Citation Nr: 0004929 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 97-02 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Whether new and material evidence sufficient to warrant reopening of the veteran's claim for service connection for a nervous disorder, currently diagnosed as dysthymia, has been submitted. 2. Entitlement to service connection for post traumatic stress disorder. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESS AT HEARING ON APPEAL Dr. Raul Correa Grau ATTORNEY FOR THE BOARD M. J. Bohanan, Counsel INTRODUCTION The veteran served on active duty from November 1961 to November 1964. This appeal arises from an April 1996, Department of Veterans Affairs (VARO), San Juan, Puerto Rico rating decision, which denied reopening the veteran's claim for entitlement to service connection for a nervous condition on the basis that new and material evidence sufficient to warrant reopening of his claim had not been submitted; and denied the veteran's claim for entitlement to service connection for post traumatic stress disorder. FINDINGS OF FACT 1. The veteran served on active duty from November 1961 to November 1964. 2. The Board denied the veteran's claim for entitlement to service connection for a psychiatric disability in a final November 1994 decision. 3. Evidence submitted with regard to the veteran's request to reopen his claim for service connection for a psychiatric disability, to specifically exclude post traumatic stress disorder, since the Board's November 1994 decision includes: VA examination reports, private examination reports and treatment records, and testimony on appeal from the veteran's private psychiatrist. 4. Evidence provided since the Board's November 1994 decision, when viewed by itself or in the context of the earlier evidence of record, is so significant that it must be considered to decide the merits of the claim. 5. Medical opinion linking the veteran's currently diagnosed dysthymia to service renders the claim plausible. 6. The veteran did not engage in combat with the enemy, and there is no corroboration of the alleged in- service stressor. 7. He does not have post traumatic stress disorder. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the claim for entitlement to service connection for an acquired psychiatric disability, not including post traumatic stress disorder, has been submitted. 38 U.S.C.A. § 5108, 7105 (West 1991); 38 C.F.R. §§ 3.156(a), 20.1104 (1999). 2. The veteran's claim for entitlement to service connection for a nervous disorder, currently diagnosed as dysthymia, is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. Post traumatic stress disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim for service connection for an acquired psychiatric disability, not including post traumatic stress disorder, was the subject of an unfavorable Board decision in November 1994. The decision of the Board is considered to be final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.1104 (1999). Under pertinent law and regulations, as interpreted by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court"), the VA may reopen and review a claim which has been previously denied if new and material evidence is submitted by or on behalf of the appellant. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §§ 20.1100, 20.1104 (1999); and Manio v. Derwinski, 1 Vet.App. 140 (1991). "New and material" evidence means evidence not previously submitted, 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 (1999). The veteran is also seeking service connection for post traumatic stress disorder, a claim which has not been previously denied. Under pertinent law and VA regulations, service connection may be granted if a psychiatric disorder was incurred or aggravated during service, or as a result of service, or if an acquired psychiatric disorder manifested to a compensable degree within one year thereafter. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1133 (West 1991); 38 C.F.R. §§ 3.303, 3.309 (1999). It is not necessary to have a diagnosis of a particular disability during service, but it is necessary to have manifestations sufficient to establish that a disability was present. 38 C.F.R. § 3.303(d) (1999). In adjudicating a claim for service connection for post traumatic stress disorder, the Board is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(f) (1999). Service connection for PTSD requires (1) medical evidence establishing a diagnosis of the condition; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by the medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (1999). The claimed stressor may be the result of either a combat or non-combat experience. Moreau v. Brown, 9 Vet. App. 389 (1996). The veteran may also establish a well-grounded claim for service connection under the chronicity provision of 38 C.F.R. § 3.303(b) (1999), which is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period, and that the same condition currently exists. Such evidence must be medical unless the condition at issue is a type as to which, under case law, lay observation is considered competent to demonstrate its existence. If the chronicity provision is not applicable, a claim still may be well grounded pursuant to the same regulation if the evidence shows that the condition was observed during service or any applicable presumption period and continuity of symptomatology was demonstrated thereafter, and includes competent evidence relating the current condition to that symptomatology. Savage v. Gober, 10 Vet.App 488, 495-98 (1997). The initial question to be answered regarding the veteran's claim for service connection for post traumatic stress disorder is whether the veteran has presented evidence of a well grounded claim; that is, a claim which is plausible. If he has not presented a well grounded claim, his appeal must fail and there is no duty to assist him further in the development of his claim because such additional development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464, 1467-68 (Fed. Cir. 1997). Although the claim need not be conclusive, it must be accompanied by supporting evidence sufficient to justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). The Board will first review the medical evidence and procedural history of the veteran's claims. The veteran's DD-214 indicates that he was a wheel vehicle mechanic during service, and he received no combat citations. At the time of the Board's November 1994 denial of the veteran's claim for service connection for a psychiatric disability, pertinent evidence of record included service medical records, which revealed that the veteran experienced hostility and resentment of authority and which indicated a diagnosis of passive aggressive personality disorder, in June 1964. A July 1964 psychiatric evaluation revealed that the veteran was described as emotional, dependent, anxious and impulsive. A diagnosis of emotional instability was reported. The veteran's September 1964 separation examination revealed no psychiatric abnormalities. An August 1990 decision from the State Insurance Fund regarding a workers compensation claim filed in November 1988 was of record, which indicated that the veteran alleged that he had developed an emotional condition as the result of a cervical spine injury. He was evaluated by a psychiatrist who rendered a special medical report on November 14, 1989, in which he determined that the veteran suffered from a Dysthymic Disorder, non-related. A January 1991 waiver of information form completed by Dr. Eric Jose Jimenez Figueraro indicated that the veteran's diagnoses included anxiety depressive syndrome. VARO denied the veteran's claim for a nervous disorder in a February 1991 rating decision. The veteran appealed that denial to the Board of Veterans' Appeals. At his August 1991 hearing on appeal, the veteran testified that he was a boxer during service while stationed in Germany. He reported that he went to a psychiatrist while in Germany because he had an "explosive" condition. He claimed that if someone said something to him, he could not control himself. He reported that he was told by the psychiatrist that he had a "disturbed" mind. He testified that he sought treatment with a private doctor for his emotional problems and nerves after he left the service, and was given "pills." He specified that he first sought professional treatment in 1981 or 1982. The veteran's daughter testified that her father was very aggressive and abrasive. She claimed that her sisters felt rejected because of her father's behavior due to his nerves. She also reported that the veteran suffered from insomnia. A May 1991 report from the Department of Health, Auxiliary Bureau of Mental Health, indicated that the veteran had received treatment from November 1990. He had been referred by emergency services with symptoms of marked depression, lack of appetite, insomnia, ill humor, irritability, suicidal behavior with homicidal ideas and a history of two suicide attempts. The diagnosis on Axis I was adjustment disorder with depression. No personality disorder was indicated on Axis II. The veteran claimed that the major cause for his depression was economic factors and his physical condition. A June 1991 VA examination report indicated that the veteran complained of insomnia, depression, anxiety, etc. A psychiatric evaluation revealed no gross psychiatric disorder for an Axis I determination. A September 1993 statement from the veteran's private physician, Dr. Eric Jose Jimenez Figueroa, was of record. Dr. Figueroa reported that he had treated the veteran since May 1987. He indicated that the veteran had a history of participating in sport activities in the army where he was a boxer. He indicated that at the very beginning, his symptoms were related to cervical pain and functional limitations. Later on, the veteran developed chronic cervical myositis, paravertebral cervical muscle spasm, discogenic disease, and major depression. The Board denied the veteran's claim for service connection for a psychiatric disorder in November 1994. The veteran did not file an appeal with that decision which is final. Evidence received in support of the veteran's claim subsequent to the Board's denial, includes a March 1995 report from the veteran's private psychiatrist, Dr. Raul Correa Grau, who indicates that the veteran provided a history of discrimination during service. The veteran claimed that he experienced numerous behavior problems because of the friction of racism against Puerto Ricans and other races, and that he was a boxer during service. He claimed that he saw a psychiatrist twice during service, and had been treated at Mental Health for 2 suicide attempts. He claimed that he had nightmares in which he was killing a military man or the latter was attempting to kill him. Dr. Grau diagnosed post traumatic stress disorder. He concluded that these experiences in service "caused [the appellant] a psychological element that prevents him from integrating into society, for which he receives Social Security [benefits] for nerves and a cervical condition, which arose from boxing while participating in those fights." A VA post traumatic stress disorder examination was conducted in May 1995. It was noted that the veteran was never in combat during the military and had a series of problems during service, including an arrest, jail term, and probation. It was indicated that, because the veteran was making a claim for PTSD and the evidence to sustain this diagnosis was not found, a psychological examination and a board examination by 3 psychiatrists was requested. A VA psychological evaluation was conducted in June 1995. The veteran was referred with a provisional diagnosis of borderline personality disorder. It was noted that, according to military records, he had problematic behavior from the beginning of his military service due to his intolerances and resistance to authority figures, which was still his problem. The examiner reported that the veteran had a self-defeated attitude contributing to his anger, irritability, intolerance, and interpersonal conflicts. This dynamic reportedly seemed to be the center of his emotional conflicts. It was noted that, even though the PTSD questionnaire rendered a 90 percent probability of PTSD, there was not sufficient evidence on record to sustain the diagnosis. Nevertheless, a personality disorder, rather borderline with prominent conflicts in handling his anger, was evident. A report of an August 1995 VA examination by a board of three psychiatrists indicated that the veteran denied some of the information that he had previously reported to the examiner in May 1995. At that time, he claimed difficulties growing up with his aunt and uncle. However, on this examination he denied any problems with his aunt or uncle and claimed that any problems had been with his stepmother. It was noted that he had also previously reported problems with his aunt and uncle during examination in service in July 1964. Numerous problems with authority figures during his military service were also noted. The veteran indicated that he took up boxing during military service. He claimed that he was good at it, and it allowed him to let out all the anger that he had accumulated. He continuously expressed anger towards those who had mistreated him in life and in the military because of racial prejudice. The appellant described overwhelming inner anger and isolation from family. He claimed that he slept poorly and sometimes impulsively felt like "doing away" with himself. It was the opinion of the members of the board of psychiatrists that the veteran's principle disability was his personality disorder. Axis I diagnosis was dysthymia, and alcohol abuse secondary to his Axis II diagnosis of borderline personality disorder. A June 1996 report from psychologist, Francisco Arizmendi, indicated that the veteran reported a history of psychiatric treatment during the military because of prejudice that he experienced which affected him emotionally. Findings indicated a marked state of anxiety. The impression of the examiner, taking into consideration the elements gathered during the interview with the veteran and his wife, the results of the examination administered, as well as the criteria for DSM IV, was that the veteran was "suffering from a Post Traumatic Stress Disorder, produced by prejudice and under repression during the time that he served as a soldier." Private treatment records from Dr. Grau, dated from March 1995 to December 1996, indicated dysthymic disorder and PTSD in March 1995, with treatment for symptoms of depression, insomnia, flashbacks and nightmares. At the veteran's January 1997 hearing on appeal, Dr. Grau testified that he had been treating the veteran since March 1995. He reported that the veteran talked about nightmares and elements of occasional flashbacks of boxing during service. Dr. Grau equated the veteran's boxing to alcoholism, in that his anxiety disappeared with boxing during service. Dr. Grau claimed that the veteran's main diagnosis was post traumatic stress disorder, but there were other diagnoses which had to be considered such as dysthymia. Dr. Grau reported that the "prejudices, which is a chronic element of despising or rejecting a person in a continued and improper way, because that person doesn't have the linguistic tools, is a stressor violent enough for an individual to loose or change or disarticulate his mental defenses, psychological defenses, falling into a psychosis or into any type of nervous or emotional illness." He specified that the veteran's stressor which caused his post traumatic stress disorder was "the permanent rejection" of discrimination. He further reported that the veteran's dysthymic disorder also "began" with the prejudice during military service. The veteran indicated that he received some sedative from a doctor shortly after his service, but did not seek further treatment until approximately 1979. A VA post traumatic stress disorder examination was conducted in April 1999 to reconsider a diagnosis of post traumatic stress disorder. The veteran reported that he was abused and unfairly treated during service. Axis I diagnosis was dysthymia and alcohol abuse. Axis II diagnosis was borderline personality disorder. The opinion was that, based on the veteran's history, records, and current and previous evaluations, there was "no basis as to diagnose PTSD." 1. Whether new and material evidence sufficient to warrant reopening of the appellant's claim for service connection for a nervous disorder, currently diagnosed as dysthymia, has been submitted. The additional evidence is clearly "new", in that it was not of record at the time of the Board's November 1994 denial of the veteran's claim. It is also "material", in that it tends to establish that the veteran may have a psychiatric disorder, namely dysthymia, that began during service. A review of the submitted evidence, particularly the testimony from the veteran's private psychiatrist, Dr. Grau, which specifically indicates that the veteran current diagnoses included dysthymia that originated during service, leads the Board to find that new and material evidence has been presented sufficient to reopen his claim. The additional evidence 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) (1999). As new and material evidence has been submitted, the claim for service connection for a nervous disorder, currently diagnosed as dysthymia, is reopened. Further, the Board finds that the veteran's claim is well grounded. A well grounded claim is one that is plausible, capable of substantiation, or meritorious on its own. 38 U.S.C.A. § 5107(a). There is evidence of record that the veteran currently has a diagnosis of dysthymia, which Dr. Grau has related to his experiences during service. 2. Entitlement to service connection for post traumatic stress disorder. The initial question before the Board regarding the veteran's claim for post traumatic stress disorder is whether he has submitted a well grounded claim as required by 38 U.S.C.A. § 5107. A well-grounded claim is one which is plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990). More specifically, the Court has indicated that a veteran seeking service connection for PTSD must satisfy the initial burden of submitting a well grounded claim by furnishing (1) medical evidence of a current disability, (2) medical or lay evidence of an in-service stressor, and (3) medical evidence of a nexus between service and the current PTSD disability. See Cohen v. Brown, 10 Vet. App. 128 (1997). Here, the veteran has submitted (1) medical evidence, in the form of testimony from his private psychiatrist, Dr. Grau, and private psychologist, Dr. Arizmendi, of a current diagnosis of post traumatic stress disorder (presumed to include the adequacy of the post traumatic stress disorder symptomatology and the sufficiency of the claimed in-service stressor), (2) the veteran's own statements recorded by Dr. Grau and Dr. Arizmendi of an in- service stressor (which the Board presumes to be true for purposes of determining whether his claim is well-grounded, see King v. Brown, 5 Vet. App. 19 (1993)), and (3) medical evidence of a nexus between service and the current post traumatic stress disorder disability, in the form of testimony from Dr. Grau, and a psychological report from Dr. Arizmendi, relating the veteran's diagnosed post traumatic stress disorder to the claimed in-service stressor of "prejudice." Based on the foregoing, the Board concludes that the veteran has submitted a well-grounded claim for service connection for PTSD. In the adjudication that follows, the Board, having accepted only for well-groundedness purposes the credibility of the evidence, must determine, as a question of fact, both the weight and credibility of that evidence. Robinette v. Brown, 8 Vet. App. 69, 78 (1995) (quoting Justus v. Principi, 3 Vet. App. 510, 513 (1992)) (emphasis in original). Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed.Cir. 1997). Noting the Board's "inherent fact- finding authority," the Federal Circuit discussed "the considerable body of law imposing a duty on the Board to analyze the credibility and probative value of evidence sua sponte, when making its factual findings." Id. The Court has set forth the analytical framework for establishing the presence of a recognizable stressor, the essential prerequisite to support a diagnosis of PTSD and entitlement to service connection. There are two major components to this analysis: first, it must be established whether the evidence demonstrates that stressful events occurred and, second, it must be established whether the stressful events are sufficient to support a diagnosis of PTSD. Cohen; Moreau; Zarycki v. Brown, 6 Vet. App. 91 (1993). Regarding combat-related service, the Court articulated a two-step process of determining whether a veteran "engaged in combat with the enemy." However, there is no allegation or evidence in this case that the veteran served in combat. The starting point for any determination with regard to PTSD is whether there is a "stressor." Under the controlling regulation, there must be credible supporting evidence that the claimed inservice stressor(s) actually occurred. 38 C.F.R. § 3.304(f). The existence of an event alleged as a "stressor" that results in PTSD, though not the adequacy of the alleged event to cause PTSD, is an adjudicative, not a medical determination. Zarycki. As the veteran did not engage in combat and as his reported stressor is not related to combat, his assertions, standing alone, cannot, as a matter of law, provide evidence to establish that an inservice event claimed as a stressor occurred. See Dizoglio. This does not mean that he cannot establish that the alleged inservice event occurred, it only means that other "credible supporting evidence from any source" is necessary. See Cohen. Since there is a diagnosis of post traumatic stress disorder, it must then be determined whether there is "credible supporting evidence from any source" of the veteran's alleged stressor. In this case, that prejudice against the veteran actually occurred. Drs. Grau and Arizmendi have both made diagnoses of post traumatic stress disorder. Although their professional credentials are unknown, it is assumed for the purpose of this decision that they are qualified to diagnose psychiatric disorders. In his June 1996 psychological report, Dr. Arizmendi opined that the veteran was suffering from post traumatic stress disorder produced by in- service prejudice. Likewise, in his January 1997 testimony, Dr. Grau identified the stressor for post traumatic stress disorder as in- service prejudice because the veteran was Puerto Rican. The veteran has provided no specific details with respect to the alleged stressor of "prejudice" during service, and military records are devoid of any complaints made by him relating to prejudice or harassment due to race. While these allegations of in- service prejudice have been accepted by Drs. Grau and Arizmendi, it must be emphasized that there is no evidence tending to corroborate incidents of prejudice against the veteran in service. Thus, while the veteran does have a diagnosis of post traumatic stress disorder, the diagnosis is based on a stressor whose existence is not corroborated by credible evidence. Although an examiner can render a current diagnosis based on his or her examination of the veteran, a medical opinion regarding etiology which is specifically reliant upon the self-reported history of a veteran can be no better than the facts alleged by the veteran. Swann v. Brown, 5 Vet. App. 229, 233 (1993); Black v. Brown, 5 Vet. App. 177, 180 (1993). Where, as here, a medical opinion is made based upon reliance on unsupported history furnished by the veteran, that opinion has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); see also Elkins v. Brown, 5 Vet. App. 474, 478 (1993). Further, the Board finds that the August 1995 VA examination report by a board of three psychiatrists (supported by psychological evaluation) and the April 1999 VA psychiatric examination to have more probative value than the opinions of the veteran's health care providers. Owens v. Brown, 7 Vet.App. 429, 433 (1995). Specifically, the VA examiners reviewed the veteran's entire claims file, including his military service records, and private treatment records, but failed to confirm the post- traumatic stress disorder diagnosis. The Board finds that while a diagnosis of post traumatic stress disorder is of record, the preponderance of the evidence is against this claim on the basis that the weight of the evidence does not substantiate a diagnosis of post traumatic stress disorder, and verification of the alleged stressor has not been provided. Accordingly, service connection for post traumatic stress disorder is not warranted. ORDER New and material evidence sufficient to reopen a claim for entitlement to service connection for a psychiatric disability, other than post traumatic stress disorder, having been submitted, the claim is reopened. The claim of entitlement to service connection for a psychiatric disorder, currently diagnosed as dysthymia, is well grounded. To this extent only, the appeal is granted. Entitlement to service connection for post traumatic stress disorder is denied. REMAND 2. (Rephrased) Entitlement to service connection for a psychiatric disorder, currently diagnosed as dysthymia. As previously mentioned, the Board has determined that new and material evidence sufficient to reopen and review the claim for service connection for a psychiatric disability has been submitted, and that the new evidence is sufficient to well ground the veteran's claim. See Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. The Board notes that Bernard v. Brown, 4 Vet. App. 384 (1993), provides that to avoid prejudice to the veteran by rendering decisions on the merits of claims which were denied on the basis of finality, it must be shown that the veteran had sufficient notice of the need to address those issues in submissions, arguments, and testimony on appeal. Therefore, this issue will be remanded for further development. Accordingly, in view of the requirements set forth in Bernard, the case is REMANDED for the following development: VARO should readjudicate the issue of entitlement to service connection for a psychiatric disorder with consideration of all additional evidence. The claim should be adjudicated on the merits. If VARO continues to deny the appellant's claim, the veteran and his representative should be furnished an appropriate supplemental statement of the case. They should be afforded an opportunity to respond to the supplemental statement of the case. Thereafter, the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. NANCY I. PHILLIPS Member, Board of Veterans' Appeals