Citation Nr: 1754789 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 13-32 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to 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 J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to October 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The issues of entitlement to service connection for a heart disability, bilateral hearing loss, soft tissue sarcoma, prostate disorder, toenail disorder and teeth disorder were also on appeal and addressed in a September 2013 statement of the case. However, in his substantive appeal, the Veteran indicated that he no longer wished to appeal these issues. As such, these matters are not currently before the Board. The Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge in October 2016. A transcript of the hearing is of record. Additional evidence has been associated with the record that has not been considered by the Agency of Original Jurisdiction (AOJ). The Board observes that section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, which amends 38 U.S.C. § 7105 by adding new paragraph (e), provides that if new evidence is submitted with or after a Substantive Appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. In the instant case, the Veteran's substantive appeal was received in December 2013. In turn, waiver of this additional evidence was not necessary and the Board may properly consider such evidence. FINDINGS OF FACT 1. In a final decision issued in September 2009, the Board denied service connection for PTSD. 2. Additional evidence received since the Board's September 2009 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for PTSD and raises a reasonable possibility of substantiating the claim. 3. The Veteran has PTSD. 4. The Veteran's claimed stressor relates to fear of hostile military activity of being shot down while participating in air support missions over Vietnam during a temporary duty assignment; the Veteran's claimed stressor is consistent with the places, types, and circumstances of his service. 5. The Veteran's PTSD is related to the claimed in-service stressor. CONCLUSIONS OF LAW 1. The September 2009 Board decision that denied service connection for PTSD is final. 38 U.S.C. § 7104 (2014); 38 C.F.R. § 20.110 (2017). 2. The additional evidence received since the September 2009 Board decision is new and material, and the claim for service connection for PTSD is reopened. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for PTSD, depression with history of psychosis and alcohol abuse have been met. 38 U.S.C. § 1110 (2014); 38 C.F.R. § 3.304(f) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board's decision to grant service connection for PTSD as well as his other diagnosed psychiatric disorders is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110 (2014); 38 C.F.R. § 3.303(a) (2017). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., in accordance with DSM-5 as the Veteran's claim was certified after August 4, 2014); 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). The Board previously denied service connection for PTSD in a September 2009 decision. As the Chairman did not order reconsideration of the Board's decision, and no other exception to finality is applicable, the Board's September 2009 decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156(a) (2017); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). For claims to reopen filed on or after August 29, 2001-such as the Veteran's-evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is 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) (2013). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeal for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a "reasonable possibility of substantiating the claim" should be considered a component of what constitutes new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. The Board previously denied the claim finding that the Veteran did not engage in combat with the enemy and his in-service stressors were not verified. However, subsequently, VA has amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing a required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010) and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010, to July 13, 2010). The provisions of this amendment apply to applications for service connection for PTSD that: are received by VA on or after July 13, 2010; were received by VA before July 13, 2010, but have not been decided by a VA regional office as of July 13, 2010; are appealed to the Board on or after July 13, 2010; were appealed to the Board before July 13, 2010, but have not been decided by the Board as of July 13, 2010; or, are pending before VA on or after July 13, 2010, because the United States Court of Appeals for Veterans Claims vacated a Board decision on an application and remanded it for readjudication. Id. Under the amendments, 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. Id. For these purposes, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. Here, the evidence received since the time of the Board's September 2009 decision includes additional statements and hearing testimony from the Veteran outlining his in-service stressors, a September 2011 response from the United States Army Joint Service Records Research Center (JSRRC), a September 2012 private psychological evaluation and April 2014 opinion from a VA psychiatrist. The Veteran has consistently asserted that one of his in-service stressors was being scared of being shot down while participating in air support missions over Vietnam while on temporary duty assignment (TDY). Importantly, although the Veteran's DD 214 showed that the Veteran did not have service in Vietnam, his service personnel records do document that he was stationed overseas in Okinawa from February 1969 to August 1970 with the 374th Field Maintenance Squadron. In September 2011, JSRRC noted that the histories documented for the 374th Tactical Airlift Wing (TAW), which was the higher headquarters of the 374th Field Maintenance Squadron, showed that the wing provided airlift resources to Detachment 1, 834th Air Division at Tan Son Nhut, Vietnam, which included commitments of aircraft, aircrews and maintenance and operations support personnel. The histories also confirm that personnel from the wing participated in Blind Bat. The report stated that an attack against the airfield by an enemy insurgent force was repulsed. Five insurgents carrying satchel charges were killed within a few feet of the wing's Blind Bat Aircraft located at Ubon RTAFB, Thailand. Importantly, both the September 2012 and April 2014 psychological evaluations attribute the Veteran's PTSD to his in-service stressors, including participating in flying missions over Vietnam. This evidence was not before adjudicators when the Veteran's claim was last denied in September 2009, and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claim for service connection for PTSD, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. Turning to the merits of the Veteran's claim, in the present case, the Board finds that the Veteran has PTSD. In this regard, the April 2014 VA psychiatrist has diagnosed the Veteran with PTSD, depression and a history of psychosis and alcohol abuse. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997). The Board also finds that the Veteran's claimed stressor is related to his fear of hostile military or terrorist activity. As noted above, the Veteran has described feeling scared of being shot down while flying support missions over Vietnam. The Board finds, further, that the Veteran's claimed stressor is consistent with the places, types, and circumstances of his service. In this regard, the JSSRRC confirmed that personnel from the Veteran's division provided airlift resources to another division in Vietnam. There is no clear and convincing evidence that the Veteran was not one of the personnel to participate in these missions. Likewise, the Veteran has been consistent in his description of this stressor for many years. Accordingly, and as there is no clear and convincing evidence to the contrary, the Board accepts the Veteran's lay testimony as sufficient to establish the occurrence of the claimed in-service stressor. Finally, the evidence establishes a link between current symptoms and the claimed in-service stressor. Specifically, again, in April 2015, a VA psychiatrist confirmed that the Veteran's claimed stressor was adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor of flying missions in Vietnam. Because the requirements of 38 C.F.R. § 3.304(f) have been met, service connection for PTSD is warranted. Likewise, as the VA examiner also attributed the Veteran's depression with history of psychosis and alcohol abuse to the Veteran's in-service stressors, service connection also warranted for these disorders. ORDER As new and material evidence has been received, the previously denied claim of entitlement to service connection for PTSD is reopened. Service connection for PTSD, depression with history of psychosis and alcohol abuse is granted. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs