Citation Nr: 1319737 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-49 819 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from July 1966 to July 1969. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The claim for PTSD was previously denied by the RO in a rating decision dated in August 2005. The Veteran did not appeal that decision and no new evidence pertinent to that claim was received by VA within one year from the date that the RO mailed notice of the determination to the Veteran. 2. New evidence received since the time of the final August 2005 rating decision relates to an unestablished fact necessary to grant and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for PTSD. 3. The Veteran, who served in combat, has PTSD as a result of in-service stressors, including fear of hostile military activity, that are consistent with the type, place, and circumstance of his Vietnam service. CONCLUSIONS OF LAW 1. The August 2005 rating decision is final. 38 U.S.C.A. § 7105(b), (c) (West 2002), 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2012). 2. Evidence submitted to reopen the claim of entitlement to service connection for PTSD is new and material. 38 U.S.C.A. §§ 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that he has PTSD as a result of service in Vietnam. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Applicable regulations provide that 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 current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). The credible supporting evidence necessary to establish the occurrence of a claimed in-service stressor varies depending upon whether the veteran engaged in combat with the enemy. A veteran engaged in combat with the enemy if he "personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." VAOPGCPREC 12-99 (October 18, 1999), 65 Fed. Reg. 6257 (2000); see also Sizemore v. Principi, 18 Vet. App. 264 (2004). Combat determinations are made on a case-by-case basis. Id. If a veteran is determined to have engaged in combat with the enemy and the claimed in-service stressor is related to that combat, his lay testimony alone may establish that the stressor occurred when there is no clear and convincing evidence to the contrary and the claimed in-service stressor is consistent with the circumstances, conditions, or hardships of his service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f)(2); Zarycki v. Brown, 6 Vet. App. 91 (1993). Effective July 13, 2010, after the RO's most recent adjudication of this claim, the VA amended its rules regarding necessary supporting evidence when the in-service stressor is related to "fear of hostile military or terrorist activity." 75 Fed. Reg. 39843 -52 (July 13, 2010). Specifically, the amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred if a stressor claimed by a veteran is related to his 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-provided that the claimed stressor is consistent with the places, types, and circumstances of the veteran's service. Id. The provisions of this amendment apply to applications for service connection for PTSD that were appealed to the Board before July 12, 2010, but have not been decided by the Board as of July 12, 2010. New and Material Evidence Pertinent procedural regulations provide that "[n]othing in [38 U.S.C.A. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C.A. § 5108]." 38 U.S.C.A. § 5103A(f) (West 2002). Reopening a claim for service connection that has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). New evidence means existing evidence not previously submitted to VA. 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). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The RO denied service connection for PTSD in August 2005. The Veteran did not appeal, and no new evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the determination to the Veteran. Furthermore, VA has not received or associated with the claims file any relevant official service department records that existed and had not been associated with the claims file at the time of the August 2005 decision. Therefore, the August 2005 decision is final. 38 U.S.C.A. § 7105 (West 2002), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). See also 38 C.F.R. § 3.156(b), (c). The basis of the prior final denial was the RO's finding that evidence of an in-service stressor had not been submitted and the evidence did not show a nexus between the Veteran's diagnosed PTSD and his military service. Thus, in order for the Veteran's claim to be reopened, evidence must have been added to the record since the August 2005 rating decision that addresses the basis for denial. Evidence submitted and obtained since the August 2005 rating decision includes a September 2003 VA initial psychiatric assessment, an April 2006 VA mental health treatment record, VA treatment records from March 2007 to April 2009, and a February 2009 letter from the Veteran's VA psychologist. The Veteran did not submit a stressor statement, however he alluded to various stressors in statements made during VA treatment. During a September 2003 VA psychiatric assessment he reported being surrounded by enemy fighters while supporting a Green Beret Camp and seeing a helicopter that came to assist get hit, break in two pieces, and throw soldiers out. He reported Sergeant Armstrong died after being thrown from the helicopter. In a second incident at Tay Ninh at the French fort Santa Barbara, he reported a friend named "Archie Aua" doing him a favor died after hitting a mine. An April 2006 VA treatment record describes an April 6, 1967 incident in which the Veteran said he was under enemy mortar fire and several infantry soldiers were killed. Also at that time, he said a friend doing him a favor stepped on a mine and died. In separate incidents during Operation Junction City, the Veteran described a jeep hitting a mine and shrapnel hitting his friend Tommy in the head and seeing a Vietnamese head impaled on an iron rod attached to a tank. The VA psychiatrist diagnosed the Veteran with PTSD as a result of his combat experiences. An October 2008 VA group counseling note reflects the Veteran discussed feeling guilty about the death of Vietnamese boy named "Arthur Iuha" who was killed in 1969. In his October 2009 substantive appeal, the Veteran also related a number of stressors, including an incident in which a helicopter was shot down in March, presumably of 1967, and the death of "Arthur Iuwa" in 1969 from a booby trap. He further described coming under attack in other incidents and soldiers dying or being injured. In February 2009 the Veteran's VA treating psychologist noted the Veteran was evaluated in March of 2007 and his diagnosis of PTSD due to combat trauma in Vietnam was confirmed. The psychologist stated that the Veteran's clinical presentation is consistent with that of other veterans who have been exposed to combat trauma and been diagnosed with chronic PTSD. Thus, the new evidence is both new and material as it pertains to new stressors not previously considered. Further, the Veteran's April 2006 VA treatment records and the February 2009 VA psychologist's letter link the Veteran's combat service to his currently diagnosed PTSD. The Board thus finds the evidence relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. Therefore, the Board finds that new and material evidence has been submitted to reopen the issue of entitlement to service connection for PTSD since the August 2005 rating decision. On this basis, the issue of entitlement to service connection for PTSD is reopened. Service Connection After leaving service, the Veteran first sought mental health treatment at the VA in September 2003 reporting he had experienced flashbacks and nightmares for many years since returning from Vietnam. The attending psychiatrist assessed him with PTSD with depression. VA records reflect that in November 2003 the Veteran attended a psychotherapy group and discussed his PTSD symptoms and associated traumatic combat experiences. In January 2005 he returned to the VA clinic and reported he had been seeing a psychologist every week and Wellbutrin had helped his PTSD symptoms. The Veteran underwent a VA examination in April 2005. The examiner noted the Veteran had difficulty discussing his experience in Vietnam. At the examination, the Veteran reported he was in combat in the Mekong Delta. He recounted being in an ambush in a rice paddy, facing sniper fire, seeing people get shot in the head, and being in the vicinity of explosions. He further recalled a helicopter crash. He also stated that he had seen heads on tent poles, people get blown up, and dead bodies. He also recounted sending "Arthur" out on a mission in which he was blown up by a booby trap, an event for which he said he blames himself. The examiner diagnosed the Veteran with PTSD. He noted the Veteran experiences nightmares, hypervigilance, startle reflex, night sweats, depression, diminished interest, poor energy, poor concentration, panic attacks, paranoia, lack of focusing, and poor short term memory, all of which are fairly severe and have been constant for many years. As an initial matter, as noted by the RO, the Veteran is not shown to have received commendations or awards that warrant the conclusion that he participated in combat. See VAOPGCPREC 12-99 at 12; 65 Fed. Reg. 6256-6258 (2000); VBA's Adjudication Procedure Manual, M21- 1MR (hereinafter "M21- 1MR"), Part III.iv.4.H.29.b, c. His awards, as listed on his DD-214, include the Vietnam Service Medal and the Vietnam Campaign Medal. However, the Veteran's personnel file (DA Form 20) shows that he served in Vietnam from December 1966 to December 1967 and from November 1968 to July 1969. In December 1966 his principal duty was as a radio telephone operator with B Battery 1st Battalion 11th Artillery 9th Infantry Division, and in September 1967 he was assigned to C Battery 1/84 Artillery 9th Infantry Division. In November 1968 his principal duty was as a cannoneer with Battery A 3rd Battalion 197th Artillery, and in January 1969 he was assigned to Battery A 2nd Battalion 32nd Artillery. Further, the Veteran has consistently testified about his combat service in Vietnam during those time periods and his descriptions are consistent with his official principal duties. Thus, giving the Veteran the benefit of the doubt, the Board finds that he was in combat in Vietnam. The evidence further shows that the Veteran has a current diagnosis of PTSD. The RO in this case did not attempt to verify the stressors described by the Veteran and noted in his VA treatment records. However, as the Board has determined the Veteran did engage in combat and the stressors described by the Veteran are consistent with the circumstances of his service, credible supporting evidence is not necessary. See 38 C.F.R. § 3.304(f)(2). The Board further finds that the Veteran's lay statements describing his in-service stressors are credible. Specifically, the Veteran has repeatedly described several specific incidents. First, on four occasions in 2003, 2005, 2006, and 2008, medical records reflect that the Veteran described a friend doing him a favor dying after stepping on a booby trap while out on a mission in 1969. Again in his substantive appeal, the Veteran repeated his recollection of that incident, giving the name of the friend, which had been spelled various, similar ways in the records. The Veteran also described in treatment records and in his substantive appeal seeing a helicopter get shot down in 1967, throwing the soldiers inside out to their deaths, including a Sergeant Armstrong who the Veteran had tried to save. The Veteran also described being in a firefight in a rice paddy, seeing a Vietnamese head impaled on an iron rod, being in the vicinity of explosions, and seeing people shot or dead. Based on the consistency of the Veteran's statements over the years, both for purposes of receiving treatment and to support his claim for compensation, and their plausibility given the combat conditions in Vietnam, the Board finds the Veteran's lay statements are competent and credible and sufficient to establish that the in-service stressors occurred as there is no clear and convincing evidence to the contrary. While the Veteran's service personnel records and service treatment records make no reference to the in-service stressors the Veteran has since described, a 1971 VA treatment record does indicate that he started using morphine while in service in 1968 and then heroin. The Veteran also reported "depression or excessive worry" on his July 1969 discharge report of medical history although the examiner found everything, including his psychiatric condition to be normal on examination. The Board also notes that the amendment of 38 C.F.R. § 3.304(f)(3) eliminated the requirement for corroborating evidence of a claimed in-service stressor if, as is the case with the stressors in this case, the stressor 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 confirming that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor. The Board finds that the Veteran's VA treatment records, February 2009 letter from his VA treating psychologist, and his April 2005 VA examination establish a link between the Veteran's current PTSD and his in-service stressors. In April 2005 the only stressors described by the Veteran at his VA examination were the in-service combat stressors discussed above, and the examiner diagnosed the Veteran with PTSD on that basis. In April 2006 after the Veteran described the same in-service incidents, the Veteran's treating psychiatrist also diagnosed him with PTSD based on the DSM IV, citing the Veteran's combat experience as his stressor. In a February 2009 letter, the Veteran's VA treating psychologist noted the Veteran was evaluated again in March of 2007 after moving to a different VA clinic and his diagnosis of PTSD due to combat trauma in Vietnam was confirmed. The psychologist stated that the Veteran's clinical presentation was consistent with that of other veterans who have been exposed to combat trauma and been diagnosed with chronic PTSD. Based on the forgoing, the Board finds the Veteran is entitled to service connection for his PTSD. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify a claimant of information and evidence necessary to substantiate the claim and redefined its duty to assist in obtaining such evidence. 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2012). Given the favorable disposition of the action here, which is not prejudicial to the Veteran, the Board need not assess VA's compliance with the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). ORDER New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for PTSD, is reopened. Service connection for PTSD is granted. ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs