Citation Nr: 1340733 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 10-29 279 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and major depressive disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1968 to March 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In his July 2010 substantive appeal, the Veteran requested a Board videoconference hearing. The record reflects that the RO notified the Veteran that a hearing before a Veterans Law Judge had been scheduled for June 2012. However, the Veteran did not appear for the Board hearing, and the notification letter was not returned by the United States Postal Service as undeliverable. As the Veteran has not requested to reschedule the hearing, the request for a hearing is considered withdrawn pursuant to 38 C.F.R. § 20.702(d) (2013). Generally, the scope of a mental health disability claim includes any psychiatric disorder that may reasonably be encompassed by a veteran's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In May 2008, the Veteran filed a claim of entitlement to service connection for depression. In May 2009, the Veteran filed a claim of entitlement to service connection for PTSD. VA treatment records reflect multiple diagnoses of acquired psychiatric disabilities, to include PTSD and major depressive disorder. Accordingly, the Board has re-captioned the claim as seen on the title page. Id. As noted above, the Veteran filed an initial claim of entitlement to service connection for depression in May 2008. The RO denied this claim in October 2008. The Veteran did not file a timely appeal to the October 2008 rating decision. However, in May 2009, the Veteran indicated that he wished to file a claim to reopen the claim of entitlement to service connection for depression as well as a new claim of entitlement to service connection for PTSD. In this respect, even if no appeal is filed, a rating decision is not final if new and material evidence is submitted within the appeal period and has not yet been considered by VA. 38 C.F.R. § 3.156(b) (2013); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). New evidence means existing evidence not previously submitted to VA. 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). Here, the Veteran presented a new theory of entitlement to service connection for an acquired psychiatric disability, namely, symptoms associated with PTSD, and VA treatment records received in February 2009 reflect diagnoses of PTSD. In addition, the VA treatment records note the finding of a VA clinical psychologist that the Veteran's PTSD is related to in-service stressors. As the RO previously denied the claim because the evidence did not indicate that an acquired psychiatric disability was related to active duty, the Board finds this evidence constitutes new and material evidence. Therefore, the October 2008 rating decision is not final, and the Board has characterized the issue as shown on the title page. 38 C.F.R. § 3.156(b); Bond, 659 F.3d at 1362. FINDINGS OF FACT 1. The Veteran's claimed stressors are related to the fear of hostile military activity. 2. The Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressors. 3. A VA psychologist has confirmed that the Veteran's claimed stressors are adequate to support a diagnosis of PTSD and that the Veteran's symptoms of PTSD are related to the claimed in-service stressors. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be established for a disability resulting from a disease or injury incurred in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2013), credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and an in-service stressor. 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). 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. Otherwise, the law requires verification of a claimed stressor. Id. VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). The Veteran asserts that he has an acquired psychiatric disability as the result of stressors he experienced during his service in Vietnam. Specifically, the Veteran reports that while he was in Vietnam, his unit was subjected to numerous rocket attacks and that he saw the body parts of his comrades in the aftermath. The Veteran avers that he traveled to Da Nang daily to work on aircraft radios and that his planes were subjected to enemy fire during takeoff and landing. The Veteran also reports that he began to get into trouble with the military shortly after his tour in Vietnam. The Veteran's DD-214 shows his military occupational specialty (MOS) was Communication and Navigation Systems Technician. Service treatment records do not demonstrate complaints of, treatment for, or a diagnosis of an acquired psychiatric disability. The claimed stressful events are also not shown in the service records. VA treatment records reflect diagnoses of PTSD and major depressive disorder during the pendency of the appeal. A July 2008 VA screening for PTSD was positive. An April 2009 VA treatment record shows the Veteran reported that he experienced a rocket attack on Da Nang during his first trip there. He was not let into the first bunker he found because there was not enough room and because he was not assigned to that bunker. After he went to another bunker, the first bunker took a direct hit and approximately a dozen men died. A VA clinical psychologist, Dr. N. Itkowitz, reviewed the Veteran's DD-214, to include his MOS, and noted his duties in the war zone. After performing a PTSD evaluation and review of the Veteran's symptoms, Dr. Itkowitz diagnosed PTSD, alcohol dependency, and history of major depressive disorder. Dr. Itkowitz specifically highlighted the Veteran's in-service symptoms of fear, helplessness, and horror that currently caused symptoms of re-experiencing, numbing and avoidance, and hyperarousal. In addition, Dr. Itkowitz noted that the Veteran began getting into trouble with the military shortly after his tour in Vietnam. In May 2009, Dr. Itkowitz indicated the Veteran had psychosocial stressors that included combat trauma revisited. In August 2009, the RO made a formal finding of a lack of information required to corroborate the stressors associated with a claim of service connection for PTSD. In July 2011, the Veteran underwent VA examination in connection with his claim. The Veteran described how his unit in Da Nang was mortared by rockets and how he felt intensely frightened and horrified as many people died and corpses were "all torn up." After reviewing the claims file and performing a psychological evaluation, the VA examiner found the Veteran met the Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV) stressor criterion based on combat in Vietnam. The VA examiner diagnosed alcohol dependency and rule out substance induced mood disorder and found the Veteran did not currently meet the DSM-IV criteria for a diagnosis of PTSD or a stress disorder. The VA examiner did not provide a rationale for the opinion. The VA examiner stated that the psychometric assessment scores were invalid due to overreporting. As noted above, the record demonstrates diagnoses of an acquired psychiatric disability during the pendency of the appeal, to include PTSD and major depressive disorder. As such, the Board finds the Veteran has established a current disability for the purpose of service connection, particularly when reasonable doubt is resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. With respect to an in-service event, the Veteran has alleged numerous stressors that he experienced during active duty in Vietnam. The Veteran's DD-214 shows that he served in Vietnam from April 4, 1972 to November 1, 1972 as a Communication and Navigation Systems Technician. Service personnel records show the Veteran participated in operations in the Republic of Vietnam with the Marine Composite Reconnaissance Squadron 1. Furthermore, the Veteran reports that he began to get into trouble with the military after his tour in Vietnam. In this regard, the DD-214 indicates the Veteran had 25 days of time lost from January 9, 1973 to February 2, 1973 due to confinement. In addition, the July 2011 VA examiner determined that the Veteran's experiences met the DSM-IV stressor criterion, and Dr. Itkowitz reported that the Veteran's stressors involved fear, helplessness, and horror. In addition, Dr. Itkowitz based the diagnosis of PTSD on the Veteran's reported stressors. Furthermore, the Board finds the Veteran's reported stressors are consistent with the places, types, and circumstances of his service, and the record does not demonstrate clear and convincing evidence to the contrary. Therefore, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressors even when participation in combat with the enemy is not shown. See 38 C.F.R. § 3.304(f)(3). In this regard, the Board finds that the Veteran's lay testimony alone is sufficient to establish the existence of the in-service stressors. Here, the competent medical evidence reflects a diagnosis of PTSD related to in-service stressors, and the Veteran's lay testimony, consistent with the circumstances of his service, has established the occurrence of the in-service stressors. Therefore, when resolving the benefit of the doubt in favor of the Veteran, the Board finds service connection for PTSD is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for PTSD is granted. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs