Citation Nr: 18148507 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-43 552 DATE: November 8, 2018 ORDER The Veteran’s petition to reopen a claim for entitlement to service connection for a left ankle condition is denied. Entitlement to service connection for an acquired psychiatric disorder to include anxiety attacks and mood swings is denied. Entitlement to service connection for post-traumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. Evidence received since October 2013 rating decision does not relate to a previously unestablished fact necessary to substantiate the claim for entitlement to service connection for a left ankle disability. 2. The Veteran does not have a current disability of anxiety attacks or mood swings. 3. The Veteran does not currently have a diagnosis of PTSD. CONCLUSIONS OF LAW 1. New and material evidence to reopen the claim for service connection for a left ankle disability has not been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 2. The criteria for an acquired psychiatric disorder to include anxiety attacks and mood swings have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 3. The criteria for PTSD have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1978 to May 1979. The Board of Veterans’ Appeals (Board) notes that the Veteran’s claim for a left ankle disability was denied in an October 2013 Rating Decision. The Veteran sought to reopen his claim in September 2014. See September 2014 VA Form 21-4138, Statement in Support of Claim. Although this statement was received within the appellate period, there is nothing in it indicating dissatisfaction with the prior denial, such that it could reasonably be construed as a notice of disagreement. The question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1 (1995), aff’d Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Therefore, the Board must assess its jurisdiction to review this claim on the merits. Accordingly, the Board will adjudicate the question of whether new and material evidence has been received. New and Material Evidence 1. LEFT ANKLE CONDITION The application to reopen the claim for entitlement to service connection for a left ankle disability. Generally, a claim that has been denied in a final unappealed decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New and material evidence is defined as evidence not previously submitted to agency decision makers that bears directly and substantially upon the specific matter under consideration; such new and material evidence can neither be cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 3.156 (a); Hickson v. Shinseki, 23 Vet. App. 394, 398 (2010). The Board will generally presume the credibility of the newly submitted evidence for the purpose of determining whether new and material evidence has been presented. Duran v. Brown, 7 Vet. App. 216, 220 (1994). In deciding whether new and material evidence has been submitted, the Board looks at the evidence submitted since the last final denial of the claim on any basis. Hickson v. West, 12 Vet. App. 247, 251 (1999). The Board will generally presume the credibility of the newly submitted evidence for determining whether new and material evidence has been presented. Duran v. Brown, 7 Vet. App. 216, 220 (1994). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In deciding whether new and material evidence has been submitted, the Board looks at the evidence submitted since the last final denial of the claim on any basis. Hickson v. West, 12 Vet. App. 247, 251 (1999). Here, the claim for entitlement to service connection for a left ankle disability was initially denied in October 2013 because there was no evidence of a current left ankle disability. The Veteran was notified but did not appeal the decision, thus it became final a final decision. See 38 U.S.C. §§ 7105, 38 C.F.R. § 20.1103. The Veteran’s petition to reopen was subsequently denied in a July 2015 rating decision, which found that the Veteran did not present any new or material evidence to reopen his claim. See July 2015 Rating Decision. As noted above, the Board must consider whether new and material evidence has been received to warrant reopening the claim. At the time of the July 2015 rating decision, the evidence of record included the Veteran’s service treatment records (STRs), military personnel record, as well as VA treatment records. These records fail to confirm that the Veteran had a current left ankle disability. No additional evidence has been received since the July 2015 rating decision. In a November 2014 VCAA Notice Acknowledgement, the Veteran indicated he did not have any additional evidence to submit. After reviewing the record, the Board finds that the Veteran’s application to reopen the previously denied claim for left ankle injury must be denied, because no new evidence has been submitted. See Anglin v. West, 203 F.3d 1343, 1347 (2000)(evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board). Accordingly, the Veteran’s petition to reopen his previously denied claim for entitlement to service connection must be denied. Service Connection The Veteran contends that he is entitled to service connection for PTSD, anxiety attacks, and mood swings. See September 2014 VA Form 21-4138, Statement in Support of Claim Legal Criteria Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When a claimant seeks benefits and the evidence for and against the claim is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for a claim to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). Factual Background and Analysis The Veteran’s service treatment records (STRs) contain no symptoms, complaints or diagnosis of a psychiatric disability. See STR. The Veteran’s entrance examination indicated normal psychiatric clinical findings. See November 1978 Examination, STR. The Veteran also denied any symptoms of depression, excessive worry, or nervous trouble of any sort. Id. The Veteran’s separation examination was also clinically normal for psychiatric conditions and the Veteran denied any psychiatric symptoms. See April 1979 Examination, in STR. The Veteran’s VA treatment records are also silent for any complaints or diagnosis of a psychiatric disability. See CAPRI received in July 2015. Notably, in September 2012, the Veteran had negative depression and PTSD screening tests. See September 2012 Preventative Medicine Note, in CAPRI received in July 2015. The Veteran submitted a statement in support of his claim for PTSD in March 2015. See VA Form 21-0781, Statement in Support of Claim For PTSD. The Veteran relates that he witnessed children being killed in Ecuador, and that he was unable to sleep. The claims file does not contain any additional evidence relating to his claim for psychiatric conditions. After a careful review of the evidence of record, the Board finds that there is no evidence that the Veteran had a diagnosis of any psychiatric disability to include anxiety attacks, mood swings or PTSD at any time during the appeal period. Service connection cannot be granted “[i]n the absence of proof of a present disability.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement is satisfied when the claimant has a disability at the time the claim is filed or during the pendency of the appeal even though the disability may resolve prior to adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In Romanowsky v. Shinseki, 26 Vet. App. 289, 293-94 (2013) it was held “that when the record contains a recent diagnosis of a disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency.” Id. at 294. However, in this case, as stated, there is no competent persuasive evidence that the Veteran has ever had PTSD, including evidence prior to his having claimed service connection. The Board acknowledges the Veteran’s statements that he experienced PTSD due to witnessing children being killed in Ecuador. The Board notes that the Veteran has not been shown to have any medical training is not competent to diagnose or assess the etiology of an acquired psychiatric disorder, as this is a complex question requiring medical expertise. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010). (Continued on the next page)   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 these claims, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Thus, the Veteran’s claims for entitlement to service connection for anxiety disorder, mood swings, and PTSD disabilities are denied. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Lilly, Associate Counsel