Citation Nr: 1817808 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 17-65 346 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a chronic nervous condition. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from January 1943 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. In a December 1992 rating decision, the RO denied entitlement to service connection for a chronic nervous condition. He initiated an appeal of the December 1992 rating decision, but withdrew the appeal and the decision became final. 2. Evidence received since the final December 1992 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a chronic nervous condition. 3. The probative evidence of record does not indicate that the Veteran has a diagnosis of an acquired psychiatric disorder during the period of consideration. CONCLUSIONS OF LAW 1. The December 1992 rating decision that denied service connection for chronic nervous condition became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been received to reopen the claim for service connection for chronic nervous condition. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Applications to Reopen The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C. § 5108. "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. 38 C.F.R. § 3.156 (a). 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a December 1992 rating decision the Veteran was denied entitlement to service connection for a nervous condition. It was noted that the available records did not show a nervous condition treated or diagnosed in service or diagnosed to a compensable degree within one year of separation from service. Evidence of record at that time included a 1981 treatment record regarding schizo-affective disorder, argument of the Veteran, and a daily sick report dated in November 1945. Although there is an indication that the Veteran appealed this decision, the appeal was withdrawn by the Veteran at a hearing before the Board. See Board Decision, November 1996. The rating decision denying service connection for a chronic nervous condition became final. Subsequently, in an October 2014 statement, the Veteran reported burying soldiers while in service, a statement he made in connection with his earlier claim. As discussed in greater detail below, the Veteran provided additional detail, including regarding a soldier to be buried that blinked, and reported that the memories and vivid images have haunted him since service. As the additional statements of the Veteran are both new and material to the Veteran's claim of entitlement to service connection for a chronic nervous condition, the claim is reopened. II. Service Connection Having reopened the Veteran's claim, the Board must now consider whether service connection may be granted on a de novo basis. The reopened issue of entitlement to service connection for a chronic nervous condition has been recharacterized above as entitlement to service connection for an acquired psychiatric disorder, to include PTSD, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board finds that the Veteran is not prejudiced by the Board's adjudication because the RO in the March 2015 rating decision adjudicated and denied the claim on the merits. Hickson v. Shinseki, 23 Vet. App. 394 (2010). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The Veteran reported that one of his primary duties in service was to bury the men that died on the beaches of Normandy. He stated that he handled and buried hundreds of soldiers. He reported that when he went to bury one man, the man blinked his eyes. The Veteran could not bring himself to bury the man even though he was told to by another gravedigger. The Veteran reported that he could still see that man staring up at him, slowly blinking. He stated that the memories and vivid images have haunted him every day for more than 70 years. The Veteran stated that they caused him severe mental anguish in his past. He reported that he fought this for years on his own which had taken a major toll on his life and livelihood. The Veteran was treated with a psychiatric admission in 1981 with a diagnosis of schizoaffective disorder. VA treatment records reveal that the Veteran was down, depressed, and hopeless several days in records dated in June 2008 and April 2009. In October 2012 a depression screening revealed that the Veteran had little interest or pleasure in doing things and was feeling down, depressed, or hopeless more than half of the days. Treatment records dated in 2016 and 2017 reveal that the Veteran denied anxiety, depression, and nervousness. At no point during the period on appeal was the Veteran diagnosed with any acquired psychiatric disability. The Veteran was afforded a VA examination in March 2015. The examiner reported that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under DSM-5 and that the Veteran did not have a mental disorder that conformed with DSM-5. The Veteran's claims file was noted to have been reviewed and the Veteran's relevant history, including the reports of having to bury dead soldiers and the blinking soldier, were reported. The examiner commented upon the Veteran's 1981 psychiatric treatment. The examiner noted that the Veteran's reports at the examination were contradictory to the medical report from 1981. The examiner further reported that the Veteran was not engaged in mental health services and had not seen a psychiatrist or psychologist since his hospitalization in 1981. The examiner noted that the Veteran had directly experienced the traumatic event; had recurrent, involuntary, and intrusive distressing memories of the traumatic event; exhibited avoidance of or efforts to avoid external reminders; had sleep disturbance; and that the disturbance was not attributable to the physiological effects of a substance. Following mental status examination, the examiner noted that the Veteran did not have enough symptoms to meet the full diagnostic criteria and the symptoms did not cause significant social or occupational impairment to warrant a diagnosis. The examiner reiterated that the Veteran had not received mental health service since 1981. Furthermore, the Veteran denied symptoms of depression or anxiety. In a statement dated in July 2017, the Veteran's representative argues that the VA examination was flawed and requested the Veteran be afforded another examination. The Veteran's representative reported that the Veteran had recurring visions and audio hallucinations. When the examiner asked if the Veteran was bothered by the war, the Veteran reported that he was but more importantly was concerned by the benefits. The Veteran's representative reported that the Veteran could not sleep and relived the memories of the blinking man he had to bury. The representative stated that the examiner argued that the Veteran's lack of seeking out mental health help contributed to the lack of diagnosis. Entitlement to service connection for an acquired psychiatric disorder is not warranted. It is acknowledged that the Veteran has reported that he had memories and vivid images of his experience that haunted him every day. Review of the Veteran's treatment records does not reveal a diagnosis of any acquired psychiatric disability. In addition, after examination in March 2015, the Veteran was not diagnosed with any acquired psychiatric disability. Although the Veteran's representative argues that the examination is flawed and that the Veteran should be afforded another VA examination, the Board finds that the examination is adequate. The examiner reviewed the claims file, examined the Veteran, and commented upon the Veteran's reported stressors and history. Further, although the representative indicates that the Veteran has hallucinations, there is no notation of hallucinations in the treatment records. The only other evidence in support of the claim is the Veteran's own opinion. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428(2011). However, the diagnosis of a psychiatric disability extends beyond an immediately observable cause-and-effect relationship and thus, falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). As there is no diagnosed psychiatric disability shown during the appeal period, there is no disability upon which to claim service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Therefore the claim of service connection is denied. ORDER New and material evidence having been received, the claim of entitlement to service connection for a chronic nervous condition, is reopened and to that extent only, the appeal is allowed. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs