Citation Nr: 0005086 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 94-23 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE 1. Whether new and material evidence has been submitted to reopen a claim for service connection for schizophrenia. 2. Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Alberto H. Zapata, Counsel INTRODUCTION The veteran served on active duty from November 1972 to August 1977. He was a member of the National Guard from May 1988 to January 1989 and a member of the Army Reserves from January 1989 to September 1991. Although he appears to be alleging that he had active service during the period from May 1988 to September 1991, the RO requested the National Personnel Records Center to provide verification of such service. The National Personnel Records Center responded by providing DARP Form 2496, Statement of Service, which indicates that the veteran had no active duty during the period from May 1988 to September 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. Although the veteran had requested a Travel Board hearing and a hearing before a Hearing Officer at the RO, he withdrew his request for such hearings in October 1997. The Board notes that in a statement received at the RO in September 1997, the veteran appears to be claiming entitlement to service connection for heart and skin disabilities. These matters are referred to the RO for appropriate action. FINDINGS OF FACT 1. An unappealed rating decision of December 1985 continued the denial of the veteran's claim for service connection for schizophrenia. 2. The evidence added to the record since the December 1985 rating decision is either redundant or cumulative of evidence previously of record or is not so significant that it must be considered in order to fairly decide the merits of the claim. 3. The claim for service connection for post-traumatic stress disorder is not plausible. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the veteran's claim for service connection for schizophrenia. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 2. The claim for service connection for post-traumatic stress disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection may be granted for any disease diagnosed after service discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service incurrence of a psychosis may be presumed under certain circumstances if it is manifested to a compensable degree within a year of the veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). I. New and material evidence The veteran's claim for service connection for a nervous condition was denied in an unappealed September 1985 rating decision. The denial was continued in an unappealed rating decision of December 1985. Generally, a claim which has been denied in a final rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c) (West 1991). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New and material evidence means evidence not previously submitted to agency decision makers 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). New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the December 1985 rating decision included service medical records, VA medical records and private medical records. The service medical records are negative for evidence of any psychiatric disorder. The post-service medical evidence of record in December 1985 relates to treatment and evaluation of the veteran from 1982 to 1985. It shows an initial diagnosis of schizophrenia in 1985; there is no indication in the post- service medical evidence that the schizophrenia was present within a year of the veteran's discharge from service or that it is etiologically related to the veteran's period of active duty. The evidence added to the record since the December 1985 rating decision consists of service medical records, statements of the veteran, and VA and non-VA medical records. The additional service medical records are also negative for evidence of psychiatric disability. Therefore, they are not material. The post-service medical evidence added to the record relates to treatment and evaluation of the veteran subsequent to 1985. It continues to document the presence of schizophrenia many years after the veteran's discharge from service. Although the records reflect that the veteran gave a history of schizophrenia dating back to 1978, information which is simply recorded by a medical examiner, unenhanced by any medical comment by the examiner, does not constitute competent medical evidence. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). There is no indication in the post- service medical evidence added to the record that the veteran's schizophrenia was present within a year of his discharge from service or that it is etiologically related to service. Therefore, the post-service medical evidence added to the record is neither new nor material. The veteran has provided a number of statements attributing his schizophrenia to his military service. Although the veteran is competent to describe symptoms susceptible to lay observation he is not competent to render a medical diagnosis or an opinion concerning medical causation. See Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). The "new and material evidence" burden of 38 U.S.C.A. § 5108 cannot be met by relying on such lay evidence. Moray v. Brown, 5 Vet.App. 211, 214 (1993). Therefore, the Board must conclude that reopening of the veteran's claim is not in order. II. Service connection for post-traumatic stress disorder Entitlement to service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition with credible supporting evidence that the claimed inservice stressor actually occurred and a link, established by medical evidence, between the current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1998). During the pendency of this appeal, § 3.304(f) was amended, effective March 7, 1997. 64 Fed. Reg. 32807-32808 (1999). The amended regulation, 38 C.F.R. § 3.304(f) (1999), provides: Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. The veteran appears to be claiming that service connection is warranted for post-traumatic stress disorder because it developed as a result of stressors during his extended period of active duty and during alleged active duty during the period from May 1988 to September 1991. As a preliminary matter, the Board must determine whether the veteran has presented evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a). If he has not, his claim must fail, and VA is not obligated to assist the veteran in its development. 38 U.S.C.A. § 5107(a); Grottveit v. Brown, 5 Vet. App. 91 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The United States Court of Appeals for Veterans Claims (Court) has stated repeatedly that 38 U.S.C.A. § 5107(a) unequivocally places an initial burden on a claimant to produce evidence that a claim is well grounded. See Grivois v. Brown, 6 Vet. App. 136 (1994); Grottveit at 92; Tirpak at 610-11. A well-grounded claim is a plausible claim, that is, a claim that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Court has stated that the quality and quantity of evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit at 92-93. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Grottveit at 92-93. Further, in order for a claim to be considered plausible, and therefore well grounded, there must be evidence of both a current disability and evidence of a relationship between that disability and an injury or disease incurred in service or some other manifestation of the disability during service. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). The veteran contends that he has post-traumatic stress disorder related to service. As noted above, information provided by the service department reflects that the veteran had no active duty during the period from May 1988 to September 1991. The veteran's service medical records are negative for a diagnosis of post-traumatic stress disorder. The post-service medical evidence reflects that diagnoses of post-traumatic stress disorder were rendered by VA in July and November 1996. However, the medical records reflecting a diagnosis of post-traumatic stress disorder do not identify a service stressor or otherwise suggest that the disorder is etiologically related to service. The evidence linking the claimed post-traumatic stress disorder to service consists of the veteran's own lay assertions. As noted above, the veteran is not competent to render an opinion concerning medical causation. See Espiritu, at 494 . Therefore, the Board must conclude that this claim is not well grounded. As detailed above, the Board has denied service connection for post-traumatic stress disorder on the basis that the claim is not well grounded. Although the Board has considered and denied the claim on grounds different from that of the RO, which denied it on the merits, the veteran has not been prejudiced by the Board's decision. This is because in treating the claim as well grounded, the RO accorded the veteran greater consideration than the claim in fact warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). To remand the case for consideration of whether the claim is well grounded would be pointless and, in light of the law cited above, would not result in a determination favorable to the veteran. VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). ORDER New and material evidence not having been submitted, the appeal to reopen the claim for service connection for schizophrenia is denied. Service connection for post-traumatic stress disorder is denied. SHANE A. DURKIN Member, Board of Veterans' Appeals