Citation Nr: 18142112 Decision Date: 10/16/18 Archive Date: 10/12/18 DOCKET NO. 12-31 167A DATE: October 16, 2018 ORDER New and material evidence having been received, the previously denied claim of service connection for posttraumatic stress disorder (PTSD) is reopened. Service connection for PTSD is granted. REMANDED A total disability based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran has PTSD that is related to an in-service stressor. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1972 to October 1981. The case is on appeal from a July 2010 rating decision. The case was most recently before the Board in February 2018. At that that time, the Board remanded the case for issuance of a supplemental statement of the case (SSOC), which was issued in March 2018. New and Material Evidence 1. Whether new and material evidence has been received to reopen a claim of service connection for PTSD. By an August 2004 rating decision, a claim of service connection for PTSD was denied. The Veteran was notified of the decision by letter later that month, which was mailed to one of the two then current mailing addresses of record. Thereafter, nothing further regarding the claim was received until the present claim to reopen in June 2009. No new evidence or notice of disagreement was received by VA within one year of the issuance of the August 2004 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for PTSD is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Specifically, VA treatment records, including one from March 2009, reveal a diagnosis of PTSD. A December 2012 opinion from the Veteran’s treating VA psychiatrist states that the Veteran has a history of PTSD, related to his cited stressors. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: “(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”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). To establish entitlement to service connection for PTSD a veteran must provide: (1) medical evidence diagnosing PTSD; (2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). 2. Service connection for PTSD. There is some dispute in the record as to whether the Veteran has PTSD. VA treatment records, including a December 2012 opinion from his treating psychiatrist, reveal that the Veteran has PTSD and major depressive disorder. This diagnosis was not confirmed at his VA examination in June 2010. Rather, the examiner found personality disorder and anxiety disorder NOS, not otherwise specified with antisocial traits as well as a traumatic experience aboard the U.S.S Saratoga. The October 2012 examiner also found that the Veteran did not meet the criteria of PTSD, but rather anxiety and depressive disorders. While the characterization of the diagnosis differs in medical records, it is clear that the Veteran has an acquired psychiatric disorder. Further, the Board finds his treating clinicians’ assessment more probative as she had treated the Veteran on an on-going basis. In a March 2009 statement, the Veteran noted that in October 1972 when he was aboard the U.S.S. Saratoga, he was assigned the Squadron Ready Room. During a port visit to Singapore, a fire broke out in the boiler room. As he was nearby the fire, he helped contain the fire and prevent damage to the ship. Several servicemembers died because of the fire. The Veteran noted that he experiences nightmares, cold sweats, visions, and smells of the fire. In April 2010, the RO was able to verify that there was a fire aboard the U.S.S. Saratoga on October 29, 1972 when the ship was stationed in Singapore. While not much damage was caused to the ship, several servicemembers died as a result of smoke inhalation. The Veteran’s military personnel records confirm he was onboard the U.S.S. Saratoga in late October 1972 when the fire occurred. This evidence corroborates his claimed stressor. The June 2010 and October 2012 VA examiners provided opinions only as to diagnosis and, finding that the Veteran did not meet the criteria for PTSD, did not opine as to relationship to a stressor or service. Rather, the only opinion of record is the December 2012 opinion from his treating psychiatrist. She noted chronic PTSD from cleaning up burned bodies from a fire on the U.S.S. Saratoga as one of his stressors and the cause of his symptoms. A January 2015 letter from the VA clinician is to similar affect. The Board accepts the psychiatrist’s opinion as to the etiology of the Veteran’s PTSD. Being the only medical opinion or record as to the connection between the Veteran’s PTSD and verified stressor, and when resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran has PTSD that is related to an in-service stressor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection is warranted for PTSD. REASONS FOR REMAND A TDIU. According to the Veteran’s December 2009 TDIU application, the Veteran has been unemployed since January 2007. He is service connected for diabetes with hypertension and erectile dysfunction, as well as peripheral neuropathy in each extremity. His combined rating is at least 60 percent since June 20, 2017. However, because each of these service-connected disabilities is from a single etiology, this constitutes a single disability for TDIU purposes, at least since June 20, 2017. See38 C.F.R. § 4.16(a). Further, the Veteran, as a result of this decision will be rated for PTSD, which will likely increase his rating. He is currently receiving Social Security Disability Insurance (SSDI) payments, having been found totally and permanently disabled by the Social Security Administration (SSA) due to his diabetes mellitus and affective/mood disorder (also noted as PTSD, depression, and anxiety) since April 1, 2008. These are essentially his service-connected disabilities. Before becoming unemployed, the Veteran had owned his own business freight business. A March 2010 letter from the Veteran’s business manager. She noted that the business had to shut down in early 2007 because of the Veteran’s depression, anxiety, and radical temperament. At an August 2012 VA examination, functional limitations were noted as diabetes causes fatigue and that he needed to watch what he ate. In December 2012, the Veteran’s psychologist noted that the Veteran has severe PTSD symptoms, including frequent nightmares, intrusive thoughts, hypervigilance, sleep difficulties, and suicidal ideations. She stated that he would not be able to function in a job in proximity of other people as he could not respond in an emotionally stable manner to constructive criticism and has limited concentration. In light of this information, the Board finds that the TDIU claim should be remanded for additional consideration after the implementation of the PTSD award, and any then-necessary development for the TDIU issue. The matter is REMANDED for the following action: Implement the grant of service connection for PTSD. Thereafter, consider whether TDIU should be granted. If necessary obtain comment upon the functional limitations of the Veteran’s physical and mental disabilities, to include on employment. In doing so, note the Veteran is in receipt of SSDI payments, having been found disabled since April 1, 2008 by SSA and has not worked since January 2007. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George