Citation Nr: 1340314 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 10-21 031 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for posttraumatic stress disorder (PTSD), and if so, whether service connection may be granted. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Alexander Panio, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2001 to August 2005, including service in Iraq. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In his substantive appeal, the Veteran requested a hearing at the St. Petersburg RO. A hearing was scheduled for February 15, 2012, but the Veteran failed to appear. It appears that notice of the hearing was sent to the address listed by the Veteran on his substantive appeal. As the Board has received no request for a postponement or good cause for the Veteran's failure to appear, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2013). FINDINGS OF FACT 1. The January 2006 rating decision that denied the Veteran's claim for service connection for PTSD was not appealed. 2. Evidence submitted since January 2006, including the Veteran's lay statements concerning his in-service stressors and medical records showing a diagnosis of PTSD, is not duplicative or cumulative of evidence previously received and raises a reasonable possibility of substantiating the Veteran's claim. 3. A reasonable interpretation of the evidence supports the conclusion that the Veteran's PTSD had its onset in service. CONCLUSIONS OF LAW 1. The unappealed January 2006 rating decision that denied the Veteran's claim for service connection for PTSD is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). 2. The Veteran has submitted new and material evidence sufficient to reopen his claim for entitlement to service connection for PTSD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. The Veteran's PTSD was incurred in service. 38 U.S.C.A. § 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION New and material evidence The Veteran's initial claim for PTSD was denied in January 2006 for failure to return a PTSD questionnaire detailing the stressful events that may have led to PTSD and failure to show a confirmed diagnosis of PTSD. The Veteran did not file a notice of disagreement with the 2006 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims file within one year of the rating decision. 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). Thus, the January 2006 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103, 20.1105 (2013). A previously denied claim may be reopened if the claimant submits new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. September 2005 VA treatment records, which were not associated with the Veteran's claims file until April 2009 and thus were not considered by agency decisionmakers in the January 2006 rating decision, show that the Veteran was diagnosed with PTSD related to his service in Iraq. Furthermore, in March 2009 the Veteran submitted lay statements recounting the events in Iraq which may have led to his PTSD. Taken together, this evidence supports unestablished facts necessary to substantiate the Veteran's claim for service connection for PTSD, and is neither duplicative nor cumulative of evidence previously received. See Smith v. West 12 Vet. App. 312, 314-315 (1999); 38 C.F.R. § 3.156(a). Accordingly, the Board finds that the Veteran has submitted new and material evidence sufficient to warrant reopening the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Service connection for PTSD Establishing 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) (2013). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran was diagnosed with PTSD in September 2005, less than two months after being discharged from service. In his post-deployment health assessment he reported being in combat situations where he felt he was in great danger of being killed. He reported seeing enemy soldiers wounded or killed and experiencing nightmares, showing diminished interest and pleasure in doing things and exhibiting paranoid behavior. The Veteran subsequently submitted lay statements detailing combat encounters with enemy personnel which resulted in casualties on both sides. The Veteran is competent to testify to events and feelings, including the stressors, fear, and horror that were experienced during service. Layno. His account of engaging the enemy from his position on a truck during supply runs and seeing vehicles destroyed by improvised explosive devices is consistent with his military occupational specialty of motor transport operator in Iraq. VA treatment records from September 2005 show the Veteran's screening for PTSD was positive, and include a recounting of his symptomatology since returning from Iraq. Additionally, three separate doctors evaluated the Veteran's mental state in September 2006. After diagnostic interviews, all three examiners opined that the Veteran suffered from PTSD related to his experiences in Iraq. All three assessments included lengthy discussion and rationale. Resolving all reasonable doubt in the Veteran's favor, the Board finds that there is sufficient evidence of a connection between the Veteran's current condition and the Veteran's in-service stressors to satisfy the third and final element required for service connection. 38 C.F.R. § 3.304(f). The medical evidence of record establishes a diagnosis of PTSD and a link between the current condition and the Veteran's in-service stressors. Because his reported stressors have been corroborated and he has been diagnosed as having PTSD due to his in-service experiences, service connection for PTSD is warranted. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. Service connection for PTSD is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs