Citation Nr: 1757120 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 17-24 285 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Whether new and material evidence has been received to reopen the claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Sean Kendall, Attorney-at-Law WITNESSES AT HEARING ON APPEAL The Veteran and L.P. ATTORNEY FOR THE BOARD Brad Farrell, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran, who is the appellant, served in the U.S. Army from April 1955 to March 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated August 2006 and July 2007 of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, denying service connection for PTSD. The Veteran appealed and the RO certified the matter to the Board in October 2009. The Board denied service connection in a decision dated September 2010. In February 2013, the Board, in a decision concerning the Veteran's disabilities of the spine, which are not at issue here, construed the Veteran's June 2011 statement as an application to reopen the claim for service connection for PTSD, and referred the matter to the RO for appropriate action. In a June 2015 rating decision, the RO reopened the claim, but again denied service connection for PTSD. In a September 2015 rating decision the RO appears to conclude that the Veteran did not submit new and material evidence to reopen the claim and again denied service connection. The Veteran perfected a timely substantive appeal in April 2017 and the RO certified the matter to the Board in June 2017. A video-conference hearing was held in August 2017 before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is of record and has been reviewed. The Board recognizes that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, as reflected on the title page of this decision, the Board has amended the service connection claim to entitlement to service connection for an acquired psychiatric disorder, to include PTSD. FINDINGS OF FACT 1. The Veteran did not request reconsideration of the September 2010 Board decision, timely perfect an appeal, or submit new and material evidence within one year of the issuance of notice of that decision, rendering the decision final. 2. The Veteran has fulfilled the threshold burden of submitting new and material evidence to reopen the finally disallowed claim for service connection for PTSD. 3. Resolving any reasonable doubt in the Veteran's favor, the lay testimony of record supports a finding that the claimed in-service stressors occurred during his service in Korea. 4. Resolving any reasonable doubt in the Veteran's favor, the medical evidence of record establishes that the Veteran has a current PTSD diagnosis, and that his PTSD symptoms are related to one or more claimed in-service stressors. 5. The Veteran's current unspecified neurocognitive disorder is not shown to be related to any incident of active service. CONCLUSIONS OF LAW 1. The September 2010 Board decision that denied the original claim for service connection for PTSD is the final prior decision. 38 U.S.C. §§ 5108, 7104(b); 38 C.F.R. §§ 20.1104, 20.1105 (2017). 2. New and material evidence has been received to reopen the prior final claim for service connection for PTSD. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria to establish service connection for an acquired psychiatric disorder, to include PTSD, are met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125(a) (2017). 4. The criteria to establish service connection for an unspecified neurocognitive disorder are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a). Given the favorable outcome of this award of service connection for an acquired psychiatric disorder, to include PTSD, no prejudice to the Veteran could result from any deficiencies in notice or assistance in this case. Additionally, the VLJ, during the August 2017 Board hearing, was in compliance with her duties as a hearing officer as outlined in Bryant v. Shinseki, 23 Vet. App. 488 (2010). Further, the Veteran has not alleged that there were any deficiencies in the Board hearing under 38 C.F.R. § 3.102(c)(2). See Bernard v. Brown, 4 Vet. App. 384, 294 (1993). Under 38 U.S.C. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. Although VA was able to obtain the Veteran's branch of service and service dates from the National Personnel Records Center in St. Louis, Missouri (NPRC), the NPRC concluded that the Veteran's service and medical records were likely irretrievably lost in a 1973 fire at the NPRC and cannot be reconstructed, as noted in a VA formal finding dated August 2006. Where, as here, service records are unavailable through no fault of the veteran, there is a heightened duty to assist the veteran by obtaining other medical records which may be relevant to his claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Veteran informed the RO that his mental health care was obtained solely from the Denver, Colorado VA Medical Center (VAMC), and the RO obtained the Veteran's VAMC treatment records, which have been associated with the claim file. Additionally, under these circumstances, VA has a heightened duty to consider the applicability of the benefit of the doubt rule and to explain its findings and conclusions. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). II. New and Material Evidence Analysis Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104 (a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. §7105; 38 C.F.R. §§ 3.160, 20.201, 20.302, 20.1103. A decision issued by the Board is final, unless appealed to the Court or another exception to finality applies (e.g., the Chairman of the Board orders reconsideration of the decision). 38 U.S.C.A. §§ 7103, 7104(a); 38 C.F.R. §§ 20.1100, 20.1104. A final Board decision subsumes all prior rating actions which addressed the issue on the merits and the claim may not thereafter be reopened and allowed on the same factual basis; rather new and material evidence must be presented to reopen the claim. 38 U.S.C.A. §§ 5108, 7104(b); 38 C.F.R. §§ 20.1104, 20.1105. The record in this case does not reflect that the Veteran, after being notified of the adverse Board decision in September 2010 denying service connection for PTSD, filed a motion for reconsideration or timely perfected an appeal of that decision to the U.S. Court of Appeals for Veterans Claims within 120 days of the date of the Board decision. 38 U.S.C. §§ 7103, 7266(a); 38 C.F.R. §§ 20.1001, 20.1100. As such, the Veteran's prior claim became final with the September 2010 Board decision and subsumed the prior rating decision on the same issue. Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). "New" evidence means existing evidence not previously submitted to agency decision makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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). 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, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In August 2006 and July 2007, the RO concluded that the available evidence was insufficient to confirm the Veteran's claimed in-service stressors, and denied service connection. In September 2010, the Board denied service connection, rejecting a 2006 diagnosis of PTSD because there was no evidence of record showing that the Veteran was in combat, no evidence of a diagnosis of posttraumatic stress disorder in service, or of credible evidence of the alleged noncombat in-service stressors. Board Decision of September 21, 2010 at 12-13. The evidence of record at the time of the September 2010 Board decision denying service connection for PTSD included statements and hearing testimony from the Veteran and a fellow Korea veteran, and post-service VA treatment records from February 1983 to August 2008. Evidence received since the final September 2010 Board decision includes a July 2011 letter from a VA nurse, additional statements and testimony from the Veteran and the fellow Korea veteran, a May 2015 VA PTSD examination report, post-service VA treatment records to March 2017, a two-part Notice of Disagreement dated June 2016, and the transcript of the Veteran's Board hearing in August 2017. Significantly, in 2010 VA amended its adjudication regulations governing service connection for PTSD by liberalizing the evidentiary standard for establishing the required in-service stressor under 38 C.F.R. § 3.304(f). As such, under certain circumstances, credible lay evidence may establish a claimed in-service stressor, as discussed more fully below. The Board has considered all the evidence associated with the Veteran's claim file after the September 2010 rating decision, and finds that new and material evidence has been received. The May 2015 VA examination report reflects a current diagnosis of PTSD, and the report medically establishes a nexus between the Veteran's symptoms and the claimed in-service stressors - evidence that was not of record prior to the September 2010 Board decision. Hence, this evidence is both new and material. Accordingly, the Board concludes that new and material evidence has been received to reopen the claim for service connection for PTSD. III. Pertinent Laws and Regulations Governing Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) (recently amended as the DSM-V)); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a PTSD diagnosis will vary depending upon whether a veteran engaged in "combat with the enemy." See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If the VA determines that a veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or written statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with circumstances, conditions or hardships of service." See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f); Zarycki 6 Vet. App. at 98. Additionally, in 2010, VA amended its regulations governing service connection for PTSD, liberalizing the evidentiary standards for establishing the required in-service stressor and for establishing a medical diagnosis of PTSD. 75 Fed. Reg. 41,092 (July 15, 2010) (codified at 38 C.F.R. § 3.304(f)). Under the revised regulations, if a stressor claimed by a veteran is related to the veteran's "fear of hostile or terrorist activity" and a VA or VA-contracted psychiatrist or psychologist 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, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, so long as there is not clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the places, types, and circumstances of the veteran's service. 38 C.F.R. § 3.304(f)(3). "Fear of hostile military or terrorist activity" is defined as being where "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. Moreover, VA has recognized that the scope of this definition includes events involving civilians. 75 Fed. Reg. 38, 843, 39,844 (July 13, 2010). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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, 6 Vet. App. At 469; see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Circ. 2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107(b). Ultimately, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. At 49. IV. Analysis In-Service Stressors The Veteran contends that he has a psychiatric disorder, claimed as PTSD, that is related to active duty service in Korea, specifically his exposure to harm while on guard duty, seeing the body of a fellow soldier who committed suicide while on guard duty with the Veteran, and the recovery of dead civilians as part of fire and flood disaster relief duties in Korea. The Veteran has consistently provided statements and testimony detailing his service in Korea after the war, from 1955 to 1957, describing the fear he sensed during guard duty at Army warehouses in Korea, the horror he experienced seeing the body of a fellow soldier who committed suicide while both the Veteran and the other soldier were on guard duty, and the dismay he faced retrieving the bodies of civilian disaster victims. See VA PTSD Questionnaire dated June 2006; Statement of Veteran dated September 2006; Letter from Veteran dated July 2007; Letter from Veteran dated February 2008; Board Hearing Transcript dated June 2010 at 14, 23-24; Statement of Veteran dated June 2015; Statement of L.P. dated June 2015; Notices of Disagreement dated June 2016; and Board Hearing Transcript dated August 2017 at 11-14, 16. For example, during the August 2017 Board hearing before the undersigned VLJ, the Veteran offered sworn testimony describing his guard duty in Korea: Q. And you've testified before that you actually had to shoot at people. Even though you didn't want to do that. A. Yeah, I shot, but I hope I didn't hit nobody. Kill nobody. Q. You hope you didn't kill anybody. A. I think about that. That something that stay with me. I think about that all the time. Since I got old and realized what this thing was all about. It's scary. I still dream about it and think about it. Q. Okay. But these people coming over the fence. You were afraid they were going to hurt you. A. Yeah, yeah. You had -- yeah. Because they cutting the fence. People coming to steal in the warehouse, and one thing in Korea, it was pitch dark and we had just a flashlight, and you have to watch yourself from the back and everything else. Q. Okay. Your sergeant actually instructed you to be afraid of every Korean you saw, right? A. When I first got to Korea, the sergeant called a meeting and told us all what to look out for. He said even the Korean on the base. He said keep them in front of you. That's how he did that statement. He said because you don't know if they're North Korean or not. Board Hearing Transcript dated August 2017 at 11-13. Moreover, the Veteran's life-long friend L.P. has consistently stated in a written statement and in his sworn testimony during the August 2017 Board that he served in Korea during the same period as the Veteran, and that the Veteran described events at issue here to L.P. while they were both in Korea during their military service. Board Hearing Transcript dated August 2017 at 17-18. The Board finds the testimonial evidence highly credible based on the Veteran's hearing demeanor and the consistency of his assertions. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran is competent to describe his in-service stressors. His statements and testimony of record are generally consistent, and there is no clear and convincing evidence of record to the contrary. Therefore, the Veteran's statements are competent and credible. Accordingly, based on the record as a whole, and resolving reasonable doubt in favor of the Veteran, the Board finds the Veteran's claimed in-service stressors are consistent with the places, types, and circumstances of his service, that his experiences in Korea and his responses to those events involved a psychological state of intense fear and horror, thereby establishing the occurrence of the claimed in-service stressors. 38 C.F.R. § 3.304(f)(3). PTSD Diagnosis & Link to In-Service Stressors As noted above, the Veteran's service records were lost or destroyed and are therefore unavailable for review. Post-service treatment records from the VAMC are of record and establish that in June 2006 a VA psychiatrist diagnosed the Veteran with PTSD. In an August 2006 VAMC treatment record, the same psychiatrist noted that the Veteran's symptoms included broken sleep, nightmares, irritability, dysthymia, and avoidance of news about the Iraq war. The VA psychiatrist also noted that the Veteran reported witnessing a fellow soldier in Korea commit suicide, and saw burned villages and bodies of civilian fire and flood victims in Korea. The VA treatment records do not indicate whether the 2006 PTSD diagnosis was made according to DSM-IV, which was in effect at that time. The Veteran underwent a VA examination in May 2015. The examination report is of record and reflects that a VA clinical psychologist diagnosed PTSD based on DSM-V criteria, and noted that several symptoms, i.e. depressed mood, anxiety, chronic sleep impairment, and impairment of short and long term memory "actively apply" to the diagnosis of PTSD. The psychologist identified the Veteran's PTSD in-service stressors as (1) witnessing the aftermath of a suicide of a fellow soldier; (2) collecting and handling bodies of people who died in floods; and (3) shooting in the vicinity of civilians attempting to breach the fence to steal supplies. Significantly, the psychologist determined that all three stressors contributed to the Veteran's PTSD. The Veteran was also diagnosed with a depressive disorder likely related to PTSD, and an unspecified neurocognitive disorder. However, the psychologist concluded that the Veteran's PTSD stressors are not related to his fear of hostile military or terrorist activity because they are not "combat related", and opined that the Veteran's PTSD was less likely than not related to military service because he "did not serve in combat situations and he does not describe fear of enemy military activity." May 2015 VA examination report at 10. First, the record does not reflect that the Veteran has asserted that he saw combat during military service. Second, the VA psychologist's opinion appears to incorrectly combine the criteria for establishing an in-service stressor arising from combat, and the criteria for establishing in-service stressor arising from fear of hostile military or terrorist activity. The plain language of the two subsections clearly demonstrates that the subsections are not mutually dependent. 38 C.F.R. §§ 3.304(f)(2), (f)(3). Therefore, the medical opinion is based on a flawed application of the law, and that section of the report, alone, is not accorded probative weight. Further development could be undertaken to obtain an additional medical opinion. However, based on the record as a whole, and resolving reasonable doubt in favor of the Veteran, the Board finds that the medical evidence of record (1) establishes that the Veteran is currently diagnosed with PTSD in accordance with 38 C.F.R. § 4.125(a); and (2) establishes a link between the Veteran's current symptoms and the in-service stressors, not the least of which was his fear of hostile military or terrorist activity. 38 U.S.C. § 5107(b); 38 CF.R. §§ 3.102, 3.304(f)(3). The criteria to establish service connection for PTSD are met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. At 53-56. Lastly, the Board notes that during the August 2017 videoconference hearing, the Veteran's representative specifically requested service connection for PTSD and the Veteran's original service connection claim was specifically for PTSD. Although the claim had been expanded to contemplate any psychiatric disorder however diagnosed, there is no competent evidence relating an "unspecified neurocognitive disorder" to the Veteran's military service, and the psychologist who conducted the May 2015 VA examination opined that it is unrelated to the Veteran's military service or to his PTSD or other depressive disorder. There is simply no competent nexus of record. Thus, although the Board is granting service connection for PTSD as explained above, the criteria to establish service connection for an unspecified neurocognitive disorder are not met. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is granted. Entitlement to service connection for an unspecified neurocognitive disorder is denied. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs