Citation Nr: 1751930 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 14-05 654 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder. 3. Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie Gaston, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1970. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a January 2011 rating decision, by the Indianapolis, Indiana, Regional Office (RO), which reopened the Veteran's claim of entitlement to service connection for PTSD, but denied the underlying claim on the merits. That rating action also denied the claim for a compensable evaluation for bilateral hearing loss. He perfected a timely appeal to that decision. On June 19, 2017, the Veteran appeared at the RO and testified at a videoconference hearing before the undersigned. A transcript of that hearing is of record. Although the RO determined that new and material evidence had been received sufficient to warrant reopening the Veteran's claim of entitlement to service connection for PTSD, the Board must initially determine whether new and material evidence has been submitted regardless of the RO's actions. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The issue has been recharacterized as reflected on the cover page given the nature of the Veteran's claim and the medical evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a claim pursued by a claimant includes any diagnosis that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). FINDINGS OF FACT 1. By a rating action in September 2008, the RO denied the Veteran's claim of entitlement to service connection for PTSD; the Veteran did not appeal, nor was new and material evidence submitted within the appeal period. 2. The evidence received since the September 2008 rating decision is new and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 3. The Veteran does not have a current medical diagnosis of PTSD or any other acquired psychiatric disorder. 4. At the June 2017 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew from appeal the claim of entitlement to a compensable rating for bilateral hearing loss. CONCLUSIONS OF LAW 1. The September 2008 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. § 20.1103 (2017). 2. Evidence received since the final September 2008 rating decision is new and material; therefore, the criteria for reopening the claim of entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156 (a), 20.1103 (2017). 3. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 4. The criteria for withdrawal of an appeal by the Veteran as to the issue of entitlement to a compensable rating for bilateral hearing loss have been met. 38 U.S.C. § 7105 (b) (2), (d) (5) (2012); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist. With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. General Provisions Relevant to Reopening claims and Service connection. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). "To establish a right to compensation for a present disability, 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) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, the law provides that, where a veteran served ninety days or more of qualifying service and a psychosis or organic disease of the nervous system becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. To establish entitlement to service connection for PTSD, the record must contain the following: (1) medical evidence diagnosing PTSD; (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). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125 (a), which mandates that, for VA purposes, all mental disorder diagnoses must conform to the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders, 4th ed. (DSM-IV). 38 C.F.R. § 3.304 (f). The Board recognizes that the Veterans Benefits Administration is now required to apply concepts and principles set forth in DSM-5; however, the Secretary of VA has specifically indicated that DSM-IV is still to be applied by the Board for claims pending before it. 79 Fed. Reg. 45094 (Aug. 4, 2014). According to the criteria, a diagnosis of PTSD requires exposure to a traumatic event, or stressor. A stressor involves exposure to a traumatic event in which the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, and the person's response involved intense fear, helplessness, or horror. The sufficiency of a stressor is a medical determination, and the occurrence of a claimed stressor is an adjudicatory determination. Id. Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112, (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). III. Factual background & Analysis-Claim to reopen S/C-PTSD. The Veteran is seeking to establish service connection for an acquired psychiatric disorder, including PTSD. Historically, the Veteran initially filed a claim for service connection for PTSD (VA Form 21-4138), in June 2008. At that time, the record included the Veteran's DD Form 214, which indicates that his military occupational specialty was as a truck mechanic. He was awarded the National Defense Service Medal, the Vietnam Service Medal with two Stars, the Vietnam Campaign Medal, the Air Medal with one Star, the Combat Air Crew Insignia with 3 Stars, and the Republic of Vietnam Cross of Gallantry with Palm. In a statement in support of claim for PTSD (VA Form 21-0781), dated in June 2008, the Veteran indicated that he was stationed in DaNang in Vietnam. He reported that he was a window gunner; they covered the tanks from the air in helicopters. The Veteran related that there were actually too many dead bodies in piles to count. The Veteran indicated that they were subjected to the fighting, explosions, moving of troops and seeing other helicopters blown up in the air. He also reported that he recalled the smell of the injured and dead bodies. On the occasion of a VA examination for evaluation of psychiatric disorder in July 2008. It was noted that the Veteran served in Vietnam for approximately 11 months from 1969 to 1970. It was also reported that his MOS was as a certified aircraft welder; his primary duties involved working on the helicopter base. It was also noted that the Veteran was subsequently trained as a gunner and he would fly out every other day as a gunner on a helicopter. The Veteran reported seeing wounded and dead people because he flew medevac; they would take the wounded to the hospital. The Veteran reported an incident when their helicopter got shot and they had to land; he and a friend set up the perimeter around the helicopter while they repaired it. It was noted that he received no mental health treatment while in the military and he has not received any inpatient or outpatient mental health treatment since leaving military service. It was noted that on the day of the examination, the Veteran was seen in the medical clinical and a PTSD screen was reported to be negative. He did not report any symptoms of PTSD. The Veteran reported good psychosocial functioning in all areas. The Veteran indicated that he enjoyed being by himself; he stated that he's alone but he's not lonely. He likes to keep busy; he does a lot of things socially. The Veteran related that he was not worried about his health. Following a mental status examination, the examiner stated that the Veteran did report a stressor that meets the PTSD stressor criteria; however, he did not report psychological symptoms that meet the criteria. He did not report any significant psychosocial impairment. The Veteran was not given a diagnosis of PTSD and he was not diagnosed with any other mental disorder that could be seen to be related to military service. The examiner indicated that while the Veteran has a stressor which meets the DSM-IV criteria for PTSD, he did not have any psychological or psychosocial symptoms that meet the criteria for a diagnosis of PTSD. By a rating action in September 2008, the RO denied service connection for PTSD, based on a finding that there was no documentation of any treatment for or diagnosis of PTSD since Veteran's discharge from active duty, and the current evidence did not show a confirmed diagnosis of PTSD that began in or was caused by his military service. The Veteran did not file a notice of disagreement (NOD) with that determination within one year of the notification thereof in October 2008. Consequently, as no timely NOD or new and material evidence was received during the appeal period following the October 2008 notice of determination, that decision became final. See 38 C.F.R. § 3.156 (b); Buie v. Shinseki, 24 Vet. App. 242, 252 (2010); 38 C.F.R. §§ 20.200, 20.201, 20.1103 (2017). New and material evidence is therefore required to reopen the claim of service connection for PTSD. See 38 U.S.C. § 5108 (West 2014); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. Essentially, the unestablished fact necessary to substantiate his claim was a current psychiatric disability. The Veteran's request to reopen his claim of service connection for PTSD (VA Form 21-4138) was received in June 2010. In statements in support of the claim, dated in November 2010, the Veteran maintained that the helicopter trips in and out of Vietnam with the supplies, the explosions, and seeing dead soldiers and body parts all around him caused him great mental trauma. Of record is the report of a VA examination conducted in December 2010, at which time he reported flying on hundreds of air missions and served as a door gunner; in fact, he reported being shot down once. He reported seeing dead and injured soldiers in the course of duties and that he was exposed to mortar fire. The Veteran related that he has been depressed for quite some time. The Veteran related that he had a tendency to keep his feelings to himself and did not feel the need to seek counseling. The Veteran indicated that he considered suicide a year ago. He stated that he has felt depressed forever because of things that have happened. It was reported that the Veteran's claimed stressor is related his fear of hostile military or terrorist activity. The pertinent diagnosis was depressive disorder NOS. The examiner noted that the Veteran was comprehensively assessed for the presence of PTSD and while he reported combat exposure during which he reported fear of hostile military activity, the only persistent symptoms related to his combat exposure include intrusive memories, social detachment, tending to avoid thoughts about military stressors, some frustration dealing with people. The examiner stated that the Veteran showed fairly prominent symptoms of mild depressed mood over the past year or so. A DBQ examination was conducted in May 2016. At that time, the examiner noted that the Veteran was diagnosed with depression in December 2010 that was related to situational stressors. The examiner noted that while the Veteran experienced stressors fitting PTSD criteria, he did not have significant symptoms for that diagnosis. The examiner related that there was no Axis I diagnosis. The examiner noted that the Veteran was not on any mental medications and had no mental health issues. The examiner further noted that the Veteran was administered the MCM I-III, and testing did not support PTSD or the diagnosis of depression. The examiner related that testing did note some anxiety, but the Veteran did not report such as to warrant a diagnosis. The examiner stated that, given the Veteran's history and presentation and testing, he did not appear to have a mental disorder at this time. At his personal hearing in June 2017, the Veteran's representative again reported that he served in the Marine Corp from 1966 to 1970, and noted that he was a window gunner and he completed over 300 missions. It was reported that the Veteran recalled seeing whole bodies and parts of bodies stacked. The Veteran also reported that his helicopter was shot at during some missions; as a result, he feared for his life every time he left the ground. The Veteran reported seeing many people killed, some of them in front of him. He also flew the medivac which was the mission to pick up dead bodies. The Veteran described scenes where the skin was falling off their bones. The Veteran testified that the stressors from Vietnam affect his everyday life; he stated that he does not leave his house and he does not have any friends. It was reported that the stressors have affected his relationships; he has never been married, and he does everything by himself. The Board finds that the evidence received since the September 2008 rating decision is both new and material. In the instant case, the additional evidence includes a current diagnosis of a psychiatric disorder. The record now contains the result of a December 2010 VA examination which contains a diagnosis of depressive disorder. This evidence is new, as it was received by VA after the issuance of the September 2008 rating decision and could not have been considered by prior decision makers. Moreover, it is material as it addresses the existence of a current psychiatric disorder based on the claimed in-service stressors, which were elements of service connection that the September 2008 rating decision found lacking. In making this determination, the Board must presume that newly submitted evidence is credible. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence described above is enough to reopen under the low threshold of Shade. The claim of entitlement to service connection for an acquired psychiatric disorder (to include PTSD and depressive disorder) is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). IV. Legal Analysis-S/C-PTSD and other Acquired Psychiatric Disorders. Having reopened the claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, the Board will now consider the claim on its merits. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) (under the criteria of DSM-IV), a link, established by medical evidence, between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 4.125 (2017). VA considers diagnoses of mental disorders in accordance with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV). The Board notes that in August 4, 2014, VA issued an interim rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to refer to certain mental disorders in accordance with DSM-V. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction. The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran claims service connection for PTSD. Specifically, he attributes his claimed PTSD to incidents that occurred while he served in Vietnam as a gunner on a helicopter. The Veteran's reported stressors have been corroborated and confirmed. However, the most probative evidence of record indicates that the Veteran does not have a current diagnosis of PTSD sufficient for VA compensation purposes. With respect to the first element of service connection, the record shows that the Veteran does not have a current diagnosis of PTSD or any other acquired psychiatric disorder. Following a VA examination in December 2010, the VA examiner stated that the Veteran shows fairly prominent symptoms of mild depressed mood over the past year or so; as a result, he gave him a diagnosis of depressive disorder. However, VA progress notes reflect that depression screening performed in March 2012, March 2013, May 2015 and June 2016, was consistently negative. Moreover, following a subsequent DBQ examination in May 2016, the examiner reported that while the Veteran experienced stressors fitting PTSD criteria, he did not have significant symptoms for that diagnosis. The examiner related that there was no Axis I diagnosis. The examiner noted that the Veteran was not on any mental medications and had no mental health issues. The examiner noted that the Veteran was administered the MCM I-III, and testing did not support PTSD or the diagnosis of depression. The examiner related that testing did note some anxiety, but the Veteran did not report such as to warrant a diagnosis. Given the Veteran's history, presentation and testing, he does not appear to have a mental disorder at this time. Based on the foregoing, the Board finds that the preponderance of the evidence is against finding that the Veteran had PTSD or any other acquired psychiatric disorder at any point during the period on appeal. The Board notes that the VA examinations in July 2008 and May 2016 indicated why the Veteran's symptoms did not meet the diagnostic criteria set forth in the DSM, and the Veteran has not otherwise been shown to be receiving care for PTSD or any other acquired psychiatric disorder. The Board acknowledges that findings of the December 2010 VA examination which reported a diagnosis of depressive disorder. However, the preponderance of the evidence of record strongly appears that the December 2010 examination and the resulting diagnosis is an outlier which is completely at odds with the remainder of the medical evidence of record. Based on the entire record, the Board gives the examination report and diagnosis little probative weight. The Board has taken into account the lay statements and testimony that the Veteran has presented in this claim. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a diagnosis and etiology of an acquired psychiatric disorder, to include PTSD, falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report the onset and symptoms, any actual diagnosis of PTSD or any other acquired psychiatric disorder requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, service connection for PTSD specifically requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) (2017). While the Board is sympathetic to the Veteran's stated symptoms, the probative evidence of record shows a lack of current diagnosis. To the extent that the Veteran himself believes that he has current PTSD that is due to his period of service, as a lay person, he is not competent to give such diagnosis. Therefore, the Board concludes that the medical evidence, which reveals no findings of PTSD or any other acquired psychiatric disorder, is of greater probative value than the lay contentions of the Veteran. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110; 1131. In the absence of proof of present disabilities there can be no valid claims. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). The Board concludes that, because the first element of service connection for an acquired psychiatric disorder, to include PTSD, was not met, it is unnecessary to analyze the other elements, as all elements must be present in order for service connection to be granted. Accordingly, the appeal is denied. There is no reasonable doubt to be resolved as to this issue. V. Legal Analysis-Increased rating for bilateral hearing loss. Generally, the Board's jurisdiction is predicated upon an appeal having been filed on an issue, or issues, in controversy. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.101. An appeal consists of a timely filed notice of disagreement (NOD) in writing and, after a statement of the case (SOC) has been furnished, a timely filed substantive appeal (e.g., a VA Form 9 or equivalent statement). 38 U.S.C. § 7105; 38 C.F.R. § 20.200. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2017). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204 (c) (2017). At his personal hearing in June 2017, the Veteran stated that he wished to formally withdraw the appeal of the claim of entitlement to a compensable rating for hearing loss. As the Veteran has withdrawn the appeal as to this issue, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue on appeal, and it is dismissed. (CONTINUED ON NEXT PAGE) ORDER New and material evidence having been submitted, the claim of entitlement to service connection for PTSD is reopened. Service connection for an acquired psychiatric disorder, to include PTSD, is denied. The appeal for entitlement to a compensable rating for bilateral hearing loss is dismissed. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs