Citation Nr: 1803572	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  14-30 065	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

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

2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and F.C.



ATTORNEY FOR THE BOARD

M. D'Allaird, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1969 to March 1971.

These matters are before the Board of Veterans' Appeals (the Board) on appeal from a June 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. 

After reviewing the evidence of record, and in light of Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has recharacterized the Veteran's claim of service connection for PTSD to encompass any acquired psychiatric disorder, to include PTSD, as reflected on the title page.

In September 2017, a videoconference hearing was held before the undersigned; a transcript of the hearing is of record.

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 issue of entitlement to service connection for a substance use disorder, including as secondary to an acquired psychiatric disorder, to include PTSD, has been raised by the record in the July 2014 private opinion of licensed professional counselor W.V., but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017).



FINDINGS OF FACT

1. By a November 2004 rating decision, the RO denied the Veteran's claim for service connection for PTSD; he was advised of the RO's decision, and of his appellate rights. The Veteran did not initiate an appeal of the RO's decision within one year; nor was any new and material evidence received within a year.

2. The evidence received since the November 2004 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim of service connection for PTSD.

3. The Veteran has an acquired psychiatric disorder that is directly related to his military service.


CONCLUSIONS OF LAW

1. New and material evidence has been received, and the claim of service connection for PTSD may be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 

2. Service connection for an acquired psychiatric disorder, to include PTSD, is warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. Any error in notice or assistance is harmless given the favorable determinations.




New and Material Evidence 

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). 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). Whether newly submitted evidence raises a "reasonable possibility of substantiating the claim" is part 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. If the new evidence would raise a reasonable possibility of substantiating the claim when considered with the old evidence, it triggers the Secretary's duty to assist by providing a medical opinion.  

In the present case, the RO, by a decision entered in November 2004, denied the Veteran's claim for service connection for PTSD because the RO determined the evidence was insufficient to confirm the Veteran actually engaged in combat and his in-service stressors were uncorroborated. The RO notified the Veteran of its decision, and of his appellate rights, but he did not initiate an appeal of the RO's decision within one year. Nor was any new and material evidence received within a year. 38 C.F.R. § 3.156(b). As a result, the RO's decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 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; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).

Here, the evidence received since the time of the RO's November 2004 rating decision includes the testimony of the Veteran and his fellow service member F.C. during the September 2017 Board hearing. The Veteran testified he was in the infantry while serving in Vietnam and experienced constant fighting and dodging bullets. F.C., who served with the Veteran in Vietnam, testified that the Veteran was a point man in the infantry and walked into ambushes. The Veteran also submitted a letter in November 2010 which stated that he engaged in combat which resulted in him having to kill, taking several lives. This evidence was not before adjudicators when the Veteran's claim was last denied in November 2004, 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.

Service Connection 

The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or does not show, as to the claim.

To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

The Veteran's statements regarding experiences in combat are presumed to be true. 38 C.F.R. § 3.304(d); see also Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996) (noting that a combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service). 

Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied. If the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
Here, the Veteran was afforded a VA examination in November 2010. The examiner diagnosed the Veteran with alcohol abuse or dependence and panic disorder. The examiner also stated the Veteran's reports of symptoms and those of his wife suggest he suffers from some symptoms of PTSD.

A letter dated in October 2012 from the Veteran's licensed professional counselor, I.B., stated that the Veteran suffered from symptoms of PTSD. A letter dated in July 2014 from another licensed professional counselor, W.V., described the Veteran's symptoms and stated "based on the above symptomatology involving his Vietnam War experiences, this clinician believes that the Veteran has [PTSD] and I have recommended to him that he continue to receive intensive clinical psychotherapy in order to treat his mental condition." 

The Veteran therefore has diagnoses of PTSD and panic disorder, satisfying the first element of service connection, a current disability. 

As previously discussed, the Veteran submitted a statement in November 2010 describing his experiences in Vietnam which involved taking several lives. He stated "the trauma, engagements in combat, firing of weapons and killings is what has changed me and made me the person I still continue to be today." He also testified during the September 2017 hearing that he was in constant fire fights and was "dodging bullets and everything else." F.C. testified that the Veteran was the point man in the infantry and was caught in ambushes, stating "and if you can imagine being a point man in the jungle and walking into an ambush, what they went through."

These statements are also consistent with the evidence of record, including his Form DD214, documenting the Veteran's service in Vietnam. Therefore, in-service events, or stressors, have been established, satisfying the second element of service connection.

Finally, the Veteran wrote in his November 2010 statement that upon returning from Vietnam, he immediately started having nightmares involving his experiences in Vietnam. He further stated that prior to his service he was a positive person but afterwards became very negative, impatient, short-tempered, and cannot be in crowds. He stated these behaviors have persisted since that time. His wife also submitted a statement in December 2010 in which she wrote that the Veteran began having nightmares upon returning from Vietnam and his disposition changed from positive and easygoing to negative, anti-social, and agitated. She further wrote that these behaviors have continued since that time. The Veteran also testified during the 2017 Board hearing that he sought treatment from his family doctor following service.  

Because the Veteran and his wife have provided competent and credible statements establishing the Veteran's symptoms began immediately following his service in Vietnam and have persisted since then, a nexus is established between his in-service events and his current acquired psychiatric disorder. Thus, the third element of service connection is satisfied.

Accordingly, the Veteran is entitled to service connection for an acquired psychiatric disorder, to include PTSD.


ORDER

As new and material evidence has been received, the Veteran's claim for service connection for PTSD is reopened.

Service connection for an acquired psychiatric disorder, to include PTSD, is granted.



____________________________________________
VICTORIA MOSHIASHWILI
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs