Citation Nr: 1437976	
Decision Date: 08/26/14    Archive Date: 09/03/14

DOCKET NO.  10-12 615	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD).  

2.  Entitlement to service connection for an acquired psychiatric disability to include a mood disorder and PTSD. 

2.  Entitlement to service connection for residuals of a T11-T12 compression fracture. 

3.  Entitlement to service connection for coccidioidomycosis.  


REPRESENTATION

Appellant represented by:	Brian Wayson


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. S. Willie, Counsel


INTRODUCTION

The Veteran served on active duty from February 1979 to August 1980.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.

The Veteran was afforded a hearing before the undersigned Veterans' Law Judge in June 2014.  A transcript of that hearing is of record. 

The Board has reviewed the Virtual VA and VBMS paperless claims processing systems and has included any evidence pertinent to the appeal in the decision therein.

The issues of entitlement to service connection for residuals of a T11-T12 compression fracture and coccidioidomycosis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). 



FINDINGS OF FACT

1.  A claim of entitlement to service connection for PTSD was denied in a September 2005 rating decision. The Veteran did not appeal that issue or submit new and material evidence within the one year appeal period. 

2.  The evidence added to the record since the September 2005 decision with regards to PTSD is not cumulative or redundant of the evidence previously of record and does relate to an unestablished fact necessary to substantiate the claim.

3.  A mood disorder with PTSD is as likely as not attributable to service.  


CONCLUSIONS OF LAW

1.  The September 2005 rating decision denying entitlement to service connection for PTSD is final.  New and material evidence to reopen the claim for service connection for PTSD has been received.  38 U.S.C.A. §§ 5103A, 5108, 7105 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.156 (a), 3.159 (2013).

2.  Resolving reasonable doubt in the appellant's favor, a mood disorder with PTSD was incurred in service.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303. 3.304 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

 The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein.  There is no issue as to providing an appropriate application or the completeness of the application.  By correspondence dated in July 2008, VA advised the Veteran of the information and evidence needed to substantiate a claim. The letter provided notice of what part of that evidence is to be provided by the claimant, and what part VA will attempt to obtain.  The Veteran was also provided information regarding the assignment of disability ratings and effective dates. 

VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, VA examinations and identified private medical records. No additional pertinent records are shown to be available, and the appellant does not argue otherwise.

For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2) ; 38 C.F.R. § 3.159(d) . Accordingly, the Board will address the merits of the claims. 

New and Material 

Generally, a claim which has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c).  An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

After reviewing all of the evidence of record available at the time of the September 2005 rating decision and in light of the evidence received since that decision, the Board finds that the new evidence raises a reasonable possibility of substantiating the appellant's claim of entitlement to service connection for PTSD.  Accordingly, the claim is reopened.


Service Connection

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Because there is an approximate balance of positive and negative evidence, the benefit of the doubt must be applied in favor of the Veteran.  38 U.S.C.A. § 5107(b)  (West 2002); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102.  In doing so, the Board finds that the Veteran has presented credible evidence to include testimony that he was personally assaulted in service.  He is also competent to report psychiatric symptoms and the circumstances surrounding such.  Layno v. Brown, 6 Vet. App. 465 (1994).  

Service personnel records show that the Veteran was assaulted and kidnapped in November 1979.  Months later, in June 1980 discharge was proposed for the Veteran's failure to adapt to the Army.  In March 1995, Dr. Altfas stated that the Veteran's mood and anxiety disturbance manifested long before 1985.  In the June 2014 PTSD questionnaire the Veteran was diagnosed with a mood disorder and PTSD.  The VA examiner found that the Veteran was exposed to a traumatic event where he experienced, witnessed or was confronted with an event that involves actual or threatened death or serious injury , or a threat to the physical integrity of self or others.  

The Board is mindful that a December 2009 VA examiner found that the Veteran's military stressors seem to have had a lesser impact on his disability compared to a postservice back injury and likely childhood trauma.  Notably, that examination report's failure to discuss the Army's report corroborating the appellant's assault is, clear evidence that the examiner either did not have access to, or did not review, those important records.  (N.B.  The Army Criminal Investigative Division (CID) records specifically note that in November 1978 the appellant was, among other things, kidnapped, physically beaten, transported in the trunk of a car, threatened with a loaded weapon, and had his head forcibly dunked into water.)  

While the December 2009 examiner did not review the CID records, the examiner did state that if the assault occurred before any behavioral difficulties it would help to support the claim that the physical assault directly led to behavioral difficulties that directed impacted the appellant's mental health.  While the appellant was punished on one occasion in October 1979 for being absent without leave, and while he was assaulted in November 1979, the severity of the assault compared to the relatively minor offense committed, supports finding that the appellant's current psychiatric illness is related to service.  

Given that the Board finds the in service personal assault, the lay statements of record, and the June 2014 PTSD questionnaire to be persuasive, the Board will resolve reasonably doubt in the Veteran's favor and grant entitlement to service connection for a mood disorder with PTSD.

ORDER

The claim of entitlement to service connection for PTSD is reopened.

Entitlement to service connection for a mood disorder with PTSD is granted.  


REMAND

The Veteran appeals the denial of entitlement to service connection for residuals of a T11-T12 compression fracture.  He claims that this disability resulted from his airborne service to include 10 to15 jumps and some bad parachute landing falls.  The appellant's personnel record corroborates the claim that he was a qualified airborne soldier.  The Veteran has not, however, been afforded a VA examination to address his theory of the claim.  On remand, he should be afforded a VA examination to determine any residuals of a T11-T12 compression fracture are related to service or any incident therein.  

Furthermore, in the January 2013 rating decision the Veteran's application to reopen the claim of entitlement to service connection for coccidioidomycosis was denied.  He expressed disagreement with the decision in January 2014.  The Veteran, however, has not been issued a Statement of the Case.  As such, a remand is necessary.  Manlincon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

1.  A statement of the case must be issued addressing the claim to reopen the issue of entitlement to service connection for coccidioidomycosis.  The Veteran should be advised of the necessity of filing a timely substantive appeal if he wants the Board to consider the issue.

2.  Schedule the Veteran for a VA examination to determine the nature and etiology of any residuals of a T11-T12 compression fracture.  The examiner must be provided access to the claims file, VBMS file, and Virtual VA file for review.  After examination and review of the record, the examiner must opine whether it is at least as likely as not, i.e., is there a 50/50 chance that any residuals of a T11-T12 compression fracture are related to service or an incident therein.  The examiner must address the impact of the Veteran's postservice 1985 motor vehicle accident and its relation to any diagnosed thoracic disorder.  Any opinion offered must also take into account the Veteran's history and contentions and must be supported by a complete and fully reasoned rationale.
 
3.  After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND.  The AMC/RO must ensure that the examining examiner documented their consideration of Virtual VA.  If any report is deficient in any manner, the RO must implement corrective procedures at once.
 
4.  Thereafter, the RO/AMC should readjudicate the claims.  If any claim remains denied, the RO must issue a supplemental statement of the case and afford the appellant and his representative an opportunity to respond.

The appellant 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs