Citation Nr: 1338717 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 11-29 529 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services ATTORNEY FOR THE BOARD Shari Gordon, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1971 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, that denied the claim to reopen. In March 2011, the Veteran was afforded a hearing before a Decision Review Officer (DRO) at the RO. A transcript of the hearing is of record. FINDINGS OF FACT 1. In June 2005, the RO denied the Veteran's claim for service connection for PTSD. The Veteran did not perfect a timely appeal. 2. Evidence relevant to the Veteran's claim received since the June 2005 decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim; and, is not cumulative or redundant of the evidence previously considered and raises a reasonable possibility of substantiating the claim. 3. Resolving all reasonable doubt in the Veteran's favor, his PTSD is causally related to fear of hostile military activity during service. CONCLUSIONS OF LAW 1. The June 2005 rating decision denying the claim for service connection for PTSD is final. 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2004). 2. Evidence received since June 2005 is new and material; thus, the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. Service connection for PTSD is established. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In this decision, the Board reopens the Veteran's PTSD claim and grants service connection for PTSD. As such, no discussion of VA's duty to notify and assist is necessary. New and Material Evidence If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In March 1992, the Veteran filed his first claim of entitlement to service connection for PTSD. Such was denied in a December 1992 rating decision, and the Veteran perfected an appeal. The Board, in May 1995, denied the claim. In February 2001, the Veteran again filed a claim of entitlement to service connection for PTSD, and such was denied in a December 2001 rating decision on the basis of no new and material evidence. The Veteran did not appeal. In November 2004, the Veteran again filed the same claim. However, such was denied on the merits by a June 2005 rating decision, on the grounds that the Veteran's in-service stressor could not be corroborated. After appropriate notice of this decision and of his appellate rights, the Veteran did not file a timely notice of appeal. Additionally, no evidence pertaining to the Veteran's claimed disability was either physically or constructively received within one year of the June 2005 final rating decision and the decision therefore became final. See 38 C.F.R. § 3.156(b) (2013); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The Veteran filed the current claim in June 2010. Newly received evidence includes numerous VA treatment records, a February 2012 VA examination and the transcript of a hearing conducted in March 2011. The new evidence also contains statements from the Veteran describing the deaths he witnessed and other events that put him in fear for his life. The Board finds that the evidence is "new" within the meaning of 38 C.F.R. § 3.156, as it has not been previously considered, and it is material as it demonstrates a fear of hostile military activity. As new and material evidence has been presented, the claim is reopened. Service Connection Generally, service connection is granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection for PTSD requires medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In fact, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Effective July 13, 2010, VA amended its rules for adjudicating PTSD claims under 38 CFR § 3.304(f) to relax the evidentiary standard for establishing the required in-service stressor in certain cases. Specifically, 38 C.F.R. § 3.304(f)(3), as revised effective July 13, 2010, provides as follows: 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. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f). The Veteran was diagnosed with PTSD in July 2000. He asserts that his PTSD is the result of fear of hostile military activity. The Veteran's service personnel records confirm that he served off the coast of Vietnam from August 1971 to August 1974 as a winch operator aboard an ammunition ship. In March 2010 VA treatment records, the Veteran stated that he witnessed two seamen jump overboard to escape falling ammunition pallets in rough seas. He was also required to fire on sampans as potential hostile threats. A July 2010 private examination determined through an initial comprehensive assessment process that the Veteran met the criteria for PTSD related to these stressors. The stressful events recorded mirrored those the Veteran described during his March 2011 hearing. During a February 2012 VA examination, the Veteran reported two additional stressors that were also noted in his March 2010 VA treatment records. The first being that he saw his friend, R.H., take a recoil of a 50 inch gun to the face. He stated that he saw it from a couple hundred feet away. During this same examination, the Veteran stated that he saw a seamen's apprentice stuck in a hatch, lying down with a caved in chest, and attempting to be resuscitated by the chief corpsman. The VA examiner diagnosed PTSD, but found that the reported stressor was not related to the Veteran's fear of hostile military or terrorist activity. However, the examiner did indicate further that the Veteran witnessed an event that involved both actual and threatened death or serious injury to another person. Although the examiner found that the Veteran's stressors were not the result of fear of hostile military activity, the Board notes that the Veteran has consistently described incidents during his Vietnam service that involved fear of hostile military activity. He provided descriptions of his Vietnam service, to include actual or threatened death or injury to himself and others. As the record does not contain clear and convincing evidence to the contrary, the Veteran's competent and credible lay testimony is sufficient to establish the occurrence of the claimed in-service stressors related to fear of hostile military or terrorist activity. 75 Fed. Reg. at 39, 852; Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Thus, he was confronted with events involving threatened death or serious injury, or a threat to his physical integrity or the physical integrity of others and he reacted with a psychological state of fear. His stressors are supported by his own statements and the evidence indicating that he served aboard an ammunition ship stationed in hostile waters during a time of conflict. Therefore, the Veteran's stressors involving a fear of hostile military activity during his Vietnam service have been confirmed. These reported stressful events were found by a VA psychiatrist to sufficiently support a diagnosis of PTSD. Service connection for PTSD is therefore warranted. ORDER New and material evidence having been received, the claim for service connection for PTSD is reopened, and service connection for PTSD is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs