Citation Nr: 1806716 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-15 388 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a psychiatric disorder other than PTSD. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Olufunmilola A. Akintan, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from July 1978 to August 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In an April 2013 Statement of the Case, the RO reopened claim for service connection for psychiatric condition to include posttraumatic stress disorder and depression. In any case involving a finally denied claim, the Board must separately address whether new and material evidence has been received to reopen the claim before addressing its merits, regardless of whether or not the RO has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). Historically, in April 1996, the RO denied a claim for anxiety reaction claimed as nerves or emotional problems. He filed a notice of disagreement in April 1997, but no SOC was issued as to the anxiety disorder issue. Accordingly, the claim for a psychiatric disorder other than PTSD has been characterized as above. In July 2017, a video conference hearing was held before the undersigned. A transcript is associated with the record. FINDINGS OF FACT 1. VA denied the Veteran's claim to reopen a claim for entitlement to service connection for posttraumatic stress disorder (PTSD) in an unappealed September 2006 rating decision. 2. Since the September 2006 denial, new and material evidence with respect to PTSD has not been received. 3. The Veteran does not have a psychiatric disability that is related to service. CONCLUSIONS OF LAW 1. The September 2006 rating decision denying reopening of the claim of entitlement to service for PTSD is final. 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for service connection for PTSD. 38 U.S.C. §§ 5108, 7104(b) (2012); 38 C.F.R. §§ 3.156, 3.160(d), 20.1103 (2017). 3. The criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C.§§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence The Veteran is seeking to reopen his claim for service connection for PTSD. He contends that he currently has PTSD because he witnessed the shooting of a Filipino boy in the head by a police officer in the Philippines in 1980. In a rating decision in September 2006, the Veteran's claim was denied because VA determined that the evidence did not reflect a certified stressor of PTSD. The Veteran did not file a timely appeal for this issue or submit new and material evidence within a year following this rating decision, thus, the decision became final. See 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 3.160(d), 20.1103 (2017). 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. 38 U.S.C. § 5108 (2012); See Evans v. Brown, 9 Vet. App. 273 (1996). In considering whether to reopen a claim, VA must assume the credibility of the aforementioned evidence which supports the Veteran's claim as required by Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 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). In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court held that, when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist. The rating decision noted the condition was not incurred in or caused by service and Historically, in January 2002, service connection for PTSD was denied. At that time, VA treatment records contained a diagnosis of PTSD. The Veteran had asserted that his stressor was witnessing a young boy get shot in the head at close range in 1980 in the Philippines, but he did not provide further details and the stressor could not be verified. The denial was confirmed in a September 2002 rating decision after the Veteran's personnel record was associated with the file. In March 2003 and most recently in September 2006, the RO found no new and material evidence to reopen the claim. The Veteran did not appeal the September 2006 rating decision, and no new and material evidence was submitted within a year of the notification of that decision. Since that time, new evidence includes additional statements from the Veteran, VA treatment records and an October 2010 PTSD stressor certification form. With regard to the Veteran's application to reopen his claim for service connection for PTSD, there remains no evidence establishing that the Veteran has met the stressor requirement for PTSD. The October 2010 PTSD stressor certification indicated that stressors could not be verified; and that, the DD 214 was reviewed for a conceded stressor, however, no medal was listed as evidence that the Veteran was engaged in combat. In the December 2012 VA examination report, the examiner noted that the Veteran's witnessing of the shooting of a Filipino boy in the hand of a police officer in the Philippines was not related to the Veteran's fear of hostile military or terrorist activity. As to the Veteran's statements in support of his claim, the Board has examined these documents and finds these statements to be cumulative of his previous contentions. Moreover, the Veteran's statements reiterate his earlier contentions that he has PTSD due to service because he witnessed the shooting of a Filipino boy at the hands of a police officer in the Philippines. These assertions were previously made at the time of his previous denials. The evidence submitted does not establish or help to establish that the Veteran has PTSD due to an in-service stressor. Therefore, the prior evidentiary defect has not been remedied. There is simply no evidence of record, to date, to support the Veteran's contention that is material to this case. The Board recognizes the threshold for reopening a claim is low, but it is a threshold nonetheless, and as described, the evidence that has been added since 2006 clearly does not reach that threshold. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). As such, the Veteran's application to reopen his claim for entitlement to service connection for PTSD is denied. Service connection - Other than PTSD, including Major depressive disorder The Veteran seeks entitlement to service connection for a psychiatric disability other than PTSD, specifically major depressive disorder, because he was diagnosed with depression in service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Disorders first diagnosed after discharge may be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). 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, (e.g., a broken leg); (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. However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. §5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Turning to the facts of the case at hand, the Veteran contends that he currently has major depressive disorder due to the traumatic event he witnessed of the shooting of a Filipino boy in the head by a police officer in the Philippines in 1980. The Veteran's entrance record; the July 1981 re-enlistment medical examination report, and, May 1982 report of medical examination showed the Veteran was psychiatrically normal. A July 1987 service treatment record showed the Veteran was diagnosed with mild depressive mood. In a January 2001 inpatient treatment record, the Veteran was diagnosed with major depressive disorder. Prior to his hospitalization in July 1987, service treatment record showed the Veteran was referred by his squadron for depression, suicidal ideation and alcohol abuse. The Veteran reported he considered attempted suicide because too many things were going on his life. In another July 1987 service treatment record, the Veteran reported a history of increased tolerance of alcohol with a consumption pattern of 24 cans of beer in a week. The mental health provider noted that the Veteran exhibited signs of gross intoxication, alcohol blackout and overdose. The provisional diagnosis was alcohol abuse and alcohol dependence. An August 1987 service treatment record showed that the Veteran was an inpatient at the Naval Hospital, Jacksonville, Florida. The Veteran reported his drinking began at age 22, and became heavier at 27 with an average consumption of a twelve-pack of beer per day, three to four times per week. The Veteran denied prior rehabilitation for alcoholism but reported alcoholism in the family. Mental status examination revealed mild depression but no evidence of psychosis, neurosis or affective disorder. The Veteran was introduced to the alcoholics' anonymous philosophy. Several post service VA records showed that the Veteran was treated for depression. A January 1993 outpatient treatment record showed that the Veteran exhibited behavior associated with irritability, hyperactivity and depression. He was prescribed medication to help reduce anxiety. (See outpatient treatment record in April 1993 and August 1993). In a February 1994 outpatient treatment record, the Veteran was reported to be "better" and well rested with his new medication. He reported being less anxious and in good control. In an April 1994 outpatient treatment record, the Veteran reported an altercation with his stepfather did not escalate because he controlled his temper. The Veteran reported the significance of self-control in his life. The Veteran also reported that his involvement in his church as a leader improved his interaction among members. A May 1997 letter from the VA staff psychologist who provided psychotherapy treatment to the Veteran for over three years indicated a chronic history of depression. He noted that the Veteran's multiple stressors, which affected his marriage and job performance dated back to his military career, and, that the Veteran complicated his condition because he reverted to the use of alcohol. In a January 2000 inpatient treatment record, the Veteran recounted witnessing a young boy get shot in the head by a police officer while he was in the Philippines in 1980. The Veteran reported that, due to his proximity to the boy, pieces of the scalp and brain splattered all over him, he felt he could have saved him, and, has been unable to get the image of the boy out of his mind. Mental status examination revealed some psychomotor agitation, angry mood with paranoid delusions. He was prescribed medication. At the time of discharge, the Veteran reported less intrusive thoughts, and, reported that his problems were addressed for the first time in 20 years. However, a January 2001 inpatient treatment record showed the Veteran was diagnosed with posttraumatic stress disorder (PTSD), and MDD. In a January 2003 outpatient treatment record, the Veteran reported being upset, angry, and, hurt for being fired at work for alleged sexual harassment. The Veteran reported that he used alcohol and drugs to repress his emotions. The Veteran received psychotherapy to alleviate this occupational stressors. In a November 2004 outpatient treatment record, the Veteran and his wife underwent VA marital therapy. They both reported he had been irritable and distant. His wife expressed her frustration at being unable to help while the Veteran expressed his desire to be independent. The mental health provider noted that the Veteran maintained a pervasive, negative, depressive outlook, and, remarked that his stressors included unmanageable debt with harassment from creditors. In a January 2005 outpatient treatment record, the Veteran reported growing conflict in his marriage. The psychologist noted that the Veteran's family health problems and his discouragement over his Social Security Disability Insurance (SSDI) appeal made him depressed. The Veteran reported thoughts of hopelessness and helplessness. In an April 2005 outpatient treatment record, the Veteran reported he no longer was jumpy because of the change in his medication. He reported feeling balanced. In his words,"I just think I was having a stressful time." The Veteran also reported his attendance at AA treatment; and, a July 2005 outpatient treatment record showed the Veteran's relationship with his family improved. An August 2008 outpatient treatment record showed that the Veteran had no signs of mania; he was less isolative; he maintained sobriety, and, he became involved in church where he played guitar in the praise band. The Veteran had no suicidal ideation, hallucination, or psychosis. A May 2009 outpatient treatment record showed that the Veteran discontinued the use of mood stabilizers. The Veteran reported compliance with his medications, and denied significant depressive symptoms. The Veteran was sober and controlled his anger. The Veteran said, he felt "the best I have felt in months." He was diagnosed with PTSD, chronic, and alcohol dependence remission. However, treatment records showed a relapse. A June 2010 outpatient treatment record showed that the Veteran and his wife had an altercation. She threatened to leave, and, in a fit of rage, the Veteran threatened to commit suicide. The Veteran reported being agitated, and emotional after failed attempts to contact the VA for his medication. In a separate June 2010 outpatient treatment record, the assessment was PTSD, chronic, and recurrent major depression. A November 2012 VA examination report noted that the Veteran did not show up for his C & P examination. To address the question regarding whether or not the Veteran's current treatment was related to his in-service diagnosis and treatment, the clinician reviewed the Veteran's claim file and medical records and provided a medical opinion. The clinician noted that STRs showed that the Veteran was diagnosed and treated for depression, suicidal ideation, and alcohol abuse in July 1987 and that "[t]he records clearly stated that the patient's diagnosis was due to financial problems, family separation, and recent spouse problems." The examiner opined that the in-service depression diagnosis and treatment was unrelated to the Veteran's current diagnosis and treatment for depression and PTSD. In a December 2012 VA examination report, the examiner noted that the Veteran' s symptoms of depressed mood, chronic sleep impairment; disturbance of motivation, and, mood are due to depression. The examiner diagnosed the Veteran with depressive disorder NOS. However, the examiner opined that he would have to resort to use of speculation to determine if the Veteran's symptoms are related to his active military service given the years that have elapsed since his diagnosis and treatment in 1987. In the November 2016 Appellant's Brief, the Veteran's representative contended that the Veteran's witnessing of the death of a Filipino boy at the hands of a police officer in the Philippines resulted in the Veteran's emotional problems. The preponderance of the evidence is against a finding that the Veteran has a psychiatric disability, including major depressive disorder, related to service. The Board notes service treatment records showed that the Veteran was diagnosed with depression, suicidal ideation and alcohol abuse in July 1987. It noted that the Veteran considered suicide because of his occupational, financial and marital problems. The Board also notes that the Veteran reported problems with alcohol. The Board notes the inpatient treatment record of the Naval hospital, Jacksonville, Florida which showed that the Veteran had a history of increased tolerance of alcohol, overdose and financial problems. It noted that the Veteran had no evidence of psychosis, neurosis or affective disorder. The Board notes that the Veteran was diagnosed with alcohol abuse and psychologic dependence. The Board notes the May 1997 psychologist's letter which showed the Veteran had a chronic history of depression but failed to address the nature and etiology of the Veteran's depression. Further, the Board notes that outpatient treatment records dated in January 2003 and January 2005 showed that the Veteran's stressors are occupational as well as marital, because of the Veteran's bi-sexual orientation, interpersonal conflict, and, the growing conflict in his marriage. Regarding the December 2012 VA examination report, the Board finds that it is adequate for the adjudication of this claim. The examiner found the Veteran's diagnosis to be depressive disorder NOS. However, the Board notes the examiner's opinion, that, it would require him to resort to use of speculation to determine if the Veteran's symptoms were due to his active military service given the years that have elapsed since the diagnosis and treatment in 1987. The Board acknowledges that the Veteran's treatment record showed that he has a current disability of major depressive disorder. However, the Board finds that the competent, credible, probative, and, persuasive evidence fails to demonstrate that the Veteran's diagnosis of major depressive disorder, or any other psychiatric disability, is related to his active military service, or that it was incurred in any period of active duty. As such, service connection for major depressive disorder is not warranted. The Veteran is competent to describe his observable symptoms. However, the Veteran has not indicated that he is competent to provide medical opinions with respect to complex medical matters like the etiology of psychiatric disabilities. As such, his statements regarding the etiology of any psychiatric disorder are not competent evidence. See Jandreau v. Nicolson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The type of disorder the Veteran is claiming is not simple, rather, it is medically complex, and requires competent medical evidence to support. As such, to the extent the Veteran has alleged he has a psychiatric disorder related to service, he is not competent to make such an opinion. Furthermore, the Board notes that the Veteran has a recorded history of alcohol abuse and, by law, direct service connection is prohibited for alcoholism. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a psychiatric disorder other than PTSD, including major depressive disorder, therefore, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §3.102. The appeal must be denied. ORDER New and material evidence has not been received sufficient to reopen the claim for entitlement to service connection for a PTSD; the application to reopen this claim is denied. Entitlement to service connection for a psychiatric disorder other than PTSD, to include major depressive disorder, is denied. ____________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs