Citation Nr: 1304632 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 09-36 361 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah 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 T. Mainelli, Counsel INTRODUCTION The Veteran had active service from June 1988 to October 1988, August 2002 to July 2003, and from June 2004 to November 2005. He also served in the Army National Guard (ARNG). This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Board observes that, in October 2009, the Veteran cancelled in writing an outstanding request for a hearing before the Board. In a statement received in March 2011, the Veteran renewed his request for a hearing before the Board. As addressed below, the Board finds that the evidence of record substantiates both his application to reopen his service connection claim for PTSD and his entitlement to service connection for PTSD on a merits review. As the decision is fully favorable, the Board finds that it is more advantageous to the Veteran to proceed to award the benefit being sought without delaying this award for further testimony on the matter. The Board also observes that, in March 2011, the Veteran submitted a "Notice of Disagreement" (NOD) pertaining to an RO decision which proposed to reduce a rating from 40 percent to 20 percent for service-connected degenerative disc disease of the lumbar spine. As pointed out by the Veteran's representative, the proposed rating reduction action is not located in the paper claims folder. A review of the Virtual VA electronic records storage system reflects that, by rating action dated May 2011, the RO implemented a rating reduction from 40 percent to 20 percent for service-connected degenerative disc disease of the lumbar spine effective August 1, 2011. Yet, by rating action dated April 2012, the RO restored the 40 percent rating in full. Thus, the issue has been fully resolved in the Veteran's favor and no further action on this action is necessary. A further review of the record reflects that the RO is developing a service connection claim for residuals of traumatic brain injury (TBI) which was referenced by the Veteran in his March 2011 statement. Thus, there is no need at this time to refer the matter for RO response. FINDINGS OF FACT 1. A final September 2006 RO rating decision denied a claim of entitlement to service connection for PTSD on the basis that the Veteran did not manifest PTSD. 2. Evidence of record since the final September 2006 RO rating decision denying service connection for PTSD is new and material as it includes a medical opinion that the Veteran meets the criteria for a PTSD diagnosis which, when viewed in light of the entire evidentiary record, raises a reasonable possibility of substantiating the claim. 3. The Veteran manifests PTSD as a result of combat-related stressors reported in his service records. CONCLUSIONS OF LAW 1. The September 2006 RO rating decision, that denied a claim of service connection for PTSD, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156, 20.201, 20.300, 20.302, 20.1103 (2012). 2. New and material evidence has been received since the September 2006 RO rating decision that denied a claim of service connection for PTSD; that claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for establishing entitlement to service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks to establish service connection for PTSD. He primarily argues that he manifests PTSD as a result of combat-related stressors during his Iraq service between July 2004 and November 2005. The RO initially determined that it previously reached a final decision as to this issue such that the Veteran must present new and material evidence to reopen the claim. The Board has an obligation to make an independent determination of its jurisdiction regardless of findings or actions by the RO. Rowell v. Principi, 4 Vet. App. 9, 15 (1993); Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). The record reflects that, in September 2006, the RO denied a claim of service connection for PTSD on the basis that that the Veteran did not manifest PTSD. The Veteran, who was provided notice of this decision and his appellate rights in November 2006, did not file an NOD within one year from the date of decision. See 38 C.F.R. §§ 20.201, 20.300 and 20.302(a). Additionally, after the September 2006 decision, the Veteran did not submit any new and material evidence within the remaining appeal period to warrant readjudication of the claim. See 38 C.F.R. § 3.156(b). Notably, statements received in February 2007 and September 2007 did not pertain to his PTSD disability. Moreover, the Board observes that, in September 2007, the RO received additional service treatment records (STRs) for the period of the Veteran's ARNG service prior to June 2004. The Veteran does not allege that his PTSD first manifested or is a result of any event prior to June 2004, and the recently submitted STRs do not contain any relevant information regarding his current PTSD claim. Additionally, the dispositive issue on appeal concerns whether the Veteran manifests PTSD, and does not involve whether there is a confirmed stressor in service (which could involve evidence in the possession of a service department not previously associated with the claims folder). As such, there is no basis under 38 C.F.R. § 3.156(c) requiring a readjudication of the prior final denial. Based upon the above, the Board finds that RO's September 2006 rating decision which denied the service connection claim for PTSD is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.201, 20.300, 20.302, 20.1103. Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). However, 38 U.S.C.A. § 5108 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. The Veteran filed his claim to reopen in July 2008. For purposes of this decision, new evidence means existing evidence not previously submitted to agency decisionmakers. 38 C.F.R. § 3.156(a); see also 66 Fed. Reg. 45620 (August 29, 2001). 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. Id. 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. Evidence is presumed credible for the purposes of reopening unless it is inherently false or untrue. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence relied upon in reopening the claim must be both new and material. Smith v. West, 12 Vet. App. 312 (1999). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In general, 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). Establishment of service connection for PTSD 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). See also Cohen v. Brown, 10 Vet. App. 128 (1997). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the 4th edition of the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM- IV). See 38 C.F.R. § 3.304(f). The United States Court of Appeals for Veterans Claims (CAVC) has taken judicial notice of the mental health profession's adoption of the DSM- IV as well as its more liberalizing standards to establish a diagnosis of PTSD. The Court acknowledged the change from an objective "would evoke . . . in almost anyone" standard in assessing whether a stressor is sufficient to trigger PTSD to a subjective standard (e.g., whether a person's exposure to a traumatic event and response involved intense fear, helplessness, or horror). Thus, as noted by the CAVC, a more susceptible person could have PTSD under the DSM-IV criteria given his or her exposure to a traumatic event that would not necessarily have the same effect on "almost everyone." Cohen, 10 Vet. App. 128, 140-141 (1997). Effective October 29, 2008, VA revised it regulations regarding stressor verification when the evidence shows that PTSD was diagnosed during service and the claimed stressor is related to that service. In this circumstance, 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. 73 Fed. Reg. 64208 (Oct. 29, 2008) (codified at 38 C.F.R. § 3.304(f)(1). For PTSD diagnosed after service, there must be independent evidence to corroborate the Veteran's statement as to the occurrence of a claimed non-combat stressor. Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). The Veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors (except as provided in matters involving exposure to fear of hostile military or terrorist activity which is addressed below). Cohen, 10 Vet. App. at 142; Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). However, the fact that a Veteran, who had a noncombatant military occupational specialty, was stationed with a unit that was present while enemy attacks occurred would strongly suggest that he was, in fact, exposed to such attacks. Pentecost v. Principi, 16 Vet. App. 124 (2002) (base subjected to rocket attacks during time that Veteran was stationed at the base). In other words, the Veteran's presence with the unit at the time such attacks occurred corroborates his statement that he experienced such attacks personally. A stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). Effective July 13, 2010, VA revised its regulations to relax the evidentiary stressor verification requirements when a Veteran was exposed to fear of hostile military or terrorist activity. See 75 Fed. Reg. 39843 (July 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3). See also 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective date of applicability of 38 C.F.R. § 3.304(f)(3) to July 13, 2010). Under these revisions, if a stressor claimed by a Veteran is related to the 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 the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. Id. The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. However, the benefit of the doubt doctrine does not apply to a new and material analysis. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Evidence before the RO in September 2006 included the Veteran's STRs and service personnel records (SPRs) for his period of active service from June 2004 to November 2005. In pertinent part, these records reflect that the Veteran had been deployed to Kuwait and Kirkuk, Iraq during Operation Iraqi Freedom 3 from November 2004 to October 2005. In a POST-DEPLOYMENT Health Assessment, the Veteran reported that his Iraq service involved witnessing enemy and civilian deaths, that he had been engaged in direct combat, and that he had feared of being in great danger during his deployment. He also endorsed symptoms of nightmares and hypervigilance (being constantly on guard, watchful or easily startled). In February 2006, the Veteran filed his original service connection claim for PTSD. In a stressor statement received in June 2006, the Veteran further described his stressors as performing patrols in a Humvee wherein he was exposed to numerous improvised explosive device (IED) attacks. The Veteran's VA clinic records reflected his report of symptoms which included irritability, nightmares, lack of tolerance, crowd avoidance, vigilance and isolation. A July 2006 mental health (MH) diagnostic interview by a clinical nurse specialist provided an Axis I diagnosis of acute PTSD. However, a September 2006 VA Compensation and Pension (C&P) examiner found that the Veteran manifested symptoms compatible with residual PTSD or subsyndromal PTSD, but did not fully meet Criterion B (intrusive recollections) for a PTSD diagnosis. Evidence added to the record since the September 2006 RO rating decision includes an April 2009 mental health evaluation in the VA clinical setting by a VA psychologist. This examiner provided diagnoses of PTSD and major depressive disorder (MDD) of moderate intensity. This examiner specifically found that the Veteran met all criteria for a PTSD diagnosis, including Criterion B. In the opinion of the Board, the evidence of record since the final September 2006 RO rating decision denying service connection for PTSD is new and material as it includes a previously unconsidered PTSD diagnosis which specifically determines that the Veteran meets Criterion B for a PTSD diagnosis, which cures the prior evidentiary deficit. When viewed in light of the entire evidentiary record, this evidences raise a reasonable possibility of substantiating the claim as it now includes a difference of opinion from the September 2006 VA examiner as to whether the Veteran is properly diagnosed with PTSD. In the reopening context, the recent favorable evaluation must be presumed true which, in light of the entire evidentiary record, constitutes new and material evidence. See generally Shade v. Shinseki, 24 Vet. App. 110 (2010) (discussing the low evidentiary threshold regarding evidence necessary to reopen a claim). Prior to proceeding to the merits of the claim, the Board must consider whether any potential prejudice could accrue to the Veteran. See generally Hickson v. Shinseki, 23 Vet. App. 394 (2010) (noting that, when a Board reopens a claim after the RO has denied reopening the same claim, the matter must generally be returned to the RO for consideration of the merits). See generally Bernard v. Brown, 4 Vet. App. 384 (1993). The August 2009 SOC reflects that the RO conducted a "De Novo Review" of the PTSD claim and, as further discussed below, the Board grants the claim in full. Thus, there is no potential prejudice to the Veteran in proceeding to adjudicate the claim at this time. With respect to the merits of the claim, the Board first notes that, during service, the Veteran reported witnessing enemy and civilian deaths, that he had been engaged in direct combat, and that he had feared of being in great danger during his deployment during Operation Iraqi Freedom 3. The Board has no reason to doubt the Veteran's descriptions of his duty circumstances, as it is consistent with the circumstances known to have existed in Iraq during that time. Additionally, the RO has conceded that the Veteran was exposed to the stressors claimed during his Iraq service. Thus, the dispositive issue on appeal concerns whether the Veteran manifests PTSD as a result of his combat-related stressors. The record reflects a difference of opinion among several examiners which essentially disagree as to whether the Veteran manifests sufficient symptomatology to warrant a PTSD diagnosis. For example, as mentioned above, a VA C&P examiner in September 2006 found that the Veteran manifested symptoms compatible with residual PTSD or subsyndromal PTSD, but did not fully meet Criterion B (intrusive recollections) for a PTSD diagnosis. At that time, the Veteran had described disturbing dreams which were "gone now," he denied intrusive thoughts, and he denied cues triggering stress responses or reminders of Iraq. Similarly, a VA C&P examiner in August 2009 also found that the Veteran did not meet Criterion B for a PTSD diagnosis as he denied recurring thoughts of traumatic events, excessive nightmares, and excessive avoidance of activities related to his combat activities. This examiner concluded that the Veteran "reports mild symptoms of PTSD including irritability and difficulty staying asleep, however, the severity and level of impairment caused by these symptoms does not currently meet the DSM-IV-TR criteria for a diagnosis of PTSD." In another section, the examiner phrased the assessment as "[t]he current Axis I condition does not meet the diagnostic criteria of PTSD according to DSM-IV because the claimant's current symptoms complaints [do not] reach the symptoms severity and level of impairment necessary to make a DSM diagnosis of PTSD." On the other hand, the Veteran underwent a PTSD assessment in the clinical setting in April 2009 which included a social history questionnaire, PTSD intake questionnaire, and an individual interview by a Ph.D. psychologist which lasted approximately 50 minutes. This examiner extensively reviewed all criterion for a PTSD diagnosis, and found that the Veteran met the DSM-IV criteria for a PTSD diagnosis. With respect to Criterion B, the Veteran reported being moderately bothered by repeated disturbing memories, being a little bit bothered by reminders of events, feeling a quite bit bothered by physical reactions to reminders of events, and having only a few dreams about trauma experiences. The examiner concluded that, "given the combination of his endorsements on the assessment questionnaire and elaboration during interview, it is likely that he meets Criterion B, reexperiencing symptoms, associated with at least one traumatic experience." Additional evidence of record includes April 2009 addendum from the VA PTSD Clinic Coordinator reflecting that, in October 2008, a Dr. C. felt that the Veteran had a diagnosis of PTSD (this opinion is not of record). It was noted that there was some question as to whether the Veteran manifested PTSD. The VA PTSD Clinic Coordinator commented that "I feel that [the Veteran] tends to under report or be unaware of his day to day symptoms which may have contributed to this question." It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In this case, the Veteran has clearly been subject to combat-related stressors as reported in the service records. There are differing medical opinions as to whether or not the Veteran manifests PTSD as a result of those stressors. A main area of disagreement concerns whether the Veteran himself endorses sufficient symptomatology to establish a PTSD diagnosis of DSM-IV. In service, the Veteran endorsed symptoms of nightmares and hypervigilance (being constantly on guard, watchful or easily startled) on his Iraq POST-DEPLOYMENT Health Assessment. His reported symptomatology after service has need varied and inconsistent, which has contributed to the difference of medical opinion. A VA psychologist in April 2009, based upon questionnaires and an approximate 50 minute interview, concluded that all criteria for a PTSD diagnosis were met. On the other hand, VA C&P examiners in September 2006 and August 2009, based upon review of the claims folder and interview of the Veteran, concluded that the Veteran did not meet all of the criteria for a PTSD diagnosis. The varying opinions reached by these examiners, to some extent, rely upon their own subjective analyses of the Veteran's report of symptomatology. These assessments must also be viewed in light of the April 2009 statement from the VA PTSD Clinic Coordinator who commented that the controversy in diagnosis may be due to the Veteran's under reporting of symptomatology or unawareness of his day to day symptoms. In light of all of this evidence, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran manifests PTSD. Therefore, the benefit of the doubt doctrine may be appropriately applied by granting the Veteran's claim of service connection for PTSD. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. 49 (1990). The appeal, therefore, is granted. ORDER As new and material evidence has been received, reopening of the claim for service connection for PTSD is granted. The claim of entitlement to service connection for PTSD is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs