Citation Nr: 1332212 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 13-17 637 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from April 1970 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Service connection for PTSD was last denied in a January 2009 rating decision. The Veteran did not appeal that decision. 2. The evidence received since the January 2009 rating decision is new and raises a reasonable possibility of substantiating a claim for service connection for PTSD. 3. The Veteran has PTSD that is attributable to active duty service. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen a previously denied claim of service connection for PTSD has been received. 38 U.S.C.A. §§ 1110, 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013). 2. The Veteran has PTSD that is the result of active duty service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION New and Material Evidence The Veteran was originally denied service connection for PTSD in an August 2006 rating decision. The Veteran was subsequently denied service connection for PTSD in a January 2009 rating decision. As a result, the denial of service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). Service connection for PTSD may now be considered on the merits only if new and material evidence has been received since the final prior adjudication. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013); Manio v. Derwinski, 1 Vet. App. 140 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no new and material evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App. 167 (1996). Evidence is considered new if it was not of record at the time of the last final disallowance of the claim. 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. Finally, 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) (2013). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). A claim of entitlement to service connection for PTSD was last denied in a January 2009 rating decision. The evidence of record at the time of the January 2009 rating decision consisted of the Veteran's service medical records; service personnel records; private treatment reports from Community Health Network and San Francisco Department of Public Health; a statement from T. Neylan, M.D.; VA outpatient treatment reports dated from November 2005 to January 2009; a VA examination report dated in February 2002; and statements from the Veteran and other lay persons. The Veteran's claim of service connection for PTSD was initially denied in an August 2006 rating decision. The basis of the denial was that there was neither a confirmed stressor nor a confirmed diagnosis of PTSD. The claim was last denied in a January 2009 rating decision because the RO determined that no new and material evidence had been received to reopen the claim. The Veteran most recently submitted a claim for service connection for PTSD September 2010. Evidence received since the January 2009 rating decision consists of VA treatment reports dated from May 2009 to January 2013; a June 2013 statement from T. Neylan, M.D.; statements from the Veteran; a response from the Joint Services Research Records Center (JSRRC) and an excerpt from a book entitled Soldiers in Revolt: GI resistance during the Vietnam War; and an April 2012 VA examination report. Because the evidence received since January 2009 was not previously of record, and because it addresses specifically the issue before the Board, the Board finds that the new evidence is also material. 38 C.F.R. § 3.156 (2013). In August 2006, the RO determined that there was no evidence of a confirmed stressor or a confirmed diagnosis of PTSD. Most recently, the RO determined that the Veteran had not submitted new and material evidence to reopen his claim of entitlement to service connection for PTSD. Since the prior denial, the Veteran has submitted evidence of a diagnosis of PTSD linked to his claimed stressor and confirmation of the claimed stressor. That evidence confirms the Veteran's alleged stressor, includes a current diagnosis of PTSD, and indicates a relationship between the confirmed stressor and PTSD which was lacking at the time of the previous denial. The Board concludes that the evidence is neither cumulative nor redundant, and that the new evidence raises a reasonable possibility of substantiating the claim. Therefore, as new and material evidence has been received, the claim is reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). The chronicity provisions are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has that disability. That evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2013). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). 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. 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 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) (2013). If a PTSD claim is based on in-service personal assault, evidence from sources other than the appellant's service records may corroborate his account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually-transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than service records or evidence of behavior changes may constitute credible supporting evidence of the stressor, and allowing him the opportunity to furnish this type of evidence or advise the VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5) (2013). The Veteran claims that he has PTSD as a result of an assault during service. Specifically he indicated that while he was a prisoner in the stockade during service there was a riot and he was injured. He also reported that while in the stockade he was placed in shackles and regularly beaten. The Veteran's service medical records show that the Veteran was referred for a psychiatric evaluation in February 1971 because the Veteran showed no potential for rehabilitation or retention in a military setting. The evaluation revealed that the Veteran did not have a past history or current symptoms of a psychiatric disorder that would prevent administrative action. There was no indication of psychosis or severe neurosis and he was determined to have the mental capacity to understand and participate in Board proceedings. The February 1971 discharge examination revealed no psychiatric disease. A review of the service personnel records shows that the Veteran was charged with violation of the Uniform Code of Military Justice, Article 86 for two instances of going absent without leave (AWOL) in October and November 1970. He was discharged under honorable conditions in March 1971 for unsuitability. VA outpatient treatment reports dated from November 2005 to July 2012 show that the Veteran reported symptoms of PTSD in April 2008. In August 2008, the Veteran was referred for a mental status evaluation for PTSD following a positive PTSD screen in primary care. A diagnosis of rule/out PTSD, history of cocaine and alcohol dependence was reported at that time. In September 2008, a diagnosis of PTSD was made. In a September 2008 statement, T. Neylan, M.D., director of the Posttraumatic Stress Disorders Program at the University of California, San Francisco indicated that he was a provider in the PTSD program at the San Francisco VA Medical Center and had been treating the Veteran for PTSD since April 2008. Dr. Neylan noted the Veteran's significant trauma exposure related to a physical assault during service. Associated with the claims file is a response from the JSRRC received in March 2012 which shows that the JSRRC was unable to verify the Veteran's reported stressor. The JSRRC referred the stressor verification request to the Fort Hood Public Affairs Office who then referred the request for information to the post historian. The post historian submitted an excerpt from a book entitled Soldiers in Revolt: GI resistance during the Vietnam War. The excerpt shows that there was a huge uprising at the Fort Hood prison on December 20, 1970. The rebellion left much of the stockade destroyed and required the intervention of one hundred riot-equipped guards. Although names were no provided for the individuals involved, the Veteran was a prisoner in the stockade during that uprising and is presumed to have been present during the uprising. At a VA examination in April 2012, the Veteran reported abuse by the prison guards in service and during a subsequent riot. The examiner indicated that the Veteran met criterion A and all of the other diagnostic criteria for PTSD with the exception of criterion C. Criterion C refers to persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness. The examiner stated that the Veteran had markedly diminished interest or participation in significant activities but did not meet any other sub-categories of that criterion and therefore did not meet the full criteria for PTSD. In a June 2013 statement, Dr. Neylan reiterated his findings noted in the September 2008 statement and opined that the Veteran suffered from PTSD that was directly related to his military service. Considering all the evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for PTSD is warranted. The Board finds that the evidence shows a diagnosis of and treatment for PTSD by a physician who works at both VA and in a university setting and runs a PTSD program. Additionally, the Veteran's claimed stressor regarding an assault during a riot in service has been verified. While the April 2012 VA examiner indicated that the Veteran did not meet the full criteria for PTSD, Dr. Neylan has reported that the Veteran does meet the full criteria for PTSD and that that diagnosis is based on an assault the Veteran incurred in service. The Board finds that the evidence is in equipoise and finds no objective reason to assign more probative value to the opinion of one physician over the other. Therefore, the Board finds that a diagnosis of PTSD is warranted, and is shown to be the result of a verified stressor during the Veteran's service when he was in the stockade at Ft. Hood during a riot. Consequently, the Board finds that the evidence shows that the Veteran has PTSD as a result of his active duty service. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for PTSD is warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claim of entitlement to service connection for PTSD is reopened. Entitlement to service connection for PTSD is granted. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs