Citation Nr: 18147793 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 17-08 471 DATE: November 6, 2018 ORDER As new and material evidence has been received, the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened. Entitlement to service connection for PTSD is granted. REMANDED The issue of entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. A May 2011 rating decision reopened and denied service connection for PTSD. The Veteran did not submit a timely notice of disagreement and the May 2011 rating decision is final. 2. The additional evidence received since the May 2011 rating decision is new and material. 3. PTSD is related to combat service in Vietnam. CONCLUSIONS OF LAW 1. The May 2011 rating decision that reopened and denied service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence to reopen the claim for service connection for PTSD has been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for 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 had active service from October 1964 to September 1966. He served in the Republic of Vietnam and was awarded the Combat Infantryman Badge. Application to Reopen Claim for Service Connection for PTSD A rating decision is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error where a notice of disagreement or material evidence was not received within one year of notification of the decision. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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. There is a low threshold to raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App 273 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence received prior to the expiration of the appeal period 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). A June 2008 Department of Veterans Affairs (VA) rating decision denied service connection for PTSD as “the evidence does not show a confirmed diagnosis of PTSD which would permit a finding of service connection.” The Veteran did not submit a timely notice of disagreement and the June 2008 rating decision is final. The evidence considered in reaching the June 2008 rating decision included service personnel records, VA examination and clinical documentation, and written statements from the Veteran. The service personnel records show that the Veteran served with the Army in the Republic of Vietnam and received the Combat Infantryman Badge. VA clinical documentation dated between February 2004 and October 2007 shows impressions of “[ruleout] PTSD,” a not otherwise specified anxiety disorder, and a not otherwise specified depressive disorder. New and material evidence pertaining to the issue of entitlement to service connection for PTSD was not received by VA or constructively in its possession within one year of written notice to the Veteran of the June 2008 rating decision. Therefore, that decision became final. 38 C.F.R. § 3.156(b). In July 2008 and July 2010, the Veteran sought to reopen the claim of service connection for PTSD. A May 2011 rating decision determined that new and material evidence had been received to reopen the claim of service connection for PTSD and denied the claim on the merits as “the evidence does not show a confirmed diagnosis of PTSD which would permit a finding of service connection.” The Veteran did not submit a timely notice of disagreement and the May 2011 rating decision is final. The evidence considered in reaching the May 2011 rating decision included service personnel records, VA examination and clinical documentation, and written statements from the Veteran. The report of a January 2011 VA psychiatric examination states that the Veteran was diagnosed with a not otherwise specified anxiety disorder. The Veteran was not found to meet the criteria for a PTSD diagnosis. New and material evidence pertaining to the issue of entitlement to service connection for PTSD was not received by VA or constructively in its possession within one year of written notice to the Veteran of the May 2011 rating decision. Therefore, that decision became final. 38 C.F.R. § 3.156(b). The additional evidence received since the May 2011 rating decision includes VA examination and treatment records, clinical documentation from the Ponce, Puerto Rico Vet Center, private clinical documentation, and written statements from the Veteran and service comrades. A January 2014 VA psychiatric treatment record states that the Veteran was diagnosed with late onset PTSD. The Board finds that the January 2014 VA psychiatric treatment record is of such significance that it raises a reasonable possibility of substantiating the claim for service connection. It addresses the reason of the previous denial as it documents a PTSD diagnosis. As new and material evidence has been received, the claim of entitlement to service connection for PTSD is reopened. Service Connection for PTSD The Veteran asserts that service connection for PTSD is warranted as he has been repeatedly diagnosed with PTSD secondary to Vietnam War combat experiences. Service connection may be established for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, 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). The service medical documentation is not of record despite repeated attempts by VA to obtain it. The service personnel records show that the Veteran served with the Army in the Republic of Vietnam and received the Combat Infantryman Badge. Therefore, the Veteran’s participation in combat is conceded. 38 U.S.C. § 1154. The January 2014 VA psychiatric treatment record states that the Veteran was diagnosed with late onset PTSD. A May 2014 written statement from the Ponce, Puerto Rico Vet Center states that the Veteran was diagnosed with chronic PTSD secondary to Vietnam War experiences. A September 2018 VA psychiatric examination states that the Veteran was diagnosed with PTSD secondary to Vietnam War combat experiences. The Veteran served in the Republic of Vietnam and was awarded the Combat Infantryman Badge. He has been diagnosed with PTSD related to combat experiences by VA and Vet Center medical personnel. Therefore, the Board of Veterans’ Appeals (Board) concludes that service connection is warranted for PTSD. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND The issue of service connection for a lumbar spine disability is remanded. The Veteran claims that service connection for a lumbar spine disability is warranted. In the case of any veteran who engaged in combat with the enemy in active service during a period of war, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by that service satisfactory lay or other evidence of service incurrence or aggravation of the injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of that injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. 38 U.S.C. § 1154(b). The service medical documentation is not of record through no fault of the Veteran. VA clinical documentation of record states that the Veteran complained of low back pain. The Veteran has not been provided a VA spine examination to determine the nature and severity of the claimed low back disability and its relationship, if any, to active service. VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). Because of the loss of the service medical records and the provisions of 38 U.S.C. § 1154(b), the Board finds that a VA spine examination is needed to adequately address the issues raised by this appeal. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated him for any low back disabilities. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA spine examination. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all recurrent low back or lumbar spine disabilities found. If no low back disability is diagnosed, the examiner must specifically state that fact. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that each identified low back or lumbar spine disability had its onset during active service or is related to any incident of service, including the Veteran’s combat experiences in the Republic of Vietnam. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel