Citation Nr: 0005942 Decision Date: 03/06/00 Archive Date: 03/14/00 DOCKET NO. 97-27 500 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to service connection for post-traumatic stress disorder, to include whether new and material evidence has been submitted to reopen the claim. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESS AT HEARING ON APPEAL Dr. Jose Arturo Juarbe Ortiz ATTORNEY FOR THE BOARD A. P. Simpson, Associate Counsel INTRODUCTION The appellant served on active duty from December 1968 to August 1970. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an April 1997 rating decision of the San Juan, Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO considered the appellant's claim de novo and denied service connection for post-traumatic stress disorder. In the April 1999 supplemental statement of the case, the RO considered the appellant's claim under the regulation addressing whether new and material evidence had been submitted. FINDINGS OF FACT 1. Entitlement to service connection for post-traumatic stress disorder was denied by the Board in March 1985. 2. In a February 1995 rating decision, the RO determined that the appellant had not submitted new and material evidence to reopen the claim for entitlement to service connection for post-traumatic stress disorder. The appellant was informed of the decision and of his appellate rights by a February 21, 1995, letter. He did not appeal the decision. 3. Evidence associated with the claims folder since the February 1995 rating decision, when considered alone or in conjunction with all of the evidence of record, is new and so significant that it must be considered in order to fairly decide the merits of the appellant's claim. 4. The claim for service connection for post-traumatic stress disorder is plausible. 5. The appellant does not have post-traumatic stress disorder based upon an inservice stressor. CONCLUSIONS OF LAW 1. The March 1985 Board decision, which denied entitlement to service connection for post-traumatic stress disorder, is final. 38 U.S.C.A. § 7104(b) (West 1991). 2 The February 1995 rating decision by the RO, which determined that the appellant had not submitted new and material evidence to reopen the claim for entitlement to service connection for post-traumatic stress disorder, is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 3.160(d), 20.302, 20.1103 (1999). 3. The evidence received since the RO's February 1995 rating decision is new and material, and the appellant's claim for service connection for post-traumatic stress disorder has been reopened and is well grounded. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.102, 3.156(a) (West 1991). 4. Post-traumatic stress disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304(f) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and material In this case, the initial claim for post-traumatic stress disorder was denied by the Board in a March 1985 decision. At that time, the evidence before the Board was the appellant's application, a statement from the appellant as to his stressors, and hearing testimony by Dr. Ramon Sanchez Alamo that the appellant had post-traumatic stress disorder. The Board determined the medically reported findings did not support the diagnosis of post-traumatic stress disorder and denied entitlement to service connection for post-traumatic stress disorder. That decision is final. In a February 1995 rating decision, the RO determined that the appellant had not submitted new and material evidence to reopen the claim for entitlement to service connection for post-traumatic stress disorder. Evidence of record at that time included additional medical records showing diagnoses of post-traumatic stress disorder and other psychiatric diagnoses. The RO determined that the evidence submitted was cumulative of that which had been previously submitted and denied reopening the claim. The veteran was notified of that decision and of his appellate rights, but did not seek appellate review. Therefore, the decision became final. The appellant contends that he has post-traumatic stress disorder, which is related to stressors he encountered in service. As the February 1995 decision is final, the appellant's claim may only be reopened if new and material evidence is submitted. See 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). Consideration of whether new and material evidence has been submitted is required before the merits of the claim can be considered. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the recent case of Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc), the United States Court of Appeals for Veterans Claims (the Court), citing Elkins v. West, 12 Vet. App. 209 (1999) (en banc), held that the two-step process set forth in Manio v. Derwinski, 1 Vet. App. 140, 145 (1991) for reopening claims became a three-step process under the Federal Circuit's holding in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Under this holding, the Secretary must first determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a) (1999). Id. Second, if new and material evidence has been presented, immediately upon reopening, the Secretary must determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). Id. Third, if the claim is well grounded, the Secretary may evaluate the merits after ensuring the duty to assist under 38 U.S.C.A. § 5107(b) (West 1991) has been fulfilled. Id. Since the February 1995 decision, the evidence submitted by the appellant, which is relevant to his claim to reopen, consists of service personnel records and additional medical records showing diagnoses of post-traumatic stress disorder based on inservice stressors. In July 1989 and October 1990 private medical records, Dr. Hector Rodriguez Perez entered a diagnosis of post-traumatic stress disorder based on inservice stressors reported by the appellant. In a January 1997 interim summary and at an October 1997 RO hearing, Dr. Jose Arturo Juarbe Ortiz testified that the appellant had a diagnosis of post-traumatic stress disorder based on inservice stressors. The Board finds that the service personnel records, the July 1989 and October 1990 private medical records from Dr. Perez, and the January 1997 summary and the October 1997 hearing testimony from Dr. Ortiz are new, as they were not part of the record at the time of the February 1995 rating decision, and are not cumulative of other evidence available at that time. In addition, as Drs. Perez and Ortiz have provided medical opinions indicating that the appellant's diagnosis of post-traumatic stress disorder is a result of inservice stressors, these opinions are clearly probative of the central issue in this case. Accordingly, the Board finds the additional evidence submitted subsequent to the February 1995 rating decision, when considered alone or in conjunction with all of the evidence of record, is so significant that it must be considered in order to fairly decide the merits of the appellant's claim. As such, this evidence is "new and material" as contemplated by law, and thus provides a basis to reopen the appellant's claim for entitlement to service connection for post-traumatic stress disorder. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Because the Board has determined that the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a), it will adjudicate the claim de novo. See Winters, 12 Vet. App. at 206. II. Service connection Service connection for post-traumatic stress disorder requires: (1) medical evidence diagnosing the condition in accordance with DSM-IV; (2) credible supporting evidence that the claimed inservice stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed inservice stressor. 38 C.F.R. § 3.304(f) (1999); see Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The appellant has submitted evidence of a current medical diagnosis of post-traumatic stress disorder, reported inservice stressors alleged to have caused the post- traumatic stress disorder, and submitted medical evidence which establishes a relationship between the diagnosis of post-traumatic stress disorder and inservice events. When determining whether a claim is well grounded, the evidence submitted in support of the claim must be accepted as true; however, once well-groundedness is established, the weight and credibility of the evidence must be assessed. Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). The Board finds that the medical determinations that established new and material evidence also establish a well-grounded claim for service connection for post-traumatic stress disorder. Cohen v. Brown, 10 Vet. App. 128, 137 (1997). However, there is another standard that must be addressed; the benefit of the doubt. When all the evidence is assembled, the Secretary, is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In reaching the merits determination, truthfulness and credibility are no longer assumed. De novo review of the record shows that the appellant served in the Republic of Vietnam from August 1969 to August 1970. His medals include two Army Commendation Medals. His principle military specialty was radio operator. The service records do not indicate that the appellant received any awards or decorations that would establish that he had engaged in combat. In an October 1983 letter, the appellant stated that his inservice stressors included rockets falling every two to three days. He stated that one day, he had climbed a fence to assist his Sergeant and that two rockets were fired, one of them exploding in front of the company barracks, which had almost killed him. He stated that he was moved to another company while in Vietnam and that he saw burned helicopters, which had been burned close to his barracks. He stated that after he found this out, he had trouble sleeping. The appellant stated that while in Vietnam he would go to bed every night with a loaded M-16. The medical evidence in favor of a finding of post-traumatic stress disorder follows. Dr. Ramon Sanchez Alamo testified on the appellant's behalf at an October 1983 RO hearing. He stated that it was his determination that the appellant had post-traumatic stress disorder. He stated that the appellant had reported that he had been in contact with the enemy and that his life was in danger. The appellant further reported that rockets had exploded in his presence and he almost lost his life. Finally, the appellant reported that the Vietcong had thrown explosives in the barracks, which had wounded hundreds of people and killed some 30 or more people. Dr. Alamo stated that the appellant started drinking in service to self medicate himself because of the anxiety he felt. In July 1989 and October 1990 private medical records, Dr. Perez entered a diagnosis of post-traumatic stress disorder. In the record, Dr. Perez stated that the appellant reported that he associated his symptoms with the traumatic experiences he lived through in Vietnam. The appellant stated that the war had injured him-that before he entered service, he was fine. The appellant stated that he could not contend with people well and that he remained in his house for the majority of the time. In both medical records, Dr. Perez entered a diagnosis of disturbance of post-traumatic stress in Axis I and entered "economic situation" as to the psychosocial stressor in Axis III. In the January 1997 interim summary, Dr. Ortiz stated that the appellant had post-traumatic stress disorder since his active duty in Vietnam. Dr. Ortiz stated that the appellant had had episodes of depression and nightmares from Vietnam. Dr. Ortiz stated that the appellant had reported that once in Vietnam, "you never get out of it." Dr. Ortiz also testified on the appellant's behalf at an October 1997 RO hearing. He stated that he had reviewed the appellant's claims file prior to appearing at the hearing. Dr. Ortiz stated that the diagnosis of post-traumatic stress disorder was based upon the appellant's stressors of seeing 30 people killed when the Vietcong blew up three barracks and when the appellant was exposed to rocket fire, where a rocket had passed right over his head. Dr. Ortiz stated that the appellant felt like he could never leave Vietnam. Dr. Ortiz stated that the appellant met all the requirements for the diagnosis of post-traumatic stress disorder. He testified that the diagnosis entered in the March 1997 psychiatric evaluation report of substance abuse was related to the appellant's alcohol intake and that the appellant's alcohol problem was a result of his experiences in Vietnam. Dr. Ortiz stated that the diagnoses of dysthymia in other medical records were part of the clinical manifestations of post- traumatic stress disorder. As stated above, the diagnoses entered by the private physicians establish a well-grounded claim for service connection for post-traumatic stress disorder. Drs. Alamo, Perez, and Ortiz have entered a diagnosis of post-traumatic stress disorder and related it to the appellant's service in Vietnam. However, meeting the provisions of 38 C.F.R. § 3.304(f) does not require a grant of service connection; rather, 38 C.F.R. § 3.304(f) provides the framework or minimal requirements for consideration of a grant of service connection for post-traumatic stress disorder. Meeting the provisions of 38 C.F.R. § 3.304(f) establishes all the elements needed for a well-grounded claim. Once the elements are met, the Board must then review all the evidence and assess the weight and credibility. Case law from the United States Court of Appeals for Veterans Claims (the Court) has not established that VA must accept any diagnosis when the validity of the diagnosis is in doubt. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The medical evidence against a finding of post-traumatic stress disorder follows. The appellant underwent a VA examination in May 1991 by a board of two VA psychiatrists. The VA psychiatrists stated that they had examined the appellant's claims file "very carefully" and that they had paid special attention to the psychological evaluation that had been performed in April 1991. The psychological evaluation revealed a diagnosis of anxiety disorder with depression features and not a diagnosis of post-traumatic stress disorder. At the May 1991 evaluation, the appellant reported the current difficulties he had with his emotional state and how he could not tolerate stress or being pressured. The VA psychiatrists stated that despite their questioning the appellant in different ways, the appellant did not mention Vietnam except to state that he had been affected by the things he had to do there, which were against his principles. The VA psychiatrists noted that the appellant did not mention nightmares or any particular experience that might have been traumatic for him. The VA psychiatrists stated that in their opinion, the appellant's true diagnoses were major depression and alcohol abuse, in partial remission. The appellant underwent a VA psychiatric evaluation in March 1997 by a board of three VA psychiatrists. The appellant admitted that he was not really in combat. The appellant reported that he had two tours in Vietnam and that the second time, he took care of prisoners. The VA psychiatrists noted that the appellant talked about Vietnam "very superficially." They noted that the appellant did not bring up any specific events. The diagnoses were substance disorder, alcohol dependence, and schizoaffective disorder. The VA psychiatrists stated that it was their unanimous opinion that there was no evidence, to include stressors and clinical exploration, of post-traumatic stress disorder. The appellant underwent a VA psychiatric evaluation in April 1998 by a board of two VA psychiatrists, including the Chief of the Psychiatry Service at a VA Medical Center. The VA psychiatrists stated that they had discussed the appellant's case "thoroughly" after examination of the claims folder and the medical records. The VA psychiatrists noted that they had reviewed the appellant's service medical records, which did not reveal that the appellant was in active combat. The VA psychiatrists stated that they had a long interview with the appellant and that the appellant "hardly made any mention of anything in relation to Vietnam" except that the appellant reported having had to "run for it" on some occasions. The VA psychiatrists stated that the appellant spoke mostly about the depression that he developed after he started working for a foundation. The appellant acknowledged that he was never in direct or active combat. The VA psychiatrists stated that it was their opinion that the appellant's history of symptomatology did not fulfill any of the significant criteria for the diagnosis of post-traumatic stress disorder. The diagnoses entered were alcohol dependence and depression, not otherwise specified. Additionally, it must be noted that the record shows that the appellant underwent numerous other private psychiatric evaluations. On these occasions, he did not report any inservice stressors. Instead, he reported post service stressors, and significantly, the diagnoses entered were not post-traumatic stress disorder. Although the private physicians did not specifically refute the diagnosis of post- traumatic stress disorder, their diagnoses raise questions about the weight to be accorded to the private diagnoses of post-traumatic stress disorder, first, because they do not confirm the diagnosis, and, second, because they reflect the existence of post-service stressors, but not of inservice stressors. In reviewing the evidence in favor of a finding of post- traumatic stress disorder, the Board notes that Dr. Perez entered a diagnosis of post-traumatic stress disorder based on the "traumatic experiences" the appellant claimed he had undergone in Vietnam. The diagnosis was not based on a specific alleged inservice stressor or stressors. Because Dr. Perez fails to link the post-traumatic stress disorder diagnosis with specific inservice events, his diagnosis is accorded little probative value. The Board finds that the determinations made by the VA psychiatrists who conducted the May 1991, March 1997, and April 1998 psychiatric evaluations outweigh Dr. Alamo's and Dr. Ortiz's determinations. The appellant recently admitted that he had not engaged in active or direct combat, which are the bases of Dr. Alamo's and Dr. Ortiz's diagnoses of post- traumatic stress disorder. This alone establishes that the diagnoses of post-traumatic stress disorder from Dr. Alamo and Dr. Ortiz are not valid because it now appears that there were no inservice combat stressors. Dr. Alamo has never stated that he had the opportunity to review the appellant's claims file. It seems that his diagnosis is based solely upon the appellant's reporting of what happened in service. Dr. Ortiz stated at the October 1997 hearing that he had an opportunity to review the claims file and that it was his determination that the appellant had post-traumatic stress disorder based upon inservice stressors. However, at all three VA psychiatric evaluations, the psychiatrists not only reviewed the appellant's claims file when they examined him, but, on one occasion referred to psychological test results to support their assessment, on another occasion referred to a social and industrial survey, and, on each occasion, appear to have based the diagnosis on extensive and detailed military and civilian history from him. Finally, the VA diagnoses represent the joint views of the examiners. The Board finds that their unanimous opinions that the appellant does not have post-traumatic stress disorder have more probative value than the private diagnoses of Drs. Ortiz and Alamo. Additionally, at the time of the three VA psychiatric evaluations, the appellant did not report any stressors as to his service in Vietnam. The Board must note in a February 1998 statement, the VA psychiatrist stated that he was going to ask a psychiatrist who had not seen the appellant before to assist in the evaluation of the appellant for the purposes of "a more objective opinion." The Board accords the April 1998 evaluation report the most probative value because at that time, the VA psychiatrists had an opportunity to review all the evidence of record, including the medical determinations in favor of a finding of post-traumatic stress disorder based upon inservice stressors. The VA psychiatrists specifically stated that they had reviewed the claims file, interviewed the appellant, and discussed the appellant's case in detail and determined that it was their unanimous opinion the appellant did not have post-traumatic stress disorder based upon inservice stressors. Dr. Ortiz's determination is based upon the appellant's history only and the appellant has admitted that he did not engage in active or direct combat. Rather, the appellant admitted that he only dreamed of being in combat. Such evidence weighs against the appellant's claim. Based on these reasons, the Board finds that Dr. Alamo's and Dr. Ortiz's diagnoses of post-traumatic stress disorder are outweighed by the May 1991, March 1997, and particularly the April 1998 VA psychiatric evaluations that the appellant does not have post-traumatic stress disorder. As discussed above, the Board has determined that the preponderance of the evidence is against the appellant's claim for service connection for post-traumatic stress disorder. The Board is aware that the appellant has been diagnosed by Dr. Alamo and Dr. Ortiz as having post-traumatic stress disorder as a result of inservice stressors; however, the Court has recognized that the Board is not compelled to accept medical opinions; rather, if the Board reaches a contrary conclusion, it must state its reasons and bases and be able to point to a medical opinion other than the Board's own, unsubstantiated opinion. Colvin, 1 Vet. App. at 175. The Board has based its determination on the May 1991, March 1997, and April 1998 VA psychiatric evaluations wherein the VA psychiatrists made specific findings that the appellant did not have post-traumatic stress disorder. Although the appellant has alleged that he has post-traumatic stress disorder related to his service in Vietnam, the appellant is not competent to make a such a diagnosis, as that requires a medical opinion. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992); see also Layno v. Brown, 6 Vet. App. 465 (1994). The Board must point out that the appellant has stated that he did not engage in active or direct combat, and thus entitlement to application of 38 U.S.C.A. § 1154(b) (West 1991) is not warranted. For the reasons stated above, the Board finds that the preponderance of evidence is against the appellant's claim for service connection for post-traumatic stress disorder, and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b) (West 1991). ORDER The appellant's claim for entitlement to service connection for post-traumatic stress disorder is denied. NANCY I. PHILLIPS Member, Board of Veterans' Appeals