Citation Nr: 1804539 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-15 379 ) 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 claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression. 3. Entitlement to service connection for a chronic headache disorder. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony Flamini, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to September 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge in February 2017. A transcript of that hearing has been associated with the claims file. The issue of entitlement to service connection for a chronic headache disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In January 2004, the RO issued a rating decision which denied the Veteran's original claim seeking entitlement to service connection for PTSD; the Veteran did not appeal that decision and new and material evidence was not received within the appeal period. 2. Evidence received since the January 2004 rating decision is new as it has not been previously submitted to agency decision makers; the evidence also relates to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for a psychiatric disability and raises a reasonable possibility of substantiating that claim. 3. Resolving all reasonable doubt in the Veteran's favor, the record reflects a valid diagnosis of PTSD with major depressive disorder during the pendency of the appeal that is related to an in-service stressor, the occurrence of which is supported by credible evidence. CONCLUSIONS OF LAW 1. The January 2004 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2003); currently 38 U.S.C.A. § 7105(c) (West 2014), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. The criteria for reopening the claim of entitlement to service connection for PTSD have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for PTSD with major depressive disorder have been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Here, the Board is reopening the Veteran's claim of entitlement to service connection for PTSD. Additionally, the Board is granting the reopened claim of entitlement to service connection for a psychiatric disorder, diagnosed as PTSD with major depressive disorder. These actions are the only matters decided herein and are favorable to the Veteran. Therefore, no discussion of VA's duties to notify or assist is necessary as it pertains to the issues on appeal. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2017). In order to reopen a claim which has been previously denied and which is final, the claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 2014). If the claim is reopened, it will be reviewed on a de novo basis. 38 U.S.C.A. §§ 5108, 7105 (West 2014); Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). "New" evidence is defined as existing evidence not previously submitted to agency decision-makers. "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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims (Court) held the Board must first determine whether the claimant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, in a January 2004 rating decision, the RO denied the Veteran's original claim seeking entitlement to service connection for PTSD. Specifically, the RO determined that the evidence did not show a confirmed diagnosis of PTSD. The Veteran did not disagree with this decision in a timely manner, and no additional pertinent evidence was received in the year following the decision. 38 C.F.R. 3.156(b). Under these circumstances, the January 2004 rating decision became final. 38 U.S.C.A. § 7105(c) (West 2002), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2003); currently 38 U.S.C.A. § 7105(c) (West 2014), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). In February 2011, the Veteran filed his present claim seeking to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. This appeal arises from the RO's June 2012 rating decision which reopened the Veteran's claim but then denied the reopened claim on the merits after it was determined that the Veteran did not have a current diagnosis of PTSD related to his military service or any in-service stressor. Regardless of the RO's actions, the Board must still determine whether new and material evidence has been received. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence added to the record since the January 2004 rating decision includes the report of an August 2014 VA examination which concluded that the Veteran experienced symptoms that met the DSM-V criteria for PTSD that were more likely than not caused by events that occurred during his military service. The Board finds that the evidence associated with the record since the January 2004 rating decision is new in the sense that it was not previously before agency decision makers. The Board also finds that this evidence is material because it relates to an unestablished fact necessary to substantiate the underlying service connection claim. Specifically, the August 2014 VA examination report indicated that he had a current diagnosis of PTSD during the appeal period. This opinion also suggests that the Veteran's current PTSD is linked to his in-service stressor. When considered along with the remaining evidence of record, including his lay statements and service treatment records corroborating the occurrence of his in-service stressor, the Board finds that this new evidence raises a reasonable possibility of substantiating the Veteran's claim. See Shade, 24 Vet. App. at 117 (finding that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."). As the credibility of the new evidence is generally presumed, the Veteran's claim of entitlement to service connection for PTSD is reopened. 38 C.F.R. § 3.156. Having reopened the Veteran's service connection claim, the Board will now consider it on the merits. The Veteran seeks entitlement to service connection for a psychiatric disorder, to include PTSD and depressive disorder. He attributes his current psychiatric disorders to his military service. Specifically, the Veteran asserts that while on shore leave in the Philippines he was attacked in a dark alley while leaving a bar and stabbed in the hand; the Veteran claimed that he then knocked the person down and stomped on him until he stopped moving, believing that he had killed the man. He contends that his current PTSD and depression are the direct result of this and other in-service stressor events. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, 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). 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). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f); see Cohen v. Brown, 10 Vet. App. 128 (1997); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). A determination that a Veteran engaged in combat with the enemy may be supported by any evidence which is probative of that fact, and there is no specific limitation of the type or form of evidence that may be used to support such a finding. VAOPGCPREC 12-99 (1999). Evidence submitted to support a claim that a Veteran engaged in combat may include the Veteran's own statements and an "almost unlimited" variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). The Court has held that receiving enemy fire or firing on an enemy can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). 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. For purposes of this paragraph, "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. 38 C.F.R. § 3.304(f)(3). When there is a current diagnosis of PTSD, the sufficiency of a claimed in-service stressor is presumed. Cohen, 10 Vet. App. at 144. Nevertheless, credible evidence that the claimed in-service stressor actually occurred is still required. 38 C.F.R. § 3.304(f). Credible supporting evidence cannot consist solely of after-the-fact medical evidence containing an opinion as to a causal relationship between PTSD and service. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996). This does not mean "that there [has to] be corroboration of every detail including the appellant's personal participation in the identifying process." Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In making that decision, the Board must determine the probative weight to be ascribed as among multiple medical opinions, and state the reasons and bases for favoring one opinion over another. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); see also Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). This responsibility is particularly important where, as here, medical opinions diverge. The Board is also mindful that it cannot make its own independent medical determinations, and that there must be plausible reasons for favoring one medical opinion over another. See Evans at 31; see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). Here, the Veteran was provided with a VA PTSD examination in May 2012. After an examination of the Veteran, the examiner opined that: [The Veteran] does not meet criteria for PTSD. He reported few symptoms of PTSD. The symptoms he reported mostly fall under Criterion D, hyperarousal. By far the most prominent symptom he described is anger. [The Veteran] reported that he has been prone to depression. He said his depression has improved substantially on medication. He reported experiencing depressed mood periodically but no other symptoms of depression. Overall, [the Veteran] described a history of problems with anger starting during his time in Vietnam. He described a history of other symptoms of PTSD, including nightmares and intrusive distressing memories, but said those have significantly reduced. Additionally, although it is plausible his difficulties with depression and anger were caused by his experiences while serving in the military, there is no information available to strongly support strongly a causal link between specific events and his current difficulties. The Veteran was provided with another VA PTSD examination in August 2014. This examiner opined that the Veteran experienced symptoms that met the DSM-V criteria for PTSD that was more likely than not caused by events that occurred during his military service. The examiner also opined that the Veteran met the DSM-V criteria for major depressive disorder, recurrent, in partial remission, and that this condition was more likely than not secondary to chronic sleep impairment caused by a combination of his PTSD and untreated sleep apnea. Significantly, the examiner later opined that the Veteran's claimed stressor of being attacked in a dark alley while leaving a bar and stabbed in the hand while on shore leave in the Philippines was adequate to support a diagnosis of PTSD. Based on a longitudinal review of the record, the Board finds that service connection is warranted for the Veteran's PTSD and major depressive disorder. In this case, the Board acknowledges that the Veteran was afforded two VA PTSD examinations during the appeal period. The Board further observes that one of the VA examiners determined that the Veteran did not meet the full criteria for a PTSD diagnosis. Nevertheless, the evidence of record also reflects that the Veteran was provided a medically sound PTSD diagnosis from the August 2014 VA examiner during the pendency of his appeal. 38 C.F.R. §§ 3.303, 3.304(f); McClain v. Nicholson, 21 Vet App 319, 321 (2007). Likewise, the August 2014 VA examiner linked the Veteran's current PTSD diagnosis to his claimed stressor of being attacked in a dark alley while leaving a bar and stabbed in the hand while on shore leave in the Philippines. Accordingly, the critical issue in this case involves establishing the actual occurrence of the claimed in-service stressor supporting the PTSD diagnosis. The Veteran is competent to testify about the events he experienced while on active duty in Vietnam. Throughout the appeal period, the Veteran submitted multiple statements that consistently described being stabbed in the hand while in the Philippines. Moreover, the Veteran's service treatment records included a September 29, 1972, note in which he sought treatment for small lacerations on the right hand while aboard the USS Enterprise (CVN-65). A review of the history of the USS Enterprise (CVN-65) confirms that the vessel arrived at Naval Air Station Cubi Point for a four-day visit to Subic Bay, Philippines, on September 24, 1972. The Veteran asserts that these lacerations on his right hand were a result of the stabbing. As the Veteran's lay statements regarding the assault have been verified with corroborating evidence, including the Veteran's service treatment records and the history of the USS Enterprise (CVN-65), further analysis of whether the Veteran meets the criteria of 38 C.F.R. § 3.304(f)(3) is unnecessary. Considering all of the evidence in its entirety and resolving any doubt in favor of the Veteran, the Board finds that the September 1972 in-service stressor incident has been sufficiently corroborated to provide the credible supporting evidence needed to show that the claimed in-service stressor, required under 38 C.F.R. § 3.304(f), actually occurred. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.304(f); see also Gilbert, 1 Vet. App. at 53-56. Given the facts noted above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for PTSD with major depressive disorder have been met. 38 C.F.R. § 3.304(f). In addition to his PTSD diagnosis, the Board acknowledges that the Veteran was diagnosed with major depressive disorder during the appeal period. The Federal Circuit has recognized that separately diagnosed psychiatric conditions can be service connected, but cannot not be separately rated unless they resulted in different manifestations. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). Here, the Board is granting entitlement to service connection for PTSD with major depressive disorder. Accordingly, the severity of the Veteran's service-connected PTSD will be evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130 (2017). Symptoms of depression will be considered in that disability rating. In that regard, the Veteran will not be entitled to separate and additional ratings for depression or any similar psychiatric disorder in the present case unless there is evidence that the symptoms can be distinguished between multiples service-connected disabilities, as manifestations of a disability under multiple diagnoses (i.e., pyramiding) is to be avoided under 38 C.F.R. § 4.14. That is, the Veteran cannot be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). In conclusion, service connection for a psychiatric disorder, diagnosed as PTSD with major depressive disorder, is granted. ORDER New and material evidence having been received, the claim of entitlement to service connection for PTSD is reopened. Entitlement to service connection for PTSD with major depressive disorder is granted. REMAND The Veteran also seeks entitlement to service connection for a chronic headache disorder. Unfortunately, the Board finds that additional development must be undertaken before this issue can be adjudicated on the merits. The Veteran maintains that he developed a chronic headache disorder in service as a result of an October 1971 motor vehicle accident and/or secondary to a chronic sinus condition. At his February 2017 Board videoconference hearing, the Veteran testified that he experienced chronic headaches since service. A review of the Veteran's service treatment records confirms that he frequently sought treatment for headaches. Specifically, the Veteran complained of headaches in July 1971, August 1971, March 1972 (lasting over 21/2 weeks), March 1974, February 1976, January 1977, and February 1977. The Veteran was provided with a VA headaches examination in May 2012, at which time it was established that he experienced characteristic prostrating attacks of migraine headache pain. However, the examiner opined that it was less likely than not that a medical nexus between the in-service headaches and the Veteran's current headache symptoms could be established. In support of this opinion, the examiner explained that per the Veteran's own report, he has not consulted his doctor for the headache symptoms over the last 40 years. As such, the VA examiner found that there was not sufficient evidence to establish a nexus. The examiner emphasized that the Veteran carried with him no headache diagnosis, although the examiner conceded from the symptoms the Veteran described at the examination, that he may have migraine, tension, and sinus headaches at different times during the year. The Board finds that the May 2012 VA opinion is inadequate. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (finding that when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding a medical examination inadequate where the examiner "impermissibly ignored the appellant's lay assertions that he had sustained a back injury during service"). The May 2012 VA examination report only made reference to one instance (March 1972) where the Veteran sought treatment for headaches in service; as discussed by the Board previously, the Veteran sought treatment for headaches in service on at least seven occasions. Moreover, the May 2012 VA examiner failed to consider the Veteran's competent lay statements detailing his symptoms of headaches continuously since service discharge. As such, the Veteran should be provided a new VA headaches examination to obtain an opinion which adequately addresses this pertinent evidence. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a new VA examination to determine the etiology of his current headache disorder. The examiner must review the claims file, to include the in-service and post-service medical evidence as well as the Veteran's competent lay statements as to his headache symptoms during service and after service discharge. Based on review of the Veteran's claims file as well as findings derived from the examination, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current headache disorder began in service, was caused by service, or is otherwise etiologically related to his military service, to include his in-service symptoms of headaches. A complete and thorough rationale must be provided for all opinions provided. 2. After completing the above development, and any other development deemed necessary, readjudicate the issue remaining on appeal. If the benefit sought remains denied, then provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs