Citation Nr: 1754413 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-09 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. 3. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Boal, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1974 to January 1977. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran originally requested a hearing before a Veterans Law Judge for this appeal, but submitted a written withdrawal of his request for a hearing in October 2016. A review of the records reflects the Veteran also has a current psychiatric diagnosis for depression. Accordingly, the Board finds it appropriate to expand the scope of his claim pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Therefore, the Board has recharacterized the issues as reflected on the title page. The issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD is being REMANDED to the Agency of Original Jurisdiction (AOJ) for further development. FINDINGS OF FACT 1. A September 2008 rating decision denied service connection for PTSD on the basis that there was no credible evidence that the claimed stressor occurred and no medical evidence of a nexus between the claimed stressor and the Veteran's claimed disorder. The Veteran did not appeal that decision, or submit new and material evidence within the relevant appeal period. 2. The evidence received since the September 2008 rating decision was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for PTSD. 3. The preponderance of the evidence is against the finding that the has a current diagonosis of PTSD related to active service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for PTSD. 38 U.S.C. §§ 5108, 7104 (2014); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for PTSD has not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.159, 3.303, 3.304(f) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In claims to reopen, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). Upon receipt of the Veteran's claims, VA issued VCAA notice in the form of a February 2010 letter which informed the Veteran of the evidence generally needed to support the claims on appeal. This letter included information regarding the basis of the prior denial and the evidence required to substantiate the underlying claim in compliance with Kent. The letter further provided information on the assignment of an increased evaluation and effective date; what actions she needed to undertake; and how VA would assist him in developing the claims. The notice was also issued to the Veteran prior to the rating decision from which the instant appeal arises; therefore, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the duty to assist in this case, VA has secured or attempted to secure all relevant documentation required by the VCAA or identified by the Veteran. The Veteran's service treatment records, VA treatment records, and any identified private treatment records have all been obtained. The Veteran was afforded several VA medical examination in August 2010. The VA medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disabilities on appeal and is adequate for purposes of this appeal, as it is competent medical evidence pertaining to the existence and etiology of the claimed current disabilities sufficient to decide the claim. The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. All identified and available relevant documentation has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the claims. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326 (a). For these reasons, the Board finds that the VCAA duties to notify and to assist have been met. New and Material Evidence Generally, a final rating decision or Board decision may not be reopened, and a claim based on the same factual analysis may not be considered. 38 U.S.C.A. §§ 7104, 7105. Under 38 U.S.C.A. § 5108, however, "[i]f 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 is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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. § 3.15 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. However, a new theory of entitlement does not automatically reopen a previously denied claim. See Bingham v. Nicholson, 421 F.3d 1346, 1348-49 (2005); see also Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008) (A new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim). In a September 2008 rating decision, the RO denied service connection as there was no evidence of a confirmed diagnosis of PTSD per the DMS, nor was there evidence that the Veteran had PTSD which was incurred in or caused by his service. The Veteran did not file a notice of disagreement with the September 2008 rating decision, nor did the Veteran submit new and material evidence relating to either claim within one year of the September 2008 rating decision. 38 C.F.R. § 3.156. As such, the September 2008 rating decision is final. Evidence of record at the time of the September 2008 rating decision included the Veteran's service medical records and post-service outpatient medical records from March 2008 to August 2008. Pertinent evidence received subsequent to the September 2008 rating decision includes the report of a July 2010 VA examination and additional post-service VA medical records from October 2009 to November 2009. The evidence received since the September 2008 rating decision is new and material. This medical evidence is not cumulative or redundant of the evidence previously of record. Moreover, it raises a reasonable possibility of substantiating the claim as it includes a July 2010 VA examination that provides a DSM diagnosis of PTSD. Accordingly, reopening of the claim of entitlement to service connection for PTSD is warranted. Service Connection for PTSD Having reopened the claim, the Board notes that the RO reopened the claim and considered it on the merits in the August 2010 rating decision. Thus, there is no prejudice in the Board's consideration of this claim on the merits. See Hickson v. Shinseki, 24 Vet. App. 394 (2010) (the Board is prohibited from considering a claim on the merits which has not yet been considered on the same basis by the RO). In order to establish service connection for the claimed disorder, there must be competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran has asserted entitlement to service connection for PTSD. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (DSM); 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. § 3.304(f). The Board notes that the Secretary of VA recently amended the portion of the Schedule for Rating Disabilities dealing with psychiatric disorders and the associated adjudication regulations to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and replace them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). The amended provisions apply to claims that were pending before the Board (i.e., certified for appeal to the Board) on or after August 4, 2014. The instant appeal was certified to the Board in September 2016. Therefore, the updated version of the Schedule for Rating Disabilities applies in the instant appeal. If the evidence establishes 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. See 38 U.S.C. § 1154 (b) (West 2012); 38 C.F.R. § 3.304(d) (2017) (pertaining to combat Veterans). However, if the Veteran did not engage in combat, he can still be service connected for PTSD if a stressor claimed by the Veteran is related to her "fear of hostile military or terrorist activity" and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not 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. 38 C.F.R. § 3.304 (f)(3) (2017). For purposes of this section, "fear 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; 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." Id. A review of the Veteran's service treatment records does not show a complaint or a diagnosis of PTSD in service. On the September 1976 report of medical history the Veteran reported a history of nervous trouble which was described as occasional nervousness; however, upon separation examination he was clinically evaluated as normal for psychiatry. See September 1976 Report of Medical Examination. The Veteran reported being exposed to three different stressors during service. The first stressor the Veteran reported occurred during training at Fort Riley, Kansas. The Veteran reported that he watched another soldier drown while completing a training exercise and the commanding officer ordered the Veteran and the other soldiers who witnessed this to "stand down" and not to help the solider. The next stressor reportedly occurred in Germany. The Veteran reported that a solider was sleeping in a sleeping bag near a tracked vehicle. When the driver went to refuel the track vehicle, the vehicle accidentally ran over the sleeping soldier and killed him. The Veteran reported that he put the soldier's body into a body bag. The third stressor reportedly occurred at Fort Riley, Kansas. The Veteran reported that a soldier on guard duty walked onto a firing range and stepped on a mortar round and was killed. The Veteran reported that he was required to pick up the deceased soldier's body parts. The RO attempted to verify all three stressors but was unable to do so. In December 2013, the RO issued a formal finding of a lack of information required to corroborate stressors associated with a claim for service connection for PTSD and that the stressful events described by the Veteran were insufficient to send to the US Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. The memo concluded that the procedures to obtain this information have been properly followed, and that the stressful events reported by the Veteran were ones which could not be verified by JSRRC. The RO further sent a written request in July 2016 to the U.S. Army Crime Records Center to verify the first reported stressor. The U.S. Army Crime Records Center was unable to verify the claimed stressor since it occurred more than forty years ago, in excess of the records retention period. The RO also attempted to verify the second and third stressors by contacting the Defense Personnel Records Information Retrieval System (DPRIS) in July 2016. The RO received a response from the DPRIS indicating that it researched unit histories and other historical documents available to DPRIS and it could not verify that either stressor occurred. The Board notes that the Veteran's VA treatment records indicate that he sought outpatient treatment for PTSD at VA facilities and that a VA examiner diagnosed Veteran with PTSD in July 2010 based on his reported stressors using the DSM IV criteria. Although there is no diagnosis under the DSM-V, the Board notes that the examiner provided a valid DSM diagnosis using the version of the manual that existed at the time and generally related the condition to the Veteran's reported stressors. Even conceding a diagnosis, however, the Board finds that service connection is not warranted as there is no evidence of combat service or corroborating evidence of an inservice stressor. If the evidence establishes 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) (2017). The evidence does not show that the Veteran engaged in combat with the enemy or that his claimed stressor is combat-related. The Board also notes that a 2010 amendment to the PTSD regulation reduced the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity. However, that part of the regulation is inapplicable to this case, as the Veteran has not claimed that his stressor is related to fear of hostile military or terrorist activity. 38 C.F.R. § 3.304 (f)(3) (2017). Furthermore, the evidence does not show that the Veteran has claimed to have, himself, been the victim of a personal assault. Therefore, the Board finds that the provisions relating to service connection for PTSD based on personal assault are not applicable. Where a determination is made that a Veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, a Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). In such cases, the record must contain service records or other corroborative evidence, which substantiates or verifies a Veteran's testimony or statements as to the occurrence of the claimed stressor. West v. Brown, 7 Vet. App. 70 (1994); Zarycki v. Brown, 6 Vet. App. 91 (1993). In this regard, the Board notes that the Veteran's DD-214 indicates that he served as a track vehicle mechanic and an infantryman and received the National Defense Service medal. There is no indication on the Veteran's DD-214 that the Veteran served overseas. Likewise, the Veteran's personnel file does not reflect any overseas or foreign service. Significantly, as one of the stressors reportedly occurred in Germany, and there is no evidence that the Veteran served in Germany, that reported stressor is inconsistent with the circumstances of the Veteran's service. Concerning the other stressors, the VA tried on several occasions to corroborate the stressors and the responses from the JSRRC, DPRIS and the Army Crime Records Center were unable to confirm the stressors. Significantly, the Veteran provided his unit assignment and general dates of the incidents but did not know the name of other service members that were killed. In October 2016 the Veteran reported that he had provided all information he had related to his claim. Generalized descriptions of stressors do not lend themselves to meaningful corroboration efforts. The Veteran carries the burden of advancing information about such incidents to enable VA to corroborate them. 38 C.F.R. § 3.159 (c)(2)(i). He has not done so here. Accordingly, without further details or information, the Board finds that the AOJ has fulfilled its duty to attempt to corroborate the stressors using the information it had and was unable to do so. While a lay witness is competent to testify as to the occurrence of an in-service injury or incident where that issue is factual in nature, the Board finds that the lay statements submitted by the Veteran do not constitute competent evidence of the Veteran's claimed stressors. West v. Brown, 7 Vet. App. 70 (1994); Zarycki v. Brown, 6 Vet. App. 9 (1993). In sum, the only available evidence of the claimed stressors is the testimony from the Veteran himself. Regardless of the credibility of the Veteran's statements, they are not sufficient to legally establish the occurrence of the alleged stressor(s). Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). To establish the occurrence of the alleged stressor that is not related to combat or a personal assault of the Veteran or fear of a hostile military or terrorist act, the record must contain service records or other corroborative evidence substantiating or verifying the Veteran's testimony or statements. No such evidence exists in this case. West v. Brown, 7 Vet. App. 70 (1994); Zarycki v. Brown, 6 Vet. App. 91 (1993). The Board does not doubt that the Veteran is sincere in his claim. Although the claims file includes a diagnosis of PTSD, a diagnosis alone does not constitute sufficient evidence for the grant of service connection. No verified stressor exists. Thus, service connection for PTSD is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for PTSD is denied. 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been received, the reopening of the claim of entitlement to service connection for PTSD is granted. Entitlement to service connection for PTSD is denied. REMAND Unfortunately, the Veteran's appeal for entitlement to service connection for an acquired psychiatric disorder must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide this claim so that he is afforded every possible consideration. In short, VA treatment records during the period on appeal show that the Veteran was diagnosed with depression and some of these treatment records relate the depression to the Veteran's general medical condition. Furthermore, as noted above, on the report of history completed at separation the Veteran reported a history of occasional nervousness. The 2010 VA examination did not diagnose depression and therefore did not provide an opinion as to the etiology of this condition. As the Veteran had a diagnosis during the appeal period, however, further development is required to determine the nature and etiology of the condition. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for another VA examination to determine and clarify the nature and etiology of the Veteran's psychiatric disorder other than PTSD, to specifically include depression. The claims file should be made available to the examiner for review. The examiner should offer an opinion as to the following: a) For each psychiatric disability entity other than PTSD diagnosed (including depression), opine whether such diagnosis is at least as likely as not (a 50 percent or better probability) etiologically related to the Veteran's service. The examiner must comment on the September 1976 report of medical history in which the Veteran reported a history of occasional nervousness. b) For each psychiatric disability entity other than PTSD diagnosed (including depression), opine whether such diagnosis is at least as likely as not (a 50 percent or better probability) etiologically related to any of the Veteran's service-connected disabilities. c) For each psychiatric disability entity other than PTSD diagnosed (including depression), opine whether such diagnosis is at least as likely as not (a 50 percent or better probability) aggravated by any of the Veteran's service-connected disabilities. A complete rationale for all opinions must be provided. 2. Following the completion of the foregoing, and any other development deemed necessary, the AOJ should readjudicate the Veteran's claim. The AOJ should then provide the Veteran and his representative with a supplemental statement of the case, and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs