BVA9500217 DOCKET NO. 93-07 545 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for arthritis of the lumbar spine. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: American Ex-Prisoners of War, Inc. ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had active military service from August 1941 to October 1945 and from August 1946 to September 1949. The records reflects that he was a prisoner of war of the German Government for more than two months in 1945. In a December 1971 rating decision, the Department of Veterans Affairs (VA) Albuquerque, New Mexico, Regional Office (RO) denied entitlement to service connection for residuals of a back injury, claimed by the appellant to have resulted from being struck in the back by a rifle butt while a prisoner of war of the German Government during World War II. He received notification of the December 1971 rating decision in December 1971 but because he did not file an appeal of the decision within one year thereafter it became final. This appeal comes before the Board of Veterans' Appeals (Board) from a March 1992 rating decision by the RO, which denied entitlement to service connection for arthritis in the back and PTSD. This appeal also arises from a rating decision by the RO in February 1993, which granted service connection for traumatic arthritis in the cervical spine and the thoracic spine, and denied entitlement to service connection for arthritis in the lumbar spine and for PTSD. CONTENTIONS OF APPELLANT ON APPEAL The appellant argues that the arthritic disability in his lumbar spine resulted from being hit in the back with a German rifle butt when he was a prisoner of war. He also claims that he has developed PTSD from his experiences during World War II, especially those he was forced to endure as a prisoner of war. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the appellant'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 there is an approximate balance between the positive and negative evidence pertaining to the claim of entitlement to service connection for traumatic arthritis in the lumbar spine. Because the benefit of the doubt regarding this claim is extended to the appellant by statute when the evidence is in equipoise, the Board finds that service connection is warranted for traumatic arthritis in the lumbar spine. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is also the decision of the Board that the preponderance of the evidence is against the appellant's claim of entitlement to service connection for PTSD. FINDINGS OF FACT 1. Service connection for residuals of a back injury was denied by the RO in a December 1971 rating decision, which became final in December 1972 after the appellant failed to appeal the decision within one year after being notified of the decision in December 1971. 2. Additional evidence received since the December 1971 rating decision became final includes medical evidence showing that the appellant has osteoarthritis in his lumbar spine. 3. The appellant is service connected for posttraumatic osteoarthritis in the cervical and thoracic spine as a result of his experiences as a prisoner of war of the German Government during World War II. 4. The appellant's arthritis in the lumbar spine is shown to be posttraumatic in nature and related to his experiences as a prisoner of war. 5. PTSD is not shown to exist at the present time. CONCLUSIONS OF LAW 1. The evidence received since the December 1971 rating decision that denied service connection for residuals of a back injury is new and material, and the appellant's claim is reopened. 38 U.S.C.A. § § 5107, 5108, 7105(b) (West 1991); 38 C.F.R. §§ 3.304(a), 3.156(a), 20.302(a), 20.1103 (1994). 1. Posttraumatic osteoarthritis of the lumbar spine was incurred in wartime service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309(c) (1994). 2. PTSD was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309(c) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The provisions of 38 U.S.C.A. § 5107(a) (West 1991) have been met, in that the appellant's claims are well-grounded and adequately developed. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110, 1131 (West 1991). Additionally, if a veteran is a former prisoner of war and, as such, was interned or detained for not less than 30 days, and posttraumatic osteoarthritis or PTSD becomes manifest to a degree of 10 percent or more at any time after discharge or release from active military, naval, or air service even though there is no record of such disease during service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309(c) (1994). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury of disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154 (West 1991). I. Arthritis of the Lumbar Spine The appellant contends that the arthritis currently manifested in his lumbar spine is posttraumatic in nature and the result of the trauma he received to his back from being struck by a rifle butt while a prisoner of war in World War II. In a December 1971 rating decision, the RO denied service connection for residuals of a back injury, and that decision became final when the appellant failed to appeal the decision within one year after notification thereof. Following notification of the initial review and determination by the RO, a notice of disagreement must be filled within one year from the date and mailing of the notification, or, otherwise, the determination becomes final. 38 U.S.C.A. § 7105(b) (West 1991); 38 C.F.R. §§ 20.302(a), 20.1103 (1993). When a veteran seeks to reopen a previously denied claim based upon new evidence, a two-step analysis is required. The first step is to determine if the evidence is new and material; if so, the case is reopened and the merits of the claim must be evaluated on the basis of all of the evidence, both new and old. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). 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) (1993). To justify a reopening on the basis of new and material evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all of the evidence, both new and old, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). If new and material evidence has not been submitted, the Board does not need to address the merits of the claim. Sanchez v. Derwinski, 2 Vet.App. 330 (1992). For the limited purpose of determining whether to reopen a claim, the Board must accept the new evidence as credible and entitled to full weight. Justus v. Principi, 3 Vet.App. 510 (1992). This presumption no longer attaches in the adjudication that follows reopening. Id. Evidence submitted since the December 1971 rating decision became final included findings from a VA X-ray examination of the lumbar spine in August 1992 that showed narrowing at the L1-2, L4-5, and L5-S1 disc spaces, spurring throughout the lumbar spine, and degenerative changes at the sacroiliac joints (VA Form 10-9034, Radiology consultation, dated January 5, 1993), and the clinical findings from a December 1992 VA medical examination which diagnosed degenerative joint disease of the lumbar spine, along with degenerative joint disease of the cervical spine (VA report of general medical examination conducted December 17, 1992). The Board finds that this evidence, when considered with the evidence previously of record, is highly significant and must be considered in order to fairly decide the merits of this claim. Accordingly, we conclude that the additional evidence is both new and material, thereby permitting a reopening of the claim for service connection for arthritis of the lumbar spine. The Board notes that service connection has been granted for arthritis in the appellant's cervical and thoracic spine, on the basis that such arthritis was caused by trauma from his having been struck in the back by a German rifle butt. At the December 1992 VA medical examination, the arthritis in the cervical spine was diagnosed as degenerative joint disease, which was the same diagnosis attributable to the arthritis in the lumbar spine. The Board does not find the evidence of record convincing that arthritis of the cervical spine can be identified as traumatic, and the lumbar spine arthritis distinguished as not traumatic. Therefore, we conclude that the evidence is evenly balanced as to whether the appellant's lumbar spine arthritis is posttraumatic in nature. Extending the benefit of doubt to the appellant, as required by 38 U.S.C.A. § 5107(b) (West 1991), the Board finds that the appellant has posttraumatic osteoarthritis of the lumbar spine for which service connection is warranted because of his status as a former prisoner of war and the provisions of 38 C.F.R. § 3.309(c) (1993). II. PTSD The record indicates that the appellant served in combat in Germany during World War II. He was a prisoner of war of the German Government for more than two months, and he was awarded the Combat Infantryman Badge. He claims that the events that took place during his confinement as a prisoner of war have caused him to develop PTSD. Records from a VA social worker, dated in January and June 1992 report that the appellant had symptoms of PTSD. General Services Administration Standard Form (GSASF) 509, Progress Notes, dated January 28, 1992, and June 5, 1992. In a June 1992 VA medical notation, Dr. Wheeler indicated that he took a military history from the appellant and did a PTSD assessment. The assessment reported was PTSD. In a July 1992 notation, Dr. Wheeler reported that the appellant described experiencing dreams of seeing others starving in the prison camp. The assessment was intrusive thoughts of being a prisoner of war. General Services Administration Standard Form (GSASF) 509, Progress Notes, dated June 9. 1992, and July 14, 1992. A VA prisoner-of-war examination conducted in July 1990 included psychiatric evaluation. The appellant indicated that he slept well and had no nightmares. There was no obvious evidence of anxiety. The assessment was rule out organic mental disorder. General Services Administration Standard Form (GSASF) 507, report of psychiatric evaluation, dated July 27, 1990. A VA PTSD examination was conducted in August 1992, and the appellant reported no nightmares and denied avoidance of things that reminded him of the war. He did give a history of occasional crying episodes. He indicated that certain gas smells would remind him of prisoner-of-war camps, which would leave him uncomfortable. He did not demonstrate evidence of exaggerated startle response or any obvious evidence of anxiety. It was reported that there was a suggestion of paranoid ideation, in that the appellant felt a man of unknown identity was trying to hurt him. The assessment was organic mental disorder, not otherwise specified, and the examiner stated that there was no evidence of PTSD. VA Form 2507, report of PTSD examination conducted August 14, 1992. Another PTSD examination was conducted in November 1992. The appellant reported that he had been subjected to some physical and emotional abuse while a prisoner of war, and he demonstrated tearing when describing the experience of being struck with a rifle butt on one occasion at the prisoner-of-war camp. The physician stated that the examination revealed no evidence of psychotic behavior, delusions, hallucinations, thought disorder, a depressive disorder, or an anxiety disorder The appellant was considered to be well-organized in his thinking and goal oriented. The impression was "none" for Axis I (clinical disorders) and for Axis II (personality disorders). Psychosocial stressors were considered mild and due to aging. VA Form 2507, report of PTSD examination conducted November 25, 1992. Although there is evidence of record from a VA PTSD clinic indicating that the appellant has symptoms of PTSD, and from a VA physician, Dr. Wheeler, that an evaluation of the appellant's history of his prisoner-of-war experiences and PTSD assessment showed PTSD, the Board notes that description of the appellant's psychiatric state by a social worker was rendered by a non- medical person, and, as such, he lacks medical expertise and is not qualified to render an opinion regarding a proper diagnosis of the appellant's psychiatric symptomatology. See Espiritu v. Derwinski 2 Vet.App. 492 (1992). The medical evidence reveals that VA psychiatric examinations in July 1990, August 1992, and November 1992 failed to find that the appellant has PTSD. The August 1992 and November 1992 examinations were both PTSD examinations, and the psychiatrist at the August 1992 examination stated that there was no evidence of PTSD, while the November 1992 examiner determined that the appellant had no clinical disorder. After careful and longitudinal evaluation of the evidence presented as to this claim, the Board finds that the specific psychiatric examinations performed on three occasions between July 1990 and November 1992 are more reliable than the notation by a VA physician in June 1992, as to determining whether the appellant has PTSD. None of those three psychiatric examinations found that PTSD was present. Because the preponderance of the evidence, particularly the clinical findings from the aforementioned psychiatric examinations do not show that the appellant has the characteristic symptoms for PTSD, as described in DSM-IV (1994), the Board is unable to identify a basis to grant service connection for PTSD. ORDER Service connection is granted for posttraumatic osteoarthritis in the lumbar spine. Service connection is denied for PTSD. JACK W. BLASINGAME Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been so assigned. (CONTINUED ON NEXT PAGE) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), 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 that 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 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.