Citation Nr: 1332912 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 09-19 190 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for a psychiatric disorder, to include anxiety disorder, major depressive disorder, and posttraumatic stress disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from August 1943 to August 1945, and from September 1947 to April 1948. These matters come before the Board of Veterans' Appeals (Board) from an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board notes that the Veteran did not appeal that rating decision. However, if new and material evidence is submitted within a year of a rating decision, 38 C.F.R. § 3.156(b) requires that any subsequent decision based on such evidence relate back to the original claim (in this case, a January 2004 claim). Buie v. Shinseki, 24 Vet. App. 242 (2010). The receipt of new and material evidence required readjudication of his claim in October 2005, October 2006, December 2006, and December 2008 rating decisions. While the Veteran perfected an appeal of the December 2008 rating decision, his appeal stems from the January 2004 claim first adjudicated in the August 2004 rating decision. In July 2013, the Veteran testified during a hearing before the undersigned Acting Veterans Law Judge at the RO. The record was held open for 60 days following the hearing to provide the Veteran with additional time to submit medical evidence. However, no records have been received. Service connection for a psychiatric disorder was previously denied by the RO in a July 2002 rating decision because there was no evidence of a current disability. That decision became final. The Veteran now claims service connection for posttraumatic stress disorder (PTSD). A change in diagnosis or the specificity of the claim must be carefully considered in determining whether the claim is based on a distinct factual basis, and a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury, when it is an independent claim based on distinct factual bases. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). However, the analysis must focus on whether the evidence truly amounts to a new claim based on a different diagnosed disease or whether the evidence substantiates an element of a previously adjudicated matter. Velez v. Shinseki, 23 Vet. App. 199 (2009). In this case, the Board is broadening the scope of the claim because the present claim turns upon essentially the same history and factual bases that were considered in the prior final rating decision - that the Veteran developed a psychiatric disorder due to traumatic events in service. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the threshold question of whether new and material evidence has been submitted must be addressed. In light of the Board's decision to reopen the claim, there is no prejudice to the Veteran from framing the issue as such. Although the RO limited the issue to PTSD, given the other diagnoses of record, the Board has broadened the issue as stated on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Please note 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. In a July 2002 rating decision, the RO denied service connection for a psychiatric disorder. Although the Veteran initiated an appeal, he did not thereafter perfect the appeal. 2. The evidence received since the July 2002 final rating decision relates to unestablished facts necessary to substantiate the claim for service connection for a psychiatric disorder. 3. The Veteran was exposed to a traumatic in-service stressor. 4. There is an approximate balance of favorable and unfavorable evidence as to whether the Veteran has PTSD due to his in-service stressor. CONCLUSIONS OF LAW 1. The July 2002 rating decision, which denied service connection for the residuals of a psychiatric disorder, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2013). 2. New and material evidence has been received since the July 2002 rating decision to reopen the previously denied claim for service connection for a psychiatric disorder. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Given the fully favorable determination in this case, no further discussion of the duties to notify and assist is needed. Claim to Reopen Generally, a final decision issued by the agency of original jurisdiction may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. See 38 U.S.C.A. § 7105(c), (d) (West 2002 & Supp. 2012). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012). "New evidence" is evidence that has not previously been reviewed by VA adjudicators. "Material evidence" is 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 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 newly presented evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The Board must review all of the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247 (1999). The claim for service connection for a psychiatric disorder was originally denied by the RO in a July 2002 rating decision. The claim was denied because there was no evidence of current disability. Although the Veteran initiated an appeal, he did not thereafter perfect the appeal. There is no indication that new and material evidence was received within the one year following that decision that would have been pertinent to the issue on appeal. Thus, the decision became final. The pertinent evidence received since the July 2002 denial includes the Veteran's statements of in-service stressors during the Normandy landings, a printout of American Merchant Marine ships at Normandy in June 1944, and a May 2006 letter from a private healthcare provider. In various statements, the Veteran has stated that he participated in the Normandy landings and saw numerous dead soldiers. The printout of Merchant Marine ships at Normandy confirms the participation of one of the ships the Veteran served aboard. In the May 2006 letter, a licensed mental health counselor noted the Veteran's various in-service stressors and provided a diagnosis of PTSD. Presuming the credibility of the evidence, the record now indicates that the Veteran has PTSD and that it may be related to an in-service stressor. The evidence is new, not cumulative, and relates to unestablished facts necessary to substantiate the claim. Thus, as new and material evidence has been received, the claim for service connection for a psychiatric disorder is reopened. See 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156(a) (2013). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for PTSD requires (1) medical evidence of a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) (i.e., Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV)); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a link between current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2013). Effective July 13, 2010, VA amended the regulations pertaining to the adjudication of disability compensation claims for PTSD by liberalizing the evidentiary standard for establishing the required in-service stressor in certain cases. See 75 Fed. Reg. 39,843 (July 13, 2010); 75 Fed. Reg. 41092 (July 15, 2010) (correcting effective date to July 13, 2010) (codified in 38 C.F.R. § 3.304(f)(3) (2013)). However, the Board finds that the amendment is not applicable in this case, as the diagnosis of PTSD in this matter was not diagnosed by a VA psychologist or psychiatrist. In this case, the Veteran contends that he served aboard a ship that transported soldiers during the Normandy landings during World War II and saw numerous dead bodies floating around the ship. A printout of American Merchant Marine ships at Normandy in June 1944 confirms the participation of the SS Park Benjamin, one of the ships the Veteran served aboard. Thus, the Board finds that the Veteran was exposed to a traumatic in-service stressor. The remaining question is whether he has PTSD due to that stressor. In an April 2004 letter, a social worker noted that the Veteran had memories of his combat service every day and nightmares of combat two to twelve times per year. In a May 2006 letter, a licensed mental health counselor noted the Veteran's various in-service stressors, including that of his participation in the Normandy landings at which time he observed dead bodies floating around his ship, and provided a diagnosis of PTSD. The mental health counselor noted that the Veteran had distressing memories of his military service, more in the past. A duplicate letter co-signed by a physician has also been submitted. VA medical records do not contain a diagnosis of PTSD. In February 2007, the Veteran was diagnosed with insomnia. In August 2007, he had a negative PTSD screen. In March 2008, he was given a diagnosis of sleep dysfunction noted as probable anxiety. In March 2009, he was diagnosed with an anxiety disorder. The Veteran was afforded a VA examination in August 2012. The examiner noted that the Veteran's description of prior psychiatric problems may have been PTSD but could also have been a number of other disorders. The examiner indicated that the Veteran experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others. The examiner indicated that the Veteran's stressor was adequate to support a diagnosis of PTSD but was not related to his fear of hostile military activity. The examiner concluded that the Veteran did not have a mental disorder but rather age-related cognitive decline. The examiner found that the Veteran did not meet the full criteria for a diagnosis of PTSD, noting that he repeatedly denied having any nightmares related to his military service. However, the examiner noted that it is possible that, given the Veteran's cognition, he was unable to effectively communicate his experiences and symptoms. Initially, the Board notes that the most recent medical evidence reflects that the Veteran does not have a psychiatric disorder. However, as the Veteran had a diagnosed disability during the pendency of his claim, service connection criteria requiring a current disability have been satisfied. McClain v. Nicholson, 21 Vet. App. 319 (2007). Moreover, the VA examiner noted that the Veteran's cognitive decline could be rendering him unable to effectively communicate his experiences and symptoms. Given the above, the Board finds that there is an approximate balance of favorable and unfavorable evidence as to whether the Veteran has PTSD due to his in-service stressors. On one hand, private health care providers have in the past diagnosed the Veteran with PTSD due to his in-service stressor involving the Normandy landings. On the other hand, a recent VA examiner found that the Veteran did not have a psychiatric disorder. However, the VA examiner indicated that the Veteran's cognitive decline could be masking his diagnosis. In that regard, the private health care providers indicated that the Veteran's PTSD symptoms had been worse in the past, which supports the VA examiner's observation. Resolving reasonable doubt in the Veteran's favor, the Board finds that he has PTSD, diagnosed during the pendency of his claim, that is related to his in-service stressor. See 38 U.S.C.A. § 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for PTSD is warranted. To the extent the Veteran may assert a separate claim for service connection for anxiety disorder, major depressive disorder, or any other psychiatric disorder, as further supported by the private medical report of May 2006, the Board finds that any symptoms of such disorders are part and parcel of his PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board also notes that the schedule of ratings for mental disorders evaluates all mental disorders according to a general rating formula. 38 C.F.R. § 4.130 (2013). ORDER New and material evidence having been received, the claim for service connection for an acquired psychiatric disorder is reopened. Service connection for PTSD is granted. ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs