Citation Nr: 18142538 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 15-21 958 DATE: October 16, 2018 ORDER 1. New and material evidence has not been received to reopen to the claim of entitlement to service connection for a right eye disability. 2. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 3. The reopened claim of entitlement to service connection for PTSD is denied. REMANDED 4. Entitlement to a compensable rating for a right ear hearing loss disability is remanded. FINDINGS OF FACT 1. In a November 2010 rating decision, the RO denied service connection for a right eye disability based on a finding that the Veteran did not have a current diagnosis of a right eye disability. The Veteran did not perfect an appeal for this issue. 2. Evidence received subsequent to the November 2010 rating decision denying service connection for a right eye disability is cumulative or redundant of evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 3. In a September 2010 rating decision, the RO denied service connection for PTSD based on a finding that the Veteran’s PTSD stressor could not be verified. The Veteran did not perfect an appeal for this issue. 4. Evidence submitted subsequent to the September 2010 rating decision that denied service connection for PTSD is not cumulative or redundant of evidence previously of record, relates to unestablished facts necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claim for service connection for PTSD. 5. The Veteran has not been diagnosed with PTSD based upon an in-service stressor. CONCLUSIONS OF LAW 1. The November 2010 rating decision denying service connection for a right eye disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim for service connection for a right eye disability on the basis of new and material evidence have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The September 2010 rating decision denying service connection for PTSD is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 4. The criteria for reopening the claim of entitlement to service connection for PTSD on the basis of new and material evidence have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1980 to December 1982. The Veteran testified at a video Board hearing before the undersigned Veteran’s Law Judge in July 2018. A transcript of the hearing was prepared and associated with the claims file. In the September 2010 rating decision, the RO denied service connection for an acquired psychiatric disorder to include depression, however the Veteran did not perfect the appeal related to this issue. Although the record reflects other diagnoses of psychiatric disabilities, as the Veteran did not perfect the appeal with relation to this claim, and specifically stated his wished to only reopen the claim for PTSD in his December 2012 claim, the Board finds that recharacterizing the Veteran’s claim for entitlement to service connection for PTSD as a claim for entitlement for service connection for an acquired psychiatric disorder is not warranted. New and Material Evidence If a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while material evidence is defined as existing 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 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. Only evidence presented since the last final denial on any basis (whether by the Board or RO, and whether upon the merits of the case or upon a previous adjudication that no new and material evidence had been presented) will be evaluated in the context of the entire record. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Regardless of the AOJ’s actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108 and 7105 to address the question of whether new and material evidence has been received to reopen the claims for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claims and adjudicate the claim on a de novo basis. 1. New and material evidence has not been received to reopen to the claim of entitlement to service connection for a right eye disability The claim for service connection for a right eye disability was initially denied in an November 2010 rating based on a finding that the Veteran did not have a current diagnosis of a right eye disability. The Veteran was notified of this determination in an November 2010 letter, which included information about the Veteran’s appeal rights. Although the Veteran submitted a December 2010 Notice of Disagreement (NOD), and an October 2011 Statement of the Case (SOC) was issued, the Veteran did not perfect his appeal. The Veteran has not contended that this rating decision is not final as to this issue. Thus, the November 2010 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The pertinent evidence of record at the time of the November 2010 rating decision included the Veteran’s DD Form 214, service treatment records (STRs), and VA treatment records. The evidence added to the file since the last final decision are private medical records, VA treatment records, and lay statements. The Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in November 2010. After reviewing the record, the Board finds that the additional evidence received is not new and material within the meaning of 38 C.F.R. § 3.156. Private medical and VA treatment records received since the November 2010 do not reflect a diagnosis of a right eye disability. Although the Veteran has submitted clinical records that demonstrate evaluation for his eyes, none of this evidence contains evidence that there is a current disability. The Veteran’s current treatment records for a right eye disability do not provide any new and material evidence for the claim of service connection for a right eye disability, as they do not contain any new information relating to the substantiation of the claim at hand. This additional clinical evidence does not relate to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156. The Board notes that the Veteran has been diagnosed with refractive errors. However, defects of form or structure of the eye that are of congenital or developmental origin may not be considered as disabilities or service connected on the basis of incurrence or aggravation beyond natural progress during service. Refractive errors are due to anomalies in the shape and conformation of the eye structures and generally of congenital or developmental origin for example - astigmatism, myopia, hyperopia, and presbyopia. Therefore, the effect of uncomplicated refractive errors must be excluded in considering impairment of vision from the standpoint of service connection and evaluation. Thus, to the extent that the Veteran has been diagnosed with a refractive error, service connection for this disability cannot be granted. 38 C.F.R. §§ 3.303(c), 4.9. Accordingly, the Veteran’s diagnosis of refractive error does not relate to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156. In a September 2011 private treatment record, the Veteran was assessed to have “Glaucoma suspect, borderline pressures or cupping.” However, as the assessment is speculative in nature, and is not a definitive diagnosis of a disability, this record does not relate to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156. The evidence received since the last final denial is duplicative or cumulative of prior evidence of record. The Board finds that none of the evidence raises a possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For these reasons, the Board finds that the additional evidence received since the November 2010 decision is not new and material within the meaning of 38 C.F.R. § 3.156(a). Consequently, the claim of service connection for a right eye disability is not reopened. 2. New and material evidence has been received sufficient to reopen the claim of entitlement ot service connection for PTSD The claim for service connection for a PTSD was initially denied in a September 2010 rating based on a finding that the Veteran’s PTSD stressor could not be verified. The Veteran was notified of this determination in an September 2010 letter, which included information about the Veteran’s appeal rights. Although the Veteran submitted an October 2010 NOD, and an October 2011 SOC was issued, the Veteran did not perfect his appeal. The Veteran has not contended that this rating decision is not final as to this issue. Thus, the September 2010 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The pertinent evidence of record at the time of the September 2010 rating decision included the Veteran’s DD Form 214, service treatment records (STRs), and VA treatment records. The Veteran now seeks to reopen his claim of service connection for PTSD on the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in September 2010. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156. At the July 2018 Board hearing, the Veteran provided details of his in-service stressor. The Veteran stated his stressor was the death of a fellow service member during a training exercise in Graf Enberg, Germany, in 1981. This evidence is new, because it has not been previously submitted. This evidence is also material because it pertains to the bases for the prior denial, that is, that the Veteran has a verifiable in-service stressor for PTSD, and raises a reasonable possibility of substantiating the claim. In this regard, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence is to be presumed. For these reasons, the Board finds that new and material evidence has been received to reopen service connection for PTSD. See 38 C.F.R. § 3.156(a). The reopened issue of service connection for PTSD is adjudicated below. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (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. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service connection for PTSD requires the presence of three particular elements: (1) a current medical diagnosis of PTSD; (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. Regarding the in-service stressor element of a claim for service connection for PTSD, the U.S. Court of Appeals for Veterans Claims (Court) has held that credible supporting evidence means that the Veteran’s testimony cannot, by itself, as a matter of law, establish the occurrence of a non-combat stressor; nor can credible supporting evidence of the actual occurrence of an in-service stressor consist solely of after-the-fact medical nexus evidence. See 38 C.F.R. § 3.304(f)(3). Instead, the record must contain service records or other independent credible evidence corroborating the Veteran’s testimony as to the alleged stressor. Those service records which are available must support and not contradict the Veteran’s lay testimony concerning stressors. The diagnosis of PTSD must comply with the criteria set forth in the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, 5th edition, of the American Psychiatric Association (DSM-5). See 38 C.F.R. §§ 4.125(a), 4.130. A veteran’s testimony, by itself, can establish the occurrence of an in-service stressor event if the requirements of 38 C.F.R. § 3.304(f)(3) are met. Currently, 38 C.F.R. § 3.304(f)(3) provides that if a stressor claimed by a veteran is related to the veteran’s 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 the veteran’s 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 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)(3). In substance, under the revised 38 C.F.R. § 3.304(f)(3), service connection can be granted for PTSD if the evidence demonstrates a current diagnosis of PTSD (rendered by an examiner specified by the regulation); an in-service stressor consistent with the places, types, and circumstances of service (satisfactorily established by lay testimony) that has been medically related to the veteran’s fear of hostile military or terrorist activity by a VA psychiatrist or psychologist, or one contracted with by VA; and, PTSD symptoms have been medically related to the in-service stressor by a VA psychiatrist or psychologist, or one contracted with by VA. In this case, the evidence does not show, and the Veteran does not contend, that he engaged in combat, or that he was exposed to hostile military or terrorist activity; therefore, the presumptions afforded to veterans who allege fear of hostile military or terrorist activity are inapplicable in this case. Thus, any alleged in-service stressors must be independently verified, i.e., corroborated by objective, credible supporting evidence. 3. The reopened claim of entitlement to service connection for PTSD The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for PTSD. The reasons follow. The Veteran has been diagnosed with PTSD, and thus there is evidence of a current disability. However, as to service incurrence, the Veteran’s claim fails on both the credible supporting evidence that the claimed in-service stressor actually occurred and medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor. As to the in-service stressor, in a March 2014 VA Form 21-0961, it was reported that the Veteran claimed a stressor of witnessing another service member run over by a tank during military exercises. However, at the July 2018 Board hearing, the Veteran claimed that his stressor was the death of witnessing another service member die due to the recoil from firing a cannon within a tank. As the Veteran’s July 2018 statement contradicts the statement from the Veteran that was acknowledged in March 2014, the Board assigns these statements no probative value, as it finds the Veteran’s statements not credible. The Board notes that in a March 2010 VA treatment record, a VA examiner wrote that the Veteran’s story would change from one time to another regarding his substance abuse history, such that “one must question the truthfulness of his history,” which tends to show that the Veteran’s credibility has been called into question by another individual. Due to the contradictory statements from the Veteran, the evidence weighs against a finding of credible supporting evidence that the claimed in-service stressor actually occurred. As to medical evidence of a causal nexus between current diagnosis of PTSD and a claimed in-service stressor, in a November 2005 VA treatment record, it shows that the Veteran complained of nightmares and other psychiatric problems in relation to Hurricane Katrina. For example, the Veteran reported his family was in Hurricane Katrina and that he tried to rescue them. He stated that they were blaming him for forcing them out of their home. The examiner wrote that the Veteran was “having nightmares about the hurricane” and that it was affecting the Veteran’s employment. In a March 2010 VA treatment record, the examiner wrote, “The [Veteran] began by complaining of depression, anxiety, and nightmares that he states is from his experience with hurricane Katrina (see initial eval[uation] for details).” She noted that the Veteran reported being stranded with his family for six days and then spending five days at the New Orleans Convention Center before being evacuated. In a March 2011 VA treatment record, the examiner diagnosed PTSD and specifically added “from Katrina.” The March 2010 and March 2011 treatment records are affirmative evidence that the Veteran’s PTSD is attributable to a post-service stressor. This diagnosis was entered by a staff psychiatrist who had treated the Veteran on a regular basis from 2010 to 2012. She wrote in a March 2012 VA treatment record that that it was her opinion that the Veteran was malingering regarding his endorsement of psychotic symptoms. She added, “He may have some depression or anxiety symptoms related to Katrina-related PTSD, but he also clearly has a history of antisocial behavior and has clearly given different histories to different people at different times.” Again, this evidence refutes a finding of the Veteran having PTSD from an in-service stressor. The clinical findings by the VA psychiatrist further supports a finding that the Veteran’s statements lack credibility. With regard to the Veteran’s PTSD, the Veteran is not medically trained and is therefore not qualified to competently opine about medical etiology. Although the Veteran claims that his PTSD is related his service, he is not competent to provide a nexus between the diagnosis of PTSD and service. PTSD requires specialized training for determinations as to diagnosis and causation, and is therefore, not susceptible to lay opinions on etiology. The origin or cause of the Veteran’s PTSD is not a simple question that can be determined based on mere personal observation by a lay person, the Veteran’s lay assertion is not competent to establish a medical nexus. In summary, the record does not support that the claimed stressor or stressors actually occurred and does not support that the circumstances of the Veteran’s claimed in-service stressors are related to his current diagnosis of PTSD. Accordingly, the Board concludes that the preponderance of the evidence of record is against the Veteran’s claim for service connection for PTSD. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence. REASONS FOR REMAND 4. Entitlement to a compensable rating for a right ear hearing loss disability is remanded. A review of the record discloses further development is needed with respect to the Veteran’s claim of entitlement to a compensable disability rating for his right ear hearing loss disability. At the July 2018 Board hearing, the Veteran asserted that his right ear hearing loss disability had increased in severity since the Veteran was last examined by VA. The Veteran last underwent a VA audiological examination in December 2013. Therefore, the Board finds that a remand is warranted to afford the Veteran an opportunity to undergo a VA audiological examination to assess the current nature, extent and severity of his right ear hearing loss disability. The matter is REMANDED for the following action: Schedule the Veteran for a VA audiological examination to evaluate the current severity of his service-connected right ear hearing loss disability.   A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Husain, Associate Counsel