Citation Nr: 1135544	
Decision Date: 09/22/11    Archive Date: 10/03/11

DOCKET NO.  08-39 007	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive neurosis. 

2.  Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depressive neurosis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Riley, Counsel


INTRODUCTION

The Veteran served on active duty from November 1963 to October 1967.  This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, in pertinent part, found that new and material evidence had not been submitted to reopen a claim for service connection for a psychiatric disorder.  Jurisdiction over the claims folder is currently held by the RO in Atlanta, Georgia. 

In May 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO.  A transcript of the hearing is of record.


FINDINGS OF FACT

1.  The Veteran's claim for service connection for a nervous condition, claimed as PTSD and depressive neurosis, was initially denied by the RO in an unappealed March 1987 rating decision; the decision is final.  The Veteran's attempt to reopen his claim was and most recently denied in a December 1990 rating decision. 

2.  The evidence received since the December 1990 denial of the claim relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim.

3.  The Veteran's PTSD is due to an in-service stressor for which there is corroborative evidence.


CONCLUSIONS OF LAW

1.  New and material evidence has been received to reopen the claim for service connection for an acquired psychiatric disorder, to include PTSD and depressive neurosis.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010).

2.  PTSD was incurred due to active duty service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Claim to Reopen

The Veteran's claim for service connection for an acquired psychiatric disorder was initially denied by the RO in a March 1987 rating decision.  The RO determined that the evidence of record did not establish that the claimed disability was incurred in or aggravated by active duty service.  The Veteran did not appeal the March 1987 denial of his claim and the rating decision became final.  38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103.  The Veteran made several attempts to reopen his claim for service connection for a psychiatric disorder and was most recently denied in a December 1990 rating decision.  

A claim which has been finally denied in an unappealed rating decision or Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002).  The 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.

New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  

The evidence received since the December 1990 denial of the claim includes a private psychological examination report diagnosing the Veteran with PTSD attributed to several catastrophic events during his military service including a tornado in 1964 and other instances of loss of life.  This evidence relates to a previously unestablished fact necessary to substantiate the claim (i.e. a nexus between the Veteran's claimed PTSD and his claimed in-service stressors) and raises a reasonable possibility of substantiating the claim.  Reopening of the claim is therefore granted.  


Reopened Claim for Service Connection

The Veteran contends that service connection is warranted for an acquired psychiatric disorder, to include PTSD and depressive neurosis, as it was incurred due to events that occurred during active duty service.  Service connection may be granted for a 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(a).  Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

The Board finds that the record contains evidence adequate to establish service connection for PTSD.  Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 32 (4th ed.) (1994) (DSM IV)); 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.  

The Veteran was initially diagnosed with PTSD in September 1990 by a VA psychiatrist.  Since that time, he has not undergone consistent treatment for PTSD, but was found to endorse characteristics of PTSD at the Carl Vinson VA Medical Center (VAMC) in December 2004 and October 2005.  He was also diagnosed with PTSD by a private psychologist following psychological testing and an examination in November 2006.  Although an October 2008 VA examiner did not find that the Veteran met the criteria for PTSD, the Board finds that the weight of the evidence of record, including the November 2006 private psychological examination report and the evidence of PTSD contained in VAMC treatment records, establishes the presence of current PTSD.  

The record also contains medical evidence of a link between the Veteran's PTSD and his reported in-service stressors.  The Veteran stressors include being present during a tornado that killed seven people and injured 100 others in 1964 at Sheppard Air Force Base in Wichita Falls, Texas, and witnessing an airplane explode while trying to land during his tour of duty in Thailand.  The Veteran also reported on his November 2006 PTSD questionnaire that one of his closest friends in the Air Force, Robert Fink, was killed in May 1968 shortly after the Veteran's departure from Thailand.  The November 2006 private diagnosis of PTSD was attributed to the Veteran's exposure to "catastrophic events" during service including loss of life from the 1964 hurricane and during his time in Thailand.  The Board therefore finds that record contains medical evidence establishing a link between the current PTSD and the Veteran's claimed stressors. 

The Veteran's reported stressors are not combat-related and neither service records nor the Veteran's recent testimony indicate that he was involved in combat while serving in Thailand.  Where a determination is made that a Veteran did not "engage in combat with the enemy," the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor.  See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996).  In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the Veteran's testimony or statements as to the occurrence of the claimed stressor.  See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). 

With respect to the Veteran's first reported stressor, his presence during a tornado that touched down at Sheppard Air Force Base in 1964, the record contains several pieces of evidence corroborating this incident.  In August 2008, the RO conducted a search of records compiled by the National Weather Service Forecast Office and determined that a tornado rated as F5 (violent with incredible damage) touched down at Sheppard Air Force Base in April 1964 resulting in the deaths of seven people and injuries to over 100 others.  A copy of an internet article submitted by the Veteran at his May 2011 hearing also confirmed that a "devastating" tornado hit Sheppard Air Force Base in April 1964.  Service personnel records verify that the Veteran was stationed at Sheppard Air Force in April 1964.  

Another stressor reported by the Veteran, that his friend and fellow soldier Robert Fink was killed in May 1968, was also verified by U. S. Armed Services Center for Research of Unit Records (CURR).  While CURR was unable to verify the Veteran's reports of an aircraft exploding while attempting to land during his service in Thailand, the Board finds that the record contains credible supporting evidence of two of the Veteran's reported in-service stressors.  As the record includes a diagnosis of PTSD, a medical opinion linking the diagnosis to the in-service stressors, and supporting evidence of the stressors, all the elements needed for service connection have been established.  Accordingly, the evidence is in favor of the grant of service connection for PTSD.  

The Board finds that VA has substantially satisfied the duties to notify and assist with respect to the claims to reopen entitlement to service connection for ac acquired psychiatric disorder and the grant of service connection for this disability.  To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision.  


ORDER

As new and material evidence has been presented or secured, the claim of service connection for an acquired psychiatric disorder, to include PTSD and depressive neurosis, is reopened.

Entitlement to service connection for an acquired psychiatric disorder, diagnosed as PTSD, is granted. 




____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs