Citation Nr: 18146202 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 16-15 249A DATE: October 31, 2018 ORDER Entitlement to service connection for a traumatic brain injury is denied. Entitlement to service connection for an acquired psychiatric disorder (including post-traumatic stress disorder) is denied. Entitlement to service connection for an acquired psychiatric disorder (including adjustment disorder with anxiety and depressed mood) is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a traumatic brain injury (TBI). 2. The preponderance of the evidence is against finding that the Veteran has post-traumatic stress disorder due to a disease or injury in service, to include specific in-service event, injury, or disease. 3. The preponderance of the evidence is against finding that the Veteran has adjustment disorder with anxiety and depressed mood due to a disease or injury in service, to include specific in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for traumatic brain injury are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for post-traumatic stress disorder are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for adjustment disorder with anxiety and depressed mood are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1963 to September 1965. The Veteran appeals a December 2014 rating decision from the Department of Veteran Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. The Board notes that the claims for post-traumatic stress disorder, and adjustment disorder with anxiety and depressed mood were previously denied in an April 2012 rating decision from the RO in Sioux Falls, South Dakota. The April 2012 decision was not appealed, and became final. Both claims were reopened by the December 2014 rating decision. Despite any determination reached by the RO, however, the Board must conduct an independent review of the evidence to determine whether new and material evidence has been received in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Veteran’s VA Form 9 did not indicate whether the Veteran wanted a Board hearing. The evidence of record does not indicate that the Veteran wants a hearing. As such, we assume that the Veteran waived his optional Board hearing. Service Connection The Veteran asserts that his traumatic brain injury, post-traumatic disorder (PTSD), and adjustment disorder with anxiety and depressed mood (adjustment disorder) are connected to service. Service connection is warranted where the evidence of record establishes that a particular injury or disease results in a present disability that incurred in the line of duty during active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). 1. Entitlement to service connection for traumatic brain injury The Veteran asserts that he has a traumatic brain injury related to being “slugged” and “fell on head and kicked in [the] head” by his fellow soldiers. See September 2014 TBI Questionnaire. Although the VA medical records reflect complaints of a head trauma the Veteran does not have a current diagnosis for traumatic brain injury. To be considered for service connection, a claimant must first have a disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Consequently, without a current disability, service connection for traumatic brain injury is not warranted. Even if a current disability existed, the Board notes that complaints of head trauma come nearly four decades since service. The Veteran reported that he suffered a traumatic brain injury in 2013 during a car accident, and asked whether his traumatic brain injury could be related to a traumatic brain injury in the military. See August 2014 VA medical treatment note. The VA physician opined that he could not draw a connection because “usually there is a connection from the time of the event to problems at the time, or shortly after the event follow the patient.” See id. Further, an August 2014 MRI of the Veteran’s brain and brain stem showed only age-related changes, with no signs of a previous bleed into the brain, or bruising of the brain tissue, providing more evidence against this claim. 2. Entitlement to service connection for an acquired psychiatric disorder (including post-traumatic stress disorder) 3. Entitlement to service connection for an acquired psychiatric disorder (including adjustment disorder with anxiety and depressed mood) Again, regardless of the RO’s determination as to whether new and material evidence has been submitted, the Board has a jurisdictional responsibility to determine whether a claim previously denied is properly reopened. See Justus v. Principi, 3 Vet. App. 510 (citing 38 U.S.C. §§ 5108, 7105(c)). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the previously denied claim. The Veteran is seeking to reopen a previously denied claim for entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD and adjustment disorder with anxiety and depressed mood. In order to do so, he must submit new and material evidence as that term is defined by law. A finally decided claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). “New” evidence means evidence not previously submitted to agency decision makers. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates 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). The law requires that, in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. See Evans v. Browns, 9 Vet. App. 273 (1996). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the duty to assist of the VA Secretary, or through consideration of an alternative theory of entitlement. Id. at 118. Here, the Board finds that the Veteran has presented new and material evidence. The Veteran’s claim for service connection for an acquired psychiatric disorder was denied in an April 2012 rating decision because the Veteran did not have diagnosis of PTSD or another psychological disorder. The Veteran did not appeal the RO’s decision, and thus the April 2012 rating decision became final. The Veteran submitted VA medical treatment records indicating a diagnosis of PTSD, anxiety, and depression. Thus, the Veteran submitted new and material evidence, and the claims can now be reopened. As discussed below, while the criteria to reopen the claim have been met, the underlying claims must be denied. The Veteran contends that his PTSD stems from two stressors: (1) survivor’s guilt for not going to Vietnam with his unit, and (2) a fellow soldier collapsed into his arms during a training exercise. Additionally, the Veteran asserts his adjustment disorder is related to service. Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. Regarding the PTSD claim, the Veteran was diagnosed with PTSD in October 2014. The Board notes that the Veteran was diagnosed with depression and an anxiety disorder. See November 2015 VA Medical Treatment Note. Thus, he meets the current disability requirement. In the Veteran’s March 2012 statement, the Veteran stated that a soldier fell, likely from heat exhaustion, into his arms during a training exercise. The Veteran felt guilty for not knowing what to do, and for not doing enough to help the soldier. The Veteran stated that he never saw the soldier again, or learned what happened to the soldier. The Veteran contends that his unit, 88th Transportation Company, was assigned to Vietnam. But, the Veteran stated that because he was near the end of his tour of duty, he was not required to go to Vietnam. The Veteran felt “survivor’s guilt” for not going to Vietnam, and now cannot read or watch things related to combat. The Veteran stated that after leaving the military, he had nightmares, anger issues, and reckless behavior (e.g. drinking, and drag racing on city streets). Additionally, the Veteran reported that shortly after separation, he ended a relationship with a longtime girlfriend, and has recently divorced his wife of 43 years. See March 2012 Correspondence. In a January 2013 letter, the Veteran’s brother stated that he did not notice “any difference in [the Veteran] before his Army and after his Army experience. I do believe that he has some deep anger at times. I do not know why the anger or where it comes from, perhaps it is from the Army years. I do know that anger has plagued him through the years in his relationships with others.” The Veteran reported having a lot of anxiety, and reported suffering from PTSD. The Veteran stated that he has survivor’s guilt because he knows those in his unit that went overseas, and cannot find out what happened to them. The Veteran assumes that some were killed. See June 2014 VA Medical Note. In a September 2014 Statement in Support, the Veteran stated that he ended up having survivor’s guilt when a lot of his fellow soldiers died on the Ho Chi Minh trail by enemy fire. The Veteran asserts that this led to having anger issues, depression, and panic attacks. A VA psychologist, in an October 2014 VA medical note, opined that the Veteran made several assumptions that terrible things must have happened to those in his unit while they were in Vietnam. The VA psychologist reported that there is no evidence that his unit members were injured or killed. In November 2014, in a VA memorandum stated that the Veteran’s information provided regarding the Veteran’s stressors were “insufficient to send to the US Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of U.S. Navy, Marine Corps or National Archives and Records Administration (NARA) records.” In a January 2018 VA Medical Treatment Note, the Veteran stated that he believed many in his unit were killed or injured. However, the Veteran did not have data to support this assertion. Further, the VA psychologist told the Veteran that he did not meet the criteria for PTSD. In a September 2018 Statement of the Case, the Veteran reported never being treated for PTSD. Regarding the PTSD claim, the Board recognizes the anguish that can result from witnessing a soldier fall into his arms during a training exercise, and not knowing the fate of your colleagues sent into combat. However, that recognition cannot be a basis for the proof of a stressor’s occurrence. The Veteran does not provide information such as the soldier’s name, unit, or when the training exercise occurred. Records of such an event are now highly likely to be undiscoverable since the event occurred five decades ago. Further, the evidence of record is silent as to whether the Veteran’s unit was assigned to Vietnam, and what happened to the unit while in Vietnam. Both VA psychologists, in October 2014 and January 2018, opined that the Veteran did not have knowledge of his unit’s fate in Vietnam, and that Veteran’s fears of that fate was based on his assumptions. The Veteran has simply not provided us enough information to confirm this stressor. As a result, there is simply no credible supporting evidence that the claimed in-service stressor occurred. Regarding the Veteran’s adjustment disorder, the Board acknowledges that the Veteran was not provided a VA examination for the above conditions. A VA examination is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) 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, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Here, we find that a VA examination is not warranted. The evidence of record does not indicate that the Veteran’s anxiety and depression may be associated with the Veteran’s time in service more than 50 years ago. The Veteran’s service treatment record reflects dental work, athlete’s foot, headache, right thumb injury, and a swollen right knee. The evidence of record does not reflect treatment for depression or anxiety until at least 2007. The Veteran was not diagnosed with depression or anxiety until November 2015. Further, based on the evidence of record, the Veteran’s symptoms of anger, depression, anxiety, survivor’s guilt, and panic attacks do not begin until after separation. For example, shortly after leaving service in September 1965, the Veteran stated that he was “very hurt” by the break up with his girlfriend. It was shortly afterwards that the Veteran began drinking for a time, and had interpersonal problems with co-workers. See March 2012 Correspondence. As mentioned above, the Veteran’s brother stated that he did not notice “any difference in [the Veteran] before his Army and after his Army experience.” Although the Veteran’s brother stated that anger has plagued the Veteran through the years, the brother admits that he does not know where the anger comes from. See January 2013 Lay Statement. Neither does the Veteran claim that the conditions are secondary to a service connected disability, or a result of a continued symptomatology. In this case, the only evidence of record relating the Veteran’s anxiety and depression in any way to his military service is the Veteran’s own general conclusory statements, which does not meet the low threshold of an indication that the claimed disability is due to service. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). Therefore, the Board finds that a remand to obtain a VA examination for these claims is not necessary. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to anxiety and depression, fall outside the realm of common knowledge of a lay person because it involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In this regard, while Veteran can competently report the onset of symptoms, any opinion regarding the nature and etiology of his condition requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board cannot assign any probative weight to the Veteran’s assertions that his stated conditions are in any way related to his military service. See Waters v. Shinseki, 601 F.3d at 1278-79. The Board finds that the service and post-service medical evidence provides highly probative evidence against this claim that it cannot ignore, indicating problems that began decades after service with no connection to service more than 50 years ago. Consequently, the Board finds that the weight of the evidence is against a finding of service connection for an adjustment disorder. 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 claim, that doctrine is not applicable. 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49, 54-56. John Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Timothy A. Campbell, Associate Counsel