Citation Nr: 1330741 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-11 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depression. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Edwards, Counsel INTRODUCTION The Veteran had active service from January 1969 to September 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. After reviewing the contentions and evidence of record, the Board finds that the issues on appeal are more accurately stated as listed on the title page of this decision. This appeal is expanded from the Veteran's original claim to include all acquired psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness). FINDINGS OF FACT 1. Entitlement to service connection for PTSD was denied by the RO in an August 2005 rating decision; the Veteran was notified in writing of the decision, but he did not appeal this issue within the applicable time limit. 2. Evidence pertaining to the Veteran's PTSD received since the August 2005 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. 3. Resolving all reasonable doubt in his favor, the Veteran is diagnosed with PTSD, with major depression, that is medically attributed to stressors he experienced during his time in service. CONCLUSIONS OF LAW 1. The August 2005 rating decision that denied entitlement to service connection for PTSD is final. 38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R. §§ 3.105(a), 20.1103 (2013). 2. The evidence received since the August 2005 rating decision is new and material, and the Veteran's claim for service connection for PTSD is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. The criteria for service connection for PTSD and major depression are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Board is granting in full the benefit sought on appeal. Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources. II. Whether New and Material Evidence Has Been Received to Reopen a Previously Denied Claim for Entitlement to Service Connection for PTSD The Veteran seeks to reopen his claim for entitlement to service connection for PTSD. Notwithstanding determinations by the RO that new and material evidence has not been received to reopen the Veteran's claim, it is noted that on its own, the Board is required to determine whether new and material evidence has been presented. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (holding that the Board has a legal duty under 38 U.S.C.A. §§ 5108 and 7105, to address the question of whether new and material evidence has been presented to reopen a previously denied claim); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156(a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans, 9 Vet. App. at 273. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The record, with respect to this claim, reflects that a claim for service connection for PTSD was last denied in a rating decision of August 2005. The Veteran did not complete a timely appeal and subsequently the August 2005 rating decision became final. Evans v. Brown, 9 Vet. App. 273, 285 (1996). As such, the Veteran's claim for service connection may only be opened if new and material evidence is submitted. In this instance, since the August 2005 rating decision denied the claim on the basis that there was no evidence that the Veteran had verified stressors or a diagnosis of PTSD, the Board finds that new and material evidence would consist of evidence that the Veteran has verified stressors and/or a current diagnosis of PTSD. The evidence received since the August 2005 rating decision consists of numerous records and documents. Among other things, the Veteran's stressors were confirmed. See September 2008 letter. Additionally, medical records indicate that the Veteran has a diagnosis of PTSD. See August 2005 VA outpatient note. The Board must presume the credibility of all newly submitted evidence for the purpose of determining if such evidence is new and material evidence sufficient to reopen the claim. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Presuming its credibility, the aforementioned evidence indicates that there is a possibility the Veteran's current PTSD is casually or etiologically due to service. A result, the Board finds that this additional evidence is neither cumulative nor redundant, and it is material since the evidence raises the possibility of substantiating the claim of service connection for PTSD. See 38 C.F.R. § 3.156(a). The Board determines that the claim is reopened. III. Entitlement to Service Connection for an Acquired Psychiatric Disorder, to Include PTSD and Major Depression The Veteran's claim has been reopened. The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depression. He asserts he experienced traumatic stressors during service that caused his current psychiatric disorders. 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). In addition, the Board notes that VA has recently amended its adjudication regulations governing service connection for posttraumatic stress disorder by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule adds the following exception to the general requirements for stressor verification set forth in 38 C.F.R. § 3.304 (f)(3) 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. The provisions of this amendment apply to applications for service connection for PTSD that were appealed to the Board before July 13, 2010, but have not been decided by the Board as of July 13, 2010. As such, they are applicable to this case. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or in whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board finds the requirements for service connection have been met. First, the Board notes that the Veteran's stressors have been conceded. The Veteran reports being exposed to incoming fire and having to pick up bodies after artillery exchanges. See September 1998 VA Outpatient treatment note. Personnel records indicate that the Veteran's unit was attached to the 3d Battalion 187th Infantry, Operation Randolph Glen, from September 1969 to September 1970, and that this unit was under numerous fire, mortar, and rocket attacks. Therefore, the Veteran's stressor is conceded. See September 2008 Report. However, the Board finds that there are conflicting opinions as to whether the Veteran has a current diagnosis of PTSD. Medical records have been reviewed. The Veteran's service treatment records reflect that he was seen on numerous occasions while in Vietnam for physical complaints; however, there were no psychiatric complaints or findings noted and no indication that he was troubled by any duties or events to which he was exposed in Vietnam. His service separation examination was normal. Post-service, the Board notes that the Veteran has a long history of mental health treatment. The Veteran was admitted to a VA hospital in June 1978 with an admission diagnosis of schizophrenia. The Veteran was also admitted in February 1980, with a diagnosis of alcoholism. The Veteran filed his initial claim for service connection in January 1998, claiming to have had PTSD from 1969 to present. He indicated that he had received no medical treatment for the disorder since service. In January 1997, VA treatment records indicate he had symptoms of PTSD, including nightmares, flashbacks, and sensitivity to loud noises. In August 1997, a mental hygiene report notes that the psychologist talked with the Veteran about various matters, including his experiences in Vietnam, and indicated that psychological tests would be repeated and he would be given the Mississippi PTSD scale. The Veteran continued to attend substance abuse groups and to perform well in supported employment. In August 1998, it was noted that the Veteran had been referred to a psychologist for assessment for possible inclusion in a PTSD/SA (substance abuse) therapy group. In a report two days later, the psychologist noted that she had met with the Veteran, who reported that he had completed basic training at Fort Bliss and on-the-job training in burial detail at Fort MacArthur. He stated that on being sent to Vietnam, he first served as a cook and then as a driver for his commanding officer and hauling supplies. He reported having served in Vietnam for 15 months and that during his tour he was exposed to incoming fire and had to pick up bodies after artillery exchanges. The Veteran reported that he started using drugs in Vietnam to cope with his depression from having separated from his wife and young son. He reported difficulties with nightmares, avoidance of crowds, intrusive memories and other problems. It was noted that he was referred to a PTSD/SA group. After attending a few meetings, the Veteran failed to report and was eventually discharged from the group. In a VA treatment note from May 1999, the Veteran was provided information regarding the use of anti-depressants for PTSD symptoms. In November 1999, he reported some irritability and inquired about joining a PTSD group. His mood and affect were noted to be subdued and the assessment was PTSD. In March 2000, he was again assessed with PTSD. In September 2001, the Veteran was afforded a VA examination. The examiner noted that although the Veteran attended a group for patients with PTSD and chemical dependency, a diagnosis had not been established in the record. The Veteran reported his stressor. After examination, the Veteran was diagnosed with continuous alcohol abuse and substance induced mood disorder. The examiner noted that he did not find evidence that the Veteran had PTSD, although he had problems with alcohol and mixed substance abuse since his return from Vietnam. A March 2005 VA outpatient note indicated the Veteran did not meet the DSM-IV criteria for PTSD; however, he was diagnosed with depression. An August 2005 treatment note reported a diagnosis of PTSD. An October 2008 treatment note indicated an Axis I diagnosis of substance induced mood disorder, substance induced psychotic disorder, cocaine dependence, alcohol dependence, and nicotine dependence along with an Axis II diagnosis of antisocial traits. There was no diagnosis of PTSD, at that time. The Veteran was afforded a VA examination in November 2008. After examination, the Veteran was diagnosed with alcohol dependence, cocaine abuse, and depression; there was no finding of PTSD. The Veteran underwent an in-depth psychological assessment with testing at the VA center in March 2010. It was noted that the Veteran was referred for assessment for diagnostic clarification regarding symptoms of hypervigilance, lethargy, isolation, irritability, reactive anger, and depression. After an extensive interview and testing, the psychologist reported that the Veteran's results best fit with a diagnosis of co-occurring substance dependence and PTSD. It was noted that he was previously diagnosed with major depressive disorder with psychotic features, which appear to capture some of the perceptual distortions the Veteran reported that are not explained by his PTSD diagnosis. Importantly, the March 2010 psychologist stated that the Veteran met DSM-IV criteria for PTSD and reported a personal lifestyle that is consistent with what would be expected of a Veteran with longstanding, chronic PTSD. The Veteran's testing scores were also discussed. The psychologist reported that the Veteran scored in the severe range on the BDI-II, indicating strong endorsement of depressive symptoms, which the psychologist noted was consistent with the Veteran's presentation and verbal report. The Veteran also scored a 74 on the PCL-M, which the psychologist noted well exceeded the cutoff of 50 for PTSD-related symptoms. The psychologist stated that a review of the Veteran's records show that he completed the BDI and Mississippi Scale for Combat-Related PTSD in 1996, with similar results. Specifically, the psychologist stated the Veteran scored in the extremely severe range for depression on the BDI and score one and one half standard deviations above the Combat Stress norm-referenced group on the M-PTSD. The psychologist noted that these scores are supported by the Veteran's historical account of his traumatic stressors and current symptomology, which have remained consistent since his earliest available electronic medical records in 1996-1998. The psychologist stated that the Veteran also meets PTSD criteria for the following symptom clusters: avoidance, re-experiencing, and hyperarousal. The final Axis I diagnoses were PTSD, major depressive disorder recurrent, severe, with psychotic features, alcohol dependence, cocaine dependent, and opiate abuse. He was referred to trauma services to address his PTSD, increase his coping skills, and reduce his symptoms of avoidance and hyperarousal. The Veteran was afforded a VA examination in May 2010. After examination, the examiner stated that after reviewing the claims file, recent testing, and interviewing the Veteran, the Veteran did not meet sufficient criteria to warrant a diagnosis of PTSD and he did not endorse Criterion A for PTSD. The examiner noted that while there was reference to a confirmed stressor in Vietnam, the Veteran did not describe feeling extreme fear, horror, or helplessness in relation to these events. The examiner opined that the Veteran's hypervigilance, paranoia, anger outbursts, sleep disturbances, and social avoidance behaviors are better accounted for by his antisocial personality disorder and substance abuse. The examiner opined that it is less likely than not that the Veteran's claimed symptoms are related to his stressors, considering the Veteran did not mention his primary stressor when he first sought PTSD disability benefits, and he was exposed to presumably more intense stressors of being shot and stabbed after Vietnam. VA outpatient records indicate the Veteran's diagnoses of PTSD and major depressive disorder continued as recently as May 2010. In this case, the Board finds that the evidence is at least evenly balanced. In view of the totality of the evidence, the Board finds the Veteran's treating psychologist's assessment from May 2010 and additional VA treatment notes indicating a diagnosis of PTSD as a result of his time in service, are at least as persuasive as the VA examinations that do not diagnose PTSD. While several VA examinations have not diagnosed PTSD, the May 2010 VA psychological assessment appears to be very thorough and complete with an interview and psychological testing. Furthermore, the results from psychological testing conducted at that time indicate that the Veteran meets the criteria for PTSD, and in particular, meets the criteria necessary for combat-related PTSD. The psychologist also related the Veteran's current symptomology to his traumatic stressors described during the interview, which consisted of the Veteran's experiences in Vietnam. See May 2010 VA psychological assessment, pages 5 and 8. In summary, the Veteran's stressors have been conceded and the Veteran has a current diagnosis of PTSD, which has been linked to his stressors that occurred during service. Therefore, upon resolution of every reasonable doubt in the Veteran's favor, the Board concludes that service connection is warranted for an acquired psychiatric disorder, to include PTSD and major depression. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for PTSD; to this extent, the appeal is granted. Entitlement to an acquired psychiatric disorder, to include PTSD and major depression, is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs