Citation Nr: 1800534 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-15 134 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and generalized anxiety disorder. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and generalized anxiety disorder. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Sean Raymond, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to February 1970. This appeal is before the Board of Veterans Appeals (Board) from a July 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file. The Board has recharacterized the claim to encompass any acquired psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) FINDINGS OF FACT 1. The Veteran did not appeal or submit evidence within one year of an April 2008 rating decision that denied to reopen service connection for an acquired psychiatric disorder. 2. Evidence received since the April 2008 rating decision relates to an unestablished fact, is not cumulative or redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim sought to be reopened. 3. The Veteran does not have an acquired psychiatric disorder that was incurred in or otherwise related to service. CONCLUSIONS OF LAW 1. New and material evidence has been received since the April 2008 rating decision to reopen a claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and generalized anxiety disorder. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.156(a), 3.303, 3.304(f) (2017). 2. The criteria for service connection for an acquired psychiatric disorder, to include PTSD and generalized anxiety disorder, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304(f) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA) obligates VA to certain notice and assistance procedures to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA provided required notice in November 2010 and June 2011 VCAA letters. VA obtained updated VA medical records. VA conducted an adequate February 2011 examination of the Veteran's claimed disability. Therefore, VA has satisfied its duties to notify and assist, and adjudication of this appeal does not prejudice the Veteran. II. New and Material Evidence In April 2008, the RO denied to reopen a claim for service connection for PTSD. The Veteran neither initiated an appeal nor submitted additional evidence for the claim within one year of the April 2008 rating decision, and thus, the April 2008 rating decision became final. See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242 (2010). New and material evidence must be presented or secured to reopen a finally disallowed claim. New evidence is evidence not previously submitted to VA. Material evidence is 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for PTSD specifically requires (1) medical evidence establishing a diagnosis of the condition in accordance with the provisions of 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). At the time of the April 2008 rating decision, the RO determined that while the Veteran had submitted some evidence that was new, such evidence was not material, as it did not relate to an unestablished fact necessary to substantiate the claim. Specifically, the RO found that the Veteran had not submitted evidence to show that the Veteran had a psychiatric disorder related to service. Accordingly, the Board must determine whether new and material evidence has been received since the April 2008 rating decision became final. In October 2010, the Veteran submitted another claim for service connection for PTSD and generalized anxiety disorder, which was reopened and denied by the RO in July 2011 and subsequently appealed to the Board. To the extent that the RO may have reopened and adjudicated the claim on its merits in its July 2011 rating decision or 2014 Statement of the Case, the Board must address the issue of the receipt of new and material evidence in the first instance to determine whether it has jurisdiction to adjudicate the underlying claim. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007). With his October 2010 claim, the Veteran submitted a statement attesting to new in-service stressors such as sleeping in a bed that occupied a position that was previously subjected to a rocket attack, and witnessing or hearing about a helicopter crash that killed ten soldiers. Such evidence is new and material, especially in light of a July 2010 liberalization of the evidentiary standard for establishing an in-service stressor for PTSD based on fear of hostile military activity, as it relates to the unestablished fact of whether any acquired psychiatric disorder may be related to service. See 75 Fed. Reg. 39,843 (July 13, 2010); 38 C.F.R. § 3.304(f). Consequently, the Board finds new and material evidence has been receieved to reopen a claim for service connection for an acquired psychiatric disorder. III. Service Connection The Board may now adjudicate the claim on appeal without further RO action, as the RO, in its July 2011 rating decision, reopened and adjudicated the claim on the merits. Hickson v. Shinseki, 23 Vet. App. 394 (2010). The Veteran has contended he suffers from an acquired psychiatric disorder due to his service in Vietnam as a helicopter door gunner. The Veteran has also contended a fear of mortar and rocket attacks. In response to the Veteran's October 2010 claim for PTSD and generalized anxiety, the RO reopened the claim and scheduled a psychiatric examination. The February 2011 VA examiner found the Veteran did not meet the criteria for a diagnosis of PTSD, even in light of any combat experience or fear of hostile military activity stressor. The February 2011 VA examiner further found an over-endorsement of symptoms suggestive of PTSD. The examiner found no objective evidence of social, occupational, academic, or daily living impairment based on a mental disorder other than substance related disorders. The examiner established a diagnosis of mood disorder due to hypothyroidism and cannabis, and not due to a fear of hostile military or terrorist activity. The examiner noted previous diagnoses of anxiety disorder but did not find a current diagnosis of anxiety disorder. Service treatment records are devoid of any complaints, treatment, or diagnoses of acquired psychiatric disorders. The Board notes several records generated prior to the appeal period that offer various diagnoses of psychiatric disorders and potential etiologies. An October 1998 VA psychological examination report reflects a diagnosis of adjustment disorder with mixed anxious and marijuana abuse. The examiner opined this disorder as due to chronic pain due to non-service connected spinal column and disc disease. A February 1998 letter from a private doctor reflects the doctor had been treating the Veteran for anxiety and depression, in his opinion related to service; however, the doctor does not appear to be a psychologist or psychiatrist. An August 1978 treatment note reflects a psychiatrist's opinion that the Veteran had anxiety disorder due to his military service, and diagnosed PTSD, albeit with no discussion of whether the Veteran met the various criteria for PTSD. See 38 C.F.R. § 3.304(f); 4.125(a). VA treatment records from February 2000, onward, are devoid of any medical opinion as to whether the Veteran's psychiatric disorders were actually caused by service, save for a May 2006 VA treatment record that reflects a treating psychiatrist's opinion that the Veteran, "after serving in [Vietnam] has a very severe problem with PTSD which has greatly influenced his life." However, the May 2006 VA treatment record does not reflect a diagnosis of PTSD based upon applicable Diagnostic and Statistic Manual (DSM) criteria as required by 38 C.F.R. § 3.304(f); 4.125(a). Rather, this psychiatrist's finding of PTSD appears to be incorporated and assumed based upon historical notations of PTSD, to include those discussed above, that do not necessarily constitute sufficient diagnoses of PTSD for VA purposes. By and large, the Veterans psychiatric treatment records are focused primarily on treatment for the Veterans reported symptoms, to include those stemming from various social and occupational stressors in the Veterans life, and do not delve into any service etiologies beyond occasional noting the Veterans self-reported links to service. In particular, a November 2010 VA psychiatric treatment note reflects the Veteran reported, "he would like to have on record that he has anxiety and related stress due to past experiences." However, the attending physician provided no opinion on the matter. While the Board has reviewed all evidence of record, and accounted for prior reports of psychiatric disorder diagnoses and opined etiologies, of chief concern is whether the Veteran suffers from a current disability due to service during the pendency of the current appeal period. To that end, the February 2011 serves as the most competent, probative evidence of record, and supports a finding that the Veteran neither has PTSD, nor an acquired psychiatric disorder incurred in or otherwise related to service. The Board acknowledges the Veteran's continued assertions that he suffers from an acquired psychiatric disability due to service, and that he is competent to attest to symptoms; however, the Veteran may not provide competent testimony as to the diagnosis or etiology of such a disability. See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that "PTSD is not the type of medical condition that lay evidence . . . is competent and sufficient to identify."); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (lay evidence is not always competent evidence of a diagnosis or nexus-particularly where complex medical questions or the interpretation of objective medical tests are involved). At the June 2017 Board hearing, the undersigned informed the Veteran that a current and competent medical opinion linking a current acquired psychiatric disorder to service would likely be necessary to substantiate the claim in light of the adequate February 2011 VA examination weighing against such a finding. The undersigned afforded the Veteran 60 days to obtain and submit such evidence. The Veteran stated that he would seek such an opinion. The Veteran has not submitted any such evidence as of the date of this decision. At the hearing, the Veteran also stated that he has seen a mental health doctor on a regular basis since 2004. He stated the doctor was the director of a VA psychiatric department. When queried by the representative as to whether the Veteran was aware if the doctor had diagnosed the Veteran with PTSD, the Veteran replied, "No. I don't know what exactly[ ]he's talking about." The Veteran then proceeded to assert that he did not talk about Vietnam because he wanted to keep it off his mind. The undersigned attempted to elicit whether the Veteran currently undergoes mental health treatment relevant to his claimed psychiatric disorders as related to service, in order to determine whether there might be any outstanding, relevant records beyond those already submitted. The Veteran's responded vaguely as to whether the doctor was a mental health professional ("I mean, he's just more of a medical doctor than he is[ ]a mental health doctor."). The Veteran also made conflicting statements as to whether he underwent mental health treatment with the unnamed doctor at all such as, "My mental health doctor, he talks to me more about my physical health than anything else. He even authorized me to get a laxative." The Board finds such statements do not trigger the duty to assist and attempt to obtain more records. Godwin v. Derwinski, 1 Vet. App. 419, 425 (1991) (noting that the "duty to assist is not unlimited" and that "the duty to develop pertinent facts applies to 'all relevant facts'" (citation omitted)); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) ("'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim). The Board notes the Veteran's representative did not provide further information or attempt to clarify the Veteran's statements. Further, the Board does not find that the Veteran was referring to treatment records beyond those already addressed in this decision. Lastly, the undersigned afforded the Veteran 60 days to submit whatever relevant records he believed existed. However, the Board has received nothing further. In light of the forgoing, the Board finds the evidence to weigh against the Veterans claim for service connection for an acquired psychiatric disorder, to include PTSD and generalized anxiety disorder. As such, the benefit-of-the-doubt doctrine is inapplicable, and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claim to reopen the issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and generalized anxiety disorder, is granted. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and generalized anxiety disorder, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans Appeals Department of Veterans Affairs