Citation Nr: 1607314 Decision Date: 02/25/16 Archive Date: 03/04/16 DOCKET NO. 14-11 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim for service connection for posttraumatic stress disorder (PTSD), and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service from January 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which reopened a previously denied claim for service connection for PTSD, but declined the claim on the merits. The matter has since been transferred to the RO in Togus, Maine. The Veteran testified at a Decision Review Officer (DRO) hearing at the RO in February 2015, and before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in September 2015. Copies of both transcripts have been associated with the claims file. FINDINGS OF FACT 1. Service connection for PTSD was denied by the Board in an April 2008 decision, but evidence received since that decision relates to a previously unestablished element of the claim and raises a reasonable possibility of substantiating the claim. 2. The Veteran has been diagnosed with PTSD by two VA psychiatrists, who attribute the condition to the Veteran's combat exposure and fear of hostile military or terrorist activity. CONCLUSIONS OF LAW 1. The April 2008 Board decision denying service connection for PTSD is final, but new and material evidence has been received to reopen the claim. 38 U.S.C.A. §§ 5108, 7104(b) (West 2014); 38 C.F.R. §§ 3.156, 3.160(d), 20.1104 (2015). 2. The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) outlines procedural assistance VA must provide claimants in certain cases. If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. In this case, however, the Board is granting in full the benefit sought on appeal. Therefore, the Board need not discuss whether there has been compliance with the VCAA because any noncompliance ultimately amounted to no more than harmless error. 38 C.F.R. § 20.1102 (2015). See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009). II. New and Material Evidence In this case, the Veteran's appeal comes to the Board after the RO reopened his previously denied, and unappealed, claim. See December 2011 Rating Decision. Although the RO reopened the claim, the Board must still consider whether new and material evidence was received sufficient to reopen the claims in order to establish the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Generally, a claim that has been denied by an unappealed RO decision or an unappealed Board decision may not thereafter be reopened. 38 U.S.C.A. §§ 7104(b), 7105(c). An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108 . "New" evidence means evidence not previously submitted to agency decisionmakers, and "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 of record at the time of the last 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). This is a "low threshold" in which the phrase "raises a reasonable possibility" should be interpreted as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly-submitted evidence is presumed, although not blindly accepted as true if patently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). In this case, the Veteran's claim for service connection was denied in an April 2008 Board decision on the basis that the evidence did not demonstrate a current diagnosis of PTSD or a verified in-service stressor. Since that Board decision, additional evidence has been associated with the claims file. The Veteran has submitted letters from two VA psychiatrists, who diagnosed the Veteran with PTSD. See November 2012 Letter from E.W.; September 2014 Letter from Dr. L.W.B. This evidence is new, as it was not part of the record at the time of the prior denial of the claim. It is also material, as it related to the previously unestablished element of whether the Veteran has a diagnosis of PTSD. When viewed with the previous evidence of record, these new medical diagnoses are neither cumulative nor redundant, and raise a reasonable possibility of substantiating the Veteran's claim. As such, new and material evidence has been received, and reopening the claim is warranted. III. Service Connection There are particular requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304(f) that are similar, but nonetheless separate, from those for establishing entitlement to service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Entitlement to service connection for PTSD, in particular, requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that a claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptoms and the in-service stressor. 38 C.F.R. §§ 3.304(f) and 4.125. The regulations governing claims for PTSD were amended effective July 13, 2010, subsequent to the most recent denial of the Veteran's claim. 75 Fed. Reg. 39843 -52 (July 13, 2010). Specifically, this amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred if a claimed stressor is related to a 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, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, and absent clear and convincing evidence to the contrary. 38 C.F.R. §§ 3.304(f)(3). Here, as noted above, the Veteran has been diagnosed with PTSD by two VA psychiatrists. See November 2012 Letter from E.W.; September 2014 Letter from Dr. L.W.B. Both physicians related the Veteran's PTSD to combat exposure during his Vietnam service. The Veteran has submitted numerous statements regarding the nature and extent of his combat exposure in service. In sum, the Veteran, who served in the U.S. Air Force, reported involvement in illegal combat operations in Cambodia in support of U.S. Army Ranger units surveying and mining the Ho Chi Minh Trail. During these operations, he encountered suicide attacks from Vietcong and engaged in firefights and hand-to-hand combat. He also reported an incident in which he traveled with other service personnel to a "dumping ground," where he was attacked by Vietnamese people who were scavenging at the site. He also described an "over-the-wire" attack at his base, and exposure to rocket attacks. The April 2008 Board decision contains a thorough explanation for why the Veteran's reported stressors were not corroborated as of the date of that decision. However, in the context of this current appeal, the Board now finds otherwise. First, as noted above, under the liberalized regulations governing service connection for PTSD effective from July 2010, when a VA psychiatrist diagnoses PTSD and attributes that diagnosis to the Veteran's fear of hostile military or terrorist activity, then the Veteran's lay testimony regarding such activity is sufficient to establish the occurrence of such a stressor, provided that the testimony is consistent with the circumstances of the Veteran's service, and absent any clear and convincing evidence to the contrary. Second, while the Board notes that the Veteran was not personally in receipt of any awards indicative of combat, his unit, the 377th Civil Engineering Squadron, was awarded the Air Force Outstanding Unit Award with Combat "V" device for the period from April 1, 1969, through March 31, 1971. This includes the Veteran's period of service in Vietnam, which was October 1970 until shortly before his discharge in February 1971. This unit award generally supports at least some of the Veteran's contentions regarding exposure to combat or hostile activity. Notably, the Veteran has diagnoses of additional psychiatric conditions other than PTSD. However, these diagnoses were rendered based on a lack of documented stressors at the time of the examination. See October 2011 VA Examination (diagnosing a personality disorder and noting that the Veteran has no credible stressors per VA development); November 2013 VA Examination (diagnosing adjustment disorder and noting that, without verification of any reported stressors, the condition is less likely than not related to service). However, these diagnoses and conclusions are not afforded significant probative value, as the Board as concluded that in-service stressors have been verified under the liberalized PTSD regulation. For these reasons, service connection for PTSD is warranted. ORDER The previously denied claim for service connection for PTSD is reopened, and service connection for PTSD is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs