Citation Nr: 1805494 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-20 085 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for an acquired psychiatric disability; and if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, his spouse, and J.B. ATTORNEY FOR THE BOARD Rachel Mamis, Associate Counsel INTRODUCTION The Veteran had active military service from October 1967 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In connection with this appeal, the Veteran, his spouse, and J.B. testified at a hearing before the undersigned Veterans Law Judge at the RO in August 2017. A transcript of that hearing has been associated with the claims file. The Board notes that the Veteran originally filed a claim for service connection for posttraumatic stress disorder (PTSD). In light of the United States Court of Appeals for Veterans Claims (Court) in Clemons v. Shinkseki, 23 Vet. App. 1 (2009), the Board has recharacterized the issue more broadly as one of entitlement to service connection for an acquired psychiatric disorder. FINDINGS OF FACT 1. An unappealed July 2004 rating decision denied entitlement to service connection for PTSD. 2. The evidence associated with the claims file subsequent to the July 2004 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disability. 3. The Veteran has an acquired psychiatric disability, that was incurred in or caused by active service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. An acquired psychiatric disability was incurred in active service. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen A July 2004 rating decision denied entitlement to service connection for PTSD based on a finding that the Veteran had not been formally diagnosed with the disability. The Veteran did not appeal that decision. The pertinent evidence that has been received since the July 2004 rating decision includes additional VA Medical Center and private treatment records indicating that the Veteran has been diagnosed with PTSD and an unspecified depressive disorder. The Board finds that the Veteran's diagnoses of PTSD and depressive disorder are new and material. The Board notes they are not cumulative or redundant of the evidence previously of record. Moreover, they raise a reasonable possibility of substantiating the claim. Accordingly, reopening of the claim of entitlement to service connection for an acquired psychiatric disability is warranted. Entitlement to Service Connection for an Acquired Psychiatric Disability The Veteran asserts that he has an acquired psychiatric disability due to service. Specifically, he asserts that he developed PTSD as a result of witnessing multiple significantly wounded and deceased Veterans during his time in Japan and, from surviving several near death mortar and/or bombing attacks. A review a of the service records shows that the Veteran was in fact treated at a hospital in Japan. Further, the Veteran's statements regarding his exposure to significantly wounded and deceased Veteran's while receiving treatment in Japan are not inconsistent with the facts and circumstances of his service. Therefore, the Board concedes the Veteran's stressors. The Veteran's service treatment records (STRs) are silent for a diagnosis of, treatment for, or complaints of psychiatric disabilities while in service. Further, the Veteran denied psychiatric issues at his May 1971 separation examination and was found psychiatrically normal upon mental status examination at that time. However, the Veteran has reported that he has had mental health struggles as a result of events in active service since that time. Further, the Veteran is competent to report when he experienced mental health difficulties and that they have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, as the Veteran's reports are corroborated by the service records on file, the Board finds the Veteran to be credible in that respect. In a May 2009 letter from the Veteran's VA Medical Center treating psychologist, it was noted that the Veteran originally sought treatment for his mental health symptoms in September 2003. It was noted that the Veteran was initially diagnosed with a psychotic disability, but that after additional treatment, the diagnosis was amended to a diagnosis of PTSD and major depressive disorder. The Veteran's VA Medical Center treating psychologist noted that the Veteran reported being exposed to a number of severely wounded combat troops while in Japan and that he had experienced ongoing issues with survivor's guilt, depression, and avoidance of wartime stimuli since that time. The Veteran's VA Medical Center treating psychologist noted that despite ongoing mental health treatment, the Veteran continued to experience symptoms related to his experiences in Japan and that his clinical presentation was in keeping with that of other Veterans who had been exposed to similar traumatic experiences and been diagnosed with PTSD. A review of the record shows that the Veteran has continued to receive treatment for mental health problems since that time. The Board acknowledges that the Veteran was afforded VA examination in November 2010, October 2011, and April 2017; and that the Veteran was not found to have a psychiatric disability related to his active service by any of the VA examiners. However, the Board finds the November 2010, October 2011, and April 2017 VA examination and opinion reports to be inadequate. In this regard, the examiners failed to give adequate consideration to the Veteran's reported stressors. Further, the examiners did not fully account for the Veteran's diagnoses of record. As the opinions are not adequate, they cannot serve as the basis of a denial of entitlement to service connection. On the above, the Board finds that the evidence for and against the claim is at least in equipoise and the benefit of the doubt must be resolved in the Veteran's favor. Accordingly, entitlement to service connection for an acquired psychiatric disability is warranted. 38 U.S.C. §5107(b) (2012); Gilbert v. Derwinski, 1 Vet App. 49 (1990). ORDER New and material evidence has been received and reopening of the claim of entitlement to service connection for an acquired psychiatric disability is granted. Entitlement to service connection for an acquired psychiatric disability is granted. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs