Citation Nr: 1806903 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-07 353 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for a chronic cervical spine strain. 2. Whether new and material evidence has been received to reopen the claim of service connection for residuals of a fractured mandible. 3. Whether new and material evidence has been received to reopen the claim of service connection for depression. 4. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Penelope Gronbeck, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel INTRODUCTION The Veteran served in the United States Army Reserves from April 1981 to July 1987. The Veteran served active duty for training from April 1981 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In April 2017, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This appeal was processed using the Virtual VA paperless claims processing system. Any future consideration of the appeal should consider the electronic record. FINDINGS OF FACT 1. Service connection for chronic cervical spine strain and residuals of a fractured mandible was severed in a January 2006 rating decision; the Veteran timely appealed and the Board upheld the RO's prior decision in an April 2009 decision; the Veteran did not timely appeal the decision. 2. The material added to the record after the April 2009 Board decision does not include evidence that relates to an unestablished fact necessary to substantiate the claim or that is more than cumulative or redundant of that previously considered. 3. In a rating decision issued in June 2007, the RO denied service connection for a mental disorder claimed as depression. Although the Veteran was notified of the denial, he did not perfect an appeal. Therefore, the decision is final. 4. The material added to the record after the June 2007 rating decision does not include evidence that relates to an unestablished fact necessary to substantiate the claim or that is more than cumulative or redundant of that previously considered. 5. The most probative evidence of record establishes that there is no current diagnosis of PTSD attributable to a verified in-service stressor CONCLUSIONS OF LAW 1. The April 2009 Board decision that upheld severance of service connection for a chronic cervical spine strain is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.302, 20.1103 (2017). 2. New and material evidence has not been received since the April 2009 rating decision, and the claim of service connection for a chronic cervical spine strain is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The April 2009 Board decision that upheld severance of service connection for residuals of a fractured mandible is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.302, 20.1103 (2017). 4. New and material evidence has not been received since the April 2009 rating decision, and the claim of service connection for residuals of a fractured mandible is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. The June 2007 rating decision denying service connection for depression is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302, 20.11032 (2017). 6. New and material evidence has not been received since the June 2007 rating decision, and the claim of service connection for depression is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 7. The criteria for service connection for PTSD has not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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). II. New and Material A. Legal Analysis Generally, a claim that has been finally denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means 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). B. Chronic Cervical Spine Strain and Residuals of a Fractured Mandible The Veteran seeks to reopen his severed service connection claims for chronic cervical spine strain and residuals of a fractured mandible. In a February 2003 rating decision, the RO granted the Veteran's claims of entitlement to service connection for a chronic cervical spine strain and residuals of a fractured mandible. In granting the claims, the RO determined that the Veteran's current spine and jaw disabilities were caused by an in-service October 1981 motor vehicle accident. Subsequently, in an April 2005 rating decision, the RO proposed to sever service connection for the Veteran's spine and jaw disabilities, and sent notice of the decision to the Veteran in an April 2005 letter. The RO found clear and unmistakable error in its previous decision because the evidence did not show the accident was incurred during a period of training or active duty. In January 2006, the RO severed service connection of the Veteran's spine and jaw disabilities, effective April 1, 2006. The Veteran disagreed with the RO's decisions and perfected an appeal as to the severance of service connection of both disabilities. In an April 2009 decision, the Board upheld the prior denial. The Veteran did not file a timely appeal to the Court of Appeals for Veterans Claims; instead, in December 2010, he filed a claim to reopen. The evidence of record at the time of the last final decision denying service connection for cervical spine strain and residuals of a fractured mandible included service treatment records, post-service treatment records, and the Veteran's statements. The April 2009 Board decision denied the Veteran's claims because there was no competent evidence linking his motor vehicle accident to active duty. Evidence associated with the claims file since the April 2009 Board decision relevant to the Veteran's claims for entitlement to service connection for a chronic cervical spine strain and residuals of a fractured mandible disability includes private and VA medical records, a Social Security Administration (SSA) letter, lay statements from the Veteran's sisters, and the Veteran's April 2017 testimony. The statements of the Veteran and his sisters on the matter are redundant and cumulative because they reiterate previously considered assertions, namely his whereabouts on October 9, 1981. Although there are medical treatment records submitted since the last decision, the Board finds that these records do not constitute material evidence to reopen the claim. That is, these medical treatment records do not create the possibility of establishing whether the Veteran's disabilities were caused or aggravated by active service, ACDUTRA, or IDT service. As such, the new evidence does not relate to an unestablished fact. Therefore, the evidence pertinent to the Veteran's chronic cervical spine strain and residuals of a fractured mandible received since the prior final denial is not new and material, and does not otherwise suggest that the claim could be substantiated if reopened. Therefore, the request to reopen this claim is denied. C. Depression The Veteran also seeks to reopen his service connection claim for depression. A March 2003 rating decision denied the Veteran's claim of service connection for a mental disorder on the basis that there was no evidence to support the condition being directly related to service. An unappealed June 2007 rating decision denied reopening the Veteran's mental disorder, now claimed as depression, on the basis that no new and material evidence had been received. Specifically, the RO noted that while the medical evidence shows treatment for depression and anxiety, there is no information to suggest a nexus to active military service. The instant claim for service connection for depression was received in December 2010. The August 2012 rating decision denied reopening this claim, as no new and material evidence has been received. Review of the record shows that the evidence associated with the claims file includes various statements from the Veteran and his sisters, the Veteran's testimony, VA treatment records, and private treatment records. Records from JFK Clinic, Houston VAMC, and St. John's Hospital have been associated with the file since the last final decision. These records indicate ongoing mental health treatment for his psychiatric disabilities, to include depression. However, these assessments are cumulative and redundant of the Veteran's medical assessments of record prior to the last final denial, and do not serve to reopen the Veteran's claim. Although the additional lay statements constitute new evidence, the statements merely describe current symptoms and in-service incurrences. The new lay statements are not material to the claim, as they do not pertain to an element of service connection that was previously lacking (i.e. a nexus between the current disability and service). Thus, the Board finds that the new lay statements are not material, as they do not pertain to an element of service connection that was lacking and cannot serve to reopen the claim. The Board finds that the evidence added to the claims file since the prior final rating decisions fails to demonstrate, suggest, or raise a reasonable possibility that the Veteran's current psychiatric disabilities were incurred in, or aggravated by his military service. Indeed, the treatment records are the only substantive submissions and merely document treatment and provide nothing concerning the unestablished facts. Accordingly, new and material evidence has not been received sufficient to reopen the previously denied claims, and the Veteran's petition to reopen such claims is denied. There is no doubt to be resolved as to these issues. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v Derwinski, 1 Vet. App. 49 (1990). III. Service Connection A. Legal Analysis 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). To establish entitlement to service connection for PTSD, there must be: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a), which requires it be diagnosed in accordance with the DSM; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and, (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. §3.304(f). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. §5107(b). B. Merits of the Claim The Veteran asserts that he has PTSD due to combat stressors experienced during his period of service in the United States Army Reserves. Specifically, the Veteran has reported on multiple occasions another soldier holding a rifle to his head and threatening to shoot him. See September 2011 Statement in Support of Claim for PTSD. The medical evidence does not establish a current diagnosis of PTSD. The Veteran's post-service treatment records do not reflect any evidence of PTSD, despite seeking psychiatric treatment. Although some treatment records reference symptoms and complaints of PTSD, none of the notations indicates a diagnosis in conformance with the DSM criteria. See, e.g., August 2008 Houston VAMC treatment record. The Veteran was afforded a VA psychology examination in November 2011. Following examination and review of the file, the examiner concluded the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD or any other psychiatric disorder. The Veteran was noted to have a history of changing his story. His reported history was inconsistent with what has been found in the records. It was the opinion of the VA examiner that the Veteran's problems are a result of an undiagnosed organic brain injury. Moreover, the Veteran's lay statements regarding a stressful in-service event provide no details, without which, the statements cannot be corroborated. The record lacks any evidence of an in-service stressor, other than the Veteran's own assertions. Additionally, the record provides a July 2012 Formal Finding of a lack of information required to corroborate a stressor associated with a claim for service connection for PTSD, explaining that the available evidence is insufficient to establish a stressor. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995). In the instant case, the Board finds the Veteran's statements to lack credibility as they are inconsistent with the other evidence of record and, therefore, affords no probative weight to such contentions. In the absence of evidence of a verifiable stressor, there is no basis for establishing service connection for PTSD. For the above reasons, the Board concludes that the more probative evidence is against a finding of a current PTSD diagnosis or a verified stressor, both essential criteria for establishing service connection for PTSD, as outlined in 38 C.F.R. § 3.304(f). Accordingly, the claim for service connection for PTSD must be denied. As the preponderance of the evidence is against the claim of service connection for PTSD, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). ORDER New and material evidence has not been received to reopen the claim of service connection for a chronic cervical spine strain, and therefore the appeal is denied. New and material evidence has not been received to reopen the claim of service connection for residuals of a fractured mandible, and therefore the appeal is denied. New and material evidence has not been received to reopen the claim of service connection for depression, and therefore the appeal is denied. Service connection for PTSD is denied. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs