Citation Nr: 1800550 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-09 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for schizophrenia. 2. Whether new and material evidence has been received to reopen a claim for service connection for a back disability. 3. Whether new and material evidence has been received to reopen a claim for service connection for posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for PTSD. REPRESENTATION Veteran represented by: Hawaii Office of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active duty for training from August 1980 to December 1980 and active military service from February 1981 to September 1983. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. In September 2014, the Veteran testified at a Travel Board hearing. A transcript of that hearing is of record. FINDINGS OF FACT 1. On the record at the September 2014 Travel Board hearing, the Veteran requested withdrawal of the petitions to reopen his claims of entitlement to service connection for schizophrenia and a back disability. 2. A claim for service connection for PTSD was denied by a July 2006 rating decision that was not appealed and new and material evidence was not received within a year of that rating decision. 3. Evidence received subsequent to the July 2006 rating decision is not cumulative or redundant of the evidence previously of record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 4. The Veteran has a current diagnosis of PTSD which has been competently related to a verified in-service stressor. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant with respect to the petitions to reopen claim of service connection for schizophrenia and a back disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 2. The July 2006 rating decision which denied a claim for service connection for PTSD is final. 38 U.S.C. § 7105 (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2006). 3. New and material evidence has been received since the July 2006 rating decision, and the claim of entitlement to service connection for PTSD is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156 (2017). 4. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Request for Withdrawal Following certification of the appeal to the Board, the Veteran, on the record at the September 2014 Travel Board hearing, requested withdrawal of the issues pertaining to service connection for schizophrenia and a back disability. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204. There remain no allegations of errors of fact or law for appellate consideration with respect to these issues. Accordingly, the Board does not have jurisdiction to review the appeal with respect to these issues and they are dismissed. Request to Reopen Claim In a decision dated in July 2006, the RO denied the Veteran's claim for service connection for PTSD. As the Veteran did not appeal this decision and new and material evidence was not received within a year thereof, it is final. See 38 U.S.C. § 7105 (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2006). Thus, the July 2006 decision is final. The Veteran's application to reopen his claim of service connection for PTSD was received in May 2010. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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). Although the RO appeared to reopen the Veteran's claim in a May 2012 rating decision, the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter for the Board. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The July 2006 rating decision denied service connection for PTSD on the basis that there was no evidence of an in-service stressor, there was no evidence of a disability subject to service connection, and there was no evidence showing PTSD was incurred in or caused by military service or service-connected disability. Since that decision became final, additional evidence has been received by VA, to include various private and VA treatment records and personal hearing testimony from the Veteran. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed unless such evidence is inherently incredible or beyond competence of the witness. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). A letter - not associated with the file at the time of the July 2006 rating decision - from the Hawaii Department of Health, Department of Health, Windward Oahu Community Mental Health Center, states that the Veteran had been going to the Adult Mental Health Division since November 2005, was receiving medication and care from the clinic psychiatrist and case management from the social worker, and had been diagnosed with Schizoaffective Disorder and PTSD. A September 2009 treatment summary indicates that the Veteran was admitted in July 2009 to Oahu CBCM (Community-Based Case Management Services) with diagnoses of PTSD, Schizoaffective Disorder, and Polysubstance Dependency; the summary also reflects that his PTSD symptoms stemmed from being exposed to a traumatic event in which he experienced events that threatened his physical integrity. The events are recorded as "a military jeep crushing his knees while serving in the US Army [and] when he was sexually abused by an aunt and mother's housekeeper." Subsequent notes further reflect continued treatment for those diagnoses. The evidence submitted after the July 2006 decision is neither cumulative nor redundant and relates to unestablished facts necessary to substantiate the claim. Accordingly, the claim is reopened. Service Connection Service connection for PTSD requires 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). 38 C.F.R. § 4.125(a) requires that diagnoses of mental disorders conform to the Diagnostic and Statistical Manual for Mental Disorders (DSM) as the governing criteria for diagnosing PTSD. Parenthetically, the Board notes VA implemented DSM-5, effective August 4, 2014. The Secretary of VA has determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014. 79 Fed. Reg. 45 ,093, 45,094 (Aug. 4, 2014). The RO certified the Veteran's appeal to the Board on August 20, 2014; thus, DSM-5 is the governing directive. Initially, the Board notes that there is credible supporting evidence that the Veteran experienced an in-service stressor. On his VA Form 21-0781, Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD), the Veteran indicated that his first stressful incident occurred during in 1982 or 1983 at Camp Humphrey's military base while he was packing and loading vehicles. The Veteran reported that while assisting with motor pool operations, he was crushed between two vehicles necessitating surgery to his left knee. This incident is confirmed by the Veteran's service treatment records which notate a left knee injury when he was caught between Army vehicles, identified as a jeep and a trailer/generator. Further, service-connection has been established for left knee degenerative joint disease as well as left knee instability and left knee scars status post torn anterior cruciate ligament and medical and lateral meniscus surgeries. The Board finds that the Veteran's in-service stressor has been verified. 38 C.F.R. § 3.304 (f). As referenced above, treatment documents from the Hawaii Department of Health reflect that the Veteran has been diagnosed with PTSD and link that diagnosis to his in-service vehicle accident experience. At a 2011 VA examination, the Veteran further described his in-service experience ("another soldier got into a jeep, started it, and he steered it right at me") and stated that, at the time of the accident, he thought he was going to die. However, in contrast to the private medical evidence of record, the 2011 examiner stated that the described stressor did not meet the criteria for a diagnosis of PTSD. The Board notes the difference of medical opinion reflected by the record, but finds the weight of the evidence is at least equipoise. Although the 2011 VA examiner stated that the Veteran's reported in-service stressor was insufficient to support a diagnosis of PTSD, the examiner did not provide rationale for that opinion or specifically address the Veteran's contention that he, at the time of the incident, feared for his life. Evidence from the Veteran's private medical providers both indicates that the Veteran has a diagnosis of PTSD and identifies his in-service vehicle accident as a stressor. See Cohen v. Brown, 10 Vet. App. 128, 153 (1997). Specifically, although the private diagnosis reflects two stressors - the in-service vehicle accident and prior sexual abuse - a November 2010 letter from the Veteran's physician specifically indicates that the in-service injury both attributed to, and aggravated, his mental condition. In this case, the Board notes that all of the medical opinions regarding diagnoses and etiology of PTSD were made prior to the implementation of the DSM change from the criteria listed in the DSM-IV to the criteria listed in the DSM-5. DSM-5, in pertinent part, removed the requirement that the person experience fear, helplessness, or horror right after the traumatic event; DSM-5 also sets forth four distinct diagnostic clusters (re-experiencing, avoidance, negative cognitions and mood, and arousal) for PTSD instead of the three set forth in DSM-IV (re-experiencing, avoidance, and arousal). Given the dates reflected in the record, all of the providers in this case would have referred to the more stringent diagnostic criteria in the DSM-IV. In specific regard to the private diagnosis, the Board infers that the diagnostic criteria for PTSD are also met under DSM-5 as the medical opinions are not rendered inadequate due to consideration of the DSM-IV diagnostic criteria; there is no indication that the Veteran's diagnosis would be different under the DSM-5. Thus, resolving reasonable doubt in favor of the Veteran, the Board finds that he experiences PTSD as a result of his verified in-service stressor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER The petitions to reopen appeals pertaining to service connection for schizophrenia and a back disability are dismissed. New and material evidence having been submitted, the claim of entitlement for service connection for PTSD is reopened. Entitlement to service connection for PTSD is granted. ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs