Citation Nr: 1805696 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 13-01 096 ) 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 service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for posttraumatic stress disorder (PSTD). 2. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD to include, depression, anxiety, a mood disorder, and a chronic adjustment disorder, to include as due to pain. REPRESENTATION Appellant represented by: Ryan Farrell, Agent from Alpha Veterans Disability Advocates ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1972 to January 1974. This appeal comes to the Board of Veterans' Appeals (Board) from May 2010 and September 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Thus, although the RO has adjudicated the Veteran's claim as entitlement to service connection for depression and entitlement to service connection for chronic adjustment disorder, the Board has rephrased the issue as entitlement to service connection for an acquired psychiatric disorder, to include, PTSD, depression, anxiety, a mood disorder and a chronic adjustment disorder. In September 2016 the Board remanded the issue of service connection for a psychiatric disorder for further development. Additionally, in its September 2016 decision, the Board remanded the issues of service connection for an erectile dysfunction, service connection for peripheral neuropathy of the bilateral lower extremities, and whether to reopen the claim for service connection for PTSD for the issuance of a statement of the case (SOC). In October 2017, the RO issued a rating decision that denied service connection for a low back disorder, service connection for peripheral neuropathy of the bilateral upper extremities, and continued the previous denials of service connection for coronary artery disease and hypertension. In December 2017, the Veteran's representative filed a notice of disagreement (NOD) with respect to the issue of service connection for a back condition. Subsequently, VA notified the Veteran that his NOD was incomplete because a page was missing from the form. See December 2017 Correspondence. The record shows that the Veteran's representative submitted a complete form in January 2018. This issue has not been perfected on appeal and it appears that the RO is still working on the issue, as such the issue is not currently before the Board and the Board will not assume jurisdiction over the issue. In November 2017, the RO issued a SOC for the issues of reopening the claim for service connection for PTSD, service connection for erectile dysfunction, and service connection for peripheral neuropathy of the bilateral lower extremities. Recently, in January 2018, the Veteran submitted a VA Form 9, substantive appeal, on the issue of service connection for an acquired psychiatric condition, to include but not limited to PTSD. Therefore, the issue of whether to reopen the claim for service connection for PTSD is also on appeal. In June 2015, the Veteran submitted a claim for entitlement to pension for diabetes mellitus, peripheral neuropathy of the lower extremities, a lumbar back disability, high blood pressure, a prostate disability, and "mental issues." The record does not reflect that these claims for pension have been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action 38 C.F.R. § 19.9(b) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2017). 38 U.S.C.A. § 7107 (a)(2) (2012). The issue of service connection for a psychiatric disability other than PTSD to include as due to pain is addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Service connection for PTSD was denied in a January 2007 rating decision. The Veteran was informed of the decision but he did not appeal nor was new and material evidence received within a year. As such, the decision became final. 2. Evidence since the January 2007 rating decision that denied service connection for PTSD is new and material in that it is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the claim. 3. The competent and most probative medical evidence of record establishes that the Veteran does not have a valid diagnosis of PTSD consistent with DSM criteria. CONCLUSIONS OF LAW 1. The January 2007 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2017). 2. New and material evidence has been received to reopen the issue of service connection for PTSD. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C. § 5103(a) (West 2012); 38 C.F.R. § 3.159(b) (2017). As the Board is reopening the claims of service connection for a back disability and cervical spine disability, VCAA compliance as to these issues need not be further addressed. See AB v. Brown, 6 Vet. App. 35 (1993). With respect to the issue of service connection for PTSD, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Factual Background, Legal Criteria, and Analysis As an initial matter, the Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the issues on appeal. A. New and Material Evidence The Veteran is seeking service connection for PTSD. Service connection for PTSD was initially denied in a January 2007 rating decision based essential on a finding that there was no current diagnosis of PTSD and that there was no evidence of an in-service stressor. In the September 2015 rating decision presently on appeal, the RO continued the denial of service connection for PTSD. The Veteran continues to assert, however, that he is entitled to service connection for PTSD. A previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Appeals for Veterans Claims (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The evidence received since the January 2007 rating decision includes September 2017 VA outpatient clinic psychiatric note showing that the Veteran has been diagnosed with PTSD. The Board finds that the new evidence relates to an unestablished fact necessary to substantiate the claim of service connection for PTSD, and therefore raises a reasonable possibility of substantiating such claim. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that the additional evidence is both new and material, and the claim for entitlement to service connection for PTSD is reopened. B. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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. 38 C.F.R. § 3.304(f) (2017). When the evidence does not establish that a Veteran is a combat Veteran, the assertions of service stressors are not sufficient to establish the occurrence of such events. Rather, the reported service stressors must be established by official service record or other credible supporting evidence. 38 C.F.R. § 3.304(f) (2017); Pentecost v. Principi, 16 Vet. App. 124 (2002). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2017). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2017). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Furthermore, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). The Veteran is seeking service connection for PTSD. Initially, he filed a claim for PTSD, related to reported stressful incidents during active duty aboard the USS Anchorage and in Vietnam. The Veteran stated that he saw dead bodies and had to be discharged because he could not handle the stress. Due to this, the Veteran suffered from nightmares, depression, and had a hard time keeping relationships. See August 2006 Statement in Support of Claim. In November 2012 statements, the Veteran reported that he became depressed during active duty while stationed aboard the USS Anchorage as a result of being only 1 of 4 sailors of color in a crew of 340 and being treated differently, bullied and harassed and not able to mix well with other sailors. See November 2012 VA Form 9 and November 2012 Statement in Support of Claim. Service treatment records show that the Veteran suffered from psychiatric problems. November 1973 service treatment records note that the Veteran had experienced anxiety over his present situation in the U.S. Navy and that he was requesting to see a psychiatrist for his problem. The notes indicate further that he had nonspecific anxiety and claimed to be scared of water. He also reported that he was taking tranquilizers prescribed by a private doctor, and that he could not sleep. He was diagnosed with situational maladjustment and an administrative discharge was suggested. However, the Veteran's January 1974 Report of Medical Examination and Report of Medical History (separation) were silent for any psychiatric conditions. In November 1996, a VA mental health note revealed that the Veteran was diagnosed with recurrent moderate major depressive disorder. The Veteran reported that at the time of his motor vehicle accident, he subsequently suffered from a depressive reaction and was given medication for it. In November 2004, the Veteran visited a VA mental health clinic due to "depression and for medication." The Veteran was diagnosed with mood disorder due to a medical condition (chronic pain and sleep apnea). The Veteran reported that he was involved in a motor vehicle accident in 1993 and became depressed due to pain and injuries. His depression started in 1993 when he was injured. He also reported that he started outpatient psychiatric treatment at a VA medical center (VAMC) in 1996. In December 2006 and January 2007, VA treatment records revealed that the Veteran was also diagnosed with mood disorder due to a medical condition (chronic pain and sleep apnea). In July 2009, the Veteran was diagnosed with PTSD. In February 2009, the Veteran denied a history of depression, anxiety, panic attacks, suicidal or homicidal ideations, PTSD, or sleep disturbances. In December 2013, the Veteran was diagnosed with mood disorder (clinical depression) and anxiety disorder related to chronic medical conditions, including chronic pain in legs, neck, back, feet, etc. In a January 2010 VA examination, the Veteran was diagnosed with depression secondary to pain. The Veteran reported that his problems with depression were related to chronic pain and his inability to have an active more functional life. In a December 2013 VA examination, the Veteran was diagnosed with chronic adjustment disorder. The VA examiner noted that the Veteran did not have PTSD as he never had been exposed to combat (USS Anchorage was not in Vietnam on the 2 months that he was aboard ship in San Francisco then transferred to USS Fort Fisher). The VA examiner further noted that the Veteran was previously given a diagnosis of depression and PTSD based on incorrect history of combat experience. In a September 2017 VA examination, the Veteran was diagnosed with adjustment disorder with mixed anxiety and depression. The September 2017 VA examiner concluded that despite a diagnosis of PTSD being assigned in some of the medical notes, no symptoms of PTSD were identified or reported until several years after the Veteran's initial mental health treatment for depression related to medical problems/chronic pain nor was a formal evaluation for PTSD conducted, therefore, a diagnosis of PTSD was not valid. Upon review of the evidence above, the Board finds that based on the most probative evidence, and the record as a whole, the Veteran lacks a valid diagnosis of PTSD consistent with DSM criteria. In this regard, the Board notes that none of the VA examiners have diagnosed the Veteran with PTSD. Most recently, the September 2017 VA examiner specifically concluded there was no valid diagnosis of PTSD. In so finding, the examiner considered VA outpatient treatment records which di not a diagnosis of PTSD. Nonetheless, the examiner opined there was no valid diagnosis of PTSD. The examiner provided a rationale for their conclusion and based the lack of diagnosis on DSM-5 criteria. The finds the September 2017 VA opinion is both probative and persuasive as it is based upon a complete review of the claim file, and sets out the most helpful and complete discussion of the medical evidence. The examiner offers a clear explanation for the opinion, taking into consideration the Veteran's reported stressor and specific medical history to support her conclusion. The opinion is also highly probative because the examiner considered the relevant diagnostic criteria and specified the ways in which the Veteran failed to meet the criteria for a diagnosis of PTSD. This is particularly important, in the Board's judgment, as the VA examiner's references and specificity make for a more persuasive rationale. 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 (2012). 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). After weighing all the evidence, the Board finds the overall disability picture, and particularly, the 2017 VA opinion, fails to establish a valid diagnosis of PTSD during the appeal period. The Board finds the 2017 examiner's opinion the most probative, and the 2009 medical opinion, while not discounted entirely, is entitled to less probative weight in view of the remaining evidence. In summary, the Board finds that the Veteran's condition does not meet the criteria for a diagnosis of PTSD. Consideration has of course been given to the Veteran's assertions that he has PTSD. However, while 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 issues in this case, the process of diagnosing psychiatric disorders falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). While the Veteran is competent to report that he has experienced certain psychiatric symptoms, the Board finds that he has not demonstrated that he has the necessary medical training to determine that his psychiatric symptoms meet the criteria for a diagnosis of PTSD for VA purposes. That assessment is not simple in nature and in this case, requires specific testing and specialized training for a determination as to diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) and Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the Veteran is not competent to provide evidence as to more complex medical questions). Therefore, this lay evidence does not constitute competent medical evidence of a diagnosis, lacks probative value and is not competent evidence. Jandreau, supra & Buchanan, supra. As the preponderance of the evidence is against the claim for service connection for PTSD, the claim must be denied. ORDER The appeal to reopen a claim for service connection for PTSD is granted. Service connection for PTSD is denied. REMAND The Veteran seeks service connection for an acquired psychiatric disorder other than PTSD. He has argued that he suffers from depression and anxiety secondary to chronic pain to include back pain. The record shows that the Veteran is currently seeking service connection for a back disability and has appealed the RO's initial denial of service connection. The issue of service connection as due to chronic pain is inextricably intertwined with the issue of service connection for a back disability and therefore adjudication at this point would be premature. As such, the Board will defer a decision on this issue until the claim for service connection for a back disability has been fully adjudicated. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2017). 38 U.S.C.A. § 7107 (a)(2) (2012). Accordingly, the case is REMANDED for the following action: The RO should readjudicate the issue of entitlement to service connection for an acquired psychiatric disorder to include as due to chronic pain after the pending appeal as to the issue of service connection for a back disability has been adjudicated. If upon completion of the above action the claims remain denied, the case should be returned to the Board after compliance with appellate procedures. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ____________________________________________ E.I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs