Citation Nr: 18150696 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 16-35 166 DATE: November 16, 2018 ORDER Reconsideration of a previously denied claim of entitlement to service connection for an acquired psychiatric disorder then claimed as posttraumatic stress disorder (PTSD) is granted. Service connection for acquired psychiatric disability, diagnosed as other specified trauma and stressor-related disorder, is granted. FINDINGS OF FACT 1. A February 2015 rating decision denied service connection for an acquired psychiatric disorder then claimed as PTSD; although notified of the denial in a letter dated that same month, the Veteran did not initiate an appeal; however, new and material evidence pertinent to the claim was received within one year. 2. Although no psychiatric disorder was diagnosed in service, and there is no official documentation to corroborate the occurrence of any specific in-service stressor(s), the Veteran has asserted in-service traumatic experiences associated with fear of hostile military or terrorist activity, which is consistent with the place, type, and circumstances of his service. 3. A competent, probative VA psychologist’s opinion demonstrates that the Veteran meets the diagnostic criteria for a current psychiatric disability, and tends to establish a link between the current psychiatric disability and a reported in-service stressor. CONCLUSIONS OF LAW 1. As evidence received since the February 2015 denial of service connection for PTSD includes new and material evidence received prior to the expiration of the appeal period, the criteria for reconsideration of that claim are met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for acquired psychiatric disability diagnosed as other specified trauma and stressor-related disorder, are 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 from October 1964 to October 1968, including service in the Republic of Vietnam. This appeal to the Board of Veterans Appeals (Board) arose from an April 2016 rating decision, in which the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, inter alia, reopened, but denied on the merits, the Veteran’s claim for service connection for other specified trauma and stressor related disorder (claimed as PTSD). The Veteran disagreed with this decision and this appeal ensued. In November 2016, the Veteran and his wife testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) held at the RO. Regarding characterization of the appeal, the agency of original jurisdiction (AOJ) has treated the issue on appeal as a petition to reopen a previously denied claim of entitlement to service connection for PTSD. However, as explained below, the claim adjudicated by the AOJ as a request to reopen is more appropriately characterized as an appeal for reconsideration of the claim, consistent with the provisions of 38 C.F.R. § 3.156(b). Moreover, given the favorable disposition of the reconsideration issue, as discussed below, the appeal also has been expanded to include the underlying claim for service connection. Additionally, as a January 2016 VA examination report additionally diagnosed other specified trauma and stressor-related disorder as specifically related to a claimed in-service stressor, the Board is expanding the claim being reconsidered as to encompass the additional psychiatric diagnosis, consistent with Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Reconsideration The Veteran’s claim for service connection for acquired psychiatric disability claimed as PTSD was initially denied by the AOJ in a February 2015 rating decision. The pertinent evidence then of record consisted of the Veteran’s service treatment records (STRs), an October 2014 VA PTSD examination report, and lay statements. The AOJ denied the claim based on a lack of evidence of a current PTSD diagnosis. Although notified of the February 2015 denial in a letter dated that same month, the Veteran did not initiate an appeal. See 38 C.F.R. § 20.200. Typically, this fact would render the decision final as to the evidence then of record, and not subject to revision on the same factual basis. See 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Under such circumstances, VA could only reopen and review such claims if new and material evidence is submitted by or on behalf of the Veteran. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). However, applicable regulation provides that if new and material evidence was received during an appellate period following an RO decision (one year for a rating decision and 60 days for a SOC) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Thus, under 38 C.F.R. § 3.156(b), “VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim.” Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). “[N]ew and material evidence” under 38 C.F.R. § 3.156(b) has the same meaning as “new and material evidence” as defined in 38 C.F.R. § 3.156(a). See Young, 22 Vet. App. at 468. “New” evidence is evidence not previously submitted to agency decision makers and “material” evidence is 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 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). Here, in July 2015, the Veteran submitted a letter from a Vet Center counselor, containing the counselor’s opinion that the Veteran suffered from PTSD as a result of his reported in-service stressor during his Vietnam service. Additionally, the Veteran was afforded a new VA examination in January 2016, at which time he was diagnosed with other specified trauma and stressor-related disorder, which the examiner opined was at least as likely as not related to the Veteran’s reported stressor during his Vietnam service. This evidence was received within one year of the February 2015 rating decision. The Board finds that the above-described evidence is “new” in that it was not before the RO at the time of the February 2015 denial and is not duplicative or cumulative of the evidence previously of record. Additionally, this evidence is “material” in that it is relevant to the claim on appeal, and relates to unestablished facts necessary to substantiate the claim for service connection at issue—namely, whether the Veteran’s has a currently diagnosed acquired psychiatric disability, and whether there is a link between such disability and the Veteran’s active service. When considered in light of the evidence previously of record, this evidence provides a reasonable possibility of substantiating the claim. Thus, as new and material evidence within the meaning of 38 C.F.R. § 3.156(a) was received within one year of the February 2015 denial, reconsideration of the claim is warranted. See 38 C.F.R. § 3.156(b). 2. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. See 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection for PTSD requires medical evidence diagnosing the disorder 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 in-service stressor occurred. 38 C.F.R. § 3.304(f). The determination as to whether the elements of a claim are met is based on an analysis of all the evidence of record and evaluation of its competency, credibility and probative value. See Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006) Baldwin v. West, 13 Vet. App. 1, 8 (1999). A diagnosis of PTSD must be rendered in accordance with the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM). See 38 C.F.R. § 4.125. Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV). The amendments replace those references with references to the recently published Fifth Edition (DSM-5). See 80 Fed. Reg. 53, 14308 (March 19, 2015). These amendments apply to all applications for benefits that are received by VA or that are pending before the AOJ on or after August 4, 2014. As the Veteran’s claim has remained pending since his initial filing in June 2014, the DSM-IV is applicable. The evidence needed to establish the occurrence of a claimed in-service stressor is typically dependent upon whether a veteran engaged in combat with the enemy, as well as whether the claimed in-service stressor is related to such combat; or, if not, whether there is objective evidence to verify the occurrence of the claimed stressor. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996); see also 38 U.S.C. 1154(b). If a stressor claimed by a veteran is related to his or her fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, 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 testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). “Fear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As discussed below, the medical evidence of record does not establish that the Veteran has a current PTSD diagnosis in accordance with the provisions of 38 C.F.R. § 3.304(f)(3), as the Veteran has not been diagnosed with PTSD by a psychiatrist or psychologist. Nonetheless, in a January 2916 VA examination report, a VA psychologist diagnosed the Veteran as having other specified trauma and stressor-related disorder as related to a fear of hostile military or terrorist activity. Accordingly, the Board will treat the Veteran’s stressors with respect to diagnostic psychiatric disability appeal as analogous to stressors in a claim for PTSD. The Veteran’s essential assertion is that he incurred psychiatric disability as a result of his traumatic experiences during his Vietnam service associated with fear of hostile military or terrorist activity, including going into a morgue in Saigon and seeing several containers containing dead service members, and seeing several dead Viet Cong soldiers who had been shot lying in ditches along the roads in Vietnam. During his November 2016 Board hearing the Veteran described traveling to Saigon three or four times on temporary duty and seeing bodies that had been shot on the side of the road. He testified that due to these experiences, he became withdrawn. He also reported experiencing a traumatic stressor when he witnessed the drowning of a fellow service member who was caught up in an undertow off the coast near Tuy Hoa Airbase in Vietnam, while the Veteran and others were playing volleyball on the beach. The evidence does not indicate and the Veteran has not asserted that he suffered from, was diagnosed with, or was treated for psychiatric disability during service. Rather the Veteran asserts that his claimed psychiatric disability resulted from his in-service traumatic experiences, as described. The Board finds the Veteran’s reports regarding his in-service traumatic experiences, particularly the experience of seeing multiple Viet Cong soldier that were dead on the sides of the roads, to be credible. Moreover, although no official records verifying the occurrence of any alleged in-service stressor(s) have been received, the Board also concludes that the claimed stressor with respect to seeing multiple dead Viet Cong soldiers and seeing multiple containers of dead service members is consistent with the places, types, and circumstances of the Veteran’s Vietnam service. See 38 C.F.R. § 3.304(f)(3). In this regard, the record confirms that the Veteran was stationed at Tuy Hoa Airbase, in Vietnam, and that his military occupational specialty was an inventory management specialist. The Board finds it reasonable to believe that his military duties would lead him to travel to other destinations in Vietnam, and that he would in likelihood see dead bodies of enemy combatants left dead on the roadside. Also, there is no clear and convincing evidence to the contrary nor any reason to doubt the Veteran’s credibility in reporting the traumatic incident involving seeing dead bodies along the roadway. Moreover, in the January 2016 VA examination report, the VA psychologist confirmed that the Veteran’s claimed stressor of seeing dead Viet Cong soldiers was adequate to support his diagnosis of other specified trauma and stressor-related disorder, related to a fear of hostile military or terrorist activity. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s lay statements, when considered in light of the findings of the January 2016 VA psychologist, are sufficient to support a finding that the Veteran’s claimed in-service stressor occurred. See id. Additionally, the VA psychologist’s diagnosis satisfies the current disability requirement for service connection. The Board further notes that the VA psychologist opined in the January 2016 report that it was at least as likely as not that the Veteran’s diagnosed psychiatric disability was related to the claimed in-service stressor of seeing the dead Viet Cong soldiers during his Vietnam tour. Thus, the Board finds that the remaining element for service connection, namely a nexus between the Veteran’s in-service stressor and the diagnosed psychiatric disability has been met. See Davidson, 581 F.3d 1313; Cf. 38 C.F.R. § 3.304(f). In this regard, the Board finds the January 2016 VA psychologist’s opinion to be probative. The psychologist reviewed the Veteran’s STRs and post-service treatment records, and considered the Veteran’s reports. Based on the evidence, the examiner concluded that the Veteran at least as likely as not had current psychiatric disability that was related to his claimed in-service stressor. Cf. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). To the extent that the opinion relies on the Veteran’s lay reports, the Board emphasizes that VA is not free to ignore a medical opinion or pertinent medical findings (see Owens v. Brown, 7 Vet. App. 429, 433 (1995)), or to reject such a medical opinion based on its own medical judgment (see Obert v. Brown, 5 Vet. App. 30 (1993) and Colvin v. Derwinski, 1 Vet. App. 171 (1991)), even if the opinion is based, in part, on lay assertions. In the instant case, the Board has determined that the Veteran’s reports support a finding that his in-service stressor of seeing dead Viet Cong soldiers occurred, and the examiner noted that the stressor was based on a fear of hostile military or terrorist activity and that the symptoms of his diagnosed psychiatric disability were related to the stressor. Thus, based on the foregoing, the Board finds that the evidence of record is, at least, relatively evenly balanced on the medical nexus question. In reaching the above conclusion, the Board again notes that the evidence of record fails to establish that the Veteran meets the diagnostic criteria for PTSD based on a fear of hostile military or terrorist activity pursuant to the provisions of 38 C.F.R. § 3.304(f)(3). In this regard, the VA psychologist conducting the January 2016 VA examination, and a VA psychologist that had conducted a prior September 2014 VA PTSD examination had concluded that the Veteran did not meet certain diagnostic criteria to establish a PTSD. While the September 2014 VA examiner determined that the Veteran’s claimed stressor of seeing Viet Cong soldiers that had been shot lying on the side of the road did meet the stressor criterion (Criterion A) for PTSD and that the stressor was related to a fear of hostile military or terrorist activity, the examiner indicated that the diagnostic criteria pertaining to the presence of intrusion symptoms (Criterion B) and to negative alterations in cognitions and mood associated with the traumatic event (Criterion D), had not been met. Similarly, the January 2016 VA examiner noted that the Veteran’s reported stressor was adequate to support a diagnosis of PTSD, but that the Veteran did not endorse sufficient symptoms for a full PTSD diagnosis. Additionally, while a Vet Center counselor provided a July 2015 letter in support of the Veteran’s PTSD claim, wherein the counselor noted his opinion that the Veteran’s symptoms satisfied the diagnostic criteria for PTSD, the Board notes that the counselor, a licensed social worker, is not a psychiatrist or psychologist. Consequently, the Board may not accept the counselor’s diagnosis as adequate to satisfy the requirement for a PTSD diagnosis based on a fear of hostile military or terrorist activity as required by 38 C.F.R. § 3.304(f)(3). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102; see also 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 53-56. Accordingly, given the facts noted above, and resolving all reasonable doubt in the Veteran’s favor on certain elements of the claim, the Board finds that the criteria for service connection for other specified trauma and stressor-related disorder are met. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Wilson, Counsel