Citation Nr: 1751904 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 12-33 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been received with respect to the claim of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. 3. Entitlement to service connection for residuals of a traumatic brain injury (TBI), to include dizziness and disequilibrium. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. E. Griffith, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1973 to November 1974. These matters are before the Board of Veterans' Appeals (Board) on appeal from September 2011 and July 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in August 2017. A transcript of the hearing is associated with the file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The claim of service connection for PTSD was denied in a January 2003 decision by the Board. The Veteran has since submitted new and material evidence. 2. The evidence does not show the Veteran has PTSD that is related to his military service. 3. The evidence does not show the Veteran has a TBI that is related to his military service. CONCLUSIONS OF LAW 1. A June 2006 rating decision confirmed and continued prior denials of entitlement to service connection for posttraumatic stress disorder. This decision became final, but new and material evidence has been received sufficient to reopen the disallowed claim. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.104, 3.156 (2017). 2. The criteria for an award of service connection for posttraumatic stress disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.102, 3.303, 3.304 (2017). 3. The criteria for an award of service connection for a traumatic brain injury have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural duties Neither the Veteran nor his representative has raised any issues with respect to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. New and material evidence Where a claim has been finally adjudicated, new and material evidence is required in order to reopen the previously denied claim. See 38 U.S.C. §5108; 38 C.F.R. §3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending. 38 C.F.R. § 3.156(b). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The Veteran's claim for PTSD was previously denied by the Board in January 2003 on several grounds. The Veteran claimed his PTSD was caused by confinement in the brig, for which he alleges the stressor of being stripped naked, made to stand at attention for hours, and subjected to taunting. The Board found that there was no stressor in active service, because the Veteran had no credible active service after his unauthorized absence. Furthermore, the Board noted that the alleged stressor was not corroborated. The Board also found that the alleged stressor was not of the proper character to result in PTSD. Finally, the Board found there was no current PTSD diagnosis. Subsequent to that Board denial, a June 2006 rating decision continued to deny the claim, primarily due to the absence of a confirmed stressor. Since the last final denial in June 2006, the Veteran has alleged a different stressor, being hit by a chair in service. See VBMS 8/21/17 Hearing Testimony. Additionally, he submitted a diagnosis of PTSD from a VA psychiatrist, Dr. G.K. The diagnosis and different stressor were not previously considered by agency decision makers and directly addresses facts necessary to substantiate the claim. Accordingly, the claim for PTSD is reopened. III. Service connection The Veteran seeks service connection for PTSD and a traumatic brain injury. He believes both conditions were caused when he was hit by a chair while on active duty in May 1974. Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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 may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires (1) medical evidence of a current diagnosis of PTSD, (2) credible supporting evidence that the claimed in-service stressor(s) occurred, and (3) a link between the current diagnosis and the claimed in-service stressor(s). 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). The Veteran is competent to report symptoms and experiences observable by his senses but not to diagnose or assess the etiology of an acquired psychiatric disorder, as this requires specialized training to understand the complexities of psychiatric medicine. See 38 C.F.R. § 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Posttraumatic stress disorder The Board finds that the criteria for service connection for PTSD have not been met. See 38 C.F.R. § 3.303. At his July 2017 hearing, the Veteran testified that while drinking, he was hit with a chair in the head near his eye and was knocked out. At the March 2017 VA examination, the Veteran stated that his PTSD began after being hit by a chair. VA treatment records and a note from the Veteran's psychiatrist, Dr. G.K., show a diagnosis of PTSD. Therefore, a current disability has been shown. Service treatment records (STRs) show that in May 1974, the Veteran reported to sick bay complaining of headache and pain in the left eye, stating he was struck with a chair. The assessment was eye trauma, with the treating provider noting some small flecks of petechiae in the sclerae, a hematoma at the edge of the left orbit. A skull x-ray was negative. The treating provider recommended rest. Thus, resolving reasonable doubt in favor of the Veteran, the Board finds that an in-service personal assault stressor occurred. Regarding the third element of service connection, a link between the Veteran's in-service stressor and PTSD, there are conflicting opinions of record. The Veteran's psychiatrist, Dr. G.K., opined in January 2016 that the Veteran's PTSD started after he was attacked in service and suffered a head injury, referring to the incident in which the Veteran reported being hit by a chair. However, Dr. G.K.'s opinion is less probative, as it is inconsistent with his prior opinions and the Veteran's lay statements, such as from July 2002, December 2005, and January 2011, which refer to the Veteran's incarceration as the stressor for PTSD. In contrast, a VA examiner opined in March 2017 that it was less likely than not that the Veteran's PTSD was incurred in or caused by the claimed in-service event. The examiner noted that although the current claim listed the incident of being hit by a chair as the stressor responsible for PTSD, the Veteran had claimed in earlier reports that his incarceration and alleged mistreatment was the stressor for PTSD. The examiner opined that the stressor would be the situation surrounding his incarceration, which is consistent with the Veteran's statements to previous examiners, such as in August 1997. The examiner's opinion is more probative than that of Dr. G.K., because it is more consistent with Dr. G.K.'s past opinions, the STRs, medical records and the Veteran's lay statements, which until recently claimed the stressor of being incarcerated led to his PTSD. As the preponderance of the evidence is against the claim, entitlement to service connection for PTSD is denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). Traumatic brain injury The Board finds that the criteria for service connection for a TBI or residuals have not been met. See 38 C.F.R. § 3.303. The April 2017 VA diagnosed multiple TBIs. As noted above, STRs show that in May 1974, the Veteran reported to sick bay complaining of headache and pain in the left eye, stating he was struck with a chair. Accordingly, the second element of an in-service incurrence has been met in this case. At a June 2012 TBI examination, the Veteran stated that he has difficulties with decreased sense of taste and smell but denied loss of taste or anosmia. He denied difficulties with any other cranial nerve dysfunction. The Veteran stated that he has had difficulties with disequilibrium, dizziness symptoms weekly lasting 4 or 5 seconds with insidious onset over the last 8 or 9 years that he treats by simply sitting down; he stated that he had not undergone any evaluation or treatment in this regard. In regard to the medical nexus, the June 2012 examiner opined that the Veteran's mental diagnoses were less likely as not related to residuals of TBI. The examiner noted there was no diagnosis of a TBI in service and no other medical records in regard to the alleged condition. The examiner noted that the Veteran has not undergone any evaluation or treatment for any headaches, except for that in May 1974. The examiner opined his dizziness symptoms are not temporally related to any TBI in the military. The examiner noted that the Veteran scored within normal limits on SLUMS mental examination and thus noted no mental or cognitive residuals of a TBI. The examiner's opinion is probative, as it considered the Veteran's lay statements, complete medical history and STRs. The March 2017 examiner opined it was not possible to delineate to which diagnosis problems with memory, concentration, and executive functioning may be attributed. The examiner noted the results of MOCA mental testing fell well below the normal range (15/30) and much lower than the Veteran's performance on the SLUMS testing in June 2012; his performance on the SLUMS testing was within the normal range (28/30). The examiner opined that it appeared that potential cognitive impairment reflected in the veteran's MOCA score has likely become prominent between 2012 and 2017 and may, therefore, be a reflection of age-related decline, TBIs from that time period, or the long-term effects of past, excessive alcohol use. Again, the March 2017 examiner reviewed the claims file and provided a rationale in support of his conclusions. His reasoning explained why it is less likely than not that the current TBI disability is related to active service. This is found to be the most probative evidence of record on this issue. Moreover, while the Veteran may sincerely believe that his TBI is due to service, as a layperson he lacks the capacity to opine as to the complex relationship between present symptomatology and in-service events. Moreover, as a TBI is not a chronic disease under 38 C.F.R. § 3.309(a), an award of service connection based solely on continuity of symptomatology is not permissible. Walker v. Shinseki, 708 F.3d 1331 ( Fed. Cir. 2013). As the preponderance of the evidence is against the claim, entitlement to service connection for a traumatic brain injury is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). ORDER New and material evidence having been received, the petition to reopen the claim for service connection for posttraumatic stress disorder is granted. Service connection for posttraumatic stress disorder is denied. Service connection for a traumatic brain injury and residuals is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs