Citation Nr: 1751407 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 15-31 147A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), and if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T.L. Bernal, Associate Counsel INTRODUCTION The Veteran had active air service from July 1977 to January 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2017). FINDINGS OF FACT 1. An August 2012 rating decision denied entitlement to service connection for PTSD. 2. The evidence associated with the claims file subsequent to the August 2012 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD. 3. A psychological disability is at least as likely as not related to active service, to include an in-service traumatic brain injury (TBI). CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen a claim for service connection for an acquired psychiatric disability, to include PTSD. 38 U.S.C. §§ 5108, 7104, 7105 (2017); 38 C.F.R. § 3.156 (2017). 2. An acquired psychiatric disability was incurred in active service. 38 U.S.C.A. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen A review of the record shows that the Veteran was afforded a VA examination in March 2017 to determine whether he had a TBI that was related to his active service. At that time, the examiner found that the Veteran at least as likely as not incurred a TBI during active service. The VA examiner noted that the Veteran had psychological impairment resulting from his in-service TBI. The Board finds the March 2017 VA examination report to be new and material in that it was not previously considered by VA and it raises a reasonably possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disability. Accordingly, reopening of the claim of entitlement to service connection for an acquired psychiatric disability is warranted. Entitlement to Service Connection At the March 2017 VA TBI examination, the examiner noted that the Veteran had multiple psychological and neurobehavioral symptoms of his TBI including insomnia, irritability, verbal aggression, moodiness, and difficulty maintaining relationships. The examiner noted that those symptoms of TBI and an acquired psychiatric disability could not be differentiated with any certainty as they overlapped so significantly. The Board notes that, if it is medically determined that the impairment attributable to nonservice-connected and service-connected conditions cannot be distinguished, the benefit-of-the-doubt doctrine requires that all such impairment be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181 (1998). The Board also notes that, where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). In this case, the Veteran has psychological impairment resulting from his in-service TBI. Further, the March 2017 examiner could not distinguish between the symptoms related to his TBI and what is related to a nonservice-connected psychiatric disability. Additionally, there is the open question as to whether the Veteran has a separate psychiatric disability that was caused or chronically worsened by his in-service TBI. Therefore, the Board finds that the evidence for and against the claim is at least in equipoise and the benefit of the doubt must be resolved in the Veteran's favor. Therefore, entitlement to service connection for a psychiatric disability is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence has been received and reopening of the claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD, is granted. Entitlement to service connection for an acquired psychiatric disability is granted. _________________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs