Citation Nr: 18151744 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-46 642 DATE: November 20, 2018 ORDER Appeal to reopen a claim of service connection for post-traumatic stress disorder (PTSD) is granted. Entitlement to service connection for PTSD is denied. FINDINGS OF FACT 1. An unappealed May 2010 rating decision denied the Veteran service connection for PTSD based on a finding that such disability was not diagnosed. 2. Evidence received since the May 2010 rating decision suggests a current PTSD diagnosis may exist and may be related to service; which relates to an unestablished fact necessary to substantiate the claim of service connection for PTSD; and raises a reasonable possibility of substantiating such claim. 3. The preponderance of the probative evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of PTSD or any other psychiatric disability. CONCLUSIONS OF LAW 1. The criteria to reopen a claim for service connection for PTSD has been met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156. 2. The criteria for service connection for PTSD has not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from July 1984 to July 1988, and then again from February 2002 to February 2004 to include a tour of duty in Afghanistan. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2015 rating decision of a VA Regional Office (RO). The May 2010 rating decision denied service connection for PTSD; the March 2015 rating decision confirmed and continued the denial of service connection for PTSD. Veterans Claims Assistance Act of 2000 (VCAA) The Veteran’s representative states in the Informal Hearing Presentation that the Veteran was not properly notified on how to adjudicate his claim because a December 2009 Duty to Assist letter did not include the Veteran’s apartment number and therefore he never received the letter. The VCAA describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits. In this case, the 2009 letter was related to the claim denied in May 2010. Regarding the current claim to reopen and which gives rise to this appeal, a June 2014 notice letter in compliance with the VCAA was sent to the Veteran’s address of record, including apartment number. 1. Application to reopen claim of service connection for PTSD is granted. A May 2010 rating decision denied the Veteran’s claim of service connection for PTSD manifested by serving in combat on the basis that service and post-service evidence did not show that the Veteran had engaged in combat and did not have a diagnosis of PTSD or any psychiatric disability. He did not appeal the decision and therefore that decision became final. As the unappealed May 2010 rating decision is final based on the evidence then of record, new and material evidence is required to reopen the claim. 38 U.S.C. §§ 5108, 7105. Whether the RO reopened a claim is not dispositive, as it is the Board’s jurisdiction responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). “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, 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran submitted an examination from a private provider which was conducted in November 2013 which diagnosed the Veteran with PTSD and referred to the PTSD and dysthymic disorder. The evidence received since the May 2010 rating decision contains private medical records, and the Veteran’s statements. The private medical record indicates that he has diagnoses of PTSD and dysthymic disorder. In his analysis of the Veteran, the private provider does refer to the PTSD as service-connected but it is unclear if the provider is stating this as an opinion. The foregoing evidence is new, particularly as it was not previously considered by the RO in May 2010. Moreover, this evidence is material, as it clearly reflects that the Veteran has one or more psychiatric diagnoses including PTSD that have been associated, by one particular treating health care provider, and potentially related to the Veteran’s service in Afghanistan. Such evidence contains the elements necessary to substantiate the claim, specifically a PTSD disability related to service, that was not of record when the RO previously considered the claim in May 2010. As for the Veteran’s testimony (which for the purpose of reopening is presumed credible), he described stressors in-service associated with his duties in Afghanistan. This evidence, when considered with the evidence that was of record in May 2010, also constitutes new and material evidence to reopen the claim of service connection for a psychiatric disability, particularly in light of the low threshold standard for reopening endorsed by the U.S. Court of Appeals for Veterans Claims in Shade v. Shinseki, 24 Vet. App. 110 (2010). Given that the additional evidence received is both new and material, the claim of service connection for PTSD must be reopened. As the RO adjudicated the underlying claim on the merits, the Veteran is not prejudiced by the Board doing likewise. 2. Service connection for PTSD is denied. The Veteran contends that he is entitled to service connection for PTSD from his service in Afghanistan. In his Form 9 dated September 2016 he stated that he feared for his life in Afghanistan. On his December 2014 VA examination, the Veteran did not list any stressors from his time in Afghanistan but he did mention that he was stressed while deployed. Further, he stated that he feels sad 1-2 times per month and will have an occasional nightmare. He indicated that sometimes his dreams are about Afghanistan. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), that is, a diagnosis that conforms to the American Psychiatric Association ‘s Diagnostic and Statistical Manual of Mental Disorders (DSM-V); a link, established by medical evidence, between current symptoms and a stressor in service; and credible supporting evidence that the claimed stressor in service occurred. 38 C.F.R. § 3.304(f). The Veteran’s service treatment records (STRs) are silent to any complaints, findings, treatment or diagnoses of PTSD or any psychiatric disorders. In April 2010 VA treatment records the Veteran showed no signs of derepression, hallucinations or history of psychiatric care. Furthermore, the same treatment record shows the Veteran was found to be negative for PTSD on a PTSD screening test. In November 2013 medical records from the Veteran’s private provider diagnosed him with chronic PTSD and dysthymic disorder. In this exam the Veteran described the most stressful part of his duties in Afghanistan as being a part of convoys, mail runs, and having to go into town for supply runs. The Veteran says that during this time he was fearful for his life. The private examiner stated that the Veteran feels depressed fifty percent of the time with low energy, feels helpless and at times is suicidal. Further, the provider stated in the exam that the Veteran has nightmares at least once a week, waking in panic and sweats which last thirty minutes. The Veteran has flashbacks 2-3 times per month and he is hypervigilant and cannot tolerate anyone standing behind him. The exam also stated that the Veteran experiences hallucinations and illusions when no one is around, and that he sees shadows moving out of the corners of his eyes once a week. The Veteran’s memory is severely impaired which causes him to be unable to remember what he reads. The provider opined that the Veteran’s ability to sustain social relationships is moderately compromised and that his ability to sustain work relationships is also moderately compromised. The provider described the PTSD diagnosis as service-connected, but it was unclear whether he was giving an opinion of the likely etiology or making a presumption. On December 2014 VA examination, the VA examiner found the Veteran did not meet DSM-V criteria for PTSD or any other mental health disability. The examiner opined that the Veteran did not describe any incident or event during his deployment that was suggestive of a Criterion A stressor. In this exam the Veteran described going off base as being “stressful” but denied any actual or threatened death, serious injury or sexual violence. The VA examiner further opined that the Veteran’s report of mental health symptoms is not suggestive of a DSM-V diagnosis. The VA examiner did make note of the private opinion which diagnosed the Veteran with PTSD and dysthymic disorder. He opined that the November 2013 private opinion does not report the use of any testing on the psychiatric evaluation which supports the Veteran’s PTSD diagnosis. The VA examiner further opined that the Veteran does not have any social or occupational impairment. He noted that the Veteran is married and has an excellent relationship with his son and is working on his relationship with his daughter. His marriage has some mild difficulties. Further, the examiner noted that in terms of occupational functioning the Veteran has been a truck driver for 10 years and has worked for his present company for five years. Additionally, the Veteran denied any behavioral issues at work and does not have any problems with his supervisors. The examiner opined that there are no current mental health symptoms that would impair the Veteran’s occupational functioning. The preponderance of the evidence is against a finding that the Veteran has PTSD or any other mental health disability. The December 2014 VA examiner opined that the Veteran does not meet the criteria for a PTSD diagnosis, and included detailed explanation of rationale for that conclusion. Although a November 2013 private examiner diagnosed PTSD and dysthymic disorder, his opinion warrants less probative weight because it does not reflect familiarity with the Veteran’s entire psychiatric history (versus relying on the Veteran’s self-report); and there is also no indication that the full DSM-V diagnostic criteria for diagnoses were considered in determining whether the Veteran’s symptoms merit a mental health disability diagnosis. That assessment does not indicate that it was done in accordance with DSM-V criteria and can have only limited probative value compared to the December 2014 VA examiner’s assessment. The December 2014 VA examiner is a qualified mental health professional, and determined that the Veteran did not endorse having the symptoms necessary to support a diagnosis of PTSD. His opinion reflected familiarity with the Veteran’s history, includes citation to clinical findings, and identified how the DSM-V criteria for a diagnosis of PTSD are not met. The VA examiner’s opinion is the most probative medical evidence of record in this matter, and is persuasive. (Continued on the next page)   The diagnosis of PTSD, or any other psychiatric disability, is a complex medical question; it requires medical expertise. Jandreau v. Nicholson; 492 F 3d 1372, 1377 (Fed. Cir. 2007). Consequently, while as a layperson the Veteran is competent to observe he has psychiatric-type symptoms, he is not competent to establish by his own opinion that he has a diagnosis of PTSD or any other psychiatric disability. Service connection is limited to those cases where disease or injury in service has resulted in a current disability shown during the pendency of the claim. See McClain v. Nicholson; 21 Vet. App. 319 (2007). In the absence of proof of the disability for which service connection is sought, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). For the reasons discussed above, the most probative evidence of record does not show that during the pendency of the instant claim the Veteran has received a diagnosis of PTSD or dysthymic disorder; accordingly, he has not met the threshold requirement for substantiating claim of service connection for PTSD or dysthymic disorder. As the probative evidence weighs against a finding that the Veteran has PTSD or any other mental health disability, he has not presented a valid claim of service connection for such disability, and the appeal in this matter must be denied. L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Robert Cordingley, Associate Counsel