Citation Nr: 21062759 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 14-11 194 DATE: October 12, 2021 ORDER New and material evidence not having been received, the appeal to reopen the claim for entitlement to service connection for depression is denied. New and material evidence not having been received, the appeal to reopen the claim for entitlement to service connection for bipolar disorder is denied. New and material evidence not having been received, the appeal to reopen the claim for entitlement to service connection for hepatitis C is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for anxiety is remanded. FINDINGS OF FACT 1. An August 1997 rating decision denied entitlement to service connection for depression; the Veteran did not timely appeal the denial; new and material evidence was not submitted within the one-year appeal period. 2. A December 2005 rating decision denied entitlement to service connection for depression, bipolar disorder, and hepatitis C; the Veteran did not timely appeal the denial; new and material evidence was not submitted within the one-year appeal period. 3. Evidence received since the December 2005 rating decision does not relate to an unestablished fact necessary to substantiate the claim for entitlement to service connection for depression. 4. A July 2007 rating decision denied entitlement to service connection for bipolar disorder and hepatitis C; the Veteran did not timely appeal the denial; new and material evidence was not submitted within the one-year appeal period. 5. Evidence received since the July 2007 rating decision does not relate to an unestablished fact necessary to substantiate the claims for entitlement to service connection for bipolar disorder and hepatitis C. 6. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of PTSD. CONCLUSIONS OF LAW 1. The August 1997 and December 2005 rating decisions which denied entitlement to service connection for depression are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156 (b), 20.200, 20.202, 20.302, 20.1103. 2. The December 2005 and July 2007 rating decisions which denied entitlement to service connection for bipolar disorder and hepatitis C are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156 (b), 20.200, 20.202, 20.302, 20.1103. 3. New and material evidence not having been received; the claims for entitlement to service connection for depression, bipolar disorder, and hepatitis C are not reopened. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.156 (a), 3.303 4. The criteria for entitlement to service connection for PTSD are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304 (f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1980 to March 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal of a November 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This case was previously remanded by the Board in August 2019. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. 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 a duty to assist argument). New and Material Evidence 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for bipolar disorder. 2. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for depression. 3. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for hepatitis C. The Veteran contends that new and material evidence has been received to reopen the claims for entitlement to service connection for bipolar disorder, depression, and hepatitis C. New evidence means existing evidence not previously submitted to VA. 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 determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156 (a) in order to have a finally denied claim reopened under 38 U.S.C. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Entitlement to service connection for depression was denied by the RO in August 1997 and December 2005 rating decisions. Notice of those decisions were provided to the Veteran in August 1997 and December 2005. The Veteran did not timely appeal the August 1997 and December 2005 rating decisions or submit evidence within the one-year appeal period that would constitute new and material evidence. Thus, the August 1997 and December 2005 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Entitlement to service connection for hepatitis C and bipolar disorder were denied by the RO in December 2005 and July 2007 rating decisions. Notice of those decisions were provided to the Veteran in December 2005 and July 2007. The Veteran did not timely appeal the December 2005 and July 2007 rating decisions or submit evidence within the one-year appeal period that would constitute new and material evidence. Thus, the December 2005 and July 2007 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Board notes that some VA medical records were associated with the file reflecting treatment within one year of the December 2005 and July 2007 rating decisions, the Board will consider whether the records are new and material. The Federal Circuit has held that if VA receives new evidence within the appeal period of an AOJ decision, it must be considered according to 38 C.F.R. § 3.156 (b). If such consideration is not performed, the underlying claim does not become final but rather it remains pending. Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014); see also Turner v. Shulkin, 29 Vet. App. 207 (2018) (VA treatment records generated within the one-year appeal period following a rating decision may satisfy the requirements of 38 C.F.R. § 3.156 (b) when VA adjudicators at VBA have knowledge of the existence of those VA treatment records within the one-year appeal period); see also Lang v. Wilkie, 971 F.3d 1348 (2020) (a VA adjudicator does not need actual knowledge of VA-generated medical records created within one year following a VA decision to establish constructive receipt for the purposes of applying 38 C.F.R. § 3.156 (b) because VA has constructive knowledge of these records.). Here, the Veteran had received medical treatment at a VA medical center within one year of the December 2005 and July 2007 rating decisions. Some of those records were not, however, submitted to the file until after the August 2019 Board remand requesting the records, though, as noted in Lang, this is immaterial as VA has constructive knowledge of these records. Regardless, although new, the medical records are not material, as they did not suggest a link to service. Although the Veteran continued to receive treatment at a VA medical facility for hepatitis and depression, and the records showed continued treatment, there was no suggestion in the medical records of a link between those conditions and the Veteran's service, which was the reason the claims were denied. No other evidence was received (actually or constructively) within the one-year time period. Therefore, even considering caselaw such as Turner and Lang in every way possibly beneficial to the Veteran, the Board still finds the December 2005 and July 2007 rating decisions became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The previous rating decisions denied service connection for depression, bipolar disorder, and hepatitis C because there no evidence that the disabilities were related to an in-service event, injury, or disease. Pertinent evidence received since the final December 2005 and July 2007 rating decisions consist of VA treatment records, Social Security records, the May 2019 Board hearing and a January 2013 VA mental disorders examination. While the medical evidence shows that the Veteran continues to have diagnoses of depression, bipolar disorder, and hepatitis C, they do not reflect that the disabilities are related to an in-service event, injury, and disease. The Board acknowledges the Veteran's assertions that his depression, bipolar disorder, and hepatitis C are directly related to his active service. Although lay persons are competent to provide opinions on some issues, the origin or cause of depression, bipolar disorder, and hepatitis C is not a simple question that can be determined based on personal observation by a lay person, the Veteran's lay testimony is not competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As none of the evidence received since the December 2005 and July 2007 rating decisions demonstrate that the Veteran's depression, bipolar disorder, and/or hepatitis C are directly related to his active service, new and material evidence has not been received, and the claims for entitlement to service connection for depression, bipolar disorder, and hepatitis C are not reopened. 4. Entitlement to service connection for PTSD is denied. The Veteran seeks entitlement to service connection for PTSD. However, the record does not show that the Veteran has been diagnosed with PTSD by a competent medical source. Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); (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. See 38 C.F.R. § 3.304 (f). For appeals certified to the Board on or after August 4, 2014, such as the Veteran's appeal for entitlement to service connection for PTSD, the diagnosis of PTSD must be in accordance with the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5). 38 C.F.R. § 4.125 (a); Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45,093 (Aug. 4, 2014) (Applicability Date) (updating 38 C.F.R. § 4.125 to reference DSM-5). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of section 1110 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As stated above, the evidence of record does not demonstrate that the Veteran has a current diagnosis of PTSD. The Veteran's VA treatment records reflect that he was provided PTSD screening in May 2006 and November 2020. The VA physicians interviewed the Veteran and conducted an in-person examination and determined that the Veteran does not meet the criteria for a diagnosis of PTSD. The Board acknowledges the Veteran's assertions that he has PTSD. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428 (2011), the diagnosis of a specific psychiatric condition such as PTSD falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Establishing PTSD as a disability for VA purposes requires diagnostic testing and a diagnosis conforming to the diagnostic criteria set forth in the DSM-5. 38 C.F.R. §§ 4.125, 4.130. The Veteran has not been shown to possess the medical expertise or knowledge required to diagnose a disability such as PTSD. Therefore, because the Veteran is a lay witness, his statements do not constitute competent evidence of a diagnosis of PTSD conforming to the DSM-5. The Board instead affords probative value to the medical evidence of record, which shows that the VA physicians have considered the Veteran's reported psychiatric symptoms and have declined to provide a formal diagnosis of PTSD. Accordingly, the competent medical evidence of record does not show that the Veteran had a diagnosis of PTSD during or in proximity to the relevant appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). As noted above, in the absence of proof of a current disability, there can be no valid claim for entitlement to service connection. Brammer, 3 Vet. App. at 225. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for PTSD. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for anxiety is remanded. The Veteran seeks service connection for anxiety. He asserts his anxiety has its onset during service or is otherwise related to an in-service disease, injury, or other incident of service, and service connection is therefore warranted. The Veteran was afforded a VA examination and medical opinion in January 2013, at which time the VA examiner diagnosed the Veteran with polysubstance dependency, mood disorder NOS, and personality disorder NOS. Regarding these disorders, the VA examiner opined that they are not directly related to his active service. However, the VA examiner did not address the Veteran's VA treatment records which contain several diagnoses of anxiety, but do not reflect an opinion regarding the etiology of his anxiety. The matter is REMANDED for the following action: Forward the record and a copy of this remand to a VA examiner for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should opine whether the Veteran's diagnosis of anxiety at least as likely as not (50 percent probability or greater) had its onset during the Veteran's service or is otherwise etiologically related to the Veteran's service, to include the notation of depression or excessive worry noted in his February 1982 report of medical history. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. G. LeMoine, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.