Citation Nr: 1717841 Decision Date: 05/23/17 Archive Date: 06/05/17 DOCKET NO. 15-41 007A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for post traumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. REPRESENTATION Veteran represented by: Sean Kendall, attorney WITNESSES AT HEARING ON APPEAL The Veteran and C.H. ATTORNEY FOR THE BOARD S. Reed, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from July 1962 to August 1966, April 1968 to January 1970, and from August 1975 to July 1976. This case comes before the Board of Veterans' Appeals (the Board) from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran's claim for PTSD was inferred from a January 2013 statement in support of claim. In February 2013, the Veteran indicated that he wished to withdraw the claim, along with other claims for service connection. A rating decision that same month accepted the Veteran's withdraw of the claim, but noted that if the Veteran indicated within one year that he wished to continue the claim he would receive his original effective date. In March 2013, the Veteran submitted a VA Form 21-526b stating he wished to continue the claim for PTSD. The Veterans claim, along with claims for service connection for acne scars, lacerations of the head, and lacerations of the arm were denied in the March 2014 rating decision. However, an October 2015 rating decision granted the service connection claims. A statement of the case (SOC) in October 2015 continued the denial of service connection for PTSD, and the Veteran perfected his appeal to the Board in November 2015. The Veteran appeared at a videoconference hearing at the RO in November 2016 before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. In July 1993, the RO issued a rating decision denying entitlement to service connection for PTSD. The rating decision was not appealed and new and material evidence was not received during the one-year appeal-period following that decision. 2. The evidence received since July 2005 rating decision regarding the Veteran's PTSD is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD. 3. The Veteran has a current diagnosis of PTSD. 4. The Veteran's PTSD is related to his military service. CONCLUSION OF LAW 1. The July 1993 rating decision to deny service connection for PTSD is final. 38 U.S.C.A. § 7105) (West 1991); 38 C.F.R. § 20.1100 (1993). 2. New and material evidence has been received, thus, the claim of entitlement to service connection for PTSD is reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2014); 38 C.F.R. § 3.156 (2016). 3. Resolving reasonable doubt in the Veteran's favor, the Veteran's PTSD was incurred in or is otherwise related to his active service. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.304 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). As discussed in more detail below, sufficient evidence is of record to grant the application to reopen the Veteran's claim of entitlement to service connection for PTSD and the claim of entitlement to service connection for PTSD. Thus, any errors in complying with the notice or assistance requirements with respect to those matters are moot. Petition to Reopen In July 1993, the RO denied the Veteran's original claim for entitlement for service connection for PTSD because the Veteran did not have a diagnosis of PTSD. The RO reviewed the Veteran's service treatment records (STRs), VA treatment records, and VA psychological examination. The Veteran did not file a notice of disagreement (NOD) or submit new and material evidence within the one-year appeal period following that decision. He also did not assert there was clear and unmistakable error in the rating decision. Therefore, the decision became final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1993). In January 2013, the Veteran's correspondence impliedly filed a petition to reopen his claim for service connection for PTSD, and a March 2013 correspondence confirmed the Veteran's intent to file a petition to reopen. A March 2014 rating decision implicitly reopened the Veteran's PTSD claim by denying the claim on the merits. The Veteran filed a notice of disagreement (NOD) in April 2014. VA issued a Statement of the Case (SOC) in October 2015. The Veteran perfected an appeal to the Board in November 2015. The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will adjudicate this new and material issue in the first instance. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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) (2016). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last, final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). Since the July 1993 rating decision, the Veteran provided treatment records that include diagnoses of PTSD, a new VA examination was conducted in November 2013, which diagnosed the Veteran with PTSD, and the Veteran presented lay testimony about his treatment for PTSD at his November 2016 hearing. This evidence is new because it was not received before nor considered in the July 1993 rating decision. Additionally, it is material because it contributes to a more complete picture of the existence of the condition for which the Veteran is seeking service connection. As new and material evidence has been received, reopening of the previously denied claim of entitlement to service connection for PTSD is warranted. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016). The merits of the claim for service connection for PTSD are addressed below. Service Connection for PTSD Legal Criteria Generally, service connection may be granted for disability or injury incurred in, or aggravated by, active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). In order to establish service connection for a claimed disorder, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Under 38 C.F.R. § 4.125 (2016), if the diagnosis of a mental disorder does not conform to the AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (5th ed. 1994) (hereinafter DSM) or is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis. Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2016). 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. See 38 C.F.R. § 3.304(f)(1) (2016); see also, 38 U.S.C.A. § 1154(b) (West 2014). Similarly, 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 posttraumatic stress disorder 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. See 38 C.F.R. § 3.304(f)(3) (2016). Otherwise, the law requires verification of a claimed stressor. Where a determination is made that the Veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the Veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet. App. 128, 42 (1997). The Board is required to assess the credibility and probative weight of all relevant evidence, and may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that the Veteran was competent to report hip disorder, pain, rotated foot; limited duty, physical therapy, and treatment in service). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372 (holding that a layperson is competent to identify a simple condition such as a broken leg). Competency of evidence, however, differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (noting that "although interest may affect the credibility of testimony, it does not affect competency to testify"). In evaluating the probative value of competent medical evidence, the Court has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Court has also held that contemporaneous records are more probative than history as reported by a Veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). Analysis Here the Veteran has claimed entitlement to service connection for PTSD based on events that occurred when he was a member of the Fleet Tactical Support Transportation Squadron 21, later redesignated as VR-21. Specifically, the Veteran alleges that he had stressor of a lightning hitting the plane during a flight to Vietnam and being under enemy fire while transporting supplies to troops in Vietnam on multiple occasions. With respect to the first Hickson element, the Veteran has established that he has a current diagnosis of PTSD. The Veteran's VA treating physician wrote a letter to the RO in September 2012 indicating the Veteran received treatment for PTSD. Additionally, a November 2013 VA examination diagnosed the Veteran with PTSD and indicated the Veteran's diagnosis met all the applicable criteria for such a diagnosis under the DSM. Therefore, the first Hickson element has been established. With respect to the second Hickson element. The Veteran has indicated there were events, as noted above, that took place in military service that have resulted in his current PTSD diagnosis. Development by the RO has included contacting JSSRC to obtain records regarding the missions of VR-21. While the records found by JSSRC did not establish that any of the specific events the Veteran reported actually occurred, they did establish that VR-21 flew numerous missions into Vietnam. The records did not establish the events did not occur. Further, the November 2013 VA examiner noted that the Veteran's reported stressors of being under enemy fire constituted fear of hostile military and terrorist activity. The Veteran's testimony in November 2016 also related these events to fear for his safety. Finally, the Veteran submitted a polygraph indicating his statements regarding the events did not contain a deceptive characteristics. The Board finds that the Veteran is credible with regard to his statements about fear of hotel military and terrorist activities. His fear is consistent with the nature of his service, which included flights into Vietnam during the war period. There is not clear and convincing evidence that the Veteran's fears were not consistent with his service. There is no evidence that the events did not occur. The JSSRC reports confirm the nature of the Veteran's service is consistent with his stressors because his unit had a multitude of flights into Vietnam. Further, the Veteran's statements about his fear of hostile military and terrorist activity have been consistent in his PTSD stressor statements, his VA examination, and his hearing testimony. Therefore, the Board assigns substantial weight to Veteran's statements, and finds the second Hickson element has been established. With regard the third Hickson element, the November 2013 VA examiner noted the Veteran's stressors, including those which constituted fear of hostile military and terrorist active contributed to his PTSD diagnosis and commented that the Veteran's PSTD was at least as likely as not caused by or a result of his military experience. The examiner is competent to draw this conclusion as she is a license psychologist with training and experience in the mental health field. The examiner's report also indicates a thorough review of the record and consideration of the Veteran's lay statements. Further, the opinion is not contradicted by any evidence of record. Therefore the Board affords this opinion great weight, and the third Hickson element has been established. As the evidence of record is sufficient to establish all three Hickson elements, that the Veteran has diagnosis of PTSD consistent with the DSM, that diagnosis was caused by the Veteran's fear of hostile military and terrorist activity, and that there is Veteran's fear of hostile military and terrorist activity is consistent with his service, entitlement to service connection for PTSD is warranted. ORDER New and material evidence having been received, reopening of the previously denied claim of entitlement to service connection for PTSD is warranted. Entitlement to service connection for PTSD is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs