Citation Nr: 1341561 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 11-16 942 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from January 1963 to September 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 determination by the Manchester Department of Veterans Affairs (VA) Regional Office (RO), which determined that new and material evidence had not been received to reopen the claim for service connection for PTSD. In June 2011, the RO reopened the claim and denied service connection for PTSD on the merits. Before reaching the merits of the claim for service connection for PTSD, the Board must first rule on the matter of reopening of the claim. That is, the Board has a jurisdictional responsibility to consider whether it is proper for the claim to be reopened. Jackson v. Principi, 265 F.3d 1366 at 1369 (Fed. Cir. 2001) and Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered regardless of the RO's action. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Therefore, the issue at hand has been recharacterized as an application to reopen as listed on the title page. The Veteran presented testimony at a Decision Review Officer (DRO) hearing in May 2011 and a videoconference hearing before the undersigned Veterans Law Judge in June 2012. Transcripts of these hearings are associated with the Veteran's claims file. The Board also notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. Review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. A January 2001 Board decision denied service connection for PTSD. 2. Evidence received since the January 2001 Board decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim. 3. Resolving all doubt in the his favor, the Veteran's claimed stressors are related to his in-service fear of hostile military activity, consistent with the circumstances of his military service, and adequate to support a diagnosis of PTSD. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.304(f), 3.156 (2013). 2. The criteria for entitlement to service connection for PTSD are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks to establish service connection for PTSD. He essentially argues that he has PTSD resulting from the fear of hostile military activity while serving in Cuba shortly after the Cuban Missile Crisis of 1962. See March 1987 VA examination report, March 1999 statement from the Veteran, May 2011 hearing transcript and June 2012 hearing transcript. I. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder in accordance with the American Psychiatric Association's DSM-IV; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). Effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. 75 Fed. Reg. 39843 (July 13, 2010). Specifically, the final rule amends 38 C.F.R. § 3.304(f)(3) 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. Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). An exception to this rule is 38 U.S.C.A. § 5108 which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as 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). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). 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). II. Analysis - Claim to Reopen The Veteran filed his original claim of entitlement to service connection for PTSD in the 1980's. After a long history of RO, Board and Court denials, a January 2001 Board decision most recently denied entitlement to service connection for PTSD. The Board stated (in pertinent part) that the Veteran did not have a diagnosis of PTSD based on a verified in-service stressor. This decision became final. The evidence of record at the time of the January 2001 Board decision included service personnel records which show that the Veteran was stationed in Guantanamo Bay, Cuba, from November 1964 to November 1965, and was assigned to the Emergency Ground Force. Also of record were numerous diagnoses of service-related PTSD, provided by both by VA and private physicians. Of note, in July 1990 a VA physician stated that the Veteran had PTSD traceable to experiences which transpired during his tour of duty at Guantanamo Bay, Cuba, to specifically include while he was on perimeter guard duty at the base. An August 1999 VA examination report notes that the Veteran went on routine patrols while stationed at Guantanamo Bay, Cuba, and currently has PTSD. None of the Veteran's alleged in-service stressors had been verified. Regarding the instant claim to reopen, since the January 2001 Board decision, the evidentiary standard outlined in 38 C.F.R. § 3.304(f)(3) for establishing in-service stressors in claims for PTSD was relaxed, adding to the types of claims VA will accept through credible lay testimony alone. Evidence received subsequent to the January 2001 Board decision includes the Veteran's September 2011 and 2012 hearing testimony in which he claimed that while stationed in Cuba, base alarms often sounded unannounced. He was never told if these alarms were drills, and so each time he had to assume a defensive position in support of the Marines stationed in the area. The statements from the Veteran are new in that they were not previously of record. They are also material, as they arguably suggest that the Veteran was in fear of hostile military activity while serving in Cuba, which relates to the July 2010 PTSD regulation change that relaxed the adjudicative evidentiary requirements for determining what happened in service where the Veteran's claimed stressor is related to "a fear of hostile military or terrorist activity during service." Therefore, the evidence submitted since the final January 2001 Board decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that the claim of service connection for PTSD is reopened. IV. Analysis - Service Connection for PTSD In this case, the Veteran's personnel records show Guantanamo Bay, Cuba, from November 1964 to November 1965, with an assignment to the Naval Emergency Ground Defense Force (EMF). His DD-214 shows that that his military occupational specialty was gunner's mate. The U.S. Armed Services Center for Research of Unit Records (USASCRUR) has verified that member of EMF patrolled areas along the fence lines separating Cuban and U.S. territory, and manned field stations in defense of U.S. property. Additionally, the Veteran has claimed on numerous occasions (including on VA examination in March 1987 and August 1999) that he feared for his life while in Cuba, as he was stationed there shortly after the Cuban missile crisis. While there, he was assigned to guard duty and experienced several base alarms (drills), which required him to assume a defensive position. (The Board notes here that the Cuban Missile Crisis was a two week military confrontation in October 1962 between the United States and the Soviet Union. The confrontation included the threat of nuclear attack by the Soviet Union with missiles placed in Cuba.) In light of his service records, the Board finds that the Veteran's claimed stressors are consistent with his service. Moreover, the Veteran has been diagnosed with PTSD by both VA and private psychiatrists based on his reports of fear of hostile military action during his service in Cuba, as required by 38 C.F.R. § 3.304(f). See July 1990 and August 1999 VA examination report. Therefore, under the new regulation, 38 C.F.R. § 3.304(f)(3) (2013) and affording the Veteran the full benefit of the doubt, the Board finds the medical evidence showing a fear of hostile military action related to a current diagnosis of PTSD are sufficient to grant service connection for PTSD. In sum, the Board finds that the evidence of record places the evidence, at minimum, in equipoise regarding the question of whether the Veteran has PTSD which is related to his military service under the recently revised PTSD regulation. As such, the benefit-of-the-doubt will be conferred in the Veteran's favor and his claim for service connection for PTSD is granted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304(f)(3); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER New and material evidence having been received, the appeal to reopen service connection for PTSD is granted and the claim is reopened. Service connection for PTSD is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs