Citation Nr: 18149691 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 15-27 108A DATE: November 13, 2018 ORDER The Veteran's petition to reopen claim for entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for PTSD is granted. FINDINGS OF FACT 1. A September 2012 rating decision denied entitlement to service connection for mood disorder claimed as PTSD and the Veteran did not perfect an appeal. 2. The evidence received since September 2012 is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric condition to include PTSD and mood disorder. 3. Resolving all doubt in the Veteran’s favor he has diagnosed PTSD that is as likely as not related to his military service. CONCLUSIONS OF LAW 1. The September 2012 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7266; 38 C.F.R. §§ 20.1100, 20.1104. 2. The criteria for the Veteran's petition to reopen claim for entitlement to service connection for PTSD have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from February 1973 through December 1974. He was discharged honorably. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. 1. Claim to Reopen. The Veteran’s claim for service connection for mood disorder claimed as PTSD was previously denied in a September 2012 rating decision. He did not file a notice of disagreement with respect to that decision. It is acknowledged that the Veteran submitted statements within a year of the rating decision pertaining to his claim for a psychiatric disorder. However, as those statements were essentially redundant of those he made with his initial claim, they were not new or material to warrant review under 38 C.F.R. § 6.125(b). As the Veteran did not perfect that appeal, the denial is final. See 38 C.F.R. § 20.1103. Unappealed rating decisions are final with the exception that a claim may be reopened by the submission of new and material evidence. When a Veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is “new and material. Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of the Veteran’s claim considering all the evidence both new and old. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). It is the Board’s jurisdictional responsibility to consider whether a claim should be reopened, no matter what the RO has determined. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). “New” evidence means evidence not previously submitted to VA decision makers. “Material” evidence means evidence that relates to an unestablished fact necessary to substantiate the claim. Cumulative or redundant evidence is not new and material. 38 C.F.R. § 3.156 (a). To reopen, the new and material evidence must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). This is a low threshold that is meant to enable, rather than preclude, reopening. The focus is not on whether the evidence remedies the principle reason for the previous denial, but whether the evidence, taken together, would at least trigger the duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). The September 2012 rating decision was based upon the medical opinion of a VA examiner who determined that the Veteran was not diagnosed with PTSD and any existing mood disorder developed recently. VA determined that the Veteran’s disorder was not caused by military service. Since the September 2012 rating decision, the Veteran has been diagnosed with PTSD by multiple VA physicians and mental health providers. The evidence is new because it was not previously submitted to VA decision makers and it is material because it goes to establishing a necessary element required to substantiate a claim for service connection. Evidence reflecting the Veteran has been diagnosed with PTSD is probative because it is a necessary element of the claim. The evidence is sufficient to satisfy the low bar of new and material evidence. The claim for service connection for an acquired psychiatric disorder to include PTSD and mood disorder is reopened. 2. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Establishing service connection for PTSD generally requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). The Veteran asserts that service connection is warranted for PTSD because of his traumatic experiences while stationed in Korea. In brief, he recalls experiencing an allergic reaction to penicillin and anaphylactic shock. The Veteran also recalls waking up in a pool of blood screaming while in the hospital in November 1974. With regards to current disability, VA physicians and social workers have diagnosed the Veteran as having PTSD. With regard to in-service stressor, the Veteran reports experiencing anaphylactic shock due to a penicillin allergy. Service treatment records (STRs) confirm that the Veteran was treated for anaphylactic shock with epinephrine and Benadryl and kept overnight at the hospital in March 1974. STRs also confirm the Veteran was admitted for surgery for seven days in November 1974 to remove a facial abscess. The Veteran provided several inconsistent statements in which he insists he lost consciousness, entered a coma during both hospital stays, and at one point was lying in a pool of his own blood. STRs are silent as to the alleged incidents above. However, the fact remains that the VA examiner reviewed the claims file, which included the service treatment records, as well as his oral history, and determined that the Veteran’s allergic reaction to penicillin was sufficient to meet Criteria A for PTSD and STRs corroborate the incident. Lastly, there is sufficient evidence to establish a nexus between the Veteran’s service and his PTSD diagnosis. Reference is made to a 2016 VA examination that determined the Veteran’s PTSD diagnosis was due to his in-service allergic reaction to penicillin, which was noted to qualify as a valid stressor. The examiner also found the Veteran’s symptoms met Criteria B-H for PTSD. A physician similarly stated in February 2014, that the Veteran had been “evaluated in the past and has, in my opinion, PTSD related to some military experiences while in Korea.” VA medical records similarly indicate the Veteran received mental health treatment at a VA medical center for PTSD due to “experience while in the military.” Consideration has been given a negative 2012 VA examination where the examiner concluded the Veteran’s condition was less likely than not caused by his military service because he was not diagnosed with PTSD. That opinion is no more or less probative than the above referenced opinions. Moreover, as indicated, the Veteran now carries a diagnosis of PTSD per DSM 5. Given the aforementioned, the Board finds that the evidence is at least in equipoise as to the matter of whether the Veteran has diagnosed PTSD related to his military service. The benefit of the doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, and resolving all doubt in the Veteran’s “favor, the Board finds that service connection for PTSD is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.304. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mahmoudi, Associate Counsel