Citation Nr: 1500729	
Decision Date: 01/08/15    Archive Date: 01/13/15

DOCKET NO.  09-11 420	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

1.  Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for an acquired psychiatric disability.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Veteran and A.C.



ATTORNEY FOR THE BOARD

Megan Marzec, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1966 to August 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Houston, Texas.

In December 2014 the Veteran testified before the undersigned Veterans Law Judge at a travel board hearing.  A copy of the transcript is of record.

This appeal was processed using the Veterans Benefit Management System (VBMS) and Virtual VA (VVA) electronic claims processing systems.

The Board notes that a June 2014 rating decision granted a total disability rating based on individual unemployability (TDIU).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  A January 2004 rating decision last denied service connection for PTSD and an August 2002 rating decision last denied service connection for depression/anxiety.

2.  The evidence pertaining to the Veteran's acquired psychiatric disability since the last final rating decision was not previously submitted, relates to an unestablished fact that is necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim.

3.  The Veteran's acquired psychiatric disability is etiologically related to his active duty service.


CONCLUSIONS OF LAW

1.  The January 2004 and August 2002 rating decisions that denied service connection for an acquired psychiatric disability, to include PTSD and depression/anxiety, are final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2014).

2.  The evidence received since the last final rating decision is new and material and the claim for service connection for an acquired psychiatric disability is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a) (2014).

3.  The criteria for service connection for an acquired psychiatric disability are met.  38 U.S.C.A. §§ 1110, 1507 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran filed a request to reopen the claim of entitlement to service connection for an acquired psychiatric disability in March 2006.

At the time of the last final January 2004 denial, evidence of record included medical treatment records and a VA examination.

Since the January 2004 denial evidence added includes the Veteran's statements, additional medical treatment records, an additional VA examination and the Veteran's testimony.

Based on a review of this new evidence, the Board finds that the new and material criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claim for service connection for an acquired psychiatric disability is reopened.

Service Connection

Service connection may be 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 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  

Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2014); 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.  Alternatively, 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.  38 C.F.R. § 3.304(f)(3) (2014).  

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A.  § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

The Veteran asserts that he has PTSD as a result of his service in Vietnam.  He has provided statements detailing his stressors including constant exposure to death and near death experiences.

A review of the Veteran's service records shows that the Veteran served in Vietnam for 11 months and 25 days as a combat engineer.  The Veteran testified that he built bridges and other things necessary for security in combat situations.

A review of post-service VA treatment records shows treatment for acquired psychiatric disabilities including PTSD.

A March 2013 VA examination noted that the Veteran has a DSM-IV diagnosis of PTSD that was in remission.  Later, the examiner noted that the Veteran's PTSD symptoms "do NOT cause clinically significant distress or impairment in social, occupational, or other important areas of functioning" and that the "Veteran does not meet full criteria for PTSD."

The examiner noted that the Veteran "was given a diagnosis of PTSD due to historical symptoms of PTSD that have resolved and no longer cause problems in social, occupational, or other areas of life functioning.  The diagnosis is maintained as the Veteran continues to use medication to manage his symptoms and he continue[s] to experience non-dysfunctional symptoms of nightmares and avoidance of trauma reminders."  The examiner opined that the "Veteran's history of PTSD is due to (100%) his military service" since his symptoms "have been present since his military service."

Considering the Veteran's diagnosis of PTSD, his reported stressor and his military occupation specialty, and the March 2013 VA examiner's opinion providing a link between a diagnosed acquired psychiatric disability and active duty service, the Board finds that service connection for an acquired psychiatric disability is warranted.  The nature and extent of the disability is not before the Board at this time.

ORDER

Service connection for an acquired psychiatric disability is granted.


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs