Citation Nr: 18151989 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 15-37 694 DATE: November 20, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD) and depression, is reopened. Service connection for an acquired psychiatric disorder, diagnosed as PTSD and depression, is granted. FINDINGS OF FACT 1. In April 1959, the RO issued a rating decision which denied the Veteran’s original claim seeking for a nervous condition. The Veteran was notified of this decision by a letter that same month but did not appeal or submit relevant evidence during the appeal period. 2. In a December 2007 rating decision, the RO denied the Veteran’s claim seeking service connection for PTSD. The Veteran was notified of this decision by a letter that same month but did not timely appeal or submit relevant evidence during the appeal period. 3. In January 2010, the RO issued a rating decision which found that new and material evidence had not been submitted to reopen a claim seeking service connection for anxiety reaction with schizoid features and recurrent major depression (also claimed as a nervous condition). The Veteran was notified of this decision by a letter that same month but did not appeal or submit relevant evidence during the appeal period. 4. In September 2010, the RO issued a rating decision which found that new and material evidence had not been submitted to reopen a claim seeking service connection for PTSD. The Veteran filed a notice of disagreement with this decision, but failed to timely perfect an appeal following issuance of an April 2012 statement of the case. 5. Some of the evidence received in support of the Veteran’s attempt to reopen the claim of service connection for an acquired psychiatric disorder is new and relates to unestablished facts necessary to substantiate the claim for service connection for an acquired psychiatric disorder. 6. The Veteran is currently diagnosed with PTSD and depression, which have been related to his military service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for an acquired psychiatric disorder, diagnosed as PTSD and depression, have been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1952 to March 1953. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board has recharacterized the issue on appeal to account for the entire scope of the Veteran’s claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). In August 2018, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been added to the record. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove 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). The Veteran was originally denied service connection for a nervous condition by an April 1959 rating decision. The Veteran was notified of this decision by a letter that same month but did not appeal or submit relevant evidence during the appeal period. Accordingly, the April 1959 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). In December 2007, the RO issued a rating decision which denied service connection for PTSD. The Veteran was notified of this decision by a letter that same month but did not appeal or submit relevant evidence during the appeal period. Accordingly, the December 2007 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). In January 2010, the RO issued a rating decision which found that new and material evidence had not been submitted to reopen a claim seeking service connection for anxiety reaction with schizoid features and recurrent major depression (also claimed as a nervous condition). The Veteran was notified of this decision by a letter that same month, but did not appeal or submit relevant evidence during the appeal period. Accordingly, the January 2010 rating decision is final. Id. In September 2010, the RO issued a rating decision which found that new and material evidence had not been submitted to reopen a claim seeking service connection for PTSD. The Veteran timed filed a notice of disagreement with this decision in January 2011. The RO subsequently issued a statement of the case in April 2012, and the Veteran failed to file a timely substantive appeal. Thus, the September 2010 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. In July 2012, the Veteran filed to reopen his present claim seeking service connection for an acquired psychiatric disorder. Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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 received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence received since the January 2010 rating decision, which denied service connection for anxiety reaction with schizoid features and recurrent major depression, and the September 2010 rating decision, which denied service connection for PTSD, includes a March 2015 VA medical opinion letter which determined that the Veteran currently has PTSD and depression. The letter referenced the Veteran’s inservice history of having been assaulted while sleeping, and noted that his psychiatric symptoms have endured continuously since his traumatic military experiences. Finally, the report noted the VA examiner’s opinion that the Veteran’s current PTSD was the result of his military service. Accordingly, the new evidence, when considered in conjunction with prior evidence, is sufficiently new and material, and the claim for service connection is reopened. The Board shall now consider the Veteran’s claim on the merits. Based upon a longitudinal review of the record, the Board finds that service connection is warranted for an acquired psychiatric disorder, diagnosed as diagnosed as PTSD and depression. Post service treatment records reflect that the Veteran began receiving treatment for anxiety neurosis in April 1954. Subsequent post service treatment records reflect current diagnoses of PTSD and depression. In support of his claim, the Veteran submitted a March 2015 VA medical opinion letter linking the current PTSD to the reported in-service assault. The same conclusion was reached by VA physician, J.D., M.D., in the June 2012 medical opinion letter. The Board also finds there is credible evidence supporting the Veteran’s alleged inservice assault, including the Veteran’s statements, statements from his relatives, and the March 2015 VA medical opinion. See 38 C.F.R. 3.304(f)(5). Finally, there are multiple medical opinions of record relating the Veteran’s current depression to his military service, including the January 2010 letter from VA physician, J.D., M.D.; March 2009 and April 2007 letters from E.F, M.F.T.; and June 2005 letter from J.H., M.D. Thus, resolving all doubt in the Veteran’s favor, the Board finds that entitlement to service connection for an acquired psychiatric disorder, diagnosed as PTSD and depression, is warranted. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs