Citation Nr: 1753365	
Decision Date: 11/21/17    Archive Date: 12/01/17

DOCKET NO.  14-08 905	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD).

2. Entitlement to service connection for PTSD.


REPRESENTATION

Veteran represented by:	National Association for Black Veterans, Inc.


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

Amanda Baker, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1965 to November 1968.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied the request to reopen the claim for service connection for PTSD.

As background, in October 2007 the Veteran filed a claim for service connection for PTSD.  In a May 2008 rating decision, the RO denied the claim.  The Veteran did not appeal the rating decision.  In January 2009, the Veteran requested to reopen the previously denied claim.  In March 2009 and September 2009 rating decisions, the RO continued the denial of the claim.  The Veteran did not appeal the rating decisions.  Then, in December 2010, the Veteran submitted an application to reopen the previously denied claim.  In the August 2013 rating decision on appeal, the RO denied the application to reopen because the evidence submitted was not new and material.  The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen.  See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).

In October 2016, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of that proceeding is of record in the Board's Veterans Appeals Control and Locator System (VACOLS), which is the Board's computerized tracking system.




FINDINGS OF FACT

1. In a September 2009 rating decision the RO denied entitlement to service connection for PTSD.  The Veteran neither appealed this decision nor submitted new and material evidence within the one year appeal period, and the decision thus became final.

2. The additional evidence received since the September 2009 rating decision denying the claim for service connection for PTSD relates to unestablished facts necessary to substantiate the claim and raised a reasonable possibility of substantiating the claim.

3. The evidence is at least evenly balanced as to whether the Veteran's PTSD is related to an in-service stressor.


CONCLUSIONS OF LAW

1. The September 2009 rating decision denying service connection for PTSD is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2017).

2. Additional evidence received since the September 2009 rating decision is new and material and the criteria for reopening the claim for entitlement to service connection for PTSD have therefore been met.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

3. With reasonable doubt resolved in favor of the Veteran, the criteria for establishing service connection for PTSD are met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

To the extent the actions taken herein below are favorable to the Veteran and considered a full grant of benefits requested with respect to the only issue on appeal, further discussion of the VCAA is not necessary at this time.

I. Reopening

Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed.  38 U.S.C. § 7105(c) (2012).  The exception to this rule is 38 U.S.C. § 5108 (2012), which provides that if new and material evidence is presented or secured with respect to a claim that 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 decisionmakers.  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) (2017). 

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).

In a September 2009 rating decision, the RO denied the Veteran's claim for entitlement to service connection for PTSD.  Although notified of this denial, the Veteran did not appeal, and did not submit new and material evidence within the one year appeal period.  Therefore, this denial became final.  See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103.

The Veteran's claim for service connection for PTSD was denied because there was no evidence of a PTSD diagnosis or verified in-service stressor.  See September 2009 Rating Decision.  During the October 2016 Board videoconference hearing, the Veteran elaborated on details of his claimed in-service stressors.  He reported serving in the Republic of Vietnam and attributed PTSD to artillery fire as well as witnessing a servicemember's death.  Since the September 2009 rating decision, updated VA treatment records have been associated with the claims file.  VA treatment records list PTSD as a problem as well as participation in clinical programs for PTSD symptoms, since 2005.  The Board notes that service connection for PTSD has specific requirements of medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); 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.  38 C.F.R. § 3.304(f).  This evidence relates to the basis of the prior denial and raises a reasonable possibility of substantiating the claim.  The evidence is thus new and material and the criteria for reopening of the claim for entitlement to service connection for PTSD have therefore been met.

I. Service Connection

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred coincident with active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.  Service connection for PTSD requires (1) medical evidence diagnosing PTSD; (2) a link, established by medical evidence, between a Veteran's present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred.  See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). 

If a veteran engaged in combat and the claimed stressor is related to combat, the veteran's lay testimony alone generally is sufficient to establish the occurrence of the claimed in-service stressor, absent clear and convincing evidence to the contrary and provided that the claimed stressor is consistent with the circumstances of the Veteran's service.  38 C.F.R. § 3.304(f)(2).

The Veteran attributes his PTSD to his military service in the Republic of Vietnam.  At the October 2016 Board hearing, he claimed to have PTSD symptoms from artillery fire during service.  In the alternative, he attributes PTSD symptoms to witnessing a servicemember's death.

As an initial matter, the Veteran's DD-214 indicates that his military occupational specialty was a communication specialist and he is a recipient of the National Defense Service Medal, Vietnam Campaign Medal, and Vietnam Service Medal.  These medals do not by themselves indicate that the Veteran engaged in combat with the enemy.  VA Adjudication Procedures Manual, IV.ii.1.D.1.e (updated September 11, 2015).  However, at the October 2016 hearing, he testified that he participated in events constituting an actual encounter with a military foe.  Given the places, types, and circumstances of the Veteran's service, including his military occupation specialty of communication specialist (described as a radioman) and service in Vietnam, the Board finds the Veteran's testimony competent and credible, establishing that he engaged in combat with the enemy.  See VAOPGCPREC 12-99 (October 18, 1999) (combat determination should be made on a case by case basis where there is no medal specifically indicating combat service).

Given that the claimed artillery fire stressor is consistent with the circumstances of the Veteran's service and the absence of clear and convincing evidence to the contrary, the Veteran's lay testimony alone establishes the occurrence of the claimed in-service stressor.  See 38 C.F.R. § 3.304(f)(2) (lay testimony alone can establish the occurrence of the claimed in-service stressor, if consistent with the circumstances of service and there's no clear and convincing evidence to the contrary).  Thus, the remaining issue is whether the Veteran has PTSD that is causally related to this conceded military combat stressor.  

A provisional diagnosis of PTSD was provided by a March 2013 VA provider.  The VA provider stated that the Veteran had a provisional diagnoses of PTSD and depressive disorder not otherwise specified (NOS).  These diagnoses are consistent with VA treatment records listing PTSD and depression as an active problem, as well as the Veteran's participation in clinical programs for PTSD symptoms attributed to service, since 2005.  The Board finds that the diagnosis of PTSD provided by the VA provider is entitlement to significant probative weight.  See Cohen v. Brown, 10 Vet. App. 128, 139, 140 (1997) (holding that mental health professionals "are presumed to know the DSM-IV requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis").  The Board notes that the Veteran was afforded a VA examination in July 2013.  The examiner indicated that the Veteran had a current PTSD diagnosis, but later provided conflicting remarks and opinions stating that he did not have a PTSD diagnosis.  Generally, the examiner attributed the Veteran's reported symptoms to his depression disability, not PTSD.

The evidence is thus at least evenly balanced as to whether the Veteran's has PTSD that is related to his conceded in-service stressor.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for PTSD is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 


ORDER

The application to reopen the claim for service connection for PTSD is granted.

Entitlement to service connection for PTSD is granted.



____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs