Citation Nr: 0002426 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 98-03 413A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for dental trauma. 2. Entitlement to service connection for post-traumatic stress disorder. 3. Entitlement to service connection for a back condition, to include as secondary to a service connected right ankle condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Associate Counsel INTRODUCTION The veteran had active military service from July 1954 to April 1958, with subsequent service in the Air Force Reserve and Army National Guard. This appeal is before the Board of Veterans' Appeals (Board) from rating decisions of the Roanoke, Virginia Regional Office (RO) of the Department of Veterans Affairs (VA). In September 1997, the RO concluded that new and material evidence had not been submitted to reopen the veteran's claim for dental trauma. In January 1998, the RO denied the veteran's claims of entitlement to service connection for post-traumatic stress disorder (PTSD) and entitlement to service connection for a back condition, to include as secondary to a service connected right ankle condition. FINDINGS OF FACT 1. In May 1981, the RO denied a claim by the appellant for entitlement to service connection for dental trauma. 2. The evidence received since the RO's May 1981 decision which was not previously of record, and is not cumulative of other evidence of record, does not bear directly and substantially upon the specific matter under consideration, and is not so significant that it must be considered in order to fairly decide the merits of the claim. 3. The claims file includes medical evidence indicating that the veteran may have PTSD that is related to his service. 4. The appellant does not have PTSD attributable to military service or to any incident of active duty. 5. The claims file does not contain any competent medical evidence showing that the veteran currently has a back condition. CONCLUSIONS OF LAW 1. The RO's May 1981 decision, denying a claim of entitlement to service connection for a nervous condition, became final. 38 U.S.C.A. § 7105(b) (West 1991). 2. New and material evidence has not been received since the RO's May 1981 decision denying the appellant's claim for dental trauma, and the claim for service connection for dental trauma is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 3. The claim for PTSD is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 4. 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). 5. The claim for service connection for a back condition is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material A review of a "request for information" (VA Form 60-310a), dated in April 1981, shows that it indicates that the veteran had asserted that he received dental treatment between July and August of 1955 after he had his teeth knocked out. In a May 1981 decision, the RO denied a claim of entitlement to service connection for a dental condition. There was no appeal, and the RO's denial became final. 38 U.S.C.A. § 7105(b). However, 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. In August 1997, the veteran filed an application to reopen his claim, requesting service connection for traumatic injury to his upper and lower teeth. In September 1997, the RO determined that new and material evidence had not been received to reopen the veteran's claim. The veteran has appealed. After reviewing the record from a longitudinal perspective, the Board agrees with the RO's determination and finds that new and material evidence has not been received to reopen the veteran's claim for service connection for dental trauma. 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 b e 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 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, 12 Vet. App. at 213-214. Accordingly, the Board must consider whether new and material evidence has been received since the RO's May 1981 decision. In this case, the Board initially notes that the veteran's service medical records which were of record in May 1981 included a dental health record (DHR). The DHR showed that the veteran was noted to have heavy calculus in July 1954. The DHR also showed that the veteran underwent a subgingival curettage and extraction of one tooth in August 1955, followed by three extractions in September 1955. Subsequently dated entries in the DHR showed that the veteran received ongoing dental treatment that included calculus removal, treatment for caries, and a gingivectomy. In July 1957, the veteran had 13 teeth removed. A separation examination report, dated in March 1958, shows that all of his teeth were gone. There was a notation of "multiple dental extractions, lower incisors." The veteran's service medical records did contain any records which stated that he had dental trauma, or otherwise noted treatment for injuries received in an assault. In May 1981, the RO denied the veteran's claim. A review of the RO's May 1981 determination reveals that the RO determined that dental trauma had not been shown. Evidence received since the RO's May 1981 decision includes written statements from the appellant, and the transcript from the appellant's hearing, held in May 1998, as well as VA outpatient treatment and hospital records, dated between 1965 and 1998, and several VA examination reports, dated between 1991 and 1997. All this evidence was not of record at the time of the RO's May 1981 decision, is not cumulative, and is "new" within the meaning of Elkins, supra. However, the Board finds that new and material evidence has not been received to reopen a claim for service connection for dental trauma, and that the RO's May 1981 denial of the claim remains final. Of particular note, none of the submitted medical evidence pertains to dental treatment. Furthermore, no competent evidence has been submitted shows that the veteran had dental trauma during service, or that he currently has residuals of dental trauma that are related to his service. Therefore, the Board affirms the RO's September 1997 decision which determined that new and material evidence has not been received to reopen a claim for service connection for dental trauma. As such, the RO's May 1981 denial of the claim remains final. 38 U.S.C.A. § 7105(b). The only other pertinent evidence received since the RO's May 1981 denial of the claim consists of written and oral testimony from the appellant. A review of these statements shows that the veteran argues that he did not have any dental conditions prior to his service, and that he was hit in the mouth in 1955 while trying to break up a fight. However, these assertions are within the scope of arguments which were of record at the time of the RO's May 1981 decision. This argument is therefore not new. In addition, to the extent that the DHR indicates that the veteran had dental disease prior to his extractions, the veteran, as a layperson, is not competent to give a medical opinion as to causation. Therefore, as the veteran has not submitted competent evidence showing that the veteran has residuals of dental trauma that are related to his service, these statements are not new and material evidence, see Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999), and are insufficient to reopen the claim. See Savage v. Gober, 10 Vet. App. 488 (1997); Moray v. Brown, 5 Vet. App. 211 (1993). Because the appellant has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed claim, the benefit-of-the-doubt doctrine is inapplicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The Board views its discussion and the statement of the case and supplemental statement of the case provided by the RO as sufficient to inform the veteran of the elements necessary to complete his application to reopen the claim. See Graves v. Brown, 8 Vet. App. 522 (1996); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). II. Service Connection A. PTSD A review of the veteran's written statements, and the transcript of his hearing, held in May 1998, shows that the veteran asserts that he has PTSD as a result of seeing dead bodies while guarding 50 to 60 scenes of accidents, and plane crash sites, while serving as an air policeman. In particular, he has stated that he saw a dead body while guarding a crash site in May 1957. The Board initially notes that in January 1998, the RO denied the veteran's claim for PTSD as not well grounded. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). To establish that a claim for service connection is well grounded, an appellant must demonstrate a medical diagnosis of a current disability; medical, or in certain circumstances, lay evidence of inservice occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an inservice disease or injury and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. See Epps v. Gober, 126 F.3d 1464 (1997). The veteran's discharge (DD Form 214) and personnel record (AF Form 7) are remarkable for entries which show that his military occupational specialty was air policeman, and that he served with air police units. The claims file also includes Air Force records which show that the veteran was assigned to guard a B-57 crash site near Langley Air Force Base, in mid-May 1957. The veteran's service medical records include a separation examination report, dated in March 1958, which shows that the veteran's psyche was clinically evaluated as normal. The remainder of the service medical records are silent as to complaints, treatment or a diagnosis involving an acquired psychiatric disorder. A VA PTSD hospital report, dated in November 1965, shows that the veteran was hospitalized for about three weeks with complaints of "bizarre chest pain" and other physical complaints. The diagnosis was anxiety reaction, manifested by multiple somatic complaints and social withdrawal. A VA outpatient treatment report, dated in June 1998, shows that the veteran essentially complained of nightmares related to guarding a plane crash during service. The assessment was PTSD. 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). Having presented a well-grounded claim for PTSD, the Board will proceed to the merits of the claim. Elkins, supra. The Board is also 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). Despite the indications of PTSD, discussed below, which are sufficient to well ground the claim, the Board finds that the evidence does not show that the veteran has PTSD. In particular, the post-service medical evidence includes a VA psychological evaluation report, dated in August 1997, which contains an Axis I diagnosis of adjustment disorder with anxious and depressed features. This diagnosis was based on psychological testing. In addition, the examiner stated that, "Examination of the instruments assessing PTSD suggest that there is no convincing evidence of this disorder." Furthermore, November 1997 addendum to a June 1997 VA PTSD examination report shows that the examiner indicated that he agreed with the diagnosis of adjustment disorder with anxious and depressed features. The examiner indicated that he had reviewed the veteran's VA psychological evaluation report, dated in August 1997, as well as records of previous hospitalization. The examiner further noted that although he had initially made a notation of "PTSD by history from the veteran" in the June 1997 VA PTSD examination report, this was merely meant to indicate that most of the information about the veteran's psychiatric problems had come from the veteran, and that no supporting documentation had been received. The Board finds that the August 1997 VA psychological evaluation report, the June 1997 VA PTSD examination report, and the accompanying addendum, are highly probative evidence which shows that the veteran does not have PTSD. These reports include accounts of the veteran's life history and subjective complaints. The VA psychological evaluation report is based on psychological test results. The VA PTSD examination report is accompanied by objective clinical findings and a rationalized explanation. Both of the examiners specifically ruled out PTSD. In reaching this decision, the Board has considered the notations of "possible PTSD" as found in a VA outpatient treatment reports, dated in August 1997 and December 1997, as well as an assessment of PTSD found in a VA outpatient treatment report dated in June 1998. However, the notations of "possible PTSD" are equivocal by their very terms. In addition, the Board points out that these notations come approximately 40 years after separation from service, and that the December 1997 report appears to be based on the veteran's recitations of service in Korea, treatment for "shell shock," and his report that he had been diagnosed with "battle fatigue." However, these claims are not supported by service records, service medical records, or post-service medical records, which inter alia do not show service in Korea, participation in combat, or a diagnosis of "battle fatigue." Furthermore, none of these notations are accompanied by indicia of reliability, such as psychological testing, additional medical comment, or citation to clinical findings. The Board therefore finds that the probative value of the evidence indicating that the veteran has PTSD is outweighed by the contrary evidence of record, which shows that the veteran does not have PTSD. This evidence indicates that the veteran has an adjustment disorder with anxious and depressed features. As the preponderance of the evidence is against the claim that the veteran has PTSD, the veteran's claim for service connection for PTSD fails on the basis that all elements required for such a showing have not been met. Accordingly, service connection for PTSD must be denied. While the Board has considered the written testimony of the veteran, 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. As a final matter, the Board notes that in January 1998 the RO denied this claim as not well grounded, and that the Board has denied the claim on the merits. In this regard, the Board finds that its analysis of this claim on this basis has not prejudiced the veteran. The veteran and his representative have consistently argued the merits of his claim, without regard to the rules and regulations for well groundedness. Additionally, in March 1998 the RO sent the veteran a statement of the case (SOC) which included the law as set forth in 38 U.S.C.A. § 5107 and 38 C.F.R. § 3.303. The veteran was therefore notified of the basic requirements for a claim of service connection. Accordingly, the Board finds that the veteran has not been prejudiced by any lack of notification in the SOC as to the applicable laws, and that he was afforded an opportunity to submit evidence and argument with regard to the applicable law. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). 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). B. Back Condition Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for a "[d]isability which is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a) (1999); Harder v Brown, 5 Vet. App. 183, 187-89 (1993). The Board also notes that the Court has held that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). However, the threshold question to be answered with respect to any claim for VA benefits is whether the veteran has presented evidence sufficient to justify a belief by a fair and impartial individual that his claim is well-grounded; that is, a claim which is plausible and capable of substantiation. See 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). To establish that a claim for service connection is well grounded, a veteran must demonstrate a medical diagnosis of a current disability; medical, or in certain circumstances, lay evidence of inservice occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an inservice disease or injury and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. See Epps v. Gober, 126 F.3d. 1464 (1997). Alternatively, the Court has recently indicated that a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such condition. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. If the chronicity provision does not apply, a claim may still be well grounded "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage, 10 Vet. App. at 498. It should also be emphasized that a claim based on a secondary basis must be well-grounded, and in this regard, the Court has found that medical evidence of a link between a current disorder and a service-connected disability is necessary to well-ground such a claim. Martin v. Derwinski, 1 Vet. App. 411 (1991) (applying well-grounded requirement to claims based on secondary service connection under 38 C.F.R. § 3.310(a)). A review of the veteran's written statements, and the transcript of his hearing, held in May 1998, shows that the veteran asserts that he has a back condition as a result of uneven weight bearing due to his service connected right ankle disability. In March 1991, the RO granted service connection for fracture, right medial malleolus and navicular bone. This disability is currently evaluated as 20 percent disabling. Service medical records include a separation examination report, dated in March 1958, which shows that the veteran's musculoskeletal system was clinically evaluated as normal. The remainder of the service medical records are silent as to complaints, treatment or a diagnosis involving the spine. The claims file also contains several examination reports issued in conjunction with the veteran's service in the Army National Guard (ANG) and Air Force Reserve (AFR), dated in December 1973, March 1978 and February 1982, respectively, which show that the veteran's musculoskeletal system was clinically evaluated as normal. Accompanying medical records for the veteran's ANG and AFR service are silent as to complaints, treatment or a diagnosis involving the spine. The veteran was afforded a VA spine examination in November 1997. The report of that examination does not contain a diagnoses were right posterior tibial tendon tear with repair, injury of the right knee postoperatively with degenerative changes, and low back pain with left radicular pain, likely as not secondary to preceding problems. The Board finds that the veteran's claim for service connection for a back condition is not well grounded. Under 38 U.S.C.A. § 1110 and § 1131, the veteran must submit proof of a presently existing disability resulting from service in order to merit an award of compensation. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski , 2 Vet. App. 141, 144 (1992). In this case, the veteran's claim must be denied because he has not provided a medical opinion to substantiate his claim that he has a back condition, to include as secondary to his service-connected right ankle disability. Without such a diagnosis, the claim of entitlement to service connection for a back condition is not well grounded, to include on a direct basis, as secondary to a service-connected disability, or as aggravated by a service-connected disability. In reaching this decision, the Board has noted the diagnosis of "low back pain with left radicular pain" as found in the November 1997 VA spine examination report. To the extent that it may be argued that this is a diagnosis that is sufficient to render the claim well grounded, however, the Board notes that the Court has recently held that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, No. 97-1948 (U.S. Vet. App. Dec. 29, 1999). Accordingly, the claim for a back condition must be denied. See 38 C.F.R. §§ 3.303, 3.306, 3.310; Lathan v. Brown, 7 Vet. App. 359, 365 (1995); Martin, Allen, supra. The Board has considered the veteran's assertions to the effect that he has a back condition, to include as a result of his service-connected right ankle injury. However, the veteran, as a lay person untrained in the field of medicine, is not competent to offer an opinion as to a diagnosis, or as to the etiology of the claimed disorder. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Hence, this argument does not provide a factual predicate upon which service connection may be granted. The Board views the above discussion as sufficient to inform the veteran of the elements necessary to submit a well- grounded claim for service connection for the claimed disability. See Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). ORDER New and material evidence not having been received, the claim of entitlement to service connection for dental trauma is denied. Service connection for PTSD is denied. Service connection for a back condition is denied. BRUCE KANNEE Member, Board of Veterans' Appeals