Citation Nr: 1301378 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 10-41 838 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES Whether new and material evidence has been received to reopen a claim seeking service connection for post traumatic stress disorder (PTSD). Entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from April 1970 to December 1971, including combat service in Vietnam. This appeal to the Board of Veterans' Appeals (Board) arises from a March 2010 rating decision of the St. Louis, Missouri Regional Office (RO) of the Department of Veterans' Affairs (VA). FINDINGS OF FACT 1. In a November 2002 rating decision, the RO denied entitlement to service connection for PTSD. 2. Evidence associated with the record since the November 2002 decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD. 3. The Veteran had combat service in Vietnam and his reported stressors during service are consistent with his combat service. 4. The evidence is at least in equipoise as to whether he has PTSD as a result of his reported stressors. CONCLUSIONS OF LAW 1. The November 2002 RO decision is final. 38 U.S.C.A. § 7105 (West 2002). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C.A. §§ 5103, 5103A, 5108 (West 2002); 38 C.F.R. §§ 3.156, 3.159 (2012). 3. The criteria for entitlement to service connection for PTSD are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA), includes enhanced duties to notify and assist claimants for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Given the favorable disposition of the claim for service connection for PTSD, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. II. Analysis In a November 2002 decision, the RO denied entitlement to service connection for PTSD. The RO found that a diagnosis of PTSD had not been shown. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7104. Under 38 U.S.C.A. § 5108, however, "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 means existing 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. 38 C.F.R. § 3.156(a). 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. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish entitlement to service connection for a present disability the Veteran must show: (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, 1166-67 (Fed. Cir. 2004). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., a diagnosis under DSM-IV]; a link, established by medical evidence, between current symptoms and a stressor event in service; and credible supporting evidence that the claimed stressor event in service occurred. 38 C.F.R. § 3.304(f). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). If, however, VA determines either that the Veteran did not engage in combat with the enemy or that he or she did engage in combat, but that the alleged stressor is not combat related, then his or her lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence that corroborate his or her testimony or statements. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). See also Cohen, 10 Vet. App. 128, 142 (1997). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A. Claim to reopen As alluded to above, the November 2002 rating decision denied service connection for PTSD based on a lack of any evidence of a current PTSD diagnosis. Evidence received since that time includes VA treatment records, which clearly show a diagnosis of PTSD related to the Veteran's Vietnam combat experiences. As the above evidence has not been considered, it is new. Further, as the evidence does show a diagnosis of PTSD related to service it relates to unestablished facts necessary to substantiate the claim (i.e. the presence of a current disability and a nexus between the current disability and service). This evidence also raises a reasonable possibility of substantiating the claim, as coupled with the evidence already of record, it tends to indicate that all the elements of a claim for service connection for PTSD have been satisfied. Consequently, new and material evidence has been received and the claim may be reopened. 38 C.F.R. § 3.156. B. Service Connection for PTSD The record reasonably shows that the Veteran served in combat in Vietnam, as evidenced by the notation on his DD-214 indicating that he received the combat infantry badge and by his service personnel records, which indicate that he served in Vietnam as a rifleman from December 1970 to July 1971. The Veteran has reported a number of combat stressors, including very close proximity to incoming mortar rounds, deaths and injuries of fellow soldiers in his unit while it was under attack, seeing enemy dead bodies and just missing experiencing his tent being blown up by enemy fire because he happened to be visiting another tent at the time. There is no evidence of record tending to indicate these events did not occur and they are generally consistent with his combat infantry service. Consequently, the Veteran's lay testimony has sufficiently established the occurrence of these stressor events. 38 C.F.R. § 3.304(f). The record does contain conflicting evidence as to whether the Veteran has PTSD. In November 2009, after a diagnostic interview, a VA psychologist diagnosed the Veteran with PTSD, noting that the Veteran's responses during the interview lead to the conclusion that he was experiencing clinically significant symptoms of PTSD, due to his Vietnam combat service, as well as depression. Similarly, after a December 2009 interview, a VA psychiatrist diagnosed the Veteran with PTSD with chronic depression, specifically finding that the Veteran met all the diagnostic criteria for a diagnosis of PTSD. Additionally, VA mental health records show that after these diagnoses were rendered, the Veteran began receiving group and individual therapy for PTSD. On the other hand, at a March 2010 VA psychological evaluation, the evaluating psychologist found that although the Veteran might have been experiencing symptoms of PTSD, it was not possible to say that there was a nexus between his current self-reports and an in-service stressor. The psychologist diagnosed the Veteran with adjustment disorder to describe his current mental health symptoms. The psychologist noted that the Veteran's responses appeared to be rehearsed and that his score on the PTSD checklist for stressful military experiences was unusually high. He also noted that prior to 2009, there were no signs or symptoms of PTSD at any of his points of contact with the Department of Defense or VA. The March 2010 VA psychologist's opinion is well-reasoned and was rendered after review of the claims file. However, given that another VA psychologist and a VA psychiatrist separately rendered a specific PTSD diagnosis based on the DSM IV criteria, and given that the Veteran was subsequently began receiving treatment for the disorder, the Board finds that the evidence is at least in equipoise as to whether the Veteran currently has PTSD. Accordingly, the preponderance of the evidence is in his favor and service connection for PTSD is warranted. Gilbert, 1 Vet. App. 49, 55 (1990). ORDER New and material evidence having been received, the claim of entitlement to service connection for PTSD is reopened. Entitlement to service connection for PTSD is granted. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs