Citation Nr: 0002476 Decision Date: 02/01/00 Archive Date: 02/10/00 DOCKET NO. 94-09 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for post- traumatic stress disorder. ATTORNEY FOR THE BOARD T. Stephen Eckerman, Associate Counsel INTRODUCTION The veteran served on active duty from December 1965 to October 1969, and from July 1975 to July 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1992 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied the veteran's claim seeking entitlement to service connection for post-traumatic stress disorder (PTSD). In May 1996 and July 1997, the Board remanded the claim for additional development. In October 1999, after the requested development was attempted or otherwise carried out, the RO affirmed its denial. FINDINGS OF FACT 1. In a decision, dated in March 1991, the Board denied the veteran's claim for service connection for PTSD. 2. The evidence received since the Board's March 1991 decision with regard to PTSD was not previously considered, is not cumulative of other evidence of record, is probative of the issue at hand, and, in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the veteran's claim. 3. The appellant does not have PTSD attributable to military service or to any incident of active duty. CONCLUSIONS OF LAW 1. The Board's March 1991 decision, denying a claim of entitlement to service connection for PTSD, was final. 38 U.S.C.A. § 7104(b) (West 1991). 2. New and material evidence has been received since the Board's March 1991 decision denying the appellant's claim for PTSD, and the claim for PTSD is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 3. PTSD was not incurred or aggravated by the appellant's service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material As an initial matter, the Board notes that in a March 1991 decision, the Board denied a claim of entitlement to service connection for PTSD. A review of that determination reveals that the RO found that the evidence did not show that the veteran had PTSD. The Board's March 1991 decision was final. 38 U.S.C.A. § 7104(b). However, applicable law provides that a claim which is the subject of a prior final decision may nevertheless be reopened upon presentation of new and material evidence. 38 U.S.C.A. § 5108. Subsequent to the Board's March 1991 decision, VA medical records were received, and in May 1992, the RO determined that new and material evidence had been received to reopen a claim for service connection for PTSD. The RO denied the claim on the merits, for lack of a verified stressor. Notwithstanding the RO's denial of the claim on the merits, the Board will consider whether new and material evidence has been submitted. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). After reviewing the record from a longitudinal perspective, the Board finds that new and material evidence has been received to reopen the veteran's claim for service connection for PTSD. When a claimant seeks to reopen a claim based upon additional evidence, VA must perform a three-step analysis. Elkins v. West, 12 Vet. App. 209 (1999) (en banc). First, VA must determine whether the evidence is new and material under 38 C.F.R. § 3.156(a). Under 38 C.F.R. § 3.156(a), 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. See also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Further, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the second step of the Elkins analysis requires VA to reopen the claim and determine whether the claim is well grounded pursuant to 38 U.S.C.A. § 5107(a). Finally, the third step of the Elkins analysis requires VA to evaluate the claim on the merits after ensuring the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. The U.S. Court of Appeals for Veterans Claims (Court) has indicated that in order to reopen a claim, there must be new and material evidence presented or secured since the last determination denying the benefit sought. Elkins v. West, 12 Vet. App. at 213-214. Accordingly, the Board must consider whether new and material evidence has been received since the Board's March 1991 decision. In this case, the Board notes that in March 1991 it denied the veteran's claim after finding that the evidence did not show that the veteran had PTSD. A review of the evidence of record at the time of the Board's decision shows that although there was some medical evidence of PTSD, there were also several opinions of physicians and other health care providers who determined that the veteran had diagnoses other than PTSD, to include an adjustment disorder, alcohol dependence, and marijuana dependence, as well as a personality disorder. However, evidence received since the Board's March 1991 decision is remarkable for a VA hospital report, dated in October 1990, and VA outpatient treatment reports, dated in 1990 and 1995, which show that the veteran was diagnosed with PTSD that was related to his service. Based on the foregoing, the Board finds that as this evidence was not of record at the time of the Board's March 1991 decision, and as this evidence contains competent opinions showing PTSD, and that such PTSD is related to the veteran's service, this evidence is not cumulative, and is "new" within the meaning of Elkins, supra. The Board further finds that as this evidence directly relates to the basis for the Board's denial of the veteran's claim in March 1991, this evidence is probative of the issue at hand, and, in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the veteran's claim. Accordingly, the Board finds that new and material evidence has been submitted. The claim for PTSD is therefore reopened, and the Board proceeds with its review of the evidence on a de novo basis. II. Service Connection The Board initially notes that in May 1992, the RO denied the veteran's claim on the merits after finding that there was no verifiable stressor to support a diagnosis of PTSD. The veteran has appealed. In May 1996 and July 1997, the Board remanded the claim for additional development, and in October 1999 the RO affirmed its denial. As competent evidence of a diagnosis of PTSD, and a nexus to active duty, has been presented, the appellant's claim for PTSD is well grounded within the meaning of 38 U.S.C.A. § 5107(a)(West 1991). The Board is satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Applicable regulations provide that service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125, 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. See 38 C.F.R. § 3.304(f). A review of the veteran's written statements shows that he essentially asserts that he has PTSD as a result of his service, to include stressors witnessed aboard the U.S.S. Cadmus and the U.S.S. Wasp. The service personnel records show that the veteran did not receive any medals or decorations evincing combat. In fact, he did not serve in a combat zone. A recent statement from the U. S. Armed Services for Research of Unit Records (USASRUR) indicates that the veteran served aboard the two ships noted above, but USASRUR was unable to verify the veteran's claimed stressors (i.e., fighting fires, recovering pilots from burning aircraft), although an earlier statement did note a fire aboard the U. S. S. Wasp in one room that was extinguished in 20 minutes. In any event, the primary impediment to service connection in this case is the fact that the overwhelming preponderance of the evidence is against the claim that the veteran has PTSD. Despite some evidence of earlier diagnoses of PTSD, discussed below, which are sufficient to well ground the claim, the Board finds that the preponderance of the evidence is against the claim that the veteran currently has PTSD. The Board initially notes that the veteran's service medical records show that he was treated for complaints that included nervousness in June 1977, and that the impression was possible welder's fumes syndrome secondary to inhalation of ZnO2 (zinc oxide). The remainder of the service medical records are silent as to complaints, treatment or a diagnosis involving an acquired psychiatric disorder. The veteran's separation examination reports from his first and second periods of service, dated in September 1969 and July 1977, respectively, show that his psyche was clinically evaluated as normal. The post-service medical evidence includes a VA PTSD examination report, dated in October 1996, which contains Axis I diagnoses of anxiety disorder NOS (not otherwise specified) with depressive features, and alcohol dependence, reportedly in remission. The Axis II diagnosis was personality disorder, NOS. In his discussion, the examiner specifically ruled out PTSD. The Board finds that the October 1996 VA PTSD examination report is highly probative evidence which shows that the veteran does not have PTSD. This report was based on a review of the veteran's C-file, and it includes an account of the veteran's life history and subjective complaints. It is accompanied by objective clinical findings and a rationalized explanation in which the examiner specifically ruled out PTSD. The Board points out that the VA examiner's determination that the veteran does not have PTSD is consistent with a report from Robert J. Aiduk, M.D., dated in August 1989, a VA psychological assessment report, dated in November 1987, and VA hospital reports, dated in December 1987 and January 1988. This evidence shows that the veteran has been diagnosed with psychiatric disorders that include an adjustment disorder and dysthymia, as well as alcohol, marijuana and polysubstance abuse (termed "in remission" in some reports), and "rule out somatoform pain disorder." He has also been diagnosed with a personality disorder on several occasions. The Board notes that as Dr. Aiduk's report and the VA psychological assessment report were based on psychological testing, and that as the VA hospital reports were based on a total of about seven weeks of observation, this evidence is considered highly probative. The Board parenthetically notes that a record of a decision by the Social Security Administration (SSA), dated in December 1989, shows that the SSA appears to have accepted Dr. Aiduk's report, and that the SSA awarded benefits based on disability solely due to back, hip and leg pain. The Board therefore finds that when the October 1996 VA PTSD examination report is considered in conjunction with the other medical evidence of record which shows that the veteran does not have PTSD, that the preponderance of the evidence is against the claim. In reaching this decision, the Board has considered the Axis I diagnosis of PTSD as found in a VA "psychological history" for a PTSD program, dated in October 1990, and an Axis I diagnosis of PTSD as found in an October 1990 VA hospital report. However, the probative value of these reports is weakened by the fact that they do not appear to have been based on a review of the veteran's C-file, see Swann v. Brown, 5 Vet. App. 229, 233 (1993); Black v. Brown, 5 Vet. App. 177, 180 (1993), or psychological testing, and that neither of these reports mentions any specific stressors. The Board further notes that the VA psychological history appears to have been created during admittance to the PTSD program, prior to actual treatment. In addition, the Board notes that the PTSD diagnosis in the VA hospital report is accompanied by an Axis I diagnosis of alcohol dependence, and that the veteran had been referred from a substance abuse program. Similarly, although several VA outpatient reports, dated in 1990 and 1995, contain notations of PTSD, these notations are not accompanied by indicia of reliability, such as being based on a review of the veteran's C-file or psychological testing, or accompaniment by additional medical comment or citation to clinical findings. When read in context, these "diagnoses" therefore appear to be bare transcriptions of lay history, and do not constitute "competent medical evidence" that the veteran has PTSD that is related to his service. See LaShore v. Brown, 8 Vet. App. 406, 409 (1995). The Board therefore finds that the probative value of the evidence indicating that the veteran has PTSD is far outweighed by the contrary evidence of record, which shows that the veteran does not have PTSD. The veteran's claim for service connection for PTSD therefore fails on the basis that the overwhelming preponderance of the evidence shows that he does not have PTSD. Accordingly, service connection for PTSD must be denied. The Board points out that although the arguments and reported symptoms have been noted, the issue in this case ultimately rests upon interpretations of medical evidence and conclusions as to the veteran's correct diagnosis. In such cases, lay persons untrained in the fields of medicine and psychiatry are not competent to offer such an opinion. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board has determined that service connection for PTSD is not warranted. To that extent, the veteran's contentions are unsupported by persuasive evidence. The Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for PTSD is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals