Citation Nr: 1736660	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  12-06 279	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Pittsburgh, Pennsylvania


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), and if so, whether service connection is warranted.

2.  Entitlement to service connection for hyperkeratotic lesions of the bilateral feet.

3.  Entitlement to service connection for hallux rigidus of the left foot.


ORDER

New and material evidence to reopen a claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD, has been received; the appeal is granted to that extent.  Entitlement to service connection is denied.
Entitlement to service connection for hyperkeratotic lesions of the bilateral feet and left foot hallux rigidus is remanded, as set forth below.


FINDINGS OF FACT

1.  The Veteran served on active duty from November 1965 to November 1968.

2.  In December 2002, the RO issued a rating decision denying entitlement to service connection for PTSD.  This rating decision was never appealed, nor was new and material evidence received within one year. 

3.  In February 2008, the Veteran filed a claim to reopen entitlement to service connection for PTSD and has since filed new and material evidence.

4.  There is no probative evidence showing the Veteran carried a diagnosis of PTSD as set forth in the Diagnostic and Statistical Manual of Mental Disorders, as required by 38 C.F.R. §4.125(a), during the appellate period. 

5.  The record is devoid of credible supporting evidence that the Veteran's claimed in-service stressors actually occurred.

6.  The Veteran's depression and nervousness were noted during her enlistment examination and were not aggravated by military service. 

7.  The record is devoid of any competent medical evidence linking the Veteran's acquired psychiatric disabilities to her claimed in-service stressors, or more generally, to her active military service.




CONCLUSIONS OF LAW

1.  The unappealed December 2002 rating decision, which denied entitlement to service connection for PTSD, is final.  38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. §§ 3.156, 3.160, 20.302, 20.1100, 20.1103, 20.1104 (2016).

2.  New and material evidence sufficient to reopen the Veteran's claim of service connection for an acquired has been received.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a)(2016).

3.  The criteria for entitlement to service connection for an acquired psychiatric disability, to include PTSD, have not been met.  38 U.S.C.A. §§ 1110, 1153 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's VA files.  In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court).  38 U.S.C.A. § 7104(d)(1) (West 2014); see Allday v. Brown, 7 Vet. App. 517, 527 (1995).  Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act (VCAA) mandates that the Board discuss all evidence).  Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake, infra.  

Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  Thus, the Board need not discuss any potential issues in this regard.

The Veteran was provided a video hearing before the undersigned Veterans Law Judge in July 2013.  A transcript of the hearing has been associated with the claims file.  Reviewing the file, the Veteran has not alleged any deficiency with the conduct of her hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010).  In this regard, the Federal Circuit ruled in Dickens, 814 F.3d at 1361, that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott, 789 F.3d at 1378.  Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board.

The Board issued a decision in May 2014, remanding the matter for further evidentiary development.  The RO obtained the requested records to the best extent possible.  There has been substantial compliance with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268, 270-71 (1998); see also March 24, 2017 Supplemental Statement of the Case explanation. 

The regulations and statutes pertinent to this decision (38 U.S.C.A. §§ 5102, 5103, 5103A, 1110, 1153 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.306, 3.307 (2016)) were previously provided in the February 2012 Statement of the Case and March 2017 Supplemental Statement of the Case and will not be repeated here.  The requirements for new and material evidence, as provided in 38 C.F.R. § 3.156, will be discussed below.

1.  New and Material evidence.

The preliminary issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen the Veteran's previously denied claim of entitlement to service connection for PTSD, recharacterized as entitlement to service connection for an acquired psychiatric disability, to include PTSD.  After reviewing the evidence of record, the Board finds that new and material evidence has been submitted.

The Veteran's claim of entitlement to service connection for PTSD was previously denied in a December 2002 rating decision.  No notice of disagreement was filed, and no new and material evidence was received within one year following the notification of that decision.  Accordingly, the December 2002 rating decision became final.

In order to reopen a claim which has been denied by a final decision, the Veteran must present new and material evidence.  38 U.S.C.A. § 5108 (West 2014).  New evidence means evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2016).

When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).  Moreover, a veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance.  See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a veteran submit medical nexus evidence when he has provided new and material evidence as to another missing element).

The basis for the December 2002 rating decision was the conclusion that the Veteran's claimed stressor could not be verified with credible supporting evidence and the Veteran's diagnosis of PTSD could not be linked to any circumstance in military service.  Since that rating decision, the Veteran has submitted new medical evidence, and additional allegations of in-service stressors.  This evidence is new, as it was not previously considered in the prior final rating decision, and is material as is raises questions regarding the unestablished fact of whether the Veteran's acquired psychiatric disabilities, including PTSD are etiologically linked to military service.  The Board concludes that the newly submitted evidence satisfies the low threshold requirement for new and material evidence.  Shade, 24 Vet. App. at 117-18.  Accordingly, this claim is reopened.  The RO did reopen the claim and consider the merits in the 2012 Statement of the Case, so the Board can do so as well.

2.  Entitlement to service connection for PTSD.

The Veteran has failed to satisfy the regulatory criteria for entitlement to service connection for PTSD.  Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor.  See 38 C.F.R. §§ 3.304(f), 4.125(a); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997).  

Regarding the first element, the Board notes that a majority of the Veteran's diagnoses of PTSD during the appeals period are "by history only" or described as "?PTSD," implying a questionable or possible diagnosis.  There is no indication from the Veteran's VA treatment notes, or any private treatment notes, that she has met the DSM-5 requirements for PTSD as required by 38 C.F.R. § 4.125(a) during the appellate period.  

Regarding the second element, the Veteran claims her PTSD arose from sexual harassment and racial discrimination she experienced during her military service.  See October 2002 and March 2009 written statements.  She describes several instances where fellow service members called her derogatory names, accused her of stealing, made unwanted sexual advances, and spoke to her using graphic sexual language.  Id.  She further describes a single incident of personal assault, the details of which remain unclear, where a sailor "forced himself on her."  See March 2009 written statement.  The Veteran has not provided any additional information regarding this alleged assault, despite a request from VA to do so in a January 2009 VCAA letter. 

Although the Board finds the Veteran's lay testimony to be credible, because she did not engage in combat, lay testimony alone is insufficient to establish the occurrence of her claimed in-service stressors.  See Doran v. Brown, 6 Vet. App. 283, 288-89 (1994) ("If the claimed stressor is non-combat related, lay testimony regarding in-service stressors is insufficient to establish the occurrence of the stressor and must be corroborated by 'credible supporting evidence'").

Additionally, the Veteran's service records are completely silent regarding allegations of discrimination or harassment, and do not contain any evidence to support her claim of an in-service personal assault.  The records do not contain any evidence of in-service behavioral changes indicative of a personal assault.  See 38 C.F.R. § 3.304(f)(5) (2016) (i.e., "a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes").  On the contrary, the Veteran's enlisted performance record shows consistent scores in professional performance, military behavior, military appearance, and adaptability throughout the entirety of the Veteran's military service.  Any duty transfers were at the need of the military and not documented as being the result of harassment/discrimination/or physical assault.  The Veteran testified that she counseled with a military chaplain regarding her stressors on a weekly basis while on active duty.  See July 2013 video hearing.  The record does not contain any evidence from a military chaplain to corroborate this claim.  Unfortunately, lay testimony, uncorroborated by supporting documentation, is insufficient in this case to verify the Veteran's alleged in-service stressors.  38 C.F.R. § 3.304(f) (2016). 

Likewise, the record does not include evidence from sources other than the Veteran's service records to corroborate her account of the stressor incidents.  Examples of such evidence include, but are not limited to: records from law enforcement authorities; rape crisis centers; mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304(f)(5) (2016).  In light of a complete absence of evidence to corroborate the Veteran's claimed in-service stressors, service connection for PTSD must be denied.  

Finally, regarding the third element, no competent medical evidence of record has linked a diagnosis of PTSD to the Veteran's military service.  At a June 2001, VA examination, the Veteran was diagnosed with PTSD, related to numerous traumatic events from childhood through adulthood.  It must be noted that when the Veteran filed her initial claim of entitlement to service connection for PTSD back in February 2001, she claimed her PTSD arose due to several incidents she experienced from 1992 to 1993, more than twenty years after her military service had ended, including the death of her mother, a racial attack in a restaurant, a car accident, a physical assault, a lost job, and a home break-in.  See February 2001 written statement.  Prior to the June 2001 VA examination, the Veteran had not made any complaints that her PTSD was caused by in-service stressors.  A review of the June 2001 VA examination report confirms that the VA examiner did not mention any of the Veteran's current claimed in-service stressors and was unaware of the events alleged in her present claims.  Thus, the VA examiner's conclusion that the Veteran's PTSD related to numerous traumatic events from childhood through adulthood, does not include any of the in-service events she now claims as contributing to her alleged PTSD.  Instead, the VA examiner's opinion is focused on the traumatic events experienced in 1992/1993 as well as reports of childhood physical, verbal, and sexual abuse.  The VA examiner did not mention any service-related stressors. 

In October 2005, the Veteran was afforded another VA examination.  The VA examiner declined to diagnose the Veteran with PTSD and noted she did not meet the diagnostic criteria for PTSD in terms of any specified stressor that met criterion A or in terms of symptoms presentation. 

In May 2008, the Veteran was afforded a final VA examination.  The examiner reviewed the Veteran's claims file and noted the June 2001 VA examination report, commenting: "Dr. Erickson first evaluated [the Veteran] in June 2001 and at that time diagnosed [the Veteran] with post traumatic stress disorder related to numerous traumatic events from childhood through adulthood although not directly related to military service."  After a complete review of the record, and in-person examination, the VA examiner declined to assess the Veteran with PTSD.  He concluded the Veteran did not meet the criteria for PTSD related to military service because she did not report any criterion A stressors, and did not report any symptomatology consistent with PTSD.  As it stands, the record contains no competent medical reports of PTSD linking such a condition to the Veteran's military service.  In the absence of this evidence, the Veteran's claim for entitlement to service connection for PTSD must be denied. 

3.  Entitlement to service connection for an acquired psychiatric disorder, other than PTSD. 

Throughout the period on appeal the Veteran has been diagnosed with acquired psychiatric disorders (variously diagnosed to include major depression, anxiety, personality disorder with paranoid and histrionic traits, panic disorder).  See VA treatment records; see May 2008 VA examination.  However, her claim of entitlement to service connection based on an acquired psychiatric disorder fails in several regards.

First, to the extent that the Veteran has been diagnosed with a personality disorder, this condition is barred from service connection as a matter of law.  See May 2008 VA examination.  Personality disorders are not considered "diseases or injuries" within the meaning of applicable legislation and, hence, do not constitute disabilities for VA compensation purposes.  See 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2016).  Service connection for such a disorder is legally precluded, unless there is evidence suggesting the condition was somehow aggravated by service.  There is no such competent evidence here. 

Second, the presence of pre-existing depression and nervousness were listed on the Veteran's enlistment examination.  She was referred for evaluation and was diagnosed with immaturity, mild chronic anxiety, with no psychiatric contraindication to enlistment.  This is the sole service treatment record addressing the Veteran's mental health.  Because a preexisting medical condition has been noted upon entry into service, the presumption of soundness is not for application. 38 C.F.R. § 3.304(b).  As a result, 38 U.S.C.A. § 1153 (West 2014)  applies, meaning that for service connection to be warranted, it must be shown that the preexisting injury or disease was aggravated by the Veteran's active military, naval, or air service.  Aggravation will be found where there is an increase in disability during such service (presumption of aggravation), unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153 (West 2014); 38 C.F.R. § 3.306 (2016).  The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition.  38 U.S.C.A. § 1153 (West 2014); Wagner v. Principi, 370 F.3d 1089 (2004).

Here, the presumption of aggravation has no application.  Despite the presence of depression and nervousness noted at the time of entry, the remainder of the Veteran's service treatment records shows no further complaints of, treatment for, or diagnoses of mental illness while in military service.  The Veteran's discharge examination is completely silent regarding psychiatric findings.  Post-military 1969 dependent records do not contain any mental health complaints or pertinent mental health treatment.  In light of this evidence, the Board finds that the Veteran's pre-existing mental health conditions were not aggravated by her military service, sufficient to satisfy the presumption of aggravation.  There is no evidence that the Veteran's depression and nervousness increased in severity during service.  38 C.F.R. § 3.306 (2016).  Because the Veteran's pre-existing depression and nervousness were not aggravated during military service, service connection for these conditions must be denied. 

Finally, the Board notes that the record does not contain any competent medical evidence linking the Veteran's present acquired psychiatric disorders to her military service.  Indeed, the May 2008 VA examiner noted the Veteran's listed acquired psychiatric disorders were unrelated to military service.  Without a competent medical nexus opinion linking the Veteran's current disabilities to her military service, service connection cannot be granted. 

4.  Doctrine of Reasonable Doubt. 

In reaching this decision, the Board considered the doctrine of reasonable doubt. However, since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).





REMAND

Regarding the Veteran's claims of entitlement to service connection for bilateral hyperkeratotic lesions of the feet and left hallux rigidus, the Board finds that additional evidentiary development is required prior to adjudicating these claims.  Initially, the Board notes that the Veteran was denied service connection for a variety of foot problems in a December 2002 rating decision.  However, the Board finds that the current foot problems are distinct and separate from those considered in the unappealed, final, December 2002 rating decision.  Accordingly, a new and material evidence analysis is unwarranted. 

In May 2008, the Veteran was afforded a VA examination; however the examination was erroneously requested for increased rating purposes, not service connection purposes, and consequently, does not contain a nexus opinion.  Further, the VA examiner was never provided a copy of the Veteran's claims file for review. Thus, the Board shall consider whether another VA examination is warranted.  

A VA examination or opinion is deemed necessary only if the evidence of record (a) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (b) establishes that the Veteran suffered an event, injury, or disease in service; (c) indicates that the claimed disability or symptoms may be associated with the Veteran's service or other service-connected disability, and (d) does not contain sufficient medical evidence for VA to make a decision on the claim.  See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016); McClendon v. Nicholson, 20 Vet. App. 79 (2006).

The Board finds that the Veteran has experienced bilateral hyperkeratotic lesion of the feet and left foot hallux rigidus during the appeals period.  While the Veteran's service treatment records do not contain any complaints of, diagnoses of, or treatment for bilateral hyperkeratotic lesions in the feet or left foot hallux rigidus while in service, she has provided credible testimony and lay statements asserting her foot problems began in service.  However, as it stands, the record lacks competent medical evidence linking her claimed disabilities to her military service.  The Board finds that the Veteran has satisfied the McClendon criteria and should be entitled to a new VA examination.

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a VA examination with an appropriate examiner to assess her claims of bilateral hyperkeratotic lesions of the feet and left hallux rigidus.  The claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner.  

After reviewing the record and performing any examination and/or testing of the Veteran deemed necessary, the examiner should address the following:

Is it at least as likely as not (50 percent probability or more) that the Veteran's bilateral hyperkeratotic lesions of the feet and left hallux rigidus are causally or etiologically related to her military service.

A rationale for all requested opinions shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

2. After completion of the above, the issues of entitlement to service connection for bilateral hyperkeratotic lesions of the feet and left hallux rigidus must be readjudicated.  If the benefits sought on appeal are not granted, the Veteran and her representative should be provided with a Supplemental Statement of the Case and afforded the appropriate time period within which to respond thereto.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


______________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals

ATTORNEY FOR THE BOARD		M. Galante, Associate Counsel

Copy mailed to:  Disabled American Veterans 


Department of Veterans Affairs

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