Citation Nr: 1335000 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 09-41 948A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, anxiety, depression, and posttraumatic stress disorder (PTSD). 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right ankle disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from May 1962 to May 1965 and from November 1966 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of January 2007 and February 2007 rating actions by the Department of Veterans Affairs (VA) Regional Office (RO) located in Indianapolis, Indiana, wherein the RO determined that new and material evidence had been submitted and reopened the Veteran's claim for service connection for an acquired psychiatric disorder, to include bipolar disorder, anxiety, depression, and PTSD. In addition, the RO denied the underlying service connection claim. Moreover, in the January 2007 rating action, the RO determined that new and material evidence had not been received to reopen the claim for service connection for a right ankle disability. In January 2008, the Veteran submitted a VA Form 9 in which he disagreed with the RO's decision to deny his claims. The VA Form 9 was accepted as a notice of disagreement (NOD). In October 2009, the RO issued a statement of the case (SOC), and in November 2009, the Veteran submitted a substantive appeal (VA Form 9). Although the RO reopened the claim for service connection for an acquired psychiatric disorder, the Board must still determine whether new and material evidence has been received to reopen the claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the veteran's previously and finally denied claims). Thus, the new and material issue is before the Board for appellate consideration. The Veteran's underlying claim for service connection for an acquired psychiatric disorder has been rephrased on the title page to encompass any mental disorder. Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (a claimant may satisfy this requirement of identifying a benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (stating that, when determining the scope of a claim, the Board must consider "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim.") In the Veteran's January 2008 NOD, he requested a Travel Board hearing. However, in his November 2009 substantive appeal, he specifically indicated that he did not want a Travel Board hearing. In addition, in the Appellant's Brief from the Veteran's representative, the Disabled American Veterans (DAV), dated in June 2013, the DAV stated that the Veteran had requested to waive his right to a hearing before a Veterans' Law Judge. FINDINGS OF FACT 1. In a May 2005 rating action, the RO reopened the claim for service connection for an acquired psychiatric disorder, to include bipolar disorder, anxiety, depression, and PTSD, and denied the claim on the merits; the Veteran was provided notice of the decision and his appellate rights, but did not file an NOD. 2. In March 2006, the Veteran filed an application to reopen his claim for service connection for an acquired psychiatric disorder, to include bipolar disorder, anxiety, depression, and PTSD. 3. With respect to the claim for service connection for an acquired psychiatric disorder, to include bipolar disorder, anxiety, depression, and PTSD, additional evidence received since the May 2005 decision is new to the record and relates to unestablished facts necessary to substantiate the merits of the claim, and raises a reasonable possibility of substantiating the claim. 4. The competent evidence of record is in relative equipoise with respect to whether the Veteran has PTSD that is causally related to combat experience in service. 5. In a May 2004 rating action, the RO determined that new and material evidence had not been submitted to reopen the claim for service connection for a right ankle disability. The Veteran was provided notice of the decision and his appellate rights. In August 2004, he submitted an NOD, and an SOC was issued in July 2005. The Veteran did not file a substantive appeal (VA Form 9). 6. On September 2006, the Veteran filed an application to reopen his claim for service connection for a right ankle disability. 7. With respect to the claim for service connection for a right ankle disability, the evidence received since the unappealed May 2004 decision, when considered by itself or in the context of the entire record, does not relate to a fact unestablished by the previously available record that is necessary to substantiate the claim for service connection for a right ankle disability CONCLUSIONS OF LAW 1. The May 2005 rating action, in which the RO reopened the claim for service connection for an acquired psychiatric disorder, to include bipolar disorder, anxiety, depression, and PTSD, and denied the claim on the merits, is final. 38 U.S.C.A. § 7105(West 2002 & Supp. 2013); 38 C.F.R. §§ 3.160(d), 20.1103 (2013). 2. In regard to the claim for service connection for an acquired psychiatric disorder, to include bipolar disorder, anxiety, depression, and PTSD, the evidence received since the May 2005 rating action is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156(a) (2013). 3. With application of the doctrine of reasonable doubt, service connection for an acquired psychiatric disorder, including PTSD, is warranted. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2013). 4. The May 2004 rating action, in which the RO determined that new and material evidence had not been submitted to reopen the claim for service connection for a right ankle disability, is final. 38 U.S.C.A. § 7105(West 2002 & Supp. 2013); 38 C.F.R. §§ 3.160(d), 20.1103 (2013). 5. Evidence submitted to reopen the claim of entitlement to service connection for a right ankle disability is not new and material, and therefore, the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA enhanced VA's duty to notify a claimant as to the information and evidence necessary to substantiate 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, 3.326(a) (2012). The VCAA also redefined the obligations of VA with respect to the duty to assist the veteran with the claim. Id. In the instant case, the Board finds that VA fulfilled its duties to the Veteran under the VCAA. Duty to Notify VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. The Board concludes that the letters dated in March 2006, September 2006, and September 2009, that were sent to the Veteran adequately apprised him of the information and evidence needed to substantiate the claim. The RO thus complied with VCAA's notification requirements. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Additionally, on March 3, 2006, the United States Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held, in part, that VA's duty to notify a claimant seeking to reopen a claim included advising the claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit sought by the claimant. The Court further held that VA must, in the context of a claim to reopen, look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Id. at 9-10. At the outset, the Board notes that with respect to the Veteran's application to reopen a claim of entitlement to service connection for an acquired psychiatric disorder based on new and material evidence, given the favorable outcome as noted below, and considering that sufficient evidence is of record to grant the Veteran's claim for service connection for PTSD, no conceivable prejudice to the Veteran could result from this adjudication. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). In regard to the remaining new and material claim, the Board finds that VA has met these duties with regard to the claim adjudicated on the merits in this decision. There is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in March 2006, September 2006, and September 2009 fulfills the provisions of 38 U.S.C.A. § 5103(a). That is, the Veteran received notice of the evidence needed to substantiate his claim, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly, 19 Vet. App. at 394, 403; see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I ) rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In addition, the March 2006 letter also informed the Veteran about how VA determines effective dates and disability ratings, as required by Dingess. The September 2006 and September 2009 notification letters further informed the Veteran of the requirement of submitting new and material evidence to reopen a previously denied claim and defined what "new" and "material" evidence was. The September 2009 letter included affirmative statements of the evidence, not previously of record, needed to reopen his claim. Specifically, the Veteran was informed that his claim was previously denied because there was no link between any current right ankle disability and his period of service. The Veteran was informed that the evidence he submitted had to relate to that fact. Accordingly, the Board determines that the September 2009 letter satisfies the Kent requirements by apprising the Veteran of both the new and material evidence standard as well as the information required to substantiate his entitlement to the underlying claim. Kent, 20 Vet. App. at 9. The Board also recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice must "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." Written notice was provided in March 2006 and September 2006, prior to the appealed from rating decision, along with the subsequent notice provided in September 2009, after the decision that is the subject of this appeal. With respect to any timing deficiency, the Board finds no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). As the Board concludes below that new and material evidence has not been submitted to reopen the claim for service connection for a right ankle disability, any question as to the appropriate disability rating or effective date to be assigned are rendered moot. The Veteran has been provided the opportunity to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence. Furthermore, he has been provided a meaningful opportunity to participate effectively in the processing of his claim by VA. Duty to Assist VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence. As to any duty to provide a medical opinion in regard to the new and material claim, according to 38 C.F.R. § 3.159(c)(4)(iii), the duty to provide a medical opinion in a claim to reopen a finally adjudicated issue, as in this case, applies "only if new and material evidence is presented or secured." 38 C.F.R. § 3.159(c)(4)(C)(iii). Because the Board has determined that the Veteran has not presented new and material evidence to reopen the claim for service connection for a right ankle disability, there is no duty to provide an examination or medical opinion. Id. Based on the foregoing, it is the Board's determination that the VA fulfilled its VCAA duties to notify and to assist the Veteran, and thus, no additional assistance or notification was required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard, supra. II. Pertinent Law and Regulations Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the Federal Circuit Court held that a three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard. See Walker, supra (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show 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." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). Significantly, the Federal Circuit indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added). Id. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Id. Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required." Walker, supra. (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)). Arthritis is defined as a chronic disease in section 3.309(a). Thus, given that the evidence of record shows a current diagnosis of arthritis of the cervical spine, the provisions of subsection 3.303(b) for chronic disabilities apply to the claim for service connection for a cervical spine disability, and this claim may be supported by evidence of a continuity of symptomatology after service. Arthritis is also eligible for presumptive service connection. Specifically, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for arthritis may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). However, this presumption will be rebutted if there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). Lay evidence nonetheless can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Establishing service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304(f); See Cohen v. Brown, 10 Vet. App. 128 (1997). 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 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f). Participation in combat, a determination that is to be made on a case-by-case basis, requires that a veteran personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99 (October 18, 1999); Moran v. Principi, 17 Vet. App. 149 (2003); see also Sizemore v. Principi, 18 Vet. App. 264, 273-74 (2004). If the claimant did not engage in combat with the enemy, or the claimed stressors are not related to combat, then the claimant's testimony alone is not sufficient to establish the occurrence of the claimed stressors and his testimony must be corroborated by credible supporting evidence. Cohen, 10 Vet. App. at 128; Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). Furthermore, service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Board is cognizant that VA regulations regarding service connection for PTSD were recently amended, effectuating a liberalization of a stressor requirement for substantiating a claim under certain circumstances. See 75 Fed. Reg. 39843 (July 13, 2010). In this case, the Board finds that the Veteran engaged in combat. Thus, the new regulations do not directly affect this appeal. In short, because the Board finds that the Veteran was engaged in combat during his tours of duty in Vietnam, a stressor does not need to be verified/corroborated. Accordingly, the Board will not further discuss or outline the new regulation. III. New and Material Claims The Veteran's original claim of entitlement to service connection for a right ankle disability was denied by the RO in a February 1982 rating action. The RO stated that the Veteran's service treatment records showed that in January 1964, he was involved in a jeep accident and incurred contusions and abrasions of his right ankle without evidence of fracture. The remaining service treatment records were negative for any complaints or findings of a right ankle disability. In December 1981, the Veteran underwent a VA examination. At that time, x-rays of his right ankle showed a fracture of the tip of the medial malleolus which had not fully united. Upon physical examination, it was noted that he had an inversion deformity of the right ankle. The RO concluded that the Veteran's in-service contusions and abrasions of his right ankle were acute and transitory and not shown in his March 1965 discharge examination or mentioned during his second period of active service. Thus, it was the RO's determination that the Veteran's current right ankle condition, which was first noted many years after the Veteran's discharge, was not related to his service. The Veteran was provided notice of the decision and his appellate rights. Although he filed an NOD in January 1984, it was not timely because it was not submitted within a year of the February 1982 notice letter, in compliance with 38 C.F.R. § 20.201. The Veteran's original claim of entitlement to service connection for PTSD was denied by the RO in a November 1990 rating action. The RO stated that there was no definite stressor or diagnosis for the claimed PTSD. The Veteran was provided notice of the decision and his appellate rights. In February 1991, he submitted an NOD and an SOC was issued in March 1991. The Veteran did not file a substantive appeal (VA Form 9). In a May 2001 rating action, the RO continued to deny the Veteran's claims for service connection for PTSD and a right ankle disability. The Veteran did not file an NOD. In an April 2003 rating action, the RO determined that new and material evidence had not been submitted to reopen the Veteran's claim for service connection for PTSD. In August 2003, he submitted an NOD and an SOC was issued in May 2004. The Veteran did not file a substantive appeal (VA Form 9). In a May 2004 rating action, the RO determined that new and material evidence had not been submitted to reopen the claim for service connection for a right ankle disability. The Veteran was provided notice of the decision and his appellate rights. In August 2004, he submitted an NOD and an SOC was issued in July 2005. The Veteran did not file a substantive appeal (VA Form 9). Therefore, the May 2004 rating action became final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2013). In a May 2005 rating action, the RO reopened the claim for service connection for an acquired psychiatric disorder, to include bipolar disorder, anxiety, depression, and PTSD, and denied the claim on the merits; the Veteran was provided notice of the decision and his appellate rights, but did not file an NOD. In addition, new and material evidence was not received within one year of that decision. 38 C.F.R. § 3.156(b). Therefore, the May 2005 rating action became final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2013). Although the May 2004 and May 2005 rating actions are final, a claim will be reopened in the event that new and material evidence is presented. 38 U.S.C.A. § 5108. Because the May 2004 and May 2005 rating actions were the last final disallowances, the Board must review all of the evidence submitted since those actions to determine whether the Veteran's claims for service connection should be reopened and re-adjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273 (1996). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 2002). For claims filed on or after August 29, 2001, such as these claims, new evidence means existing evidence not previously submitted to agency decisionmakers. 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A. Factual Background The evidence of record at the time of the May 2004 and May 2005 rating actions consists of the Veteran's service treatment records, a VA examination report, dated in December 1981, a private medical statement from I.R., M.D., dated in May 1989, a statement from the Veteran, dated in March 1990, a VA examination report, dated in September 1990, VA Medical Center (VAMC) outpatient treatment records, dated from January 1999 to May 2004, and private medical records, dated from May 2002 to May 2003. Service records show that the Veteran served from May 1962 to May 1965 and from November 1966 to April 1968. During his second period of service, he served in Vietnam from September 1967 to April 1968. The Veteran's service treatment records from both periods of active service are negative for any complaints or findings of an acquired psychiatric disorder, to include bipolar disorder, anxiety, depression, and PTSD. In the Veteran's March 1965 and April 1968 discharge examinations, he was clinically evaluated as "normal" for psychiatric purposes. The Veteran's service treatment records from his first period of active service, from May 1962 to May 1965, show that in January 1964, the Veteran was involved in a jeep accident and experienced numerous injuries including a sprained right ankle. In the Veteran's March 1965 discharge examination, he denied any foot trouble, arthritis, or bone, joint, or other deformity. The Veteran's lower extremities were clinically evaluated as "normal." The Veteran's service treatment records from his second period of active service, from November 1966 to April 1968, are negative for any complaints or findings of a right ankle disability. In the Veteran's April 1968 discharge examination, he denied any foot trouble, arthritis, or bone, joint, or other deformity. The Veteran's lower extremities were clinically evaluated as "normal." In December 1981, the Veteran underwent a VA examination. The examiner stated that the Veteran had an inversion deformity of the right ankle that he did not have on the left which represented a fracture injury. According to the Veteran, his right ankle was injured when he was in jump school in Alabama. The Veteran noted that he never reported the injury because they would have "recycled him." X-rays were taken of the Veteran's right ankle and were interpreted as showing a fracture of the tip of the medial malleolus which had not fully united. Following the physical examination and a review of the Veteran's x-rays, the examiner diagnosed the Veteran with a history of a fractured right ankle and foot, which was currently healed with residual deformity, periodically symptomatic. In a private medical statement, dated in May 1989, Dr. I.R. stated that he had treated the Veteran in April 1989 for a back disability. According to Dr. R., during the interview, it became apparent that the Veteran was suffering from PTSD related to his Vietnam and other military experiences. The Veteran described feelings of "losing it" (pointing to his head) when he got angry because of mistreatment at work. The Veteran had been recently suspended from his job at the United States Postal Service for allegedly threatening a supervisor. Dr. R. reported that the Veteran was in urgent need of counseling. In a statement from the Veteran, dated in March 1990, he stated that during service, he injured his right ankle during an airborne operation. He also indicated that he had PTSD due to his combat experience in service. The Veteran noted that he had nightmares about his combat service and would wake up in the middle of the night sweating. In September 1990, the Veteran underwent a VA examination. At that time, he stated that he hurt his ankle during a parachute jump while he was in the military. He also noted that he had a history of PTSD. An x-ray was taken of his right ankle which was reported to show some minimal degenerative joint disease and relative widening at the talo tibial joint laterally, which was possibly related to previous injury. Following the physical examination and a review of the x-rays, the pertinent diagnoses were PTSD and right ankle status post fracture, degenerative joint disease. VAMC outpatient treatment records, dated from January 1999 to May 2004, show intermittent treatment for the Veteran's diagnosed affective disorder and bipolar disorder. Private medical records, dated from May 2002 to May 2003, are negative for any complaints or findings of a psychiatric disorder and/or a right ankle disability. Evidence received subsequent to the unappealed May 2004 and May 2005 rating actions consists of a statements from the Veteran, dated in September 2006 and June 2009, with attached pictures; VAMC outpatient treatment records, dated from August 2004 to April 2009; a decision from the Department of the Army, Board for Correction of Military Records, dated in April 2008; a VA medical statement from C.S., M.D., dated in August 2008; a compact disc (CD) from the Social Security Administration (SSA); and a VA examination report, dated in August 2009. In a September 2006 statement from the Veteran, he indicated that he engaged in combat while he was stationed in Vietnam and was a paratrooper. According to the Veteran, he went on many missions and participated in ambushes and patrols. The Veteran noted that "death was everywhere" and that he had never been the same since. He reported that he had PTSD due to his combat experiences. He also noted that during service, he injured his right ankle. In a subsequent statement from the Veteran, dated in June 2009, he indicated that while he was in the Army, he had over one thousand jumps. He reported that during a jump in June 1967, he broke his right ankle. He attached pictures which showed him on a parachute jump. VAMC outpatient treatment records, dated from August 2004 to April 2009, show that in November 2006, the Veteran had an x-ray taken of his right ankle. He noted that he had injured his right ankle during service; at present, he had right ankle pain. The x-rays were interpreted as showing osteoarthritis at the level of the right ankle. There was widening of the lateral aspect of the ankle joint. No recent fractures were seen. In a decision from the Department of the Army, Board for Correction of Military Records, dated in April 2008, it was determined that the Veteran was entitled to the award of the Combat Infantryman Badge. It was indicated that the Veteran served in Vietnam from September 1967 to April 1968 and his first Military Occupational Specialty (MOS) was as a cook. His MOS was then changed to Light Weapons Infantryman-Parachutist Qualified. The Veteran joined the Company E, LRP unit. The term LRP was a term used by the Army for small reconnaissance units working behind enemy lines for extended periods of time. Therefore, based on the Veteran's service in Company E, LRP unit, his award of MOS as Light Weapons Infantryman-Parachutist Qualified, and his service during the Tet Counteroffensive, it was reasonable to assume that the Veteran did actively participate in ground combat and was entitled to the award of the Combat Infantry Badge. In a VA medical statement from Dr. C.S., a VA staff psychiatrist, dated in August 2008, Dr. S. stated that the Veteran had been seeing a VA psychiatrist since July 2000. The Veteran had endorsed the following symptoms: intrusive thoughts of trauma, irritability, and diffuse anxiety. He had been diagnosed with PTSD, as well as bipolar disorder. The Veteran had served in the Army from 1962 to 1968 and his MOS was in general supply, but he also claimed to have served in special forces and as a paratrooper. The Veteran maintained that he witnessed numerous combat situations. On one occasion, he described how a jeep rolled onto him causing a spine injury. On another occasion, he injured his ankle when performing a parachute jump. According to Dr. S., it was likely that the Veteran's current symptoms of PTSD were directly related to those traumatic experiences. Dr. S. indicated that the Veteran's symptoms were severe and persistent enough to continue to severely limit his functioning and limit his capacity to maintain gainful employment. Thus, Dr. S. recommended that service connection for PTSD be granted. In October 2008, the RO received a CD from the SSA. The CD contained a copy of a Disability Determination and Transmittal Report which showed that the Veteran was awarded Social Security disability benefits for blindness (primary diagnosis) and an affective disorder (secondary diagnosis). In August 2009, the Veteran underwent a VA examination. The examiner stated that he had reviewed the Veteran's claims file. Following the mental status evaluation, the diagnosis was the following: (Axis I) bipolar affective disorder, mixed, with current severity rating, not related to military service; alcohol dependence; cannabis dependence, episodic; cocaine dependence, episodic; drug dependence, benzodiazepine; drug withdrawal syndrome, (Axis II) antisocial personality disorder, (Axis IV) abuse of prescription and illicit medications; mental illness; no compliance with medical treatment; witnessing domestic abuse as a child; reported suicide of child; severe behavioral father; prevarication; incarcerations, and (Axis V) Global Assessment of Functioning (GAF) score of 65. The examiner stated that although the Veteran had been diagnosed with PTSD in the past, he did not meet the DSM-IV criteria for a diagnosis of PTSD because there was no behavior, no social changes, no reexperiencing, and no heightened physiological arousals due to PTSD. According to the examiner, the Veteran's thought processes and social functioning were impaired by his mental illness and personality disorder and were not related to his military service. B. Analysis PTSD New and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the May 2005 rating decision. The April 2008 decision from the Board for Correction of Military Records shows that the Veteran was awarded the Combat Infantry Badge, which establishes combat participation and verifies his combat stressors. In addition, in the VA medical statement from Dr. C., dated in August 2008, Dr. S. provided a confirmed diagnosis of PTSD and linked the current PTSD symptomatology to the Veteran's combat service. This evidence relates to an unestablished fact necessary to substantiate his claim and raises a reasonable possibility of substantiating his claim; that is to say, this evidence is new and material and his service connection claim for an acquired psychiatric disorder, to include bipolar disorder, anxiety, depression, and PTSD, is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Right Ankle In this case, the Veteran contends that he injured his right ankle during service. Specifically, he maintains that he injured his right ankle in a jeep accident and he also reports that he injured his right ankle during a parachute jump. He contends that following the injuries, he developed chronic pain in his right ankle. The Veteran maintains that he currently has a right ankle disability that is related to his period of military service, to include his claimed in-service right ankle injuries. He has submitted pictures of himself parachuting during service. The Veteran's contentions are repetitious of his previous contentions at the time the prior final denial of his claim in May 2004, and therefore, are cumulative and not new. In short, it was conceded that the time of the prior final denial that the Veteran injured his right ankle during service in a Jeep accident and that he participated in parachute jumps. What was missing was a nexus between his current right ankle disorder and his in-service injury(ies). The Veteran's own statements and contentions are cumulative in this regard. In addition, the fact that the Veteran is now shown to have combat service is not new and material evidence, as the fact the he injured his ankle during service was conceded at the time of the final, May 2004 rating decision. See 38 U.S.C.A. § 1154(b). The Board observes that in regard to the medical evidence submitted subsequent to the May 2004 rating action, while the evidence is "new" in that it was not of record at the time of the May 2004 rating action, the Board concludes that the evidence is not "material" because it does not relate to an unestablished fact necessary to substantiate the claim for service connection for a right ankle disability. Rather, it merely confirms that the Veteran continues to experience a right ankle disability, diagnosed as right ankle arthritis, without offering any indication of a causal link or nexus between the Veteran's period of military service and his current right ankle disability. In this case, at the time of the May 2004 rating action, there was evidence that the Veteran had a right ankle disability, diagnosed as arthritis of the right ankle. However, the evidence of record at that time was negative for any evidence showing that the Veteran's right ankle was related to his period of active military service, to include his in-service right ankle sprain or to his claimed right ankle injury following a parachute jump. The new evidence submitted subsequent to the May 2004 rating decision does not address this finding. The evidence does not address whether the Veteran's right ankle disability, currently diagnosed as arthritis of the right ankle, was incurred in or aggravated by service, nor does it suggest a nexus between the current right ankle disability and any incident of active duty. Therefore, the aforementioned evidence is not material. The Board finds that the evidence added to the record since the RO's May 2004 decision, either by itself or in the context of all the evidence, both old and new, is not new and material evidence within the meaning of the cited legal authority, sufficient to reopen the Veteran's claim for service connection for a right ankle disability. IV. Service Connection Claim In view of the Board's decision above, the Veteran's claim for service connection for an acquired psychiatric disorder, to include bipolar disorder, anxiety, depression, and PTSD, must be adjudicated on a de novo basis. The April 2008 decision from the Board for Correction of Military Records shows that the Veteran was awarded the Combat Infantry Badge, which establishes combat participation. Therefore, the combat related stressors that the Veteran has reported are consistent with the circumstances of his service and are considered verified. Upon a review of the evidence of record, the issue of whether the Veteran has an acquired psychiatric disorder, including PTSD, that is related to his period of service, specifically his combat service, is in relative equipoise, i.e., about evenly balanced for and against his claim. In these situations, the Veteran is given the benefit of the doubt. Consequently, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran has PTSD that was incurred in service. 38 C.F.R. § 3.102. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993), citing 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (under the "benefit- of-the-doubt" rule, where there exists 'an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,' the veteran shall prevail upon the issue). As such, the Board will grant this appeal. ORDER As new and material evidence has been received, the claim for service connection for an acquired psychiatric disorder, to include bipolar disorder, anxiety, depression, and PTSD, is reopened. Service connection for a psychiatric disorder, including PTSD, is granted. New and material evidence not having been received, the petition to reopen the claim of entitlement to service connection for a right ankle disability is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs