Citation Nr: 18158414 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 17-03 330 DATE: December 14, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is reopened. The claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD is denied. FINDINGS OF FACT 1. The Veteran filed an initial claim for service connection for PTSD in January 2012. 2. In March 2013, the Veteran was scheduled for a VA examination. After an initial discussion with the VA examiner, the Veteran decided to reconsider his claim and no examination was conducted. 3. In May 2013, the Veteran’s claim was denied. This claim was not appealed and the decision became final. 4. The Veteran requested to reopen his previously denied claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD in January 2015. 5. In April 2016, the Veteran was afforded a VA examination. No current diagnosis of any psychiatric disorder was rendered and the Veteran’s claim was denied in a rating decision dated the same month. 6. At no time during the pendency of this appeal has Veteran been diagnosed with an acquired psychiatric disorder, to include PTSD that manifested during, or as a result of, active service. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for PTSD was previously denied in a May 2013 rating decision; this decision was not appealed in a timely fashion and the May 2013 rating decision became final. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.1100 (2018). 2. Evidence received since the May 2013 rating decision is both new and material to the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and as such, the claim is reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.1100 (2018). 3. The criteria for establishing entitlement to service connection for an acquired psychiatric disorder, to include PTSD have not been met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Air Force from October 2003 to April 2008. The Veteran’s service took place during the Gulf War era and the Veteran has reported exposure to combat situations. The Veteran’s claim was originally filed as one of entitlement to service connection for PTSD only. However, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. As such, as reflected on the first page of this decision, the Veteran’s claim has been rephrased as entitlement to service connection for any acquired psychiatric disability, to include PTSD. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2018). Copies of compliant VCAA notices were located in the claim’s file. VA’s duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Relevant Laws and Regulations for New and Material Evidence Claims Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (2018). Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2018). In general, Board decisions which are unappeased become final. 38 U.S.C. § 7104 (West 2014); 38 C.F.R. § 20.1100 (2018). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108 (West 2014). The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). “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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2018). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156(a), especially the phrase “raise[s] a reasonable possibility of substantiating the claim,” does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 “suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]” Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Court has elaborated on what constitutes “new and material evidence.” New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans, 9 Vet. App. at 273. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Analysis As previously noted in May 2013, the RO denied the Veteran’s claim of entitlement to service connection for PTSD, based upon a determination that the evidence failed to show a confirmed diagnosis of PTSD. The Veteran did not appeal and the decision became final. The Board finds that evidence submitted since the May 2013 rating decision is both new and material. In January 2015, the Veteran filed a claim to reopen his previously denied claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. In the same month, the Veteran submitted a statement in support of claim for PTSD indicating that he was exposed to multiple mortar attacks, to include an incident in which a mortar round landed next the to the flight line where he was working on an F-15E aircraft. Post-service, he describes frequent nightmares, re-experiencing, and chronic sleep disturbance. In April 2016, the Veteran was afforded a VA examination. Following a review of the record and clinical evaluation, the examiner concluded that Veteran’s symptomology was inconsistent with any diagnosable psychiatric condition. As the above evidence was submitted after the previous denial of May 2013 and because it relates directly to an unestablished fact necessary to substantiate the claim, it is both new and material. The claim of entitlement to service connection for an acquired psychiatric disorder, to include an PTSD is reopened. Service connection, generally Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. § 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303 (a), 3.304 (2018). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical ‘nexus’ requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (a) (2018). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b) (2018). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In determining whether service connection is warranted for a disorder, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD The Veteran contends that he suffers from an acquired psychiatric disorder, to include PTSD, as causally related to active service. In this case, the question before the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Service treatment records are silent for complaints of psychiatric symptoms or any related diagnosis. In a report of medical history, dated June 2003, the Veteran denied any experience with depression, excessive worry, nervous trouble, or any prior suicide attempt. In September 2006, a pre-deployment medical assessment indicated that the Veteran denied any symptoms of depression or PTSD. Therefore, he was deemed “deployable.” A subsequent assessment in February 2007 also described the Veteran as “deployable.” Military personnel records show that the Veteran served in the Qatar from January 2006 to June 2006 and in Afghanistan from September 2007 to January 2008. In January 2016 statement in support of claim for PTSD, the Veteran described frequent exposure to mortar attacks. In one incident, he reported working on an F-15E aircraft in Bay 15 when a mortar landed next to the flight line. At the time, the Veteran stated that he was unaware of any imminent attacks. Immediately after impact, he recalled running towards a bunker located 200 plus yards away while observing the positions of fellow airmen in case a need for assistance arose. No injuries were reported as causally related to the incident. Post-service treatment records are silent for complaints of symptoms, treatment, or a diagnosis of a psychiatric condition. Nevertheless, the Veteran endorsed current symptoms including sleep disturbance, re-experiencing, and nightmares where he appears to be “running in slow motion.” According to his wife, the Veteran pinned her down and screamed as she attempted to wake him during a nightmare. On review of the record, the Board recognizes confirmation of the Veteran’s combat service and therefore, his account of events are deemed credible and consistent with that service. In April 2016, the Veteran was afforded a VA examination. During the clinical evaluation, he reported two combat deployments, in Qatar and Afghanistan. As an aircraft electrician, the Veteran was exposed to mortar attacks during both tours. He described one incident in which a mortar landed very close to his position as he worked on an aircraft positioned 25 feet in the air. The Veteran denied any prior history of psychiatric treatment, legal convictions, alcohol or substance abuse. He also denied any history of childhood trauma and reported good relationships with his family, to include his wife and children. Following the clinical evaluation, the VA examiner opined that the Veteran does not meet criteria for a diagnosis of PTSD in either DSM-5 or DSM-IV. He also does not meet criteria for any other mental health disorder. In support of the stated conclusion, the examiner acknowledged the Veteran’s assertions of regarding traumatic stressors during service, to include fear of hostile military activity. His complaints of post-service nightmares and re-experiencing traumatic events were also acknowledged. However, the Veteran’s employment history includes work as a police officer which required a psychological evaluation. The record shows successful performance in that role for a period of six years. Even assuming the Veteran’s complaints of psychiatric symptoms, there is no evidence that his symptoms were so severe that psychiatric treatment was deemed necessary. Considering the forgoing, the examiner opined that it is less likely than not (less than a 50 percent probability) that the Veteran suffers from PTSD or any other psychiatric disorder, to include as causally related to active service. On review of the record, the Board concludes that the Veteran does not have a current diagnosis of PTSD and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303 (a), (d). While the Board recognizes that the Veteran subjectively believes he has a current diagnosis of PTSD, he not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized training and medical expertise and there is no evidence that that the Veteran possesses the required skill-set. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence which fails to show a diagnosis of any psychiatric condition, to include PTSD, is warranted. Accordingly, as the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD must be denied. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Whitaker, Associate Counsel