Citation Nr: 1806136 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 14-14 292 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for any acquired psychiatric disorder, to include PTSD. 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for high blood pressure. ATTORNEY FOR THE BOARD I. Warren, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1967 to May 1971, and he served in the National Guard and Air Force Reserve from December 1972 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran filed a Notice of Disagreement (NOD) in June 2011. The RO furnished the Veteran a Statement of the Case (SOC) in January 2014. The Veteran filed a Substantive Appeal (VA Form 9) in February 2014. In an October 2015 Board Decision, the Board re-characterized the issue, as relevant to the psychiatric disorder, as whether new and material evidence has been submitted to reopen the claim of service connection for a psychiatric disability, to include PTSD. In so doing, the Board reopened that claim in accordance with 38 U.S.C. 5108 and 38 C.F.R. § 3.156(a), and remanded, inter alia, the issue of service connection for an acquired psychiatric disorder, to include PTSD, to the RO for additional development. The Board deferred appellate consideration concerning the issue of whether new and material evidence has been submitted to reopen the claim of service connection for high blood pressure. In June 2016, Board remanded the claims again for additional development. The claims have since been returned to the Board for further appellate review. FINDINGS OF FACT 1. A diagnosis of any psychiatric disorder, to include PTSD, is not demonstrated by the evidence of record. 2. In a February 2006 rating decision, the RO denied a claim of entitlement to service connection for high blood pressure; the Veteran did not file an appeal of this decision. 3. The evidence presented since the February 2006 rating decision does not relate to an unestablished fact necessary to substantiate the claim and does not raises a reasonable possibility of substantiating the claim of entitlement to service connection for high blood pressure, to include on a secondary basis. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for any psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The evidence presented since the final decision by the RO in February 2006, denying service connection for high blood pressure, is not new and material and the claim is not reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156(a), 20.204, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Service Connection The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder as a result of his active duty service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303(a) (2017). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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). For cases certified to the Board prior to August 4, 2014 (such as the Veteran's case), a diagnosis of PTSD must be in accordance with the DSM-IV. 38 C.F.R. § 4.125 (a) (2017); Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45, 093 (Aug, 4, 2014) (Applicability Date) (updating 38 C.F.R. § 4.125 to reference DSM-V). The Veteran reported that his stressor occurred when a Hispanic drill instructor was physically aggressive toward him in service. He also observed the same drill instructor hitting another airman while the airman was on his knees. A few days after the first incident, the Veteran reported that he was in formation when the same instructor suddenly gave him a hard kick to his buttocks. This stressor was related to personal assault and the Veteran directly experienced the traumatic event. However, as will be discussed below, the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and a depressive disorder, is being denied due to the absence of a current diagnosis of any psychiatric disorder. Therefore, the Board will address the element of service connection that is missing, i.e., evidence of a current disability. 38 C.F.R. §§ 3.303, 3.304(f). Service treatment records (STRs) reveal no complaint, finding, or diagnosis related to a psychiatric disorder, to include PTSD or a depressive disorder. The Veteran, his spouse and daughter provided statements that he had some irritability and anger over the years, as well as restlessness and an inability to sleep. His spouse noted that he was hard on himself and negative about everything; and his daughter noted that he had a depressed mood, crying spells and sleepless nights over the years. The Veteran was afforded a VA examination in December 2015, which revealed that the Veteran did not have any diagnosed psychiatric disorders under DSM-V criteria. In June 2016, the Board determined that the December 2015 VA examination required further clarification and medical guidance as regards the existence of a diagnosis of any psychiatric disorder in accordance with the DSM-IV criteria, a part from the DSM-V criteria used in the December 2015 VA examination. In a July 2016 VA examination, the examiner noted that there is no evidence that the Veteran has symptoms of sufficient severity to meet criteria for any DSM-IV or DSM-V psychiatric disorder, either now or during the period of his claim. The Veteran endorsed mild worry and intermittent low mood that does not result in clinically significant impairment. The examiner indicated that he never sought mental health services and his report of good family and job relationships over the years lends support to this assertion. The examiner opined that it is more likely than not that whatever negative emotions the Veteran has been experiencing are primarily fueled by situational stress. During the examination, the Veteran acknowledged that his wife's illness is what bothers him most. He also noted that he sometimes thinks about various times in his life (military and nonmilitary) and wonders how his life may have turned out had he made different decisions. The examiner concluded that, while the Veteran indicated that he occasionally has recollections about a marginally qualifying PTSD stressor (being hit by a drill instructor without provocation), when he encounters Hispanic men he does not report significant distress or avoidance behavior associated with these memories. Accordingly, the Board assigns great probative weight to the July 2016 VA examiner's opinion as to whether the Veteran has a current diagnosis of any psychiatric disorder, to include PTSD. The Board finds the VA examiner's opinion is highly probative because the examiner reviewed the claims folder, examined the Veteran, applied the DSM-IV criteria to the Veteran's specific report of history and medical symptoms, and found that the Veteran did not meet the criteria for a diagnosis of PTSD or any other mental disorder. As a result, the Board finds that service connection cannot be granted for any psychiatric disorder, to include PTSD, based on the absence of a presently existing diagnosis. See 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304(f). The Board recognizes the Veteran's contention, as well as the statements from his family members, that he has a psychiatric disorder, variously claimed as PTSD and/or depression. The Veteran and his family members are competent to attest to lay-observable symptomatology; however, they are not competent to diagnose the Veteran with a depressive disorder, PTSD or any other psychiatric disorder. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); see Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Accordingly, the diagnosis of a psychiatric disorder, to include PTSD and a depressive disorder, is a complex medical question. Neither the Veteran nor his family members have been shown to possess the requisite medical expertise or knowledge to diagnose a psychiatric disorder PTSD, let alone in accordance with the DSM-IV (or DSM-V) criteria. As such, the Board assigns no probative weight to his statements or those of his family members regarding a diagnosis of any psychiatric disorder. Moreover, as discussed above, the Board assigns great probative value to the VA examiner's opinion because the examiner has medical expertise, discussed the DSM-IV criteria for mental disorders, including PTSD, and determined that the criteria for a diagnosis of any mental disorder have not been met. The existence of a current disability is the basis of the first element of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The record evidence must show that the Veteran currently has the disability for which benefits are being claimed. There is no competent evidence of a diagnosis of any psychiatric disorder, to include PTSD. In light of the absence of a presently existing diagnosis of any psychiatric disorder, to include PTSD, service connection for an acquired psychiatric disorder is denied. 38 C.F.R. § 3.304 (f); 4.125. The Board finds that the preponderance of the evidence is against the Veteran's claim; therefore, the benefit of the doubt provision does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. III. Finality - New and Material Evidence The Board, in the first instance, must rule on the matter of whether the finally disallowed claim of service connection for high blood pressure, including on a secondary basis, may be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1388 (Fed. Cir. 1996). Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012); see also 38 C.F.R. §§ 3.104, 20.1103 (2017). The exception to this rule is 38 U.S.C. § 5108 (2012), 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, related 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). A VA adjudicator must follow a two-step process in evaluating previously denied claims. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. Second, if it is determined that the claimant has produced new and material evidence, then the adjudicator must reopen the claim and evaluate the merits of that claim in light of all of the evidence, both new and old, after ensuring that VA's statutory duty to assist the claimant in the development of his claim has been fulfilled. See 38 U.S.C. § 5108; Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). For the limited purpose of determining whether new and material evidence has been submitted, the credibility of the newly submitted evidence is presumed. See Justus v. Prinicipi, 3 Vet. App. 510, 513 (1992). The presumption is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). The RO originally denied service connection for high blood pressure in a February 2006 rating decision. This decision was predicated on the finding that the record evidence did not show that this condition began in service, was manifested within one year after service, or was otherwise related to service. The evidence on file at that time consisted of the service treatment records, showing no complaint, diagnosis, or treatment of high blood pressure, including hypertension, during service; and private medical records, dated between August 2003 and December 2005, from W.W.S., M.D., showing that the Veteran has a current diagnosis of hypertension for which he received treatment as early as 2002. In a February 2006 letter, the Veteran was notified of this determination and of his appellate rights. A timely appeal was not initiated. The pertinent evidence added to record since the February 2006 rating decision includes a May 2010 Report of General Information and the Veteran's statement in July 2010. This evidence reveals the same contentions as his original claim in August 2005 and September 2005 - that he has high blood pressure as a result of his military service. As such, this evidence is not new because it is cumulative of statements that were already considered and rejected by the RO in the February 2006 rating decision. The record also contains the Veteran's statement made in conjunction with his February 2014 substantive appeal. This statement is to the effect that, in his opinion, his high blood pressure is associated to a psychiatric disorder he purports to have incurred in service. This presents an additional question of whether the Veteran is competent to testify regarding such a relationship. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). If not, his statement is inadmissible. See Layno v. Brown, 6 Vet. App. 465, 471 (1994). To the extent the Veteran has expressed his lay belief of what appeared to him to be the cause of his high blood pressure, he has presented no evidence that he has the expertise needed to render an opinion as to medical causation. Id. As such, the Veteran is a lay person, and his assumptions regarding the relationship between his military service and the development of various medical disorders, do not constitute competent evidence. Hence, his statement is not new and material evidence as contemplated by 38 C.F.R. § 3.156(a). See Moray v. Brown, 5 Vet. App. 211, 214 (1993); see also King v. Brown, supra. Lastly, while the reports of VA examination in December 2015 and July 2016 were not of record at the time of the February 2006 rating decision, such reports rule out the present existence of a diagnosis of any psychiatric disorder and thus would not be germane to the matter of whether the Veteran's high blood pressure is of service origin. In any event, because the medical evidence on file before and after the February 2006 rating decision has already established that the Veteran has no current diagnosis of any psychiatric disorder, his February 2014 statement is insufficient to change that fact and thus does not relate to an unestablished fact necessary to substantiate the claim; that is, the present high blood pressure was incurred in or caused by the Veteran's military service, to include any condition of service origin. Accordingly, the evidence is not new and material evidence under 38 C.F.R. § 3.156(a). As the additional evidence is not new and material, the claim for service connection for high blood pressure is not reopened, and the benefit-of-the-doubt standard of proof does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER Entitlement to service connection for any acquired psychiatric disorder, to include PTSD, is denied. As new and material evidence has not been presented, the claim of service connection for high blood pressure is not reopened, and the appeal is denied. ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs