Citation Nr: 1823399 Decision Date: 04/20/18 Archive Date: 04/26/18 DOCKET NO. 14-29 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), and if so, whether service connection is warranted. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Angeline DeChiara, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1989 to May 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In February 2015, the Veteran appeared and testified at a video Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. An unappealed November 2000 rating decision denied the Veteran's claim of entitlement to service connection for a psychiatric disorder, to include PTSD. 2. Evidence received since the November 2000 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection; such evidence is not cumulative or redundant of evidence already of record. 3. The preponderance of the evidence is against a determination that the Veteran has a diagnosis of PTSD; or other psychiatric disability linked to service. CONCLUSIONS OF LAW 1. The RO's November 2000 rating decision that denied service connection for a psychiatric disorder, to include PTSD is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence sufficient to reopen the claim of service connection has been submitted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for a psychiatric disorder, to include PTSD have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence The Veteran seeks to reopen his previously denied claim for entitlement to service connection for psychiatric disability, including PTSD, and to establish service connection for his psychiatric condition. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2017). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). 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 (2017). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 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, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Id. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than require new and material evidence. 38 C.F.R. § 3.156(c)(1). The Board denied the Veteran's claim for service connection for psychiatric disability, including PTSD in 1998. In a November 2000 rating decision, the RO again denied a claim of entitlement to service connection for PTSD or other acquired mental condition. The Veteran did not appeal that decision or submit new and material evidence within one year; accordingly, the November 2000 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In October 2010, the Veteran filed a claim to reopen his previously denied claim. The following pieces of evidence have been added to the record since the November 2000 denial: July 2011 and June 2014 VA examinations, VA outpatient treatment records, and lay statements, including testimony from the February 2015 Board hearing. The medical records, examinations, opinions, and lay statements, are new because they were not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the Veteran's claim, specifically, establishing a current disability. Additionally, the evidence is neither cumulative nor redundant as this evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Accordingly, for all of the above reasons, the Veteran's claim for a psychiatric disorder, to include PTSD is reopened. Id. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection for PTSD requires the following: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2017); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2017). Pursuant to 38 C.F.R. § 4.125(a), diagnoses of mental disorders (including PTSD) must conform to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Prior to this regulation's August 4, 2014 revision, diagnoses of mental disorders were required to conform to the earlier version of the DSM, the DSM-IV. Any claim that was certified to, or pending before, the Board, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit prior to August 4, 2014, will continue to be analyzed under the DSM-IV. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). As this case was certified to the Board after August 4, 2014, the DSM-5 will be used to analyze the Veteran's claim. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the veteran. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Here, the Veteran contends that he currently suffers from PTSD that is causally related to in-service traumatic events. Based on the reasons set forth below, the Board finds that the most probative and competent evidence of record establishes that the Veteran does not have a current diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a). Initially, the Board notes that service medical records are negative for any complaints, findings, or diagnosis of PTSD, or any other mental health symptoms. At an October 1994 VA examination held in conjunction with an earlier denied claim for PTSD, the Veteran reported constant fear and concern for his safety while serving in Saudi Arabia due to the risk of artillery fire and driving an ammunition truck. He also reported encountering many tanks with burned bodies of the enemy while in service. He further reported drug and alcohol abuse. He reported the following symptoms: near daily intrusive thoughts of his Desert Storm experiences, weekly nightmares, and flashbacks. The examiner noted that the Veteran was treated from July 1994 to August 1994 at a PTSD unit. Reports from the treatment unit note clear evidence of dramatic, histrionic, and over-reporting qualities to the psychological testing, and that various testing appeared to be inflated for severity. The assessment from the PTSD treatment center was alcohol and drug dependency complicated by an antisocial personality disorder. The Veteran was released from the PTSD unit to a substance abuse clinic. The October 1994 VA examiner agreed with these diagnoses and further indicated that there was fairly clear evidence that the Veteran was over-reporting his level of psychopathology. At an April 1997 VA examination, again held in conjunction with an earlier denied claim for PTSD, the Veteran reported depression and difficulty sleeping. He further reported a troubled childhood. The VA examiner noted extensive alcohol, marijuana, and amphetamine abuse which began at the age of 19. The Veteran was diagnosed with polysubstance abuse (alcohol, marijuana, and amphetamines), and a personality disorder with passive-dependent and antisocial features. The examiner explicitly indicated that there was insufficient evidence for a PTSD diagnosis. At a July 2011 VA examination, held in conjunction with the claim currently on appeal, the Veteran reported finding multiple dead Iraqis while serving as a truck driver in Kuwait and Saudi Arabia during service. He reported that "eating and sleeping with the dead" was a vivid memory and that he witnessed "enemy tanks getting blown up 50-60 yards away from his supply truck." He further reported the following symptomatology: frequent anger outbursts and an irregular sleep pattern. The VA examiner noted that "the Veteran was fairly vague and impressionistic when discussing his combat exposure, and he had great difficulty elaborating on specific incidents." However, it was noted that concentration, memory, insight, and judgment appeared to be grossly intact. It was further noted that his affect was sometimes not appropriate for the content being discussed. His personal hygiene was noted to be unkempt. The VA examiner concluded that PTSD was not found. The Veteran was most recently provided a VA examination in June 2014. The examining psychologist reviewed the Veteran's claims filed. Regarding his stressor, the Veteran reported that "[t]he nights that we were heavily into fire," and that there was a tank that almost hit him. The examining psychologist indicated that this stressor met Criterion A (i.e., adequate to support a diagnosis of PTSD), and that this stressor was related to the Veteran's fear of hostile military or terrorist activity. However, the examiner opined that based on a chart review and clinical interview, there was insufficient evidence to meet the diagnostic criteria, under the DSM-IV or DSM-5, for PTSD, or for any other mental health disorder related to military service. The examining psychologist further indicated that she was aware that the Veteran was recently provided a diagnosis of PTSD. However, she further indicated that the Veteran's claims file was replete with numerous examinations (psychological, psychiatric, and in-patient) over a period of 18 years which did not diagnose PTSD. She indicated that she was not able to reconcile the current diagnostic discrepancies. The Board acknowledges that some healthcare professionals have diagnosed the Veteran to have PTSD. However, it is noted that many of these diagnoses appear in the record by history reported by the Veteran and do not contain a rationale as to why the Veteran met the diagnostic criteria of PTSD. Further, there is an indication of a positive PTSD screening test; however, a diagnosis was not confirmed. As such, the Board finds such diagnoses to be of little probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (holding that a medical opinion that contains only data and conclusions is accorded little weight). The Board notes that there are indications in the record of diagnoses of alcohol and drug dependency. However, service connection cannot be granted for any disease or injury if it is the result of a veteran's own willful misconduct or due to abuse of alcohol or drugs. 38 U.S.C. § 105(a) (2012); 38 C.F.R. § 3.301(a) (2017). Alcohol abuse is defined as the use of alcoholic beverages over time, sufficient to cause disability to, or death of, the user. 38 C.F.R. § 3.301(d). Drug abuse is defined as the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. Id. Thus, even if there were a diagnosis of alcohol or drug use disorder, service connection on this basis would not be warranted. Also of record is a December 2011 letter from the Director of Psychological Health of the Arkansas National Guard. The letter indicated that the Veteran reported several severe symptoms of PTSD which put him at risk for further aggravation of his condition. The Veteran reported the following symptomology: nightmares/flashbacks, severe mood disturbance, avoidance of triggering stimuli, emotional numbness, angry outbursts, sleep and appetite disturbance, poor concentration, intrusive and frightening thoughts, and hypervigilance with hyperarousal. However, similar to the out-patient treatment records, this letter did not provide an opinion as to an actual diagnosis under the relevant diagnostic criteria, but rather provided a list of symptoms. Accordingly, the Board finds that this letter does not carry much probative weight. Finally of record are the Veteran's lay statements. During the February 2015 Board hearing, the Veteran reported witnessing a hostile environment where there were tanks shooting at him and where there were "dead bodies all over." He indicated that he was a truck driver, his unit was frequently attacked, and that he was fearful of landmines. He reported currently experiencing depression, anxiety, and frequent nightmares of combat. The Veteran has additionally submitted statements in support of his claim throughout the course of appeal that recount similar facts. After considering the entire record, the Board concludes the evidence fails to show this Veteran to have PTSD for purposes of VA compensation benefits, or any psychiatric disability that was incurred in service. The Veteran's symptoms were most often attributed to alcohol and drug dependency, which, as previously discussed, may not be service connected. The Board acknowledges that the record contains entries with PTSD as a diagnosis, however, these diagnoses are mostly referred to as a history and do not provide a confirmation or rationale indicating that the diagnostic criteria for PTSD were met. Further, all four VA examiners, spanning back to October 1994, reviewed the claims file, and came to the same conclusion that the Veteran did not meet the full criteria for PTSD. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases). Lastly, none of the medical providers linked any currently diagnosed psychiatric disability to service. While the June 2014 VA examining psychologist indicated that the reported stressor was sufficient to warrant a diagnosis of PTSD, and was related to the Veteran's fear of hostile military or terrorist activity, she found that the Veteran did not present the sufficient symptomatology to warrant an actual diagnosis of PTSD. Finally, the Board acknowledges that the Veteran might sincerely believe that he has PTSD that is related to his active service and notes that lay persons are competent to provide opinions on some medical issues. However, in this case, the question of whether the Veteran has PTSD, or any psychiatric disability, that is related to his active service falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The intricacies in diagnosing psychiatric disabilities and opining regarding their etiology are issues that require the expertise of a medical professional. Therefore, the Veteran is not competent to provide an opinion on these issues. Accordingly, affording significant weight to the multiple consistent VA examinations of record, the Board finds that the preponderance of the evidence is against the claim, and entitlement to service connection for psychiatric disability, including PTSD is denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been received, reopening the claim of entitlement to service connection for psychiatric disability, including PTSD is granted. Entitlement to service connection for a psychiatric disorder, including PTSD is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs