Citation Nr: 1805188 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 13-18 365 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for bilateral vision loss, and eye, disability. 2. Entitlement to service connection for post traumatic stress disorder (PTSD). 3. Whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for a psychiatric disorder other than PTSD, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Michael Kelley, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to September 1971. The current matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in November 2009 and June 2013 of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Boston, Massachusetts. The November 2009 rating decision denied service connection for PTSD and determined that new and material evidence has not been received to reopen service connection for a psychiatric disorder other than PTSD. The June 2013 rating decision denied service connection for a bilateral vision loss, and eye, disability. Before reaching the merits of the claim for service connection for a psychiatric disorder other than PTSD, the Board must consider the matter of reopening of the claim. The Board has a jurisdictional responsibility to consider whether it is proper for the claim to be reopened. Jackson v. Principi, 265 F.3d 1366 at 1369 (Fed. Cir. 2001) and Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered regardless of the RO's action. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran appeared at a hearing before the undersigned Veterans Law Judge (VLJ) on November 17, 2016 at the Boston RO. Unfortunately, a transcript of this hearing is not available. In July 2017, the Board contacted the Veteran by letter and asked him if he wished to appear and testify at another Board hearing. In an August 2017 response, the Veteran's attorney indicated that the Veteran wished to appear at a hearing before a VLJ via videoconference or in person at his local RO, whichever method results in the hearing being scheduled the quickest. In September 2017, this matter was remanded to the Agency of Original Jurisdiction (AOJ) to afford the Veteran a hearing before the Board. A Board hearing was scheduled in November 2017, but the Veteran failed to report to the hearing. The Veteran was notified of the date, time, and location of the hearing by an October 2017 letter. However, he failed to report for that proceeding. The Veteran has not requested that the hearing be rescheduled, or presented good cause. Therefore, the Board considers the hearing request withdrawn. See 38 C.F.R. 20.704 (d) (2017). The Board further finds that there has been substantial compliance with the Board's September 2017 Remand. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The competent medical evidence does not demonstrate objective findings of a bilateral vision loss, or eye, disability other than refractive error. 2. The Veteran did not engage in combat with the enemy, the claimed stressor is not related to the Veteran's fear of hostile military or terrorist activity, and the claimed stressor event has not been verified, and he does not currently have a diagnosis of PTSD in accordance with DSM-5 based upon a verified stressor event. 3. A January 1999 Board decision denied service connection for a psychiatric disorder manifested by dysthymic disorder on the basis that there was no evidence of symptoms or diagnosis in active service or a link to active service. 4. Evidence received since the January 1999 Board decision is new but by itself or in connection with previously considered evidence does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim for service connection for a psychiatric disorder other than PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral vision loss, or eye, disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 3. The January 1999 Board decision to deny service connection for a psychiatric disorder other than PTSD is final. 38 U.S.C. §§ 7104, 7105 (West 2012); 38 C.F.R. § 20.1100 (2017). 4. The evidence received subsequent to the January 1999 Board decision is not new and material, and the claim for service connection for a psychiatric disorder other than PTSD is not reopened. 38 U.S.C. §§ 5108, 7104(b), 7105(c) (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (West 2012); 38 C.F.R. § 3.159 (2017). VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in June 2009, August 2009, and September 2012. Therefore, additional notice is not required. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claims. As noted, the Veteran appeared at a hearing before the undersigned VLJ on November 17, 2016 at the Boston RO. Unfortunately, a transcript of this hearing is not available. In July 2017, the Board contacted the Veteran by letter, notified the Veteran and his representative that due to technical difficulties, the transcript was not available, and asked the Veteran if he wished to appear and testify at another Board hearing. In an August 2017 response, the Veteran's attorney indicated that the Veteran wished to appear at a hearing before a VLJ via videoconference or in person at his local RO, whichever method results in the hearing being scheduled the quickest. A Board hearing was scheduled in November 2017, but the Veteran failed to report to the hearing. The Veteran was notified of the date, time, and location of the hearing by an October 2017 letter, but he failed to report for that proceeding. The Veteran has not requested that the hearing be rescheduled, or presented good cause. Therefore, the Board considers the hearing request withdrawn. See 38 C.F.R. 20.704 (d) (2017). The Board further finds that VA made reasonable efforts to assist the Veteran and VA's duty to assist the Veteran has been met. 2. Legal Criteria: Service Connection and New and Material Evidence Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing, (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C. § 7104(a). The Secretary 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. § 7105; 38 C.F.R. §§ 3.102, 4.3. Rating actions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. In addition, a Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C. §§ 7103 (a), 7104; 38 C.F.R. § 20.1100. In order to reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final denial. Evans v. Brown, 9 Vet. App. 273, 285 (1996). To reopen a claim, the credibility of newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 3. Analysis: Service Connection for Bilateral Vision Loss, or Eye, Disability In April 2012, the Veteran filed a claim for a bilateral vision loss disability which the RO interpreted to be a new and separate claim from the claim filed in December 1971. In December 1971, the Veteran filed a claim for service connection for an eye condition that was aggravated during active service. A March 1972 rating decision denied service connection for an eye disability because the evidence of record including the service treatment records showed no evidence eye disease or injury during service. The RO indicated that refractive error, which was shown on enlistment and separation examinations, is a constitutional or developmental abnormality and it not a disability under the law. Service connection may not be granted for refractive error of the eyes even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9 (2017). Refractive errors of the eyes are congenital or developmental defects and not disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303 (c), 4.9. VA regulations specifically prohibit service connection for refractory errors of the eyes unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). See also O'Bryan v. McDonald, 771 F.3d 1376, 1380-81 (Fed. Cir. 2014) (refractive error of the eye is not a compensable disease because it is specifically excluded from the regulation even though refractive errors of the eye can progress) (citing Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003)). Here, the Board agrees with the RO's interpretation of the April 2012 claim and finds that it constitutes a new and separate claim for a bilateral eye disability. The Veteran does not refer to the March 1972 rating decision that denied service connection for refractive error. The Veteran does not refer to refractive error in the claim. Thus, this claim does not require new and material evidence analysis. The Board finds that the weight of the evidence does not demonstrate objective evidence of a current diagnosis of a bilateral eye or vision disability. The service treatment records do not document treatment or diagnosis of an eye or vision disability. As noted, the enlistment examination in October 1969 and the separation examination dated in September 1971 show findings of refractive error. Examination of the eyes was otherwise normal, and an eye disease was not found. The Veteran did not have any vision complaints. Post-service medical evidence including the VA treatment records do not show any objective evidence of a bilateral eye or vision disability. There are no objective findings of a diagnosis of a bilateral eye disability. 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 (West 2012). In the absence of proof of present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The probative evidence of record demonstrates that the Veteran does not have a current diagnosis of a bilateral eye or vision disability and has not at any time during the pendency of this claim (i.e., since the filing of them). See McClain v. Nicholson, 21 Vet. App. 319, 312 (2007). For the reasons expressed above, the Board finds that the weight of the evidence does not demonstrate objective evidence of a current diagnosis of a bilateral eye disability that affects visual acuity other than refractive error. The preponderance of the evidence is against the Veteran's claim for service connection for a bilateral eye disability manifested by blurred vision. The claim for service connection for a bilateral eye disability must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Analysis: Service Connection for PTSD The Veteran asserts that he has PTSD due to his active service. The Veteran stated that during active service, he received a letter from a relative who had died during his service. See the July 2009 Statement in Support of Claim for Service Connection for Post Traumatic Stress Disorder. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); 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. If the evidence establishes that a 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 ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C. § 1154(b) (West 2012), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. The issue of whether any particular set of circumstances constitutes engagement in combat with the enemy for purposes of section 1154(b) must be resolved on a case-by-case basis. See VAOPGCPREC 12-99. If a stressor claimed by a veteran is related to his/her fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that his/her symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of his/her service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3) (2017). A grant service connection for PTSD for a non-combat veteran requires credible evidence supporting his/her assertion that the stressful event occurred. A stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). 38 C.F.R. § 4.125 requires the mental disorder diagnosis to conform to the Diagnostic and Statistical Manual of Mental Disorders-5 (DSM-5). DSM-5 is incorporated by reference into 38 C.F.R. § 4.125. The Board notes VA implemented DSM-5, effective August 4, 2014 and DSM-5 applies to claims certified to the Board on and after August 4, 2014. 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). The DSM-5 applies to the Veteran's claim since his appeal was certified to the Board in May 2015. The Board finds that there is no credible supporting evidence that the claimed in-service stressor occurred. The Veteran has not submitted any information or evidence to corroborate his contentions that this event occurred in service. The service records show that the Veteran served with the U.S. Navy from November 1969 to September 1971. His military occupation was ordnance mechanic. He has no foreign service. The Veteran was not awarded a Combat Action Ribbon, a Purple Heart Medal, or any other award associated with valor or heroism shown while engaged with an enemy force. The Veteran has not reported coming under enemy fire or fear of hostile military activity during service. Thus, the Board finds that combat service has not been demonstrated based upon this record. The Veteran does not allege fear of hostile military or terrorist activity. In a September 2009 Memorandum, the RO made a formal finding on a lack of information required to verify the Veteran's stressor in connection with his claim for PTSD. The RO determined that the information from the Veteran was insufficient to send to the U.S. Army and Joint Services Records Research Center and it was insufficient to allow for a meaningful research of the Marine Corps or National Archives and Records Administration records. The RO set forth the efforts made to verify the stressor event and noted that the Veteran was asked two times to provide detailed information. The Veteran did not respond to the second request for information made in August 2009. The Veteran did not submit or identify any additional information or evidence to corroborate that the stressor event occurred. The Board finds that there is no credible supporting evidence that the claimed in-service stressor occurred. There is evidence of record that shows that the Veteran has PTSD. VA treatment records dated in August 2007 indicate that the Veteran had PTSD; this note was created in connection with treatment for a knee disability. It is not clear from the VA record whether this notation of PTSD was a diagnosis in accordance with DSM-IV or DSM-5 or whether it was history as reported by the Veteran. However, as noted above, in order to grant service connection for PTSD to a non-combat veteran, there must be credible evidence to support the Veteran's assertion that the stressful event occurred. Moreover, medical evidence or a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen, 10 Vet. App. at 142; Moreau, 9 Vet. App. at 395-396. In Kays v. Snyder, 2017 WL 360558 (Fed. Cir. Jan. 25, 2017), the Federal Circuit affirmed a Court decision affirming the Board's denial of service connection for PTSD due to the absence of credible supporting evidence of the claimed in-service stressor. The appellant argued that "a current medical diagnosis of PTSD" is evidence on its own that the claimed in-service stressor occurred. The Federal Circuit observed that this "misunderstands the ordinary role of a physician diagnosing PTSD. A physician is not expected to do a detailed investigation of a veteran's claimed in-service stressors. And a physician's diagnosis of PTSD does not necessarily identify what stressor caused it. Indeed, PTSD could result from an event not identified by the veteran. That is why the regulation requires the veteran to separately submit credible supporting evidence that the claimed in-service stressor occurred." In its decision, the Federal Circuit held that the Court had applied the correct standard of review, and had "correctly determined that the regulations require credible supporting evidence that the claimed in-service stressor occurred to the veteran" in considering 38 C.F.R. § 3.304 (f). Kays, 2017 WL 360558 (Fed. Cir. Jan. 25, 2017). In the present case, the August 2007 VA treatment record is not sufficient in and of itself to verify the claimed stressor event. There is no independent evidence corroborating the Veteran's statement as to the occurrence of his claimed stressor. The Board cannot accept the diagnosis of PTSD made in August 2007 because this diagnosis was based upon an unverified stressor event. The remaining evidence of record does not establish a DSM-IV or DSM 5 diagnosis of PTSD based upon a verified stressor event. Thus, for the foregoing reasons, the claim for service connection for PTSD must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. While a VA medical opinion was not provided in this case with regard to the issue of entitlement to service connection for PTSD, the Federal Circuit has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A (d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). In this case, there is no credible supporting evidence of the claimed in-service stressor, and thus there is no in-service event and no indication that the PTSD may be associated with the Veteran's service. As such, VA's duty to provide an examination with an opinion has not been triggered in this case. See Waters, 601 F.3d 1274. 5. Analysis: Whether New and Material Evidence has been received to Reopen Service Connection for a Psychiatric Disorder other than PTSD. In August 1995, the Veteran filed his initial claim for service connection for a psychiatric disorder (anxiety). A June 1996 decision by the RO denied service connection for a psychiatric disorder including a dysthymic disorder. The Veteran was notified of the decision and he perfected an appeal to the Board. A January 1999 Board decision denied service connection for a psychiatric disorder manifested by dysthymic disorder on the basis that there was no evidence of symptoms or diagnosis in active service or a nexus to active service. The Board stated that there was no medical evidence of a psychiatric disorder during the Veteran's active duty or for many years later and an acquired psychiatric disorder (dysthymic disorder) was noted at the VA examination but there is no medical evidence linking the condition with service. The evidence of record at the time of this decision consisted of the service treatment records and an April 1996 VA psychiatric examination report. The January 1999 Board decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. In June 2009, the Veteran applied to reopen the previously denied claim for service connection for a psychiatric disorder other than PTSD. The claim for service connection for PTSD is addressed above. The additional evidence received in support of the claim includes VA treatment records dated from August 2002 to January 2008. The Board finds that the evidence added to the record since January 1999 is new but it is not material as it does not relate to an unestablished fact necessary to substantiate the psychiatric disorder claim, and therefore, it does not raise a reasonable possibility of substantiating the claim. The VA treatment records are new because this evidence was not previously contained within the record. Nevertheless the evidence is not material and does not raise a reasonable possibility of substantiating a claim. The Veteran's claim was previously denied because his current psychiatric disorder was first diagnosed 20 years after service and because there was no competent evidence linking the disorder to active service. The Veteran's new evidence demonstrates that he continues to experience anxiety and depression and that he receives treatment for those disorders. However, there is no evidence, such as a medical opinion or documentation of additional in-service incurrences, purporting to make it more likely that his current disability is related to active service. As such, this evidence is not new and material and is insufficient to reopen his claim. Therefore, the Board finds that the evidence added to the record since January 1999 is not new and material. The newly submitted evidence does not relate to an unestablished fact necessary to substantiate the psychiatric claim and, therefore, does not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. For these reasons, the Board finds the new evidence of record is not material to the Veteran's claim. As such, and even considering the holding in Shade v. Shinseki, 24 Vet. App. 110 (2010) to the effect that the VA regulation as to reopening a claim "must be read as creating a low threshold," there is still a minimum threshold, and the new evidence submitted since January 1999 does not reach that threshold. As such, the claim is not reopened. ORDER Entitlement to service connection for a bilateral vision loss, or eye, disability is denied. Entitlement to service connection for PTSD is denied. New and material evidence has not been received sufficient to reopen the previously denied claim for service connection for a psychiatric disability other than PTSD. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs