Citation Nr: 18141152 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-28 831 DATE: October 9, 2018 ORDER Reopening of the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety or other mood disorder, and nightmare disorder, is granted. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as PTSD, anxiety disorder, and nightmare disorder, is granted. FINDINGS OF FACT 1. Entitlement to service connection for the disability herein was denied in the December 2004 and May 2013 Rating Decisions, which were not timely appealed and became final; new and material evidence was subsequently associated with the claims file. 2. The Veteran’s acquired psychiatric disorder is at least as likely as not related to military experiences. CONCLUSIONS OF LAW 1. The criteria for reopening the disallowed claim herein have been met. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, diagnosed as PTSD, anxiety disorder, and nightmare disorder, have been met. 38 U.S.C. §§ 1110, 1154(b) (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had qualifying service from February 1970 to October 1971. The prior denials focused exclusively on PTSD. See December 2004, May 2013, and April 2015 Rating Decisions. However, the claims file contains multiple mental health diagnoses. See September 2005 St. Louis VAMC record (Diagnostic and Statistical Manual of Mental Disorders Fourth Edition [DSM-IV] diagnoses of anxiety disorder rule out PTSD (axis I) and exposure to war (axis IV); August 2014, September 2014, June 2015, and December 2015 records by Dr. FM (DSM-IV diagnosis of PTSD); September 2016 VA examination by Dr. JHW (DSM 5 diagnoses of nightmare disorder and mood disorder unspecified). However, these claims are construed as a single claim for entitlement to service connection for a psychiatric disability, regardless of diagnosis. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Boggs v. Peake, 520 F.3d. 1330, 1355 (2008). Reopening a Disallowed Claim for Service Connection 1. Reopening In general, AOJ decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. However, if new and material evidence is presented or secured with respect to a disallowed claim, the Board shall reopen the claim and review its former disposition. 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). “New” evidence is that which is not cumulative or redundant of that previously of record; “material” evidence is that which is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claims. 38 C.F.R. § 3.156. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). In the December 2004 Rating Decision, the agency of original jurisdiction (AOJ) denied entitlement to service connection for the disability herein based on lack of a diagnosis and insufficient information about stressors. In the December 2004 Notification Letter, the Veteran was notified of the December 2004 Rating Decision and provided information on procedural and appeal rights. In the May 2013 Rating Decision, the AOJ reopened the issue, but denied service connection. In the May 2013 Notification Letter, the Veteran was notified of the May 2013 Rating Decision and provided information on procedural and appeal rights. The Veteran did not timely appeal the December 2004 and May 2013 decisions and they became final. Through a September 2014 VA Form 21-526EZ, the Veteran requested reopening. In an April 2015 Rating Decision, the AOJ reopened the issue, but confirmed and continued the prior denial based on the lack of a DSM 5 diagnosis of PTSD. Despite the AOJ’s reopening, the Board is required to address the issue of reopening in the first instance. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Since the prior, final decisions, the claims file has been augmented with both private and VA treatment records and opinions; the Veteran and his representative have also submitted several lay statements. See private treatment records from Dr. GLN (dated from November 2010 to May 2012); private treatment records from Dr. PM (dated from August 2014 to December 2015); St. Louis VAMC treatment records (dated from September 2005 to September 2015); September 2014 Disability Benefits Questionnaire (DBQ) from private Dr. PM; October 2014 Statement; April 2015 VA examination by Dr. LCM; April 2015 Notice of Disagreement; June 2016 Statement; June 2016 VA Form 9 with attached statement, photographs, and articles; September 2016 VA examination by Dr. JHW; November 2016 Brief; November 2016 Statement; May 2018 Brief. Crucially, the September 2014 DBQ from private Dr. PM is sufficient to warrant reopening. Dr. PM diagnosed PTSD (DSM-IV) and opined that it was contracted from military experiences in the Republic of Vietnam (RVN) from 1970 to 1971 based on the Veteran’s description of symptoms. As Dr. PM indicated that the Veteran’s mental health symptoms may be etiologically related to service, the Board finds this to be new, in that it was not cumulative or redundant of that previously of record, and material, in that it is sufficient to raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. Thus, the claim is reopened. 2. Service Connection Direct service connection generally requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for an acquired psychiatric disorder generally requires: (1) medical evidence diagnosing the condition in accordance with VA regulations; (2) credible supporting evidence that a claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptoms and the in-service stressor. 38 C.F.R. § 3.304(f). Credible supporting evidence is not required if the Veteran participated in combat and the claimed stressor is related to that combat. 38 C.F.R. § 3.304(f)(2). The Veteran’s September 1969 pre-induction examination and October 1971 separation examination indicated no mental health abnormalities. The Veteran has contended a variety of stressors related to: (a) gonorrhea-like outbreak; (b) SERTC/Camp Eagle attack; (c) circumcision recovery; (d) best friend’s death; (e) weapon explosion; and (f) being in “the land of the dead.” See June 2011 Statement; September 2014 DBQ by Dr. PM. An April 2013 memorandum indicated that only the SERTC/Camp Eagle stressor contained sufficient information to send to the Joint Services Records Research Center (JSSRC) for research; JSSRC corroborated that the Veteran’s SERTC location was attacked by enemy fire on October 31, 1970. A September 2005 St. Louis VAMC record by Dr. YJ noted the Veteran’s reports of nightmares, restlessness, decreased sleep, and being easily startled. The Veteran reported that he has had nightmares and flashbacks for the past 30 years, but that they recently worsened. The Veteran reported that hearing fire trucks reminds him of the deployment. The provider gave DSM-IV diagnoses of anxiety disorder rule out PTSD (axis I) and exposure to war (axis IV). In October 2011, the Veteran was afforded a VA examination by Dr. MKR. The Veteran reported nightmares since his post-circumcision hospital stay in service and that he sought mental health treatment in 2005 at the St. Louis VAMC, but that he cried during the session and felt too embarrassed to return. The Veteran also reported that he experienced an unusual episode 7 years ago when he was driving for work and it suddenly seemed as if he were in a new place he had not seen before (sought medical examination afterward, but providers were unable to identify reason for this occurrence). The examiner opined that the best friend’s death stressor was adequate to support a PTSD diagnosis, but did not pertain to hostile military or terrorist activity; however, the examiner concluded that the Veteran’s symptoms did not support a DSM-IV diagnosis of PTSD or any other mental disorder. In September 2014, the Veteran’s private provider completed a PTSD DBQ. Of note, the Veteran saw this provider five times before he rendered this opinion (August 29, 2014; September 3, 2014; September 5, 2014; September 12, 2014; September 19, 2014) and twice after he rendered this opinion (June 1, 2015; December 11, 2015). The examiner described significant post-separation symptoms (including recurring nightmares about wars, men dying, dead bodies, bombs, bullets, and killing) that result in major social and occupational impairment. The provider gave a DSM-IV diagnosis of PTSD (axis I) and opined that it was contracted in Vietnam from 1970 to 1971. This opinion is consistent with prior and subsequent treatment notes that indicate: a variety of symptoms (nightmares; night sweats; insomnia; stress; anxiety; panic attacks; depression; poor sleep; wake-ups; loss of sleep; mental and physical fatigue which causes lack of focus, lack of concentration, lack of patience, and irritability); reports that the Veteran witnessed a lot of killing, death, and suffering; and the provider’s opinion that the crux of the Veteran’s PTSD was that he was “deeply stricken by all the rawness and evil that exists in this world.” In April 2015, the Veteran was afforded another VA examination by Dr. LCM. The Veteran reported nightmares related to the in-service death of his best friend and his weapon exploding (as well as nightmares unrelated to service, involving being chased by a floating woman in a white gown). The Veteran also reported that he and his spouse had been sleeping in separate bedrooms for the last seven to eight months because of the Veteran’s movements during nightmares. The examiner indicated that the weapon explosion stressor is adequate to support the diagnosis of PTSD and was related to the Veteran’s fear of hostile military or terrorist activity; however, the examiner concluded that there was no DSM 5 diagnosis of PTSD or any other mental disorder based on the Veteran’s report of effective functioning (social, occupational, and behavioral) in the absence of current mental health treatment. In September 2016, the Veteran was afforded another VA examination by Dr. JHW. The Veteran reported nightmares involving rockets, running away, losing his legs, getting hit, and thinking he will die; the Veteran also reported suicidal ideation about two times per week “always on the heels of nightmares.” When asked about occupational and social impairment, the examiner noted that it was not his specific expertise and that his opinion is “speculative and impressionistic to an almost unacceptable degree;” however, he proceeded to opine that the Veteran had occupational and social impairment due to mild or transient symptoms. The examiner noted that he considers this to be a “marginal case” and that the Veteran “comes close” to meeting the DSM 5 criteria for a PTSD diagnosis. The examiner opined that nightmare disorder was a more appropriate diagnosis than PTSD because the Veteran’s nightmares do not directly recapitulate his claimed trauma. The examiner further opined that neither the nightmare disorder nor the mood disorder were at least as likely as not attributable to service because the dream settings are vague and the same themes play out in other dream locations. The examiner stated that he could not imagine anyone with PTSD driving a bus for 19 years without significant incident and that the Veteran maintains more reasonable levels of social activity and has more empathy for his spouse than usually seen in patients with PTSD. The examiner ultimately gave DSM 5 diagnoses of nightmare disorder and mood disorder unspecified. The Veteran is competent to report the content of his nightmares because they are lay-observable. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Further, the Veteran’s reports that his nightmare content has included themes related to his military experiences has remained consistent throughout the medical evidence discussed above. All the reported nightmare content, except the woman in a white gown, seems to be related to military experiences (being around other injured servicemembers in the hospital while recovering from circumcision; wars; men dying; dead bodies; bombs; bullets; killing; best friend’s death; weapon exploding; being attacked by rockets). Although the September 2016 examiner opined that the nightmare disorder was less likely than not attributable to service, the Board finds that opinion to be inconsistent with the longitudinal treatment history, which has consistently documented the Veteran’s credible reports of nightmares with service-related motifs. Thus, the Board finds that the Veteran’s nightmare disorder is at least as likely as not attributable to service and that service connection is warranted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Daus, Associate Counsel