Citation Nr: 9827997 Decision Date: 09/18/98 Archive Date: 09/25/98 DOCKET NO. 97-15 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant, J. S. and J. R. ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had active service from July 1966 to October 1969. In August 1989 the veteran was notified of a rating action of that month denying service connection for PTSD but she did not initiate an appeal. This matter comes before the Board of Veteran’s Appeals (Board) from a March 1995 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied reopening of the claim for service connection for PTSD. In the August 1997 informal hearing presentation it was noted that service connection for a right knee and low back disorder, which had been claimed as secondary to the veteran’s only service-connected disorder of residuals of surgery for repair of a left medial collateral ligament tear with Pellegrini-Stieda disease, currently rated 20 percent disabling, had been denied in an October 1986 rating action, from which there was no appeal despite notification in November 1989. However, in the August 1997 informal hearing presentation service connection was again claimed for a right knee and low back disorder on the basis of having been aggravated, rather than caused, by the service-connected left knee disorder under Allen v. Brown, 7 Vet. App. 439 (1995). Attention was drawn to the report of VA examination in September 1986 in which a medical opinion was expressed that giving “the veteran the benefit of the doubt, it is certainly feasible that the left knee condition could contribute to her right knee and back discomfort.” Additionally, entitlement to separate compensable ratings for arthritis and for instability of the left knee, pursuant to VAOGCPREC 23-79 was set forth. The RO has not had the opportunity to adjudicate these matters and these matters are not inextricably intertwined with the issue developed on appeal. Accordingly, these claims are referred to the RO for appropriate consideration. Regardless, these additional issues are not before the Board. Jurisdiction does indeed matter and it is not "harmless" when the VA during the claims adjudication process fails to consider threshold jurisdictional issues. Absent a decision, a notice of disagreement, a statement of the case and a substantive appeal, the Board does not have jurisdiction of an issue. Rowell v. Principi, 4 Vet. App. 9 (1993); Roy v. Brown, 5 Vet. App. 554 (1993). An application that is not in accord with the statute shall not be entertained. 38 U.S.C.A. § 7108 (West 1991). Furthermore, this Board Member cannot have jurisdiction of any of these issues. 38 C.F.R. § 19.13 (1997). The Court has noted that: Furthermore, 38 U.S.C.A. § 7105 (West 1991) establishes a series of very specific, sequential, procedural steps that must be carried out by a claimant and the RO or other "agency of original jurisdiction" (AOJ) (see Machado v. Derwinski, 928 F.2d 389, 391 (Fed. Cir. 1991)) before a claimant may secure "appellate review" by the BVA. Subsection (a) of that section establishes the basic framework for the appellate process, as follows: Appellate review will be initiated by a notice of disagreement [(NOD)] and completed by a substantive appeal after a statement of the case is furnished as prescribed in this section. Bernard v. Brown, 4 Vet. App. 384 (1994). The steps required for jurisdiction of additional issues have not been satisfied. More recently, when another part of VA argued that an issue over which the Board did not have jurisdiction should be remanded, the Court again established that jurisdiction counts. Specifically the Court could not remand a matter over which it has no jurisdiction. Hazan v. Gober, 10 Vet. App. 511 (1997). See also Ledford v. West, 136 F.3d 776 (1998); Black v. West, 11 Vet. App. 15 (1998); Shockley v. West, No. 96-829 (U.S. Vet. App. May 8, 1998). CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran has submitted new and material evidence to reopen and allow her claim for service connection for PTSD by virtue testimony of the veteran, an acquaintance, and a Vet Center Counselor and through clinical records of a Vet Center and VA outpatient treatment records documenting that she has PTSD and her own testimony of her inservice stressors. In essence, it is contended that the provisions pertaining to combat veteran’s are applicable to the veteran and that this, together with her testimony and evidence of a combat citation, are sufficient to reopen and allow the claim. It is also contended that changes in case law of the United States Court of Appeals (Court) and the change from the Diagnostic and Statistical Manual of Mental Disorders – Third Edition – Revised (DSM-III-R) to DSM-IV has the effect of new evidence for the purpose of reopening. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), has reviewed and considered all of the evidence and material of record in the veteran’s claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence has not been presented such as to reopen the claim for service connection for PTSD. FINDINGS OF FACTS 1. The veteran had active service from July 1966 to October 1969. 2. An appeal was not initiated from an August 1989 rating action denying service connection for PTSD, of which the veteran was notified in that month. 3. Additional evidence submitted since the rating action of August 1989 denying service connection for PTSD, is not relevant and probative, and does not raise a reasonable possibility of changing the outcome. CONCLUSIONS OF LAW 1. The August 1989 rating action denying service connection for PTSD is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. § 3.104 (1997). 2. Evidence received since the August 1989 rating decision denying service connection for PTSD is not new and material, and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran’s original claim for service connection for PTSD was denied in August1989 and despite proper notification of the denial, no appeal was initiated therefrom. Under appropriate laws and regulations, such adjudicative action is final, and there will be no reopening and de novo claim reviewed unless new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.104(a) (1997). In determining whether evidence is new and material, the United States Court of Veterans Appeals (Court) has mandated a two- step analysis. Manio v. Derwinski, 1 Vet. App. 140 (1991). The first step is to determine whether new and material evidence has been submitted to reopen a claim. If so, the second step involves a de novo review of the entire record to determine if the claim should be allowed. New and material evidence is evidence which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself, or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). Further, “material evidence is relevant and probative of the issue at hand,” and, in addition, “there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Colvin v. Derwinski, 1 Vet. App. 171 (1991). Additionally, when determining whether the claim should be reopened, the credibility (but not the competence) of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). In determining which evidence is to be considered as newly presented for purposes of deciding whether to reopen a claim, in Evans v. Brown, 9 Vet. App. 273 (1996), the Court explained that to reopen a previously and finally disallowed claim (whether decided by the Board or an RO), there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Here, the most recent denial on any basis was the August 1989 original denial of service connection for PTSD. Therefore, the Board’s analysis of the evidence submitted for the purpose of reopening the veteran’s claim must include review of all evidence submitted subsequent to the August 1989 rating action. Old Evidence The evidence on file at the time of the August 1989 rating action included the service medical records which are negative for psychiatric disability. However, her DD 214 reflects that she received the Vietnam Service Medal, the Vietnam Campaign Medal, and received a Letter of Commendation. She had 1 year and 7 months of foreign or overseas service, or both. However, her exact dates of service in Vietnam were not documented. She filed a claim for service connection for left knee disability in September 1976 and reported in a September 1976 stated that she had been hospitalized for three days for a left knee injury in Vietnam in May 1968. On VA examination of the veteran’s left knee in April 1986 it was reported that she was being treated at a VA facility for PTSD. She stated that she had a lot of stress after she recently lost her job and had been having flashbacks of images that reminded her of the war in Vietnam. The diagnoses included PTSD, under treatment. On VA orthopedic examination in September 1986 the veteran reported that she had injured her left knee in an accident when mortar shells fell on her billet in Vietnam in May 1968 and the leg had been casted from the ankle to her thigh for several months. A May 1986 statement from a VA psychiatric clinical specialist reflects that the veteran was referred to the VA Partial Hospitalization-Acute Care Program by a clinical director of a Vietnam Outreach Center for complaints of heightened anxiety, anger, and difficulty coping with situational stressors. She had experienced a significant level of stress due to a recent job loss and litigation. She discussed episodes of reexperiencing memories of her Vietnam experiences, when she was exposed to combat areas. Her intrusive recollections of “the event” and occasional dreams had appeared since her present stressors had occurred but there did not appear to be any other evidence of a numbing response to the environment, reduced involvement with external world, or constricted affect. In a June 1986 discharge summary it was reported that the veteran had undergone weekly therapy sessions with her roommate, dealing with anxiety, moderate depression, and a sense of powerlessness over her unemployment and pending litigation. Although there were a few episodes of intrusive thoughts of Vietnam-related memories probably initiated by the stresses, she did not exhibit symptoms of PTSD. A similar report in November 1987 reflects that she had completed her acute care program treatment in June 1986. VA outpatient treatment (VAOPT) records of 1986 through 1989 reflect diagnoses in January 1987 of depression, and PTSD versus mixed adjustment disorder. In August 1988 there were diagnoses of depression and of an exacerbation of PTSD. In March 1989 there were diagnoses of an exacerbation of PTSD and probable borderline personality. The veteran’s initial, formal claim for service connection for PTSD was received in March 1989. Records received in May 1989 reflect that the veteran received a “Navy Achievement Medal (with combat V) for meritorious service from March 21, 1968 to October 18, 1969. The accompanying letter reflects that she served with “Headquarters” in connection with combat operations against the enemy in Vietnam during the above dates as an Administrative Clerk despite extremely adverse conditions and difficulties associated with a combat environment. Also on file was a July 1968 letter of commendation reflecting that she had visited hospitalized patients in Vietnam. On VA compensation and pension examination of the veteran’s left knee in May 1989 the veteran reported that she had injured her knee when running during a mortar attack in Vietnam. She attended weekly meetings in a woman’s group for what she called PTSD and also attended a weekly co-dependency group meeting. She did not find out that she had PTSD until 1984 and believed that her stormy marriage had been due to both she and her husband having had PTSD. No mental status examination was conducted but the diagnoses included PTSD. The veteran was afforded VA psychological testing in May 1989 at which time she related a history of short and long term memory deficits. Testing indicated a profile of chronic depression with both aggressive dependency and poor insight. Somatization was used to manipulate others and she used projection to others to avoid responsibility for her own behavior. The diagnoses were depression with hysteria and somatization, and poor behavioral adjustment patterns. On VA psychiatric examination in June 1989 the veteran complained of flashbacks, dreams, and nightmares of events in Vietnam. She reported being easily frustrated and being unable to handle stress. She again related that she had injured her knee when running during a mortar attack in Vietnam. She also stated that while hospitalized she had seen emergency surgery performed, in which a patient’s chest was split open. The content of her dreams was being in a jungle hut with food on the table and of being in a cargo plane but being unable to remember where she was going. Her dreams were also related to driving through the jungles of Vietnam, and also of seeing blood. She had a recurring dream of dead people without heads. It was noted that she had not been stationed in a combat zone but in Saigon throughout her tour as an administrative clerk. She stated that she had never been in a combat zone but was periodically under sniper fire. The veteran reported that on one occasion while at the Plaza Hotel in Saigon someone started shooting a machine gun and she ran to the elevator. She only remembered being shot at and bullets flying all around her. She once saw a man try to kill himself with a grenade and was in the hospital and saw his arms and legs held up in a cast. She had never been in the jungles of Vietnam. She apparently had a history of alcohol abuse which she minimized. There had been a number of stressors in her life in the recent past. She reported that she had been fired from a job for exhibiting inappropriate behavior and flashing back to Vietnam experiences. After a mental status examination the diagnosis was alcohol abuse and possible dependence, currently in questionable remission, and an adjustment disorder with mixed emotional features as a result of numerous stressors in her life. It was opined that she did not have PTSD because of the manner in which she related her symptoms which was by rote and because she was never in a combat zone although she claimed she was occasionally shot at. She was very vague about the frequency of her dreams and nightmares and any sleep disturbance. New Evidence The evidence received since the August 1989 rating action includes a duplicate copy of the Navy Achievement Award which was previously on file and is not new. A discharge summary indicates that the veteran underwent VA hospitalization in September and October 1991 for complaints of decreased energy and appetite, decreased sleeping, and crying spells. The discharge diagnosis was major depression. In an August 1994 statement from a mental health clinical coordinator of a Vet Center it was reported that during service the veteran was assigned as an “NCO” in charge of order and files in the Marine Corps personnel section and was authorized to wear the “Combat V” due to her exposure to enemy fire. She had first presented for treatment of PTSD as at Vet Center in 1986 with symptoms which included sleep disturbance, intrusive recollections of Vietnam, problems with anger control, social alienation, and a history of self- medicating with alcohol. She continued to be effected by PTSD. On a document dated in December 1991, received in September 1994, in which there was an article entitled “Agent Orange Review” the veteran type a statement indicating that while in Vietnam she had been exposed to psychological warfare, machine gun fire, mortar fire, and aerial firefights. She had been hospitalized in May 1968 for a left knee injury and had witnessed men with severe injuries. She was present when “Jay Strnad” had died of wound from a grenade explosion. The article stated that data analysis revealed that “those who had noncombat jobs but were wounded had the highest risk of PTSD” even greater than those who were wounded and had combat jobs. Also received were additional service personnel records which merely corroborate the veteran’s presence in Vietnam. VAOPT records from 1991 to 1994 were also received. One notation indicates that there was to be continued follow-up for PTSD but other notations reflect diagnoses of a chronic dysthymic disorder and major depression. Also, she took medication for depression. In a December 1995 statement from a Readjustment Counseling Specialist of a Vet Center it was reported that during her Vietnam service the veteran had been repeatedly exposed to rocket and mortar attacks, sniper attacks, terrorist bombings, and attempts at poisoning. As a female in a combat zone she had felt more vulnerable had was generally not permitted to carry a weapon. After the war, she had been unable to process the impact of her traumatic experiences and began to subconsciously suppress her feeling, inadvertently adopting maladaptive coping methods and some distorted perceptions. This eventually manifested in symptoms consistent with PTSD. She was responding well to anti- depressant medication. In a September 1996 statement the veteran’s roommate of 12 years stated that in 1984 the veteran had become very frightened at seeing a fireworks display. On another occasion the veteran had jumped out of hiding and attacked her, until the veteran had recognized that the roommate was not the enemy. For awhile, they had both abused alcohol and after drinking the veteran would cry and speak of her experiences in Vietnam. At a September 1996 RO hearing the roommate reiterated her statement (pages 4 and 5). The Readjustment Counseling Specialist of a Vet Center, that submitted the December 1995 statement, testified that he had had access to the veteran’s unit records and that, on one occasion in Vietnam, another person who had taken out the vehicle usually used by the veteran had been blown up. People in restaurants in Vietnam were sometimes poisoned and while in a mess hall a person was a target (page 7). The veteran testified that she had had psychiatric problems prior to 1986 but her problems had become worse in 1986 (page 8). At her post service employment she had had flashbacks of Vietnam in which she saw blood all over the place (pages 8 and 9). She had been in a hotel lobby in Saigon when machine gun fire erupted and she had crawled to an elevator to escape (page 10). She had once been standing at a bus stop when a man next to her had been shot in the head by sniper fire (page 2). A solider that she had known, named Frank, was a patient on the ward that she had been in when she was treated for her left knee injury. He had been injured from a grenade blast and had died, although she was not with him when he died (pages 6 and 7). Attached to the August 1997 informal hearing presentation is a copy of page 660 of the Vietnam Veterans Memorial – Directory of Names, listing Frank Jay Strnad as having died in Vietnam on June 22, 1968. Analysis Since the August 1989 rating action denying service connection for PTSD, 38 C.F.R. § 3.304(f) was enacted and provides that: Service connection for [PTSD] requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. Additionally, if the claimed stressor is related to the claimant having been a prisoner-of-war, prisoner-of-war experience which satisfies the requirements of [38 C.F.R.] § 3.1(y) of this part will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1996) (which became effective May 19, 1993; see 58 Fed.Reg. 29,109, 29,110). When PTSD is claimed as a result of combat stressor(s), there must be a specific finding of fact of whether the veteran was engaged in combat and, if so, whether the claimed stressor(s) is related to combat. Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If he was not engaged in combat, or if he was but the claimed stressor(s) is unrelated to combat, it must be determined whether lay evidence thereof is corroborated by service records so as to establish the occurrence of the claimed noncombat stressor(s). Zarycki, id. at 100. The adjudication of a well grounded claim for service connection for PTSD requires evaluation of the evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, service medical records, and all pertinent medical an lay evidence. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.303(a), 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 137 (1997) (citing Hayes v. Brown, 5 Vet. App. 60, 66 (1993)). As to disabilities, including psychiatric disorders, incurred or aggravated in combat, the cited statute and regulation require the VA to accept as sufficient proof of service connection “satisfactory lay or other evidence of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service even in the absence of official records thereof. Zarycki v. Brown, 6 Vet. App. 91, 97 (1993) and Hayes, id., at 66. 38 U.S.C.A. § 1154(b) provides a factual basis allowing for a determination that a disease or injury was incurred or aggravated in combat but not a basis to link etiologically the inservice condition to a current condition. Libertine v. Brown, 9 Vet. App. 521, 524 (1996) and Caluza v. Brown, 7 Vet. App. 498, 507 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir. 1996). Although 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) do not establish service connection for a particular disability of a combat veteran, they aid in relaxing the adjudicative evidentiary requirements for determining what happened in service. Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir. 1996) (noting that § 1154(b) does not create a statutory presumption of service incurrence or aggravation of an alleged disease for a combat veteran but “considerably lighten[s] the burden”). In sum, service connection for PTSD requires the presence of three elements: (1) a current, clear diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptoms and the specific claimed in-service stressor. Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996). At to the first element for service connection for PTSD, a “clear diagnosis” should be an “unequivocal” one under the appropriate DSM. DSM-III was revised in 1987 (DSM-III-R) and the fourth edition was issued in 1994 (DSM-IV). Effective November 7, 1996, the Schedule for Rating Disabilities pertaining to mental disorders was amended (61 Fed.Reg. 52,700 (November 1996) revising 38 C.F.R. §§ 4.125 and 4.126 and replacing 4.130 with a section that adopts DSM-IV as the basis for the nomenclature for rating mental disorders. However, DSM-III-R is still referred to in other regulations and M21-1, Part VI, para. 7.46(a) (1995) (describing DSM-III- R diagnostic criteria for PTSD, and M21-1, Subch. XII, para. 50.45(b)(1) (1989) (same PTSD criteria as in DSM-III-R). Cohen v. Brown, 10 Vet. App. 128, 139 (1997). There are significant differences between DSM-III-R and DSM IV as to PTSD stressors. The DSM-III-R criteria for PTSD (incorporated into M21-1) required that a stressor be outside the range of usual human experience and be markedly distressing to almost anyone, e.g., a serious threat to one’s life or physical integrity or seeing another seriously injured or killed. However, DSM-IV deletes the “outside the range of usual human experience” and being markedly distressing to almost anyone. Rather, DSM-IV requires only that a stressor invoke a sense of intense fear, helplessness or horror. Thus, DSM-IV criteria no longer are based solely on the usual experience and response of people but are individualized (geared to the specific person’s actual experience and response). Thus, a predisposition or hypersensitivity is irrelevant. Cohen v. Brown, 10 Vet. App. 128, 141 (1997). It is contended that the change type of requisite stressor in the DSM-III-R to that in DSM-IV, from that “based solely on usual experience and response but are individualized (geared to the specific individual’s actual experience and response,” Cohen, at 141, together with new case law of the Court, including the holding in Cohen, constitute new and material evidence for reopening. However, in Cohen, at 139-40, it was held that the DSM criteria (whether the 3rd or 4th ed.) does not “add requirements over and above the three primary elements set forth in [38 C.F.R.] § 3.304(f)” and, thus, “DSM criteria play an auxiliary role” in PTSD claims. Cohen v. Brown, 10 Vet. App. 128, 139-40 (1997). The DSM sets forth criteria as to the sufficiency of stressor(s) and adequacy of symptomatology for a clear diagnosis of PTSD which are not contained in 38 C.F.R. § 3.304(f). Therefore, a clear (unequivocal) PTSD diagnosis by a mental-health professional will, unless shown by evidence to the contrary, be presumed to be in accord with DSM criteria as to sufficiency of stressor(s) and adequacy of symptomatology. Cohen v. Brown, 10 Vet. App. 128, 140 (1997). Only when there is a medical opinion as to the first (clear diagnosis) and third (nexus of current symptoms to in-service stressor(s)) PTSD elements do the DSM criteria come directly into play for VA adjudication. At that point the DSM criteria (as to symptoms or stressor requisites) may be used but only as that basis for return of an examination report to the RO for clarification or further examination. This is mandated when the Board believes that the report is not in apparent accord with DSM criteria (as to symptom adequacy and stressor requisites) and, thus, remand for clarification by examination or record review is mandatory. See revised 38 C.F.R. §§ 4.125 and 4.126; and M21-1, part VI, para. 7.46(e) (1995) and M21-1, Subch. XII, para. 50.45(c) (1989), VAOGCPREC 10-95. Cohen v. Brown, 10 Vet. App. 128, 140 (1997). The VA cannot use the DSM provisions themselves as a basis for rejecting the veteran’s favorable medical evidence as to sufficiency of a stressor or adequacy of symptoms but must rely on independent medical evidence, even if the clarification needed or sought is not provided by the original examiner. Thus, if a stressor in an examination report does not fit within the description of a PTSD stressor under the applicable DSM, then medical clarification is required. Cohen v. Brown, 10 Vet. App. 128, 140 (1997). Moreover, M21-1 provides that “[a] stressor is not to be limited to just one single episode. A group of experiences also may affect an individual, leading to a diagnosis of PTSD. M21-1, Part VI, para. 7.46(b)(2) (1995) and M21-1, Subch. XII, para. 50.45(f)(2) (1989). Cohen, at 142. Thus, in light of the subjective nature of the DSM-IV criteria for assessing the sufficiency of a PTSD stressor, the questions of sufficiency of stressors(s) (in terms of the two DSM-IV criteria) is a medical question requiring examination and assessment by a mental-health professional. Thus, VA can reject favorable medical evidence as to stressor sufficiency only on the basis of independent medical evidence, and only after first seeking clarification of an incomplete examination report. Cohen, at 142. Zarycki v. Brown, 6 Vet. App. 91, 99 (1993) held that it is the distressing event rather than mere presence in a combat zone that constitutes a valid PTSD stressor and in Swann v. Brown, 5 Vet. App. 229, 233 (1993) it was noted mere exposure to the ordinary stressful environment of a combat area was not a valid PTSD stressor. However, because of the new DSM- IV PTSD diagnostic criteria, this test (of a stressor impacting “almost anyone”) is no longer applicable. Therefore, Zarycki and Swann do not apply to the consideration of the DSM-IV criteria. Cohen, at 142. As to the second element required for PTSD (occurrence of in- service stressor) § 3.304(f) requires credible supporting evidence that the stressor occurred. If the claimed stressor is not combat related, lay testimony regarding in-service stressor is not sufficient to establish occurrence and must be corroborated by “credible supporting evidence.” Cohen v. Brown, 10 Vet. App. 128, 142 (1997) (citing Moreau v. Brown, 9 Vet. App. 389, 395 (1996) and Doran v. Brown, 6 Vet. App. 283, 389 (1994)). If the claimed stressor is combat related, a medical opinion based on a postservice examination of a veteran may not be the “credible supporting evidence” necessary to corroborated in-service occurrence. Cohen v. Brown, 10 Vet. App. 128, 142 (1997) (citing Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996)). As to the third element for PTSD (causal nexus of current symptoms and claimed in-service stressor) this is not directly addressed by DSM-IV and the M21-1 does not contain any additional requirements not found in 38 C.F.R. § 3.304(f). Cohen, at 143. In Helfer v. West, No. 95-1237 (U.S. Vet. App. Apr. 28, 1998) it was noted that by a final rule in October 1996 VA amended 38 C.F.R. §§ 4.125, 4.126, and 4.130, and adopted the fourth edition of the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV), and when compared to the previously adopted third edition of the DSM (DSM-III), the new DSM-IV used substantially modified criteria for diagnosing PTSD and that on this basis, in March 1997 in Cohen the Court had held that remand to the Board was necessary to assure the application of the most favorable version of the DSM in deciding whether PTSD was caused by in-service stressors. This is in keeping with the holding in Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991) in which it was held that “where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to appellant should and [] will apply.” However, it has never been specifically held that case law of the Court since 1989, 38 C.F.R. § 3.304(f), and the change in the DSM criteria, alone or together, have the equivalent effect of new and material evidence for reopening. Citing in Akins v. Derwinski, 1 Vet. App. 228, 230 (1991) it is contended that “that the factual predicate demonstrated by the presumptions have an important evidentiary value and, to that extent, are the functional equivalent of evidence.” However, the Federal Circuit in Routen v West, No. 97-7064 (Fed. Cir. Apr. 30, 1998) noted that Akins did not involve reopening but CUE and that the misapplication of, or failure to apply a statutory or regulatory burden-shifting presumption does not constitute evidence, least of all ‘new and material evidence’ for reopening nor a substantive change creating a new right (within the meaning of Spencer v. Brown, 12 F.3d 368 (Fed. Cir. 1994)). Thus, the holding in Akins has been overruled, at least as applied in the reopening context. In this case, there is no new evidence which, even when taken together with the old evidence, establishes a clear diagnosis of PTSD. Accordingly, the Board will not address whether the veteran’s testimony, and any other evidence, is sufficient to bring into application the provisions of 38 U.S.C.A. § 1154(b) (West 1991) and 38 C.F.R. § 3.304(d) (1997). In this regard, in Turpen v. Gober, 10 Vet. App. 536, 539 (1997) it was contended where there was a prior denial which had not acknowledged or discussed the evidentiary standard for combat veterans, the provisions of 38 U.S.C.A. § 1154(b) had the evidentiary effect of reopening. However, the Court held that even assuming that § 1154(b) application could, in some circumstances, serve as new and material evidence sufficient to reopen a claim, it did not do so in Turpen because no new medical evidence of a nexus between his claimed in-service disorder and current disability. Thus, in Turpen, there was no reasonable possibility that consideration of § 1154(b) could change the outcome of the case on the merits. A similar situation arises in this case except that there is no clear diagnosis of PTSD as required (as opposed to the nexus requirement in Turpen). There is, accordingly, no reasonable possibility that consideration of § 1154(b) by BVA could change the outcome of the case on the merits. In the reopening context, the benefit of the doubt doctrine in 38 U.S.C.A. § 5107(b) (West 1991) is not applicable unless the threshold burden of submitting new and material evidence to reopen has been met. While the benefit of the doubt doctrine lowers the reopening threshold, it cannot take the place of the standard for reopening. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). In view of the foregoing, the Board finds that new and material evidence has not been received with regard to the veteran’s claim for service connection for PTSD, and the August 1989 rating decision remains final. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1997). Even though the additional evidence submitted is not found to be new and material, VA may be obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant of evidence needed to complete his application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the Department of Veterans Affairs has advised the claimant of the evidence necessary to reopen a VA benefit claim through the presentment of new and material evidence. Graves v. Brown, 9 Vet. App. 172 (1996) (per curiam), citing Robinette v. Brown, 8 Vet. App. 69, 77-80 (1995). This obligation was fulfilled in the statement of the case (SOC) and supplemental SOC in which the veteran was informed that the evidence submitted in conjunction with the current claim did not contain confirmation or verification of a required stressor in service. Furthermore, by this decision, the Board is informing the veteran of the evidence which is lacking and that is needed to reopen the claim for service connection for PTSD. Summary The RO developed the issue as entitlement to service connection for PTSD. However, review of the file discloses that the RO had previously denied that claim in August 1989 and the veteran did not appeal. Unappealed decisions of the RO are final and may only be reviewed if the claimant presents new and material evidence to reopen the claim. 38 U.S.C.A. § 5108, 7104(b) (West 1991); 38 C.F.R. § 20.1100 (1997). The United States Court for the Federal Circuit has held that this is a jurisdictional matter. That is, no matter how the RO subsequently characterizes the claim, VA has no jurisdiction to consider the claim unless the appellant submits new and material evidence. Therefore, whether the RO considered the issue or not, the first determination which the Board must make, is whether the veteran has submitted new and material evidence to reopen the claim. See Barnett v. Brown, 83 F.3d 1380 (Fed.Cir. 1996). When the claim was last denied, in 1989, the evidence for and against a diagnosis of PTSD was weighed and it was determined that the veteran did not have PTSD. The newly submitted lay testimony of the veteran is essentially cumulative of statements she previously made. The lay testimony of the veteran and her room mate indicate that she has psychiatric problems but they do not have the medical expertise to diagnosis those problems as PTSD, so their testimony is not competent as to the pivotal issue here, whether there is a clear diagnosis of PTSD. The testimony of the Vet Center personnel is essentially cumulative of previously considered records and is not new. Some new clinical records reflect diagnoses of PTSD which simply reflect historical information provided by the veteran and have no more evidentiary weight than her claim itself. See Swann v. Brown, 5 Vet. App. 229 (1993); Coghill v. Brown, 8 Vet. App. 342 (1995). These clinical notes, unenhanced by any additional medical comment, are not competent evidence to reopen a claim. See LeShore v. Brown, 8 Vet App 406, 409 (1995). There is also post 1989 evidence of other psychiatric disabilities, including chronic dysthymic disorder and major depression. This evidence is not new and material because it would further support the denial and would not provide a basis to change the previous decision. The Board’s review does not disclose any competent new evidence which might establish that the veteran has PTSD. Therefore, the claim can not be reopened and the previous denial must remain final. ORDER New and material evidence not having been submitted, the claim for service connection for PTSD is not reopened. The appeal is denied. CLIFFORD R. OLSON Member, Board of Veterans’ Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. - 2 -