Citation Nr: 18143644 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 17-41 153 DATE: October 19, 2018 ORDER New and material evidence having been received, the Veteran’s application to reopen his previously denied claim of entitlement to service connection for an acquired psychiatric disorder is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) with depressed mood and anxiety is granted. FINDINGS OF FACT 1. A March 2015 rating decision denied the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder. The Veteran did not timely appeal that decision and it is final. 2. Evidence pertaining to the Veteran’s acquired psychiatric disorder received since the March 2015 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s posttraumatic stress disorder is at least as likely as not related to his fear of hostile military activity during service. CONCLUSIONS OF LAW 1. The March 2015 rating decision most recently denying service connection for an acquired psychiatric disorder is final. 38 U.S.C. § 7104, 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2018). 2. New and material evidence has been received to reopen the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for entitlement to service connection for posttraumatic stress disorder have been met. 38 U.S.C. §§ 101(24), 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.1(d), 3.6(a), 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1952 to May 1956. He testified before the undersigned Veterans Law Judge at a videoconference hearing in October 2018. 1. New and Material Evidence Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence 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 final decision, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder was first denied by an October 2014 rating decision. New evidence was submitted within one year and the Veteran’s claim was readjudicated by a March 2015 rating decision. The Veteran did not timely appeal that decision and it became final. He then sought to reopen his claim in August 2016. The March 2015 rating decision denied the Veteran’s claim on the basis that there was no in-service injury or event and his psychiatric disorder was not related to service. Since the March 2015 rating decision, multiple nexus opinions have been obtained, and the Veteran provided sworn testimony regarding his in-service stressors. This evidence is new in that it was not previously submitted and it is material as it relates to an unestablished fact. As such, the Veteran’s claim is reopened. 2. Service Connection The criteria to establish service connection for PTSD vary with regard to the nature of the in-service stressor. As will be discussed, the Veteran’s claimed stressor suggests fear of hostile military or terrorist activity. For PTSD due to fear of hostile military or terrorist activity, 38 C.F.R. § 3.304(f)(3) provides that 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 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 statements alone may establish the occurrence of the claimed in-service stressor. A November 2016 VA examination report and February 2017 private medical opinion establish that the Veteran has a current diagnosis of posttraumatic stress disorder. Therefore, the first element of service connection is met. The Board acknowledges that the Veteran’s claim was previously been broken into two separate claims; a claim for PTSD and a claim for depression. However, as evidenced by the November 2016 VA examination report, the Veteran’s depressed mood is a symptom of his PTSD; not a separate disability. The February 2017 private examination report also noted a diagnosis of anxiety disorder not otherwise specified; however, the examiner did not provide a basis for this diagnosis. Instead, the November 2016 VA examination report, which was based on a full evaluation of the Veteran and included consideration of the Veteran’s lay statements and his treatment records, establishes that his anxiety is a symptom of his PTSD. The VA examination report makes clear that the Veteran’s only psychiatric diagnosis is PTSD; the Board affords the most probative weight to this medical examination report. As to an in-service stressor, the Veteran has indicated that while serving in Korea, he witnessed soldiers taking flight and crashing down before his eyes. He additionally reported intense fear from having to guard airstrips because the enemy had easy access and often attempted infiltration because there were no perimeter enclosures at his base. The description of “fear of hostile military or terrorist activity” provided in 38 C.F.R. § 3.304(f)(3) includes psychological symptoms resulting from having witnessed a circumstance that involved actual or threatened death. As such, if the criteria set forth in 38 C.F.R. § 3.304(f)(3) are met, the claim be may granted. The November 2016 VA examiner opined that the Veteran met the requirements of PTSD due to fear of hostile military action. This was further confirmed by the February 2017 private medical opinion obtained on the Veteran’s behalf. This is sufficient to verify the occurrence of the in-service stressor. 38 C.F.R. § 3.304(f)(3); see also 75 Fed. Reg. 39,843-52 (July 13, 2010). As the Veteran’s PTSD has been related to a corroborated in-service stressor, service connection for PTSD is warranted. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Martha R. Luboch, Associate Counsel