Citation Nr: 18141620 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 16-28 857 DATE: October 11, 2018 ORDER The application to reopen the previously denied claim of entitlement to service connection for coronary artery disease/ischemic heart disease associated with herbicide exposure is denied. Service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. An April 2014 rating decision denied the claim of entitlement to service connection for coronary artery disease/ischemic heart disease on the ground that the Veteran did not have a history of or any current heart disease or symptoms of heart disease. 2. The Veteran did not express an intent to appeal the April 2014 rating decision and new and material evidence was not added within one year of that decision. Accordingly, that decision is final. 3. Subsequently received evidence of coronary artery disease/ischemic heart disease does not relate to an unestablished fact necessary to substantiate the claim for service connection, is cumulative or redundant of the evidence in the record in April 2014, and otherwise does not raise a reasonable possibility of substantiating the claim. 4. The Veteran does not have a current diagnosis of PTSD or any other psychiatric disorder related to an in-service stressor, or to any other incident of service. CONCLUSIONS OF LAW 1. New and material evidence has not been submitted to reopen the claim of entitlement to service connection for coronary artery disease/ischemic heart disease associated with herbicide exposure. 38 U.S.C. §§ 5108, 7104(b); 38 C.F.R. § 3.156. 2. The requirements for establishing service connection for acquired psychiatric disorder, including PTSD, are not met. 38 U.S.C. §§ 1311, 5107; 38 C.F.R. §§ 3.303, 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1970 to November 1973. This matter comes before the Board from an appeal of a November 2015 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In his substantive appeal, VA Form 9, the Veteran requested a Board hearing. In an August 2016 statement, the Veteran withdrew his request for a hearing. Accordingly, the Board deems the Veteran’s request for a hearing to be withdrawn. 39 C.F.R. § 20.704(e). New and Material Evidence The Veteran’s claim seeking entitlement to service connection for coronary artery disease/ischemic heart disease was denied in an April 2014 rating decision. The Veteran did not appeal that decision or seek reconsideration. Accordingly, the April 2014 rating decision is considered final. 38 C.F.R. §§ 20.302(b)(1), 20.1103. Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 38 C.F.R. § 3.156(a). 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. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Generally, the credibility of newly submitted evidence is presumed when determining whether a claim should be reopened. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence considered at the time of the April 2014 rating decision consisted of the Veteran’s service treatment records, his VA treatment records from August 1989 through February 2014 and a VA examination conducted in March 2014. The preponderance of this evidence showed that the Veteran had experienced a transient ischemic attack (TIA) in 2003 but that he did not have a current diagnosis of any heart disease. The evidence received since the 2014 rating decision consists of the Veteran’s VA treatment records from December 1982 through October 2015, the Veteran’s lay statements and private treatment records. The Veteran claims that an ischemic event took place and “agent orange contributed” to it. The newly submitted medical records include evidence pertaining to the TIA the Veteran experienced in 2003. This evidence does not qualify as new because the occurrence of the TIA was known and considered as part of the April 2014 rating decision. Moreover, the Veteran is not competent to offer a medical opinion on causal connection for his TIA. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Furthermore, the newly submitted medical records do not suggest any diagnoses of any heart condition or related symptoms. Accordingly, the newly submitted evidence is not material because it does not relate to the unestablished fact of the existence of a current disability. 38 C.F.R. § 3.1565(a). Nor does the evidence raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.303. The requirements of 38 C.F.R. § 3.156(a) have not been met, the previously denied claim for coronary artery disease/ischemic heart disease is not reopened and the appeal is denied as to that issue. As the Veteran has not fulfilled the threshold burden of submitting new and material evidence to reopen the finally disallowed claim for service connection for coronary artery disease/ischemic heart disease, the benefit-of-the-doubt doctrine is not applicable as to that claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Service connection for PTSD Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires evidence of a current disability, an in-service incurrence, disease or injury and a causal relationship between the current disability and the in-service incurrence, disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Additionally, service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) occurred and medical evidence establishing a link between the current symptomology and the in-service stressor. 38 C.F.R. § 3.304(f). As noted, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran’s Contentions In support of his claim for service connection for PTSD, the Veteran relates the fear he felt while in Vietnam and anxiety that he would not survive. According to the Veteran, the feeling of anxiety continued “until I returned home” and he will never forget the experience. Turning to the evidence, the Veteran’s medical records reflect complaints of stress and anxiety connected to his employment and related to his wife’s illness and subsequent death. Specifically, an intake note from February 2014 reflects a diagnosis of generalized anxiety that began three years prior and was related to issues at his employment. The Veteran had been passed up for a promotion and did not get along with his supervisor. The treatment notes reflect that the anxiety was controlled with medication and no other psychiatric history. In February 2014, the Veteran related his wife’s stage 4 cancer diagnosis as a current stressor and a plan was formulated to adjust his medication as needed. A November 2015 VA examination determined that the Veteran had been exposed to a stressor related to a fear of hostile military or terrorist activity based on his experiences as part of a cavalry unit in Vietnam. Specifically, the Veteran related that his unit would set up artillery support at various bases, he was in close proximity to occasional small arms fire and occasional mortars, and that he had been in Cambodia. The Veteran expressed occasional concerns about distressing situations. The Veteran denied any current panic attacks and attributed his ongoing depression to his wife’s death. The Veteran related occasional sleep disturbances. His appearance and affect were appropriate, his concentration was noted as generally intact, his mood was described as “good” and he reported that he socialized with family and friends, spent time with his children and grandchildren and had a girlfriend. His employment history was stable as he had been in the same job for 29 years. Based on his review of the relevant medical records and his interview with the Veteran, the VA examiner concluded that the Veteran was not reporting any symptoms of a substantial disorder and that his issues with anxiety and depression were related to situational stressors, including his wife’s death and his retirement. The diagnostic criteria were not met for any formal psychiatric disorders. As the November 2015 VA examination was based on an evaluation of the Veteran and review of his records, and supported by adequate rationale, the Board finds it probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (probative weight is appropriate where a medical opinion is factually accurate, fully articulated and supported by sound reasoning for the conclusion). Moreover, the November 2015 examination is consistent with the clinical evidence of record, which contains occasional references to generalized anxiety and depression in response to situational stressors, but is otherwise devoid of evidence of a diagnosis of PTSD or any other psychiatric disorder. The Veteran’s VA treatment records reflect that his alcohol, depression and PTSD screens were negative. Significantly, there is no contrary opinion of record. Although the Veteran claims he has PTSD, his opinion is not probative evidence. While lay persons are competent to provide opinions on some medical issues, the diagnosis and etiology of a psychiatric disorder is complex and outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). (CONTINUED ON NEXT PAGE) The Board finds that the preponderance of evidence is against a finding that the Veteran meets the diagnostic criteria for PTSD or has any other psychiatric disorder that is related to service. Accordingly, the claim for entitlement to service connection for PTSD is denied. As the preponderance of evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See Gilbert, 1 Vet. App. At 55-57. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Snyder, Associate Counsel