Citation Nr: 18152811 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 15-39 486 DATE: November 26, 2018 ORDER The application to reopen the claim of entitlement to service connection for a back disorder is granted. The application to reopen the claim of entitlement to service connection for a bilateral hearing loss disability is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for an acquired psychiatric disorder is denied. REMANDED Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a bilateral hearing loss disability is remanded. FINDINGS OF FACT 1. The RO denied service connection for a back disorder in a June 2012 rating decision. The Veteran did not appeal this rating decision, nor did he submit new and material evidence within one year of the rating decision. 2. The evidence received since the June 2012 rating decision relates to an unestablished fact necessary to substantiate the Veteran’s service connection claim for a back disorder. 3. The RO denied service connection for a bilateral hearing loss disability in a June 2012 rating decision. The Veteran did not appeal this rating decision, nor did he submit new and material evidence within one year of the rating decision. 4. The evidence received since the June 2012 rating decision relates to an unestablished fact necessary to substantiate the Veteran’s service connection claim for a bilateral hearing loss disability. 5. The Veteran does not have a current diagnosis of PTSD in accordance with DSM criteria. 6. An acquired psychiatric disorder was not manifest during service and psychosis was not manifest within one year of separation. An acquired psychiatric disorder is unrelated to service. CONCLUSIONS OF LAW 1. The June 2012 rating decision denying service connection for a back disorder is final. New and material evidence has been received and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The June 2012 rating decision denying service connection for a bilateral hearing loss disability is final. New and material evidence has been received and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. PTSD was not incurred in or aggravated by service. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 4. An acquired psychiatric disorder was not incurred in or aggravated by service, and psychosis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1111, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1975 to September 1979. The Board has expanded the Veteran’s compensation claim for PTSD to encompass other potentially acquired psychiatric disorders. Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000). It has bifurcated the issues for clarity in adjudication. 1. The application to reopen the claim of entitlement to service connection for a back disorder Generally, a claim that has been denied in a final unappealed rating 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 decisionmakers which bears directly and substantially upon the specific matter under consideration; such 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). The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that 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. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The RO denied service connection for a back disorder most recently in a June 2012 rating decision. The Veteran was notified of this denial but did not appeal nor submit evidence within the one year appeal period. The decision was, therefore, final. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. At the time of the June 2012 rating decision, the RO considered the claim, service medical and personnel records, and VA treatment records, among other evidence. The RO denied the claim on the basis that the evidence did not show an in-service occurrence. Since the June 2012 rating decision, the Veteran has asserted that his back disorder is the result of routinely lifting artillery shells. This is consistent with this MOS. As such, this evidence goes to cure a prior evidentiary defect. Hence, this evidence is not cumulative. Accordingly, reopening of the claim of service connection for a back disorder is warranted. 2. The application to reopen the claim of entitlement to service connection for a bilateral hearing loss disability In the same June 2012 rating decision, the RO denied service connection for a bilateral hearing loss disability. The Veteran was notified of this denial but did not appeal nor submit evidence within the one year appeal period. The decision was, therefore, final. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. At the time of the June 2012 rating decision, the RO considered the claim, service medical and personnel records, and VA treatment records, among other evidence. The RO denied the claim on the basis that the evidence did not show that there was a current diagnosis of a hearing loss disability in accordance with relevant VA regulations and no evidence of an in-service occurrence. Since the June 2012 rating decision, a VA examination confirmed the existence of a hearing loss disability in accordance with 38 C.F.R. § 3.385. As such, this evidence goes to cure a prior evidentiary defect. Hence, this evidence is not cumulative. Accordingly, reopening of the claim of service connection for a bilateral hearing loss disability is warranted. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD) There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304 (f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f) and 38 C.F.R. § 4.125 (requiring PTSD diagnoses to conform to the DSM-IV/V). The Veteran’s claimed stressors are specific to in-service sexual assault. In his October 2015 statement in support of PTSD, the Veteran claims that he was assaulted by three soldiers when walking to the Post Exchange during basic training. The provisions of 38 C.F.R. § 3.304 (f)(5) are applicable, for a PTSD claim that is based on personal assault in service, evidence from sources other than the Veteran’s records may corroborate the Veteran’s account of the stressor incident. Mengassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011); 38 C.F.R. § 3.304 (f)(5). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, supra. If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. 38 U.S.C. § 1110. See also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, where competent medical evidence indicates that the appellant does not have the disability for which service connection is sought, there can be no valid claim for service connection for the disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). At a February 2016 VA examination, the examiner determined that the Veteran did not meet the diagnostic criteria for PTSD under the DSM criteria. The examiner explained that the Veteran did not report symptoms consistent with the traumatic event reported. He described nightmares unrelated to the event and did not report any other symptoms of intrusion. The Veteran’s reported avoidance is related to situations that he “dislikes” such as living with roommates in sober housing, and not consistent with PTSD. The examiner explained that the Veteran’s negative beliefs, irritability, and distrust of others are manifestations of his Borderline Personality Disorder. A review of VA and private treatment records does not indicate a diagnosis of PTSD in accordance with the pertinent regulations. 38 C.F.R. §§ 3.304 (f); 4.125 (a). VA treatment records do document the Veteran’s report that “he should be” diagnosed with PTSD. However, there is no indication that he has been diagnosed with PTSD and the February 2016 VA examination manifestly states that he does not meet the diagnostic criteria. Here, the medical evidence clearly shows that he does not have PTSD in accordance with the relevant provisions during the period on appeal. The Veteran’s own opinion is not competent and there are no Jandreau type exceptions. In the absence of a disability, compensation may not be awarded. In the absence of evidence of PTSD, there can be no grant of service connection under the law. 4. Entitlement to service connection for an acquired psychiatric disorder Veterans are entitled to compensation if they develop disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, 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 -the so-called ‘nexus’ requirement.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain diseases, including psychoses, are identified as “chronic” under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). There is no evidence that the Veteran has a psychosis. At the Veteran’s videoconference hearing, he indicated that he had been diagnosed with schizophrenia and depression through VA treatment. VA treatment records document mood disorder, anxiety, schizophrenia and borderline personality disorder. Major Depressive Disorder is listed in the problem list. At the aforementioned February 2016 VA examination, the Veteran was diagnosed with alcohol use disorder, cocaine use disorder, and borderline personality disorder. The examiner concluded that these disorders were less likely than not related to active service. The examiner cited service treatment records, VA treatment records, and the examination report. In addition, the Veteran considered the Veteran’s reported in-service sexual assault and the potential “markers” of the assault, specifically disciplinary infractions. As a preliminary note, a personality disorder is not a disease or injury within the meaning of applicable legislation for disability compensation purposes. See 38 C.F.R. §§ 3.303 (c), 4.9. With respect to the psychiatric disorders of record, service treatment records show no complaints, treatment, diagnosis, manifestations, or other relevant notations regarding an acquired psychiatric disorder. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the February 2016 VA examiner’s opinion as highly probative medical evidence on this point. The Board notes that the examiner rendered his opinion after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran’s pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (the probative value of a physician’s opinion depends in part on the reasoning employed by the physician and whether or not (or the extent to which) he reviewed prior clinical records and other evidence). The Board assigns greater probative value to the objective evidence of record, to include service treatment records and the VA examination. There is no evidence of an acquired psychiatric disorder or relevant manifestations while in service. The Veteran has not submitted any medical evidence suggesting a link between his service and an acquired psychiatric disorder, to include the aforementioned disorders for which the Veteran has been diagnosed or have otherwise been documented in treatment records. In addition, the VA examiner specifically determined that the Veteran’s psychiatric disorders diagnosed upon examination were not related to his service. In sum, there is no reliable evidence linking the Veteran’s variably diagnosed psychiatric disorders to service. The contemporaneous records establish that there were no documented manifestations in service and the disorders are unrelated to service. The Board finds the contemporaneous records to be far more probative and credible than the Veteran’s report of onset, continuity, and treatment. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder disorder is remanded. Specific to the Veteran’s claimed left shoulder disorder, there is no VA examination of record. The Board has determined that a VA medical opinion is warranted. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a left knee disorder is remanded. 3. Entitlement to service connection for a right knee disorder is remanded. Regarding the Veteran’s claimed knee disorders, there is a VA medical opinion and private medical opinion of record. The two opinions are conflicting. The VA medical opinion states that there is no evidence of continuity. In doing so, it fails to account for the Veteran’s lay statements. As a result, the Board finds that a clarifying medical opinion is necessary. 4. Entitlement to service connection for a back disorder is remanded. Regarding the Veteran’s claimed back disorder, there is a VA medical opinion and private medical opinion of record. The two opinions are conflicting. The VA medical opinion states that there is no evidence of continuity. In doing so, it fails to account for the Veteran’s lay statements. As a result, the Board finds that a clarifying medical opinion is necessary. 5. Entitlement to service connection for a bilateral hearing loss disability is remanded. In a July 2015 VA examination report, an examiner determined that the Veteran’s bilateral hearing loss disability was less likely than not related to service. In a Brief, the Veteran’s representative questioned the rationale behind the July 2015 VA medical opinion. The Representative’s argument raises medical questions that the Board is not competent to address. See Colvin v. Derwinski, 1 Vet. App 171 (1991). The Board finds that remand is necessary for an addendum opinion that addresses the arguments raised. The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records. 2. Return the claims file to an examiner(s) of appropriate knowledge and expertise to determine the etiology of the Veteran’s claimed knee, back, left shoulder, and bilateral hearing loss disabilities. Based on a review of the record, the examiner should: a) Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that any diagnosed right knee disorder is causally or etiologically related to the Veteran’s period of active service. Consider the Veteran’s lay statements, including those regarding continuity of symptoms. b) Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that any diagnosed left knee disorder is causally or etiologically related to the Veteran’s period of active service. Consider the Veteran’s lay statements, including those regarding continuity of symptoms. c) Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that any diagnosed back disorder is causally or etiologically related to the Veteran’s period of active service. Consider the Veteran’s lay statements, including those regarding continuity of symptoms. d) Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that any diagnosed left shoulder disorder is causally or etiologically related to the Veteran’s period of active service. Consider the Veteran’s lay statements, including those regarding continuity of symptoms. e) Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that a bilateral hearing loss disability is causally or etiologically related to the Veteran’s period of active service. Consider the Veteran’s lay statements, including those regarding continuity of symptoms. In addition, consider the Representative’s contention with respect to the 2006 Institute of Medicine report on hearing loss. A complete rationale for any opinion expressed should be provided in a report. The Veteran is competent to report symptoms and treatment, and his reports must be taken into account, along with the other evidence of record. 3. Readjudicate the Veteran’s claims. If the benefits sought on appeal are not granted, the Veteran should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W. R. Stephens, Counsel