Citation Nr: 1330381 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 09-40 424 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES Whether new and material evidence has been received to reopen a claim for service connection for posttraumatic stress disorder (PTSD), and if so whether service connection is warranted. REPRESENTATION Appellant represented by: Blinded Veterans Association ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from November 1990 to May 1991, with additional reserve service. This case comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the RO in Winston-Salem, North Carolina that determined that new and material evidence had not been submitted to reopen a claim for service connection for PTSD. A Board hearing was requested and scheduled, but the Veteran withdrew his hearing request in June 2013. 38 C.F.R. § 20.704(e). As the claim for service connection for PTSD was previously denied in a prior final RO decision, the Board must determine for purposes of jurisdiction whether there is new and material evidence sufficient to reopen this claim. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). And, as will be discussed below, the Board is reopening this claim. FINDINGS OF FACT 1. The RO most recently denied the claim for service connection for PTSD in a June 2004 rating decision and appropriately notified the Veteran of the decision and of his procedural and appellate rights, but he did not appeal that decision. 2. Some of the evidence since received, however, is not cumulative or redundant of evidence already of record and considered in that decision and a prior decision and raises a reasonable possibility of substantiating this claim. 3. There is an approximate balance of evidence for and against the claim as to whether the Veteran's current PTSD was incurred during his military service. CONCLUSIONS OF LAW 1. The June 2004 rating decision that denied the Veteran's claim of entitlement to service connection for PTSD is final and binding based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103 (2012). 2. New and material evidence having been received, the claim for service connection for PTSD is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Resolving all reasonable doubt in his favor, the Veteran's current PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). In this decision, the Board reopens the claim for service connection for PTSD on the basis of new and material evidence being received, and grants the service connection claim on the merits. This award represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. Analysis The Board has reviewed all 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 claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. 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 The Veteran has claimed entitlement to service connection for PTSD. However, in an unappealed RO rating decision in September 2002, the RO previously considered and denied his claim for service connection for PTSD. This claim was denied again in a June 2004 rating decision. A decision of the RO becomes final and binding and not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. If a claim 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, 7105(c); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence is defined as 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). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium). See also Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary to consider the patently incredible to be credible"). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). In Shade, the Court stated that, when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id., at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. In other words, the Court indicated that the post-VCAA version of 38 C.F.R. § 3.156(a) establishes a low threshold for reopening a claim, one that does not require that a claimant submit a medical opinion to reopen a claim. Rather, if there is newly submitted evidence of current disability that in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened. This then triggers VA's duty to assist in providing the claimant with a VA examination. Although a timely appeal is not filed, if new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. See 38 U.S.C. § 7105(b)(1), (c); 38 C.F.R. § 3.156(b) (2012); Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). A regional office decision becomes final "only after the period for appeal has run," and that "[a]ny interim submissions before finality must be considered by the VA as part of the original claim." Buie v. Shinseki, 24 Vet. App. at 252, citing Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). Evidence either generated by VA or "submitted to the VA by [the claimant] as part of [the] claim," even if not actually of record, is constructively before the Board when the Board makes its decision if the evidence predates the Board's opinion. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); Dunn v. West, 11 Vet. App. 462, 466-467 (1998). Thus, if new and material evidence is received before an appeal period has expired, a rating decision does not become final, and any "subsequent decision based on such evidence relate[s] back to the original claim." Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011). Consequently, "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). If new and material evidence is received within one year of the RO decision "and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final." See Young, 22 Vet. App. at 466 (citing Muehl v. West, 13 Vet. App. 159, 161-62 (1999)). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See id. at 468. The Veteran's claim of entitlement to service connection for PTSD was first considered and denied by the RO in a September 2002 decision, on the basis that there was no evidence of a current diagnosis of PTSD. The Veteran was properly notified of that decision by a letter dated in September 2002, he submitted a notice of disagreement in November 2002, and a statement of the case was issued in June 2003. He did not file a timely substantive appeal and therefore did not perfect an appeal to the September 2002 decision, and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year after the rating decision. See 38 C.F.R. § 3.156 (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the September 2002 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2012). The Veteran subsequently filed a petition to reopen this claim in March 2004, which the RO denied in a June 2004 decision. The RO determined that new and material evidence had not been submitted, as there was no evidence of a clear diagnosis of PTSD, despite reports of PTSD symptoms. He was appropriately notified of that decision by a letter dated in June 2004, and he did not appeal it. Additional VA treatment records were associated with the file during the one-year period after that notice, but the evidence was not new and material to reopen the claim. See Buie, supra. For these reasons, the June 2004 rating decision became final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2012). The evidence of record at the time of the prior final June 2004 decision included his STRs, which were negative for a diagnosis of a chronic psychiatric disorder, and his service personnel records, which reflect that he served in the U.S. Army Reserve, in a transportation unit, and was ordered to active duty in November 1990. His primary military occupational specialty was that of a cook, including during his service in Saudi Arabia from January to April 1991. He was released from active duty in May 1991. He had no combat citations, but was awarded a driver badge in November 1991 for the period of service from November 1990 to April 1991. Post-service medical evidence of record reflected treatment for neurological and psychiatric complaints and organic brain syndrome. In August 1998, he was diagnosed with recurrent major depressive disorder and conversion disorder. At a July 1999 Board hearing conducted with respect to another claimed disability, the Veteran testified about stressors in service, to include seeing burned dead bodies in a car while he was "going down the highway of death," going into a bunker full of blown up bodies (after being told not to), and finding out that his friend was killed when his truck hit a land mine. Evidence of record also included a report of an August 2002 VA psychological examination reflecting that the examiner found strong evidence of fabrication, and gave an Axis I diagnosis of malingering. A report of a July 2002 VA psychiatric examination and August 2002 addendum reflects that another examiner found no current psychiatric diagnosis. Subsequent VA outpatient treatment records reflect that the Veteran's problem list included depressive disorder not otherwise specified (NOS) and PTSD, and a May 2004 neurological consult shows that he had "multiple psychiatric comorbidities." The Veteran subsequently filed a petition to reopen this claim in October 2005. In an April 2008 rating decision, the RO determined that new and material evidence had not been submitted to reopen a claim for service connection for PTSD, and the Veteran was notified of this decision by a letter dated in April 2008. He filed an application to reopen this claim in May 2008, and submitted additional pertinent evidence, to include a buddy statement from E.C.H. to the effect that he was a truck driver during service in Saudi Arabia, and drove past dead bodies. Although there is no submission or communication from the Veteran that may be construed as a notice of disagreement with the April 2008 rating action, as will be discussed below, the Board finds that VA was in receipt of new and material evidence within one year of this April 2008 rating decision addressing the condition and must relate any subsequent decision back to this prior claim. 38 C.F.R. § 3.156(b) (2011); see also Buie v. Shinseki, 24 Vet. App. 242, 252-52 (2010); see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Thus, the April 2008 rating action did not become final and remains pending. See Charles v. Shinseki, 587 F.3d 1318, 1323 (Fed. Cir. 2009); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). As such, the April 2008 rating action is the proper determination certified for appellate review. Additional evidence received since the prior final June 2004 rating decision includes VA medical records reflecting treatment for PTSD, the Veteran's reports of driving a truck and seeing and/or handling dead bodies during service in the Persian Gulf, photocopies of gruesome photographs that the Veteran reportedly took while driving a truck on the Highway of Death, photocopies of newspaper articles which included the Veteran's letter home while he was stationed in Saudi Arabia, and a buddy statement from E.C.H., discussed above. Additional evidence of record also includes a report of a June 2012 VA PTSD examination and July 2012 addendum that diagnosed major depression and PTSD related to the Veteran's reported stressor of seeing dead bodies on the Highway of Death. This additional evidence, especially in combination, is new and material. Specifically, the claims file now contains medical records showing a diagnosis of PTSD and suggesting a relationship with service, the lack of which was the basis for the prior denial of this claim, as well as a buddy statement supporting his reports of seeing dead bodies on the road during service. Thus, this evidence relates to an unestablished fact necessary to substantiate this claim and raises a reasonable possibility of substantiating this claim, so this claim is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Service Connection The Veteran contends that he has PTSD due to traumatic events in service. The Board has reviewed all the evidence in the appellant'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 appellant 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 claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "[i]t is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA compensation may only be awarded to an applicant who has disability existing on the date of application, not for past disability. Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997)); but see McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). Certain diseases like psychoses are considered chronic, per se, and therefore will be presumed to have been incurred in or aggravated by service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of separation from service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required. 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. If chronicity (i.e., permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to establish chronicity (permanency) of disease or injury in service and, in turn, link the currently claimed disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Psychoses, but not PTSD, are listed as a chronic condition under 38 C.F.R. § 3.309(a). Other diseases initially diagnosed after service also may be service connected if the evidence, including that pertinent to service, shows the diseases were incurred in service. 38 C.F.R. § 3.303(d). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, the tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128, 142 (1997). The above cited regulation, 38 C.F.R. § 4.125(a), refers to the American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders, 4th ed. (1994) (DMS-IV) as the source of criteria for the diagnosis of claimed psychiatric disorders. DSM-IV provides that a valid diagnosis of PTSD requires that a person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others, and (2) the person's response involved intense fear, helplessness, or horror. If the evidence establishes 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 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)(2). See also 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d). If, on the other hand, there is no combat experience, or if there is a determination that the Veteran engaged in combat but the claimed stressor is unrelated to that combat, then there generally must be independent evidence corroborating the Veteran's statement as to the occurrence of the claimed stressor. Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). His 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. Cohen v. Brown, 10 Vet. App. 128, 142 (1997). That is to say, a stressor cannot be established as having occurred by after-the-fact medical nexus evidence. Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). 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. 38 C.F.R. § 3.304(f)(3) (2012). The Board notes that the Veteran has sometimes reported that he was in combat, and sometimes has denied this. His primary military occupational specialty was that of a cook, including during his service in Saudi Arabia from January to April 1991. His DD Form 214 and service personnel records do not show that he has any combat citations. The Veteran has also given varying reports of his multiple claimed in-service stressors over the years, and some examiners have indicated that he was fabricating his stressors and exaggerating his symptoms. STRs are entirely negative for PTSD. In an April 1991 Southwest Asia Demobilization/ Redeployment Medical Evaluation, the Veteran denied nightmares or trouble sleeping, and reported recurring thoughts about his experiences during Desert Storm. In an April 1991 report of medical history, the Veteran denied nervous trouble of any sort, and denied depression or excessive worry. On demobilization medical examination in April 1991, his psychiatric system was clinically normal. On VA general medical and Persian Gulf examination in December 1996, the examiner noted that the Veteran had marked memory loss and decreased reaction time possibly secondary to stroke. He was diagnosed with severe vasculitis of the brain with multiple strokes diagnosed by magnetic resonance imaging (MRI) scan according to the Veteran. On neuropsychology examination in May 1997, the examiner noted the Veteran's history of multiple cortical strokes due to central nervous system vasculitis. The examiner stated that the test findings were suggestive of an affective disorder, and psychological test results were not inconsistent with individuals who had exposure to combat. The examiner recommended referral to the PTSD clinic for an evaluation. An August 1998 VA psychiatric consultation reflects that the Veteran had a history of cerebral vasculitis, seizure disorder, subcortical strokes and depression. The Veteran reported a long history of depressed mood since adolescence, and also reported physical abuse by his stepfather. The Veteran reported that he drove a truck for the Army on the highway of death in Kuwait and was deeply disturbed by his experiences of seeing corpses that lined the road. He had been disabled since a stroke two years earlier. The Axis I diagnosis was major depressive disorder, recurrent, moderately severe, conversion disorder with motor deficit, and exaggeration of previous neurological deficits. The Axis II diagnosis was questionable borderline traits. A staff psychiatrist indicated that the Veteran had some neurologic residual, but also some exaggeration of disability, probably as a result of a depressed mood state. At a July 1999 Board hearing conducted with respect to another claimed disability, the Veteran testified about stressors in service, to include seeing burned dead bodies in a car while he was "going down the highway of death," going into a bunker full of blown up bodies (after being told not to), and finding out that his friend was killed when his truck hit a land mine. A report of an August 2002 VA psychological examination reflects that the examiner reviewed the claims file, examined the Veteran, and found strong evidence of fabrication, and gave an Axis I diagnosis of malingering. He noted the Veteran's report of combat stressors including being in a firefight in which two of his soldiers were killed. The Veteran said he took their bodies in his vehicle to a facility, and said one of the men was his closest friend, K.M. He also reported stepping on a land mine which did not go off because others weighted it down with sand bags so he could remove his foot, and seeing an automobile that had been blown up with bodies in it. The examiner noted that these reported stressors were very different from those he had previously reported, and that previously he said he stopped to take a photograph of dead people in a burning car, a photograph which was upsetting to him when he saw it recently. The examiner said that the Veteran's report as to some of the reported stressors, including seeing dead bodies, indicates that he entered into these experiences voluntarily. The examiner stated that the Veteran's claim of PTSD, arising seemingly as an afterthought toward the end of his unsuccessful effort to win compensation for his neurological condition, seemed patently counterfeit. A report of a July 2002 VA psychiatric examination and August 2002 addendum reflects that the examiner noted that the Veteran endorsed every symptom in the PTSD checklist in DSM-IV. After an examination and reviewing psychological testing, the psychiatrist found no current psychiatric diagnosis. Subsequent VA medical records reflect treatment including medication for PTSD. In connection with the current claim, the Veteran has reported that he drove a truck and saw dead bodies during service in the Persian Gulf. He has submitted photocopies of gruesome photographs that he reportedly took while driving a truck on the Highway of Death, and photocopies of newspaper articles which included his letter home while he was stationed in Saudi Arabia. The RO issued a memorandum in March 2008 finding that there is a lack of information to corroborate the Veteran's reported stressful events in service. In a May 2008 buddy letter, E.C.H., the Veteran's former superior officer in service, stated that although the Veteran was a cook, "he was assigned to the reefer to haul bodies. We were fortunate that we had no bodies to transport...." She said that in February 1991, when driving, their unit had to continuously switch lanes to avoid running over Iraqi bodies that had been left on the road. In a May 2012 stressor statement, the Veteran said he almost stepped on an I.E.D. during service, and was also engaged in a firefight with "unknowns." The next day he saw body parts and burned bodies after an attack. In May 2012 statements, the Veteran's mother said that he came back from Desert Storm a changed man, and had been sickly ever since. He had bad thoughts very often. On VA PTSD examination in June 2012, the VA examiner stated that she had reviewed the claims file, and summarized pertinent evidence of record, including the 2002 VA examinations, and noted that the Veteran was a poor historian. The examiner found that the Veteran's reported stressor of seeing dead bodies on the highway of death met Criterion A to support a diagnosis of PTSD, and that he reported a feeling of helplessness which met Criterion A as well. She also stated that this stressor was not related to the Veteran's fear of hostile military or terrorist activity. She said that this stressor event occurred in service during the time that the Veteran was deployed in support of Desert Storm. The Axis I diagnoses were major depression, recurrent, severe, and PTSD. She stated that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under DSM-IV criteria. In a July 2012 addendum, the examiner stated that she checked the wrong box in her examination report and that the Veteran did have a confirmed diagnosis of PTSD. In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) the Court recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records. The Board cannot determine lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See also Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011) (rejecting broad-sweeping, categorical, rejections of lay evidence and testimony without discussing the underlying reasons and bases). But in Buchanan and other precedent cases, the Federal Circuit Court also has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." See, e.g., Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Moreover, for non-combat Veterans providing non-medical related lay testimony regarding an event during service and what has occurred during the years since, Buchanan is distinguishable; the lack of documentation in service records and records since service must be weighed against the Veteran's statements. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). The record contains evidence weighing both for and against the claim. Evidence weighing against the claim includes the fact that STRs are negative for a psychiatric disorder, that some VA PTSD examiners have found that the Veteran does not have PTSD, that he has exaggerated his symptoms, and/or that he has fabricated his stressors. The great variability of his reported stressors over the years significantly detracts from his credibility. Evidence weighing in favor of the claim includes the buddy statement supporting the Veteran's assertion that he drove a truck in the Persian Gulf and saw dead bodies by the road, and his photographs of dead bodies. The Board finds that there is independent evidence corroborating the Veteran's statement as to the occurrence of the claimed stressor (seeing dead bodies by the road during service). See Doran, supra. Finally, the report of a June 2012 VA examination and July 2012 addendum shows that the VA examiner reviewed the claims file and diagnosed major depression, recurrent, severe, and PTSD, and opined that it was not possible to differentiate what portion of each symptom is attributable to each diagnosis. She related her diagnosis of current PTSD to the stressor of seeing dead bodies by the road during active service. The VA examiner is competent to render such an opinion. Moreover, she reviewed the file, including prior relevant examinations, and provided a supporting rationale for her positive nexus opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (indicating "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). In view of the totality of the evidence, and bearing in mind the benefit-of-the-doubt rule, the Board finds that the evidence of record is at least in equipoise, and PTSD was as likely as not incurred during his service. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Consequently, service connection for PTSD is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303; Gilbert, 1 Vet. App. at 49. (Continued on the next page) ORDER The previously denied claim for service connection for PTSD is reopened, and service connection for PTSD is granted. ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs