Citation Nr: 1301536 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 09-08 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which declined to reopen the Veteran's claim for service connection for PTSD. The Board notes that in a June 2009 rating decision, the RO granted service connection and assigned a 100 percent rating for schizoaffective disorder, effective August 31, 2007. Subsequently, in a June 2010 Report of Contact, the Veteran appeared to have expressed his desire to withdraw his claim to reopen service connection for PTSD. However, he then submitted a statement via his representative in January 2013 providing additional argument for entitlement to service connection for PTSD. Given the Veteran's clear intent to, rather than withdraw such claim, continue to prosecute the claim to reopen service connection for PTSD as evidenced by his January 2013 statement, and the requirement that VA liberally construe communications from Veterans, the claim for whether new and material evidence has been received to reopen a claim of entitlement to service connection for PTSD will not be considered to have been withdrawn and will instead be addressed in the adjudication that follows. See Gallegos v. Principi, 16 Vet. App. 551 (2003) (per curiam); Moore v. West, 13 Vet. App. 69, 74 (1999). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The July 2006 rating decision that denied service connection for PTSD was not appealed and is final. 2. Some of the evidence received since the July 2006 rating decision bears directly and substantially upon the specific matter under consideration, is neither cumulative nor redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for PTSD. 3. The evidence is in equipoise that the Veteran has a diagnosis of PTSD in conformance with the standards of DSM-IV that is based on reported in-service stressors consistent with the circumstances, conditions, and hardships of his military service and related to his fear of hostile military or terrorist activity. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for PTSD. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156(b) (2012). 2. The criteria for establishing service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the Board's favorable disposition to reopen and grant the claim for service connection for PTSD, the Board finds that no discussion of VCAA compliance is necessary at this time. Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). New and Material Evidence A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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. 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) (2012). Furthermore, the Court of Appeals for the Federal Circuit has indicated that evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium) (holding that the "presumption of credibility" doctrine continues to be precedent). Service connection for PTSD was initially denied by a February 1982 rating decision. The Veteran subsequently made numerous attempts to reopen his claim for service connection for PTSD, but his claim continued to be denied. Most recently, the Veteran's claim for service connection for PTSD was denied by a rating decision in July 2006. The claim was denied based on the rationale that the Veteran had not provided a verifiable in-service stressor that resulted in his current PTSD. In November 2007, the Veteran filed his request to reopen the claim for service connection for PTSD. In the May 2008 rating decision on appeal, the RO determined that new and material evidence had not been submitted to reopen the claim. Thereafter, based on an amended regulation, the RO determined in an April 2012 supplemental statement of the case that new and material evidence had been submitted to reopen the Veteran's claim but denied the claim on the merits because there was no evidence that the Veteran's PTSD occurred in service, nor was there evidence of a confirmed PTSD diagnosis that was related to an in-service stressor. The evidence received subsequent to the July 2006 rating decision includes VA medical records dated from September 2006 to April 2012 and the Veteran's statements. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board notes that effective July 13, 2010, 38 C.F.R. § 3.304(f) was amended as follows. If a stressor claimed by a veteran is related to that veteran's fear of hostile military or terrorist activity, and a VA psychiatrist or psychologist (or a psychiatrist or psychologist with whom VA has contracted) confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of that veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. "[F]ear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See 75 Fed. Reg. 39843 (July 13, 2010); 75 Fed. Reg. 41092 (July 15, 2010). As pertinent here, the Veteran reports that when he first arrived in Vietnam in March 1970, he was caught in a mortar attack. He contends that he ran into a bunker just as the mortar exploded and that he felt he would have been killed if he had not turned to the side when he entered the bunker. Such evidence is presumed credible for purposes of determining whether new and material evidence has been received. The RO previously only considered whether the Veteran's alleged in-service stressor was verifiable under the old regulations, but the regulations pertaining to verifying PTSD stressors have changed since the prior July 2006 denial. The Veteran's service personnel records indicate that he served in Vietnam from March 1970 to April 1971, and he has alleged an in-service stressor related to his fear of hostile military or terrorist activity. As this evidence relates to the prior basis for the denial of the claim, specifically the lack of verifiable stressors, and resolving all doubt in the Veteran's favor, the Board finds that the evidence is new and material, and the claim for service connection for PTSD is reopened. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection for PTSD generally requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2012); see also Cohen v. Brown, 10 Vet. App. 128 (1997). If the veteran did not serve in combat, or if the claimed stressor is not related to combat, there must be independent evidence to corroborate a veteran's statement as to the occurrence of the claimed stressor. See Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). Generally, the Veteran's testimony alone cannot establish the occurrence of a non-combat stressor. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Furthermore, an opinion by a medical health professional based on post-service examination of the Veteran cannot be used to establish the occurrence of a stressor. See Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996). However, effective July 13, 2010, if a stressor claimed by a veteran is related to that veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of that veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. "[F]ear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See 75 Fed. Reg. 39,843 (Jul. 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3)). In this case, the Veteran asserts that he has PTSD as a result of being caught in a mortar attack while stationed in Vietnam. As an initial matter, the Board notes that in a June 2009 rating decision, the RO granted service connection and awarded a 100 percent rating for schizoaffective disorder, effective August 31, 2007. Therefore, as the Veteran has already been service-connected for schizoaffective disorder, the Board's analysis below will focus only on the evidence as it pertains to PTSD. In April 2008, the RO made a formal finding that there was a lack of information required to verify the Veteran's stressor through the United States Army & Joint Services Records Research Center (JSRRC) in connection with his claim. The Veteran had not responded to January 2008 or March 2008 requests for more information regarding his claimed stressors. The Veteran's service personnel records reflect that he served in Vietnam from March 1970 to April 1971. They are negative for any combat medals or service. However, in light of the aforementioned amendment to 38 C.F.R. § 3.304(f), which followed the issuance of the RO's rating decision and statement of the case, it is no longer necessary for the Veteran's reported stressors to be independently verified through JSRRC. As the Veteran served in Vietnam, his claimed stressor of being caught in a mortar attack is consistent with fear of hostile military or terrorist actions as well as with the places, types, and circumstances of the Veteran's service. Thus, his lay statements are sufficient to corroborate his claimed stressor of being caught in a mortar attack during service, and the basis on which the Veteran's claim was previously denied is no longer valid. The Board must now consider whether service connection is warranted under the revised regulations. 38 C.F.R. § 3.304(f) (2012). The Veteran has reported a stressor that is consistent with the places, types, and circumstances of his service in Vietnam in claiming to have been caught in the middle of a mortar attack. Accordingly, the remaining questions are whether his reported stressor is related to his fear of hostile military or terrorist activity, and if so, whether such a stressor is adequate to support a diagnosis of PTSD and whether the Veteran's particular PTSD symptoms are related to that stressor. 38 C.F.R. § 3.304(f)(3) (2012). Service treatment records are negative for any complaints or treatment for PTSD. On separation examination in February 1972, the Veteran reported no psychiatric complaints, and he was found to have no psychiatric abnormalities. Post-service private medical records show that the Veteran was hospitalized for a few weeks in July 1985 under emergency detention order. Upon admission, he could not answer any questions correctly and continuously hit the walls with his fists and feet. He was reported to be uncontrollable at home and walked with a staggering gait in the streets. After undergoing psychiatric testing, the Veteran was given a final diagnosis of PTSD and paranoid schizophrenia. Similarly, an August 2002 private psychological evaluation revealed that the Veteran met the DSM-IV criteria for chronic, severe PTSD and that his PTSD was related to his combat experiences in Vietnam. Although the Veteran's private psychologists diagnosed him with PTSD in July 1985 and August 2002, the Board notes that the amendment of 38 C.F.R. § 3.304(f) specifically requires a VA psychiatrist or psychologist, or contract equivalent, to confirm that the claimed stressor is adequate to support a diagnosis of PTSD. The Board notes that VA examinations dated in February 1982 and January 1985 found no evidence that the Veteran suffered from PTSD but that he instead had a diagnosis of chronic schizophrenia. The February 1982 VA examiner noted the Veteran's history of schizophrenia over the past few years and found after examining the Veteran that there was no question that the only proper diagnosis was schizophrenia. The examiner determined there was no evidence of PTSD and that a diagnosis of schizophrenia precluded a PTSD diagnosis. The January 1985 VA examiner made a similar conclusion that the Veteran demonstrated no evidence of PTSD after the Veteran reported auditory hallucinations and exhibited paranoid ideations during the examination. On VA examination in March 1993, the Veteran received an Axis I diagnosis of chronic paranoid schizophrenia. The Veteran reported being too paranoid, insecure, and afraid of everything around him. He stated that he did not trust anyone and stayed isolated. He only had a few friends and spent his time confined in the house and watching television. He indicated that he slept an average of 6 hours with some interruptions and that he woke up thinking about death. The examiner found that the Veteran was tense, rigid, guarded, and suspicious, and that he appeared paranoid and fearful. The Veteran had auditory hallucinations of talking to Jesus. He was cleanly dressed and well-groomed and sat erect on the edge of his chair. He was not spontaneous and reluctantly gave information when direct questions were asked. The Veteran was coherent, goal-directed, and had no thinking disorder. His mood was depressed, and his affect was flattened. He was oriented with no memory imperfections. Symbolization was concrete, and insight was limited. The examiner noted the Veteran's report of a mortar attack in Vietnam and found that he had experienced an event that was outside the range of usual human experience that would be markedly distressing to almost anyone. The examiner also determined that the traumatic event was persistently re-experienced. The Veteran exhibited numbing of general responsiveness and persistent symptoms of increased arousal that were not present before the trauma. However, despite the Veteran having met the criteria for PTSD, the examiner opined that based on the evidence, a diagnosis of PTSD was not warranted. At a September 1996 VA examination, the Veteran reported that on the first night he was on base in Vietnam, as he was entering the bunker, a piece of shrapnel from a mortar hit the timbers very close to where he was. He also maintained that on another occasion in Vietnam, he saw his friend get killed from a shell explosion. The Veteran complained that he had difficulties with being nervous and feeling very tight. He reported having occasional intrusive thoughts and distressing dreams where he was being pursued by others who were trying to shoot or stab him. He stated that he continued to avoid thinking about his time in Vietnam and that there had been a diminished interest in activities that he had done in the past, as he secluded himself in his home and watched television during the day. He did not work at the present time and felt an estrangement around other people. The Veteran maintained that he would like to have friends, but that when his temper flared up, it interfered with his ability to make friendships. He indicated that he had some difficulty trusting others, which had only developed since he had been in Vietnam. He also reported a restricted range of affect. He denied having any current hallucinations or receiving special messages delivered to him over the television. The Veteran described himself as being hyper and on edge. He complained that he only got approximately 3 hours of sleep a night because he often feared what would happen when he slept. Examination revealed that the Veteran had very poor eye contact and stared off to the side during the whole examination. He had a monotone voice and wore jeans and a T-shirt. He did not show any indications of having hallucinations, but he was very suspicious of the acts of others. The Veteran had no spontaneous speech, but he did answer questions when asked. He was oriented, goal-directed, and very concrete. His insight was limited to what his situation was, and his affect was flattened. The Veteran was diagnosed with PTSD and paranoid schizophrenia. The examiner noted that the March 1993 VA examiner had been unable to diagnose the Veteran with PTSD based on the evidence, but that he had acknowledged that the Veteran had experienced an event outside the reigns of usual human experience in the sense that that he had been in a war zone in Vietnam from 1970-1971, albeit as a supply clerk that would store equipment. After reading the March 1993 VA examination report and noting the things that the Veteran gave a positive response to in regards to PTSD, the examiner found that at the time of the March 1993 VA examination, the Veteran did qualify to have a PTSD diagnosis. The examiner explained that the Veteran's condition had not improved from what it had been in the past and that he continued to exhibit enough symptoms to be classified with PTSD in addition to the paranoid schizophrenia. An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993); Gabrielson v. Brown, 7 Vet. App. 36 (1994). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). The Board finds that the September 1996 VA examiner's opinion that the Veteran suffers from chronic PTSD related to his in-service stressors in Vietnam is more probative and persuasive than the findings of the February 1982, January 1985, and March 1993 VA examiners, indicating that the Veteran does not meet the diagnostic criteria for PTSD. The September 1996 VA examiner's opinion was based on a detailed examination of the Veteran, which reflected a knowledge of his in-service stressors and post-service mental health history. Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the physician's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). The VA psychologist also provided a rationale for why the Veteran's disability was not adequately explained by paranoid schizophrenia alone and was instead also due to PTSD based on his traumatic experiences in service. Sklar v. Brown, 5 Vet. App. 140 (1993). Moreover, the VA psychologist's opinion is consistent with the lay statements of the Veteran relating his mental health problems to his in-service stressors. In contrast, the February 1982, January 1985, and March 1993 VA examiners did not provide any rationale for why a diagnosis of PTSD was not warranted. The February 1982 VA examiner did not explain why a diagnosis of schizophrenia precluded a diagnosis of PTSD, and the January 1985 VA examiner simply did not provide any rationale for why a PTSD diagnosis was not warranted. Moreover, despite the March 1993 VA examiner's findings that the Veteran met the relevant diagnostic criteria for PTSD, no rationale was provided for why a PTSD diagnosis was not warranted based on the evidence. If the examiner does not provide a rationale for the opinion, that weighs against the probative value of the opinion. Sklar v. Brown, 5 Vet. App. 140. Additionally, in rendering the assessment that a PTSD diagnosis was not warranted based on the evidence, the March 1993 VA examiner did not take into account the Veteran's lay statements regarding his in-service stressors, which further diminishes the probative value of his opinion. Dalton v. Nicholson, 21 Vet. App. 23 (2007). In sum, the Board finds that the competent evidence of record consists of a diagnosis of PTSD in conformance with DSM-IV, credible supporting statements establishing the occurrence of in-service stressors, and a link, established by the September 1996 VA examiner, between the current symptomatology and the Veteran's in-service stressors. Thus, the criteria for service connection for PTSD have been met. Therefore, the Board concludes that the balance of positive and negative evidence is at the very least in relative equipoise. Where the evidence supports the claim or is in relative equipoise, the appellant prevails. Reasonable doubt is resolved in favor of the Veteran, and the Board finds that service connection for PTSD is warranted. 38 U.S.C.A. 5107 (b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (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. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs