Citation Nr: 0006982 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 98-03 151A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Stephen L. Higgs, Associate Counsel INTRODUCTION The veteran served on active duty from September 1963 to September 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in June 1997 by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Since the March 1983 unappealed RO denial of the claim for service connection for PTSD, evidence was submitted which was not previously before agency decisionmakers and which bears directly and substantially upon the specific matter under consideration. This evidence is neither cumulative nor redundant, and 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. This evidence includes a medical diagnosis of PTSD due to inservice combat stressors. 3. The preponderance of the medical evidence of record indicates that the veteran does not currently have PTSD. CONCLUSIONS OF LAW 1. Evidence submitted since the March 1983 decision denying service connection for PTSD, which was the last final denial with respect to this issue, is new and material; the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). 2. PTSD was not incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991 & Supp. 1998); 38 C.F.R. § 3.303, 3.304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The veteran's DD Form 214 reflects that he served in Vietnam, and his decorations include the Combat Infantryman Badge. His military specialty was that of heavy weapons infantryman. His service medical records, to include his September 1966 service discharge examination, are negative for psychiatric disability. Numerous private and VA medical records of treatment, examination and hospitalization dated from December 1977 to February 1999 reflect diagnoses of schizophrenia. Diagnoses rendered include acute psychosis, probably schizophrenia; paranoid schizophrenia; psychosis, not otherwise specified; and delusional disorder, not otherwise specified. The vast majority of the diagnoses are of schizophrenia. However, one treating physician has diagnosed the veteran as having PTSD. In a letter dated in November 1998, James E. Lean, M.D., asserted that throughout the time he had been treating the veteran, he had been aware that the veteran had periods of flashbacks of Vietnam which seemed to wax and wane in frequency. The veteran indicated to Dr. Lean that these flashbacks, of rather gripping memories of intense life- threatening combat, occurred about two to three times per week. These flashbacks replayed for about 5 minutes and left the veteran somewhat disoriented. The veteran was noted to avoid interaction in situations where combat was discussed. He had lost his home and wife due largely to feelings of detachment and estrangement form others. The veteran stated he was unable to sustain loving feelings toward his wife. He experienced difficulty staying asleep each night and woke up rather frequently in spite of having sedating nighttime medication administered. The veteran also had ongoing trouble concentrating, and described somewhat of a startle response in response to others' movements or sounds. Dr. Lean concluded that the veteran met the DSM-IV diagnostic criteria for PTSD. Treatment records of Dr. Lean dated from November 1996 to May 1998 are consistent with his above-described November 1998 letter. The veteran has undergone VA examinations on five occasions for the purpose of determining whether he has PTSD. Those examinations are summarized directly below in chronological order. During a VA psychological examination in February 1983, the examiner diagnosed the veteran has having paranoid schizophrenia. After objective examination and review of the veteran's military, social and medical history, the examiner asserted that there were no signs of PTSD. A VA May 1997 psychological evaluation included tests such as the MMPI and Mississippi Scale for Combat Related PTSD. The Mississippi Scale score was more consistent with a psychiatric control group than with combat-related PTSD. The MMPI pointed to depression, disorganization, and somatic concern, more similar to a residual psychosis than PTSD. Thus, in the psychologist's view, a diagnosis of PTSD was not supported. During a May 1997 VA psychiatric examination, after objective examination and review of the veteran's military, social, and medical history, the diagnosis was schizophrenia, residual type, chronic. The veteran was noted to have seen many dead and wounded in Vietnam. He denied any ongoing thoughts of Vietnam experiences other than an episode in which he was hit on the head, rendered unconscious briefly, came to, and immediately shot and killed an enemy soldier. He appeared to have an obsessive concern about this recollection. The examiner opined that the veteran had no feelings of horror or helplessness while in Vietnam. He felt that the veteran did have recurrent distressing recollections of the head injury and associated anxiety feelings that he could have been killed at that time. There was no history of nightmares about Vietnam. He had watched war movies and said they did not upset him, though he did not talk about his war experiences. He did not appear to be hypervigilant. He was no longer irritable and did not lose his temper. He did not startle easily with noise. There was some sleep disturbance, and some feeling of detachment since the onset of his psychiatric illness in 1977. The examiner asserted that it was doubtful that the veteran met all the criteria for PTSD. The examiner noted that the May 1997 MMPI was not diagnostic of PTSD, and that a number of the clinical features were typical of PTSD but were also seen in schizophrenia, including anxiety, easy startling with noise, and sleep disturbance. During a February 1999 VA psychiatric examination, after objective examination and review of the veteran's military, social and medical history, the diagnosis was schizophrenia, probably undifferentiated, with some manic features. The veteran was noted to have been examined by VA physicians and a VA psychologist in 1983 and 1997, and found not to have PTSD. The examiner acknowledged the records of Dr. Lean which reflect that in 1997, the veteran began having periods of decompensation, depression, and agitation, including daze- like periods of four to five minutes which the veteran felt were flashbacks. The examiner asserted that these episodes may be explained on a basis other than PTSD, although they may have some relationship to Vietnam. The examiner opined that though the veteran may have incurred a PTSD stressor as a result of exposure to inservice combat, he did not meet the other criteria for a diagnosis of PTSD. During a second February 1999 VA examination for PTSD, after review of the veteran's military, social, and medical history, the diagnosis was chronic paranoid schizophrenia, residual. The examiner asserted that the veteran's history, presentation, and chart review were consistent with chronic paranoid schizophrenia. The examiner felt that the veteran's experience during which he was hit in the head in Vietnam did not constitute a PTSD stressor; that while he had recurrent intrusive memories and flashbacks, he denied nightmares, triggers or physiologic paralysis triggers; and that he denied avoidance of triggers, amnesia for trauma, and detachment from others. He did not show restricted affect and spoke at length about much he loved his new wife and how close he was to his children. He did not have a foreshortened sense of his future. He denied irritability, hypervigilance, or startle response. In the examiner's view, the veteran's insomnia and poor concentration were most likely due to his chronic paranoid schizophrenia with mild depressive symptoms, and were not related to PTSD. The examiner concluded that the veteran did not report nor did the chart seem to support consistent and sufficient symptomatology for the diagnosis of PTSD. Analysis The RO denied service connection for PTSD in a March 1983 rating decision. Although the RO notified the veteran of that decision, he did not appeal. Therefore, the RO's decision of March 1983 is final. 38 U.S.C.A. § 7105 (West 1991). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. Thus, the Board must perform a three- step analysis when a veteran seeks to reopen a claim based on new evidence. Winters v. West, 12 Vet. App. 203, 206 (1999); Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998) (overruling the test set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991), which stated that "new" evidence was "material" if it raised a reasonable possibility that, when viewed in the context of all the evidence, the outcome of the claim would change); Elkins v. West, 12 Vet. App. 209, 218 (1999) (stating that, after Hodge, new and material evidence may be presented to reopen a claim, even though the claim is ultimately not well grounded). First, the Board must first determine whether the evidence is new and material. Winters, 12 Vet. App. at 206. According to VA regulation, "new and material evidence" means evidence not previously submitted to agency decisionmakers 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). This definition "emphasizes the importance of the complete record for evaluation of the veteran's claim." Hodge, 155 F.3d at 1363. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); but see Duran v. Brown, 7 Vet. App. 216, 220 (1994) ("Justus does not require the Secretary to consider the patently incredible to be credible"). Second, if the Board determines that new and material evidence has been produced, immediately upon reopening the case, the Board must determine whether, based on all the evidence of record, the reopened claim is well grounded pursuant to 38 U.S.C.A. § 5107(a). Winters, 12 Vet. App. at 206. Finally, if the claim is well grounded, the Board may proceed to evaluate the merits of the claim after ensuring that VA's duty to assist has been fulfilled. Id. Since March 1983, evidence in the form of Dr. Lean's medical diagnosis linking PTSD to inservice stressors has been received. This evidence was not previously submitted to agency decisionmakers, bears directly and substantially upon the matter under consideration, is neither cumulative or redundant, and by itself or in connection with evidence previously assembled is so significant that it must be considered to fairly decide the merits of the claim. Accordingly, the claim for service connection for PTSD is reopened. 38 C.F.R. § 3.156(a). A PTSD claim is well grounded where the veteran has submitted medical evidence of a current disability; lay evidence (presumed to be credible for these purposes) of an in-service stressor, which in a PTSD case is the equivalent of in- service incurrence or aggravation; and medical evidence of a nexus between service and the current PTSD disability. Cohen v. Brown, 10 Vet. App. 128, 136-37 (1997). The evidence necessary to establish the occurrence of a recognizable stressor during service will vary depending on whether the veteran "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60 (1993). 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. 38 C.F.R. § 3.304(f). In the instant case, in a November 1998 medical opinion from James A. Lean, M.D., he asserted that the veteran has PTSD as a result of stressors incurred during the period of combat service in Vietnam. Accordingly, the Board finds the claim to be well-grounded and, based on the conditions and hardships of the veteran's combat service, accepts the assertions as to the occurrence of an inservice combat stressor. Thus, the Board will proceed to adjudication on the merits, as did the RO. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 1991). Regulations also provide that service connection may be granted for any disease diagnosed after 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). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage. If the disorder is not chronic, it may still be service connected if the disorder is observed in service or an applicable presumptive period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present disorder to that symptomatology. Id. The Board acknowledges the medical opinion of Dr. Lean, who diagnosed the veteran as having PTSD in addition to schizophrenia after two years of treating the veteran for psychiatric illness, based on the veteran's complaints, his personal observation of the veteran, and review of the veteran's history. However, Dr. Lean's opinion is substantially outweighed by numerous records of treatment dated from December 1977 forward in which no diagnosis of PTSD was rendered, and the well-reasoned and carefully considered opinions of three VA physicians and two VA psychologists that the veteran does not meet the full diagnostic criteria for PTSD. Two of the VA examinations were conducted after review of Dr. Lean's treatment records and his diagnosis of PTSD. The examiners did not concur in Dr. Lean's diagnosis of PTSD. In light of the foregoing, the Board finds that the preponderance of the medical evidence of record indicates that the veteran does not have PTSD. Accordingly, the claim for service connection for PTSD must be denied. ORDER Entitlement to service connection for PTSD is denied. RENÉE M. PELLETIER Member, Board of Veterans' Appeals