Citation Nr: 1601853 Decision Date: 01/15/16 Archive Date: 01/21/16 DOCKET NO. 13-19 210 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Whether new and material evidence has been presented to reopen a claim for service connection for posttraumatic stress disorder (PTSD), and if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD A. Odya-Weis, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to December 1969, with confirmed service in the Republic of Vietnam. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction over the case was subsequently transferred to the RO in Providence, Rhode Island. In July 2015, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The record before the Board consists solely of electronic records within Virtual VA and the Veterans Benefits Management System. FINDINGS OF FACT 1. An August 2006 Board decision denied service connection for posttraumatic stress disorder (PTSD). 2. Evidence received after the August 2006 Board decision includes evidence that is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for PTSD. 3. PTSD is etiologically related to the Veteran's active service. 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 (West 2014); 38 C.F.R. § 3.156 (2015). 2. The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice, including notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the evidence currently of record is sufficient to establish the Veteran's entitlement to service connection for posttraumatic stress disorder (PTSD). Therefore, no further development is required before the Board decides the appeal. Legal Criteria 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) (West 2014). 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 existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (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); see also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection for PTSD generally requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If the evidence establishes that a 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)(2). 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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). Factual Background and Analysis The Veteran's claim of entitlement to service connection for PTSD was denied in an August 2006 Board decision based on the determination that the evidence failed to show the presence of the claimed disability or that the disability was incurred in service. The evidence of record at the time of the August 2006 Board decision included the Veteran's service treatment records, a March 2002 VA examination report, VA treatment records dated from June 2001 to January 2004, treatise information on the 630th Engineer Company, and the Veteran's statements. In September 2011, the Veteran filed a request to reopen the claim for entitlement to service connection for PTSD. The Veteran's DD Form 214 indicates he was a quarry machine operator in active service. His service treatment records (STRs) are negative for evidence of PTSD. The Veteran's service in the Republic of Vietnam from October 1968 to December 1969 has been verified. A May 2001 VA treatment record notes diagnoses of PTSD and alcohol dependence. The Veteran reported that during his active service in Vietnam he saw dead bodies and was ambushed, that he began drinking alcohol in Vietnam, and that his mental health symptoms caused difficulty with his marriage and maintaining employment. In a January 2002 VA treatment note, it was noted that the Veteran reported that he was a combat engineer in Vietnam and was diagnosed with PTSD. In a March 2002 VA examination, the Veteran reported combat exposure as an engineer in Vietnam, where he built roads in the jungle, saw dead bodies along the road, experienced mortar attacks at night, and was ambushed while riding in a convoy. The examiner found the Veteran's symptoms of anxiety, sleep difficulty, and alcohol consumption were related to clinical syndromes, alcohol abuse, learning disorder not otherwise specified, and rule out anxiety disorder not otherwise specified. In a May 2012 VA examination report, the examiner concluded that the Veteran did not warrant a diagnosis of PTSD that conformed to the DSM-IV because his symptoms did not meet the diagnostic criteria and he had another diagnosis, namely alcohol dependence. The examiner explained that although stressful incidents in service more likely than not caused exaggerated startle response, occasional nightmares, and triggered memories, the frequency and severity of the symptoms did not meet the DSM-IV criteria for PTSD. The examiner opined that the quantity and frequency of the Veteran's alcohol consumption supported a diagnosis of alcohol dependence that was less likely than not related to his active service. A March 2013 letter from Dr. R.R. notes that the Veteran received private treatment for PTSD and that PTSD was, "at least as likely as not a result of, or caused by his fear of hostile military or terrorist activity while in service." Private treatment records dated from August 2013 to September 2014 document ongoing treatment for a mood disorder and PTSD. A March 2015 letter from Dr. J.R. indicates that the Veteran's PTSD diagnosis was established "in the usual manner," through a history given by the Veteran. At a July 2015 hearing, the Veteran testified that he worked security on the front line, buried bodies, placed deceased soldiers in body bags, and was fired upon while serving in Vietnam. In August 2015, Dr. J.R. reported that he was a private psychiatrist, that he had treated the Veteran since August 2013, and that he found the Veteran's reports of guard duty, receiving enemy fire, and burying bodies in Vietnam to be credible. He indicated that he diagnosed PTSD and depression due to the Veteran's symptoms of hypervigilance, social isolation, intrusive thoughts, nightmares, insomnia, difficulty concentrating, and restricted range of affect. Dr. J.R. opined that the Veteran's PTSD and depression were at least as likely related to his experiences in Vietnam. The Board finds the March 2013 letter from Dr. R.R. and March 2015 and August 2015 letters from Dr. J.R. to be new and material, as the letters are not cumulative or redundant of evidence previously of record and relate to a previously unestablished element of entitlement to service connection for PTSD. Specifically, the letters support the presence of the claimed disability and a relationship to active military service. Accordingly, reopening of the claim is in order. Additionally, the Board finds that service connection for PTSD is warranted. The Board concludes that the August 2015 letter from Dr. J.R. confirms a diagnosis of PTSD with a medical opinion linking the Veteran's PTSD to incidents that occurred while working as a combat engineer in Vietnam. Service personnel records indicate that the Veteran was a quarry machine operator and served in Vietnam from October 1968 to December 1969. The Board has found the Veteran's testimony concerning his combat stressors to be credible and consistent with his duties in Vietnam. In light of the foregoing and with resolution of the benefit of the doubt in the Veteran's favor, the Board finds that the criteria for service connection for PTSD are met. ORDER As new and material evidence has been received, reopening of the claim for service connection for PTSD is granted. Service connection for PTSD is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs