Citation Nr: 1316736 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 10-27 875 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disability, to include PTSD. REPRESENTATION Veteran represented by: Marshall O. Potter, Jr., Attorney-at-Law ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1971. This matter comes to the Board of Veterans' Appeals (Board) from a November 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which determined that new and material evidence had not been received to reopen the claim of entitlement to service connection for PTSD and a December 2009 rating decision in which the RO confirmed and continued the denial of service connection for an acquired psychiatric disorder, claimed as PTSD. A notice of disagreement was filed in March 2010, a statement of the case was issued in June 2010, and a substantive appeal was received in June 2010. In an October 2011 submission the Veteran withdrew his request for a video conference Board hearing. FINDINGS OF FACT 1. In an unappealed decision issued in October 1998, the RO denied entitlement to service connection for PTSD, and, thereafter, in a statement of the case issued in February 2003 the RO considered the claim and continued the denial of entitlement to PTSD and an acquired psychiatric disability; the Veteran did not submit a substantive appeal or new and material evidence within 60 days. 2. The evidence associated with the claims file subsequent to the October 1998 denial includes evidence that relates to an unestablished fact necessary to substantiate the claim of service connection for an acquired psychiatric disability, to include PTSD, and is not cumulative or redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the claim of service connection. 3. The Veteran has currently diagnosed PTSD as a result of combat stressors. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. PTSD was incurred in active service. 38 U.S.C.A. § 1110, 1154; 38 C.F.R. § 3.304 (2012) REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Board has determined that new and material evidence has been submitted to reopen the claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD; and is granting the claim on the merits. Therefore, no further notice or development is needed to assist the Veteran in substantiating the claim. See 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). New & Material Evidence 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). 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 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence which must be considered in determining whether there is a basis for reopening the claim is that evidence added to the record since the last disposition in which the claim was finally disallowed on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). The Veteran filed an original claim for service connection for PTSD in July 1998. The claim was denied in an October 1998 rating decision on the basis that the Veteran had failed to submit stressor information and failed to report for a VA examination. At the time the rating decision was issued, service treatment records were not available. The only medical evidence of record consisted of a January 1994 treatment record from St. Joseph's Hospital which reflects a diagnosis of major depression, single episode, severe, without psychotic features. The Veteran filed a notice of disagreement in June 1999. VA treatment records were associated with the claims folder dated in 1998 and 1999 which reflect diagnoses of PTSD and depressive disorder. In August 1999, the Veteran submitted a statement pertaining to his claimed stressors in Vietnam. In September 1999, the Veteran underwent a VA examination. The examiner diagnosed PTSD but did not provide an etiological opinion. In October 1999, the Veteran underwent a VA examination. The examiner diagnosed PTSD but did not provide an etiological opinion. The Veteran's service treatment and personnel records were associated with the claims folder. In a February 2003 statement of the case, the RO denied entitlement to service connection for PTSD and an acquired psychiatric disability, to include major depression and considered the claim as having been pending since 1998. The basis of the denial for PTSD was that there was no link between his claimed stressors and symptoms. The basis of the denial for major depression was that there was no relationship to service shown. The Veteran did not file a substantive appeal after the statement of the case was issued, thus the RO closed the appeal and the October 1998 rating decision is final. 38 U.S.C.A. § 7105. In June 2008, the Veteran filed a claim to reopen entitlement to service connection for PTSD. VA outpatient treatment records were associated with the claims folder. These show a diagnosis of major depressive disorder. Correspondence dated in March 2009 from the Veteran's VA treating physician reflects a discussion of the Veteran's claimed stressors and symptoms and an opinion that his PTSD is due to service. This opinion constitutes "new" evidence as it relates to an unestablished fact necessary to substantiate the claim--a relationship to service. Again, the credibility of the evidence is to be presumed. Justus, 3 Vet. App. at 513. Accordingly, new and material evidence has been received and the claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD, is reopened. De Novo Review The RO has not considered the merits of the reopened claim. Ordinarily the Board cannot adjudicate a claim on a basis different from that of the RO. See Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006); Gardner v. Shinseki, 22 Vet. App. 415, 418, footnote 2 (2009). Because; however, the Board is granting the Veteran's claim there would be no benefit to remanding the claim for initial RO consideration and there is no prejudice to the Veteran. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link established by medical evidence between the current symptoms and an in-service stressor; and credible supporting evidence of the stressor. 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 stressor is consistent with the circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). During the course of this appeal, 38 C.F.R. § 3.304(f) was amended to provide that an in-service stressor consistent with the places, types, and circumstances of service (satisfactorily established by lay testimony) that has been medically related to the Veteran's fear of hostile military or terrorist activity by a VA psychiatrist or psychologist, or one contracted with by VA; and the Veteran's PTSD symptoms have been medically related to the in-service stressor by a VA psychiatrist or psychologist, or one contracted with by VA. See 38 C.F.R. § 3.304(f)(3) (2012); 75 Fed. Reg. 39843 - 39852 (July 13, 2010). 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. For purposes of this paragraph, "fear 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 38 C.F.R. § 3.304(f)(3); 75 Fed. Reg. 39843-39852 (July 13, 2010). Thus, the primary effect of the amendment of § 3.304(f) is the elimination of the requirement for corroborating evidence of a claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." In place of corroborating reported stressors, a medical opinion must instead be obtained from a VA, or VA contracted, psychiatrist or psychologist. The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). A determination that a veteran engaged in combat with the enemy may be supported by any evidence which is probative of that fact, and there is no specific limitation of the type or form of evidence that may be used to support such a finding. VAOPGCPREC 12-99 (1999). Evidence submitted to support a claim that a veteran engaged in combat may include the veteran's own statements and an "almost unlimited" variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). The Court has held that receiving enemy fire can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). The Veteran's service personnel records reflect that he served in the Republic of Vietnam from November 1968 to November 1969 as a helicopter repairman. The Veteran asserts that his tour in Vietnam was very stressful. His unit was exposed to multiple rocket attacks and he had stressful experiences as a helicopter repairman. He asserts that he witnessed a friend being blown up; however, he has been unable to provide the full name of this individual. A veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. A January 1968 Report of Medical History reflects that the Veteran checked the 'Yes' box for 'depression or excessive worry.' The examiner noted "mild insomnia & anxiety." A January 1968 pre-induction examination reflects that the Veteran's 'psychiatric' state was clinically evaluated as normal and he was deemed qualified for induction. Based on the objective normal findings in the January 1968 examination report, the Board concludes that the Veteran did not have a psychiatric disability upon entry into service, thus he did not have a psychiatric disability that pre-existed his period of service and he was presumed sound at entrance. 38 U.S.C.A. § 1111. There is no medical evidence to substantiate that a psychiatric disability pre-existed service, other than the Veteran's lay assertions that he suffered from depressive symptoms prior to service. This does not constitute clear and unmistakable evidence that he had a psychiatric disability that pre-existed service. A September 1970 statement from the Veteran's commanding officer reflects that the Veteran was under mental stress, which may or may not have been caused by duties in the service that are contrary to his personal convictions. The service treatment records do not contain a separation examination. In June 2001 the Center for Unit Records Research (CURR), now known as Joint Services Records Research Center (JSRRC), indicated that the Veteran's unit was stationed at Quan Loi and during the month of March 1969 attacks by fire increased significantly. The unit history shows that the unit participated in airborne combat actions against enemy forces. Correspondence dated in March 2009 from the Veteran's VA treating physician reflects that the Veteran has discussed a number of troubling incidents that return to him in flashbacks and nightmares. He has reported that he witnessed a friend getting blown up. He also reported that he saw "two guys burn to death" after a helicopter crash. He also reported that as part of an aviation team he was responsible for picking up body bags and flying them from one point to another. The examiner opined that he has PTSD due to military stressors. In October 2009, the Veteran underwent a VA examination. The Veteran reported that during service his unit was exposed to rocket and mortar attacks. He also reported transporting dead bodies back and forth and being exposed to body parts and fluids. He recalls the smell of burned bodies and witnessed a plane crash in which the bodies of the crew members were found. Upon mental status examination, the examiner diagnosed mood disorder, not otherwise specified. The examiner stated that the diagnosis of PTSD is contingent on the validity of the Veteran's self report. The examiner cited to inconsistencies in the record and found that the evidence could not be considered reliable enough to support a diagnosis of PTSD. The examiner also stated that it was difficult to ascribe his current mood disorder to his military experience with any reasonable degree of reasonable certainty. This opinion was based on the Veteran's assertions that he reportedly suffered from depression since childhood. In June 2012, the Veteran underwent an evaluation by E.M. Tripi, Ph.D., licensed psychologist. She provided an evaluation report and an addendum. She took issue with findings on the VA examination. She provided a detailed examination report, discussed the VA examiners findings, and concluded that the Veteran had PTSD as the result of his Vietnam experiences. She did not provide a detailed discussion of the Veteran's stressors, but did note reports that he had served on combat missions as a door gunner and crew chief. Analysis While the VA examiner concluded that the Veteran did not meet the criteria for a diagnosis of PTSD, this appears to be a minority opinion. His VA treatment providers and Dr. Tripi have found that the Veteran met the criteria for a diagnosis of PTSD. Although some earlier treatment providers also diagnosed major depression, PTSD was diagnosed as early as a VA examination in September 1999. The evidence is in at least equipoise on this question. Resolving reasonable doubt in the Veteran's favor, a diagnosis of PTSD is established. The mental health professionals who have diagnosed PTSD have linked that diagnosis to stressors during service in Vietnam. The requirement for medical evidence of a link between current symptoms and an in-service stressor is thereby established. Many of the reported stressors, including coming under fire and seeing a friend blown up are combat related. The unit history and other service department records establish that the Veteran's unit participated in combat. The Veteran's presence at these events is conceded. Sizemore. The evidence is also in at least equipoise on the question of whether the Veteran participated in combat. Resolving reasonable doubt in the Veteran's favor, the elements for service connection for PTSD have been established. To the extent that other psychiatric diagnoses have been identified, these have been linked to the service connected PTSD. See Dr. Tripi's report. Accordingly service connection is granted for PTSD and any other diagnosis that may be applied to that disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). ORDER New and material evidence having been received the claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD, is reopened. Service connection for an acquired psychiatric disability, to include PTSD is granted. ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs