Citation Nr: 18153445 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-47 817 DATE: November 28, 2018 ORDER Service connection for post-traumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. A January 2012 rating decision denied service connection for PTSD because the evidence did not show a diagnosis. 2. The Veteran did not appeal the January 2012 rating decision, and new and material evidence was not received within one year of the rating decision. 3. Since the January 2012 rating decision, additional evidence shows a current diagnosis of PTSD. 4. There is credible evidence of a stressor related to a non-combat explosion during service. 5. The Veteran’s PTSD is causally related to the in-service stressor event of non-combat explosion. CONCLUSIONS OF LAW 1. The January 2012 rating decision that denied service connection for PTSD became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to reopen service connection for PTSD. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Marine Corps from October 1954 to September 1957. This appeal arises from a June 2012 rating decision, which denied service connection for PTSD. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA’s duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §5103A; 38 C.F.R.§ 3.159 (2017). As the Board is granting service connection for PTSD, the issue is substantiated and there is no further VCAA duty to notify or assist, or to explain compliance with VCAA duties to notify and assist. New and Material Evidence Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is “new” and “material.” See Smith v. West, 12 Vet. App. 312 (1999). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. 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 a veteran’s claim in light of all the evidence, both new and old. See Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Butler v. Brown, 9 Vet. App. 167, 171 (1996). When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216 (1995). Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). The Board has reviewed the evidence received since the January 2012 rating decision and finds that it qualifies as new and material evidence to warrant reopening of service connection for PTSD. In April 2012, the Veteran submitted a VA treatment note showing a diagnosis of PTSD. The Veteran submitted additional VA treatment notes from December 2013, March 2014, and August 2016 also showing a diagnosis of PTSD. Moreover, the Veteran submitted a September 2014 VA medical opinion in which the VA examiner opined that the diagnosed PTSD was related to concussive injuries caused by a 1956 in-service airplane explosion. The Board finds that this evidence received after the January 2012 rating decision is new. The evidence is new because it was not before the rating board at the time of the original denial in January 2012, and it is neither cumulative nor redundant of the evidence previously considered by the RO. Further, the evidence is material as it relates to an unsubstantiated fact necessary to substantiate the claim, namely, the question of whether the Veteran has PTSD. As noted above, when making determinations as to whether new and material evidence has been received, the credibility of the evidence is generally presumed. See Justus, 3 Vet. App. at 513. This new evidence raises a reasonable possibility of substantiating the claim; thus, this evidence is new and material to reopen service connection for PTSD. Service Connection for PTSD Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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 generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. Service connection for PTSD requires the following three elements: (1) a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor in accordance with 38 C.F.R. § 4.125(a)); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304(f). In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran’s military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154(a); 38 C.F.R. § 3.304(f) (2017). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran “engaged in combat with the enemy.” See Hayes, 5 Vet. App. at 66. If VA determines that the veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the veteran’s lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f)(2) (2017). No further development or corroborative evidence is required, provided that the claimed stressor is “consistent with the circumstances, conditions, or hardships of the veteran’s service.” 38 U.S.C. § 1154(b). If, however, VA determines that the veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the veteran’s lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the veteran’s testimony or statements. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). If a stressor claimed by a veteran is related to the veteran’s 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. If a veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, and the stressor is not related to “fear of hostile military or terrorist activity,” then the veteran’s testimony alone is not sufficient to establish the occurrence of the claimed stressors and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). Furthermore, service department records must support, and not contradict, the claimant’s testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). Under 38 C.F.R. § 3.304(f)(5), if a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304(f)(5). Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Id. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Id. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. Id. The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff’d on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals, and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. Initially, the Board finds the Veteran is currently diagnosed with PTSD, as evidenced by August 2016 and March 2014 VA treatment records. Next, the Board finds the Veteran experienced a corroborated in-service non-combat stressor. During the 2018 Board hearing, the Veteran testified that while on the flight line in 1956 he witnessed an airplane explode upon initial start attempt. The Veteran contended he was “about 10 feet” away from the plane when the airplane exploded. See 2018 Board Hearing. The Veteran submitted a credible service member’s statement confirming that the airplane described by the Veteran did explode upon an initial start attempt. See July 2006 lay statement by K.R. In a 2015 Board decision, the Board found the Veteran to be in close proximity to the described airplane explosion. The service records do not contradict this testimony regarding the airplane explosion. Accordingly, the Veteran’s testimony describing this non-combat stressor is corroborated by credible supporting evidence. Finally, the Board finds that the evidence is at least in equipoise on the question of whether the diagnosed PTSD is causally related to the in-service non-combat stressor. In a 2018 Board hearing, the Veteran contended his PTSD was caused by the 1956 airplane explosion. Additionally, the Veteran’s daughter testified that she had not witnessed her father experience nightmares or irritability symptoms (that were later associated with PTSD) prior to the airplane explosion. See 2018 Board Hearing. These testimonies were medically confirmed by a September 2014 VA medical opinion which stated the Veteran’s PTSD was certainly related to concussive injuries caused by the 1956 airplane explosion. See September 2014 VA Medical Opinion. Moreover, the VA examiner noted that the Veteran’s PTSD related nightmares and ongoing problems were consistent with concussive injuries caused by the airplane explosion. Id. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for PTSD have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Dye, Associate Counsel