Citation Nr: 18147440 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-13 563 DATE: November 5, 2018 ORDER As new and material evidence has been received, the claim for service connection for post-traumatic stress disorder (PTSD) is reopened. Entitlement to service connection for PTSD is granted. FINDINGS OF FACT 1. In December 1987 the Veteran’s original claim for service connection for PTSD was denied. The Veteran did not file an appeal within the required one-year period following the decision, making it final. 2. Evidence received since the December 1987 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim of service connection for PTSD. 3. The Veteran has a current diagnosis of PTSD. 4. The claims file contains credible supporting evidence that the Veteran’s PTSD began during service. CONCLUSIONS OF LAW 1. The December 1987 rating decision that denied service connection for PTSD is final. 38 U.S.C. §§ 7104, 7105, C.F.R. §§ 3.104, 20.302, 20.1103 2. As new and material evidence has been received since the issuance of the December 1987 final decision, the criteria for reopening the claim for service connection for PTSD has been met. 38 U.S.C. §§ 5108, 38 C.F.R. § 3.156 3. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1154(b); 38 C.F.R. §§ 3.303, 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November of 1970 to February of 1974. This matter comes before the Board on appeal from the Department of Veterans’ Affairs (VA) Regional Office (RO). The Veteran initially requested a videoconference hearing on April 9, 2016, but withdrew the request in a letter dated July 17, 2018. In a rating decision dated in March 2018 the RO denied the Veteran’s claim for service connection for sleep apnea secondary to PTSD. The Veteran’s notice of disagreement (NOD) filed June 18, 2018 does not reference this claim. According to VA’s Veterans Appeals Control and Locator System, the RO has acknowledged the Veteran’s June 2018 NOD with respect to the issue service connection for sleep apnea secondary to PTSD. Where a NOD has been filed but a statement of the case (SOC) has not been issued, the Board must remand the claim to the agency of original jurisdiction so that an SOC may be issued. See Manlincon v. West, 12 Vet. App. 238 (1999). Because the RO has acknowledged the NOD, however, this situation is distinguishable from Manlincon (where an NOD had not been recognized), a remand is not warranted at this time as to the secondary service connection for sleep apnea. 1. New and material evidence has been presented to re-open the Veteran’s claim for service connection for PTSD New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran originally filed a claim for service connection for PTSD in December of 1987. The RO denied the claim on the basis that the Veteran did not provide sufficient evidence to demonstrate a nexus between his service and his diagnosis of PTSD. Specifically, the RO noted that the Veteran failed to respond to a PTSD development letter. The Veteran did not file an appeal within the one-year period following the decision, making it final. Since the 1987 rating decision the Veteran has presented new and material evidence which warrants a re-opening of the case. Such new evidence includes in pertinent part a medical opinion by a VA approved psychologist indicating a plausible nexus between the Veteran’s PTSD and his service. Given that such an opinion was not of record in December of 1987, this evidence is new. The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. Therefore, this evidence is new and material, and reopening of the claim is in order. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). 2. Entitlement to service-connection for post-traumatic stress disorder (PTSD) is granted Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). If the evidence establishes a diagnosis of posttraumatic stress disorder during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). An October 2015 VA examination report indicates that the Veteran has a diagnosis of PTSD. Specifically, the examiner has noted that the Veteran is suffering from multiple symptoms associated with PTSD such as intrusive thoughts, nightmares, irritability and feeling emotionally empty. The examiner further noted that the Veteran had no history of mental illness prior to his service. The Veteran has claimed that his diagnosis of PTSD is connected to his service in Vietnam. Specifically, he stated that his symptoms began during his service. The Veteran’s statements are competent evidence as to matters within the realm of his personal knowledge. 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Veteran’s service records indicate that he served in Vietnam from 1971 to 1972. The service personnel records indicate that during the Veteran’s service in Vietnam, the Vietnam Counter Offensive Phase III occurred. There is no evidence which would contradict the Veteran’s account of the manifestation of his condition. Additionally, the Veteran’s account has probative weight given that he did serve in Vietnam during the period specified. Lastly, the evidence establishes a link between current symptoms and the in-service stressor. The examiner indicated that the Veteran reported that on the second day of his deployment, he got scared and left the bunker without weapons and was taking mortar fire and rocket fire on the second day of his Vietnam tour. The examiner also noted that the Veteran reported that soon after arriving in Vietnam for his deployment, another soldier forced him to shoot a Vietnamese woman who was just walking along. The Veteran reported that due to that experience he endured a sense of helplessness and guilt. The October 2015 VA examiner concluded that after carefully reviewing the Veteran's medical records, psychometric data, and interviewing the Veteran, that the Veteran meets the criteria for PTSD and that the Veteran stated that his PTSD symptoms began during his deployment. The examiner further concluded that based on the Veteran’s report, it is at least as likely as not that his symptoms began while serving in the military and noted the reported stressor during deployment. The VA examiner is competent to provide an analysis of a nexus between the Veteran’s condition and his service, given his background and training. Further, the opinion has significant probative weight given that it outlines a nexus between the Veteran’s PTSD and his service. (Continued on the next page)   The Board finds that the Veteran’s lay statements are credible and consistent with the circumstances of his service. The Board finds that the weight of the evidence demonstrates that PTSD was incurred in service, to include the opinion of VA examiner which found that PTSD symptoms began during active service and provided a link between the Veteran’s current symptoms and his service. Therefore, resolving any doubt in favor of the Veteran, service connection for PTSD is granted. See 38 U.S.C. §§1154 (b); 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Luby, Associate Counsel