treatment for possible psychiatric symptoms without evidence that such symptoms continued after this time. This includes a January 1985 Agent Orange Registry Examination indicating that he would be referred to a psychiatrist, but with his mental status examination was shown to be within normal limits. In February 1989 the Veteran was apparently seen in Mental Health for neurosis and was prescribed BuSpar. Later the same month he was discontinued BuSpar and substituted with Desyrel due to sleep problems attributed to the BuSpar. Neither subsequent evidence of treatment for nor diagnosis of psychiatric problems is shown thereafter. In April 2011 the Veteran underwent a VA psychiatric disorders examination. He reported no mental health treatment history, although the examiner noted the aforementioned records from 1989 that described his prescription of BuSpar which was changed to Desyrel due to sleep problems. The Veteran did not remember being on these medications in the past and was currently on no psychiatric medications. The examiner indicated it was unclear why he was prescribed this. The Veteran's reported history was unremarkable for any indicators for psychiatric problems either before or during service, other than some alcohol use without incident. He was noted to serve in Vietnam and reported combat experiences from rocket and mortar attacks that landed close by and was in fear for his life from this hostile military activity. He denied any post service treatment or any legal problems. He was working regularly at a job he held for 35 years without any issues. He had been married and divorced four times, but gave no indication that any ended due to psychiatric symptoms. He was currently in a long term relationship and got along with his girlfriend and other family members well. He had social interactions with a motorcycle group and enjoyed riding his motorcycle. He reported some excessive alcohol use but denied any violent or assaultive behaviors or attempts at self-harm. He was able to shop and go to restaurants without any significant emotional distress. Mental status examination was noted to be unremarkable, with no impairment of mood, thought or behavior apparent. He denied delusions, hallucinations, suicidal or homicidal thinking. He performed adequately with personal hygiene and basic activities of living. He was fully oriented with an intact memory. He had no evidence of obsessive-compulsive behavior, panic attacks or abnormal speech. He reported that he is not usually excessively nervous, fearful or anxious. He denied depressed mood and his impulse control is adequate without any severe anger outbursts. He denied sleep problems. The examiner stated that although the Veteran meets the DSM stressor criteria (at the time DSM-IV) for PTSD related to Vietnam combat experiences, he does not meet PTSD symptom criteria. He had no significant problems with war related nightmares nor was he plagued by frequent or significantly upsetting intrusive memories of wartime events. There were no extremely distressing cues or reminders and he reported only minimal avoidance behavior, saying only that he avoids watching war related movies. He did go to the Vietnam Wall each year and confirmed sometimes talking about his wartime events. He disliked watching firework shows close up but could watch them from a distance. He denied any problems with excessive anger or irritability, saying he is not much more angry and irritable than most people. He denied concentration difficulties. The Veteran did note some issues with being jumpy and having a startle response to sudden unexpected loud noises. He had some mild vigilance such as a desire to sit with his back to the wall with no one behind him and where he could see things, but this was deemed by the examiner not to rise to the level of hypervigilance. There was no significant avoidance behavior related to the vigilance and it did not cause him significant distress in his life. The examiner stated that the only symptoms regarding PTSD the Veteran endorsed on the day of the examination were some very minimal avoidance behaviors (war movies) and some startle response and mild vigilance. These symptoms were not enough to warrant a PTSD diagnosis or any other mental health disorder diagnosis. The frequency and severity of the symptoms did not cause him significant distress or impairment in his life. The only diagnosis made was of alcohol abuse and a GAF score was noted to be 75. The examiner opined that based on review of the record, the Board finds that the criteria for service connection for a psychiatric disorder including PTSD have not been met as the Veteran does not meet criteria for a PTSD diagnosis. Having reviewed the evidence the Board finds that service connection is not warranted for any psychiatric disorder to include PTSD. In this case, a stressor has been demonstrated. Indeed, the Veteran served in Vietnam and the April 2011 VA examiner found that a claimed stressor was sufficient to support a diagnosis of PTSD and that the stressor involved fear of hostile military or terrorist activity. 38 C.F.R. § 3.304(f)(3). However, there has been no medical evidence of a diagnosis of PTSD shown in the April 2011 VA examination or any of the other medical evidence. See 38 C.F.R. §§ 3.304, 4.125(a). The examiner, a psychologist, did not find the criteria for PTSD were met based on an interview, clinical examination, and review of the Veteran's history. This determination is supported by the record, as described above. There is no other evidence in the file showing a clinical diagnosis of PTSD. As a result, an essential element of the claim for PTSD is lacking. At this point, even the 38 U.S.C.A. § 1154(b) combat presumption is not operational. Further as noted in the introduction, the Veteran's claim is deemed to encompass any mental health disorder, not just PTSD. Clemons supra. No other psychiatric disability subject to service connection is shown by the competent medical evidence. No psychiatric findings of significance were reported in his 1985 Agent Orange examination. Although he was treated in 1989 for symptoms of neurosis which were treated with medications, no subsequent records showed psychiatric treatment and the Veteran reported no such treatment. The only diagnosis made in the April 2011 VA examination was of alcohol abuse, which is not subject to service connection as the examiner did not relate such abuse to any psychiatric disorder. See 38 C.F.R. § 3.301 (regarding line of duty and misconduct based on alcohol use). The Board assigns the most probative weight to the VA examination report where the Veteran was interviewed, given a clinical examination and the examiner reviewed the file. See Nieves-Rodriguez v Peake, 22 Vet. App. 295 (2008). The Veteran has not contended that he meets the criteria for a diagnosis of any other psychiatric disability. An essential element for the claim of service connection is not met. Shedden, 381 F.3d at 1167, Brammer, 3 Vet. App. at 225. The preponderance of the evidence is against a finding that the Veteran has a current psychiatric disability other than PTSD. Because there is also no diagnosis of PTSD, the preponderance of the evidence is against the claim; reasonable doubt does not arise and the claim is denied. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER New and material evidence having not been received, the petition to reopen a claim of service connection for a lung disorder is denied. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs