Citation Nr: 18145062 Decision Date: 10/26/18 Archive Date: 10/25/18 DOCKET NO. 18-23 419 DATE: October 26, 2018 ORDER The previously disallowed claim for service connection for a nervous condition is reopened. Service connection for PTSD is granted. FINDINGS OF FACT 1. By a decision entered in January 1979, the Board of Veterans’ Appeals (Board) denied the Veteran’s claim for service connection for a nervous condition (schizophrenia). 2. By a decision entered in September 1994, the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, again denied service connection for a nervous condition; the Veteran was advised of the RO’s decision and of his appellate rights. 3. The Veteran did not initiate an appeal of the RO’s September 1994 decision during the one-year period following the mailing of notice of that decision; nor was any new and material evidence received within a year. 4. The evidence received since the time of the RO’s September 1994 decision relates to unestablished facts necessary to substantiate the Veteran’s claim. 5. The Veteran served in combat; it is at least as likely as not that he suffers from PTSD attributable to combat-related stressors. CONCLUSIONS OF LAW 1. The September 1994 RO rating decision that denied service connection for a nervous condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim for service connection for a nervous condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from April 1968 to April 1970, to include service in Vietnam. His decorations include the Vietnam Service Medal, the Combat Infantryman Badge, the Purple Heart Medal, and the Bronze Star Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision issued by the VA RO in San Juan, the Commonwealth of Puerto Rico. Reopening and Merits Adjudication Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The 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 Secretary shall reopen the claim and review the former disposition of the claim. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). By way of background, the RO initially denied a claim for service connection for an acquired psychiatric disorder, diagnosed as schizophrenia, in a November 1977 rating decision. The Veteran filed an appeal and the Board denied the claim in January 1979. The Board’s decision was final when entered. Thereafter, the Veteran filed another claim. In a September 1994 rating decision, the RO again denied service connection for an acquired psychiatric disorder, characterized as a nervous condition with psychological effects. The Veteran was advised of the RO’s decision, and of his appellate rights, by letter dated in December 1994. The Veteran did not initiate an appeal and no new evidence was received prior to the expiration of the appeal period. As such, that rating decision became final. In July 2013, the Veteran filed another claim for service connection for an acquired psychiatric disorder, characterized as PTSD. The RO denied this claim in a February 2014 rating decision. The RO found that the Veteran did not have a diagnosis of PTSD and that the disability for which he did have a current diagnosis (unspecified anxiety disorder) was unrelated to service. The Veteran was advised of the RO’s decision, and of his appellate rights, by letter dated that same month. He did not initiate an appeal of the RO’s decision during the one-year period following the mailing of notice of that decision. However, new evidence was received during that time frame in the form of additional VA treatment records. The RO readjudicated the Veteran’s claim for a “mental disorder” in a February 2015 rating decision, following a VA examination during which a diagnosis of unspecified anxiety disorder was noted. The RO found that his condition was not related to service. The Veteran was advised of the RO’s decision, and of his appellate rights, by letter dated February 25, 2015. The Veteran did not file an appeal. Again, however, new evidence was added to the Veteran’s claims file on February 1, 2016, in the form of the report of a VA psychiatric examination. The RO again denied the Veteran’s claim for service connection for an acquired psychiatric disorder in a March 2016 rating decision. On March 6, 2017, the RO received a notice of disagreement with the March 2016 rating decision. Given that the date of the prior rating decision was March 2, 2016, the RO determined that the March 2017 notice of disagreement was not timely and the March 2016 rating decision was final. However, the Board finds that the postmark on the envelope in which the notice of disagreement was mailed was date stamped March 2, 2017 by the United States Postal Service. In light of the date of the postmark on the envelope being exactly one year to the day of the rating decision, March 2, 2017, the Board finds that the notice of disagreement is timely and the rating decision currently on appeal is the March 2016 rating decision. See generally 38 C.F.R. § 20.305 (a response postmarked prior to the expiration of the applicable time limit will be accepted as having been timely filed). Thus, the prior final denial is the September 1994 rating decision. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). At the time of that rating decision, the evidence considered included service treatment records that failed to show any complaints, treatment, or diagnoses for a psychiatric disorder; available VA and private treatment records; and the Veteran’s statements in support of this claim. The RO denied the claim for a nervous condition on the basis that the available scientific and medical evidence did not support the conclusion that the Veteran’s condition was associated with herbicide exposure, and because there was no other basis for service connection. The evidence received since September 1994 includes, among other things, VA clinical records containing a diagnosis of PTSD based on in-service combat stressors. Inasmuch as this evidence suggests that the Veteran has psychiatric symptoms that can be attributed to service, the evidence is new and material. As such, the Veteran’s claim is reopened. As to the merits of the Veteran’s appeal, the record reflects that he was provided recent VA mental disorders examinations in February 2014, February 2015, February 2016, and April 2017. The only diagnosed psychiatric disorders were anxiety and schizophrenia. Neither those examiners, nor any other competent and probative evidence of record, attributes those disorders either to the Veteran’s military service or to any service-connected disabilities. As such, the weight of the evidence is against an award of service connection for such disorders. As to PTSD, however, as noted, the record includes VA clinical records containing a diagnosis of PTSD based on in-service combat stressors. Although the diagnosis is at odds with the findings on the aforementioned VA examinations, the diagnosis of PTSD in the clinical records was proffered by a physician in the psychiatry service who was familiar with the Veteran’s care. As such, it is entitled to significant probative weight. Based on the totality of the evidence, the Board is persuaded that the criteria for an award of service connection for PTSD have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 3.102. Service connection for PTSD is granted. DAVID A. BRENNINGMEYER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berry, Counsel