Citation Nr: 18155829 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-56 067 DATE: December 6, 2018 ORDER New and material evidence having been received, the claim to reopen a previously denied claim of service connection for post-traumatic stress disorder is granted. New and material evidence having not been received, the claim to reopen a previously denied claim of service connection for an acquired psychiatric disorder, to include major depressive disorder, is denied. Entitlement to service connection for post-traumatic stress disorder is denied. FINDINGS OF FACT 1. Service connection for post-traumatic stress disorder (PTSD) was denied in a May 2012 rating decision. The Veteran did not file a Notice of Disagreement (NOD), and therefore, the decision became final. The Veteran filed a claim in July 2015 to reopen the previous final denial. Presuming its credibility, evidence received since the May 2012 previous final denial raises a reasonable possibility of substantiating the Veteran’s PTSD claim. 2. Service connection for an acquired psychiatric disorder, to include major depressive disorder, was denied in an September 2010 rating decision. The Veteran did not file a NOD, and therefore, the decision became final. The Veteran filed a claim in July 2015 to reopen the previous final denial. Evidence received since the September 2010 previous final denial does not raise a reasonable possibility of substantiating the Veteran’s acquired psychological disorder, to include major depressive disorder, claim. 3. A claimed in-service stressor for PTSD has not been corroborated by credible supporting evidence. CONCLUSIONS OF LAW 1. The criteria for whether new and material evidence has been received to reopen the claim for entitlement to service connection for PTSD, have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). 2. The criteria for whether new and material evidence has been received to reopen the claim for entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). 3. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1111, 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 4.125(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from August 1969 to July 1971. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2015 rating decision of a Department of Veterans’ Affairs Regional Office (RO). Whether new and material evidence has been received to reopen a previously denied claim of service connection for PTSD Regardless of the AOJ’s actions, given the previous unappealed denial of the claims on appeal, the Board has a legal duty under 38 U.S.C. § 5108 to address the question of whether new and material evidence has been received to reopen the claims for service connection. Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 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 submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a May 2012 rating decision, the RO denied service connection for PTSD because there was no evidence corroborating the Veteran’s lay statements of an in-service stressor. The Veteran did not file a NOD, and therefore, the decision became final. 38 C.F.R. §§ 3.156(b), 20.1103. With regards to claims for service connection for PTSD, the general rule is that a claimant’s lay statements alone are insufficient to establish that an in-service stressor occurred. Rather, credible supporting evidence corroborating the in-service stressor is required. However, 38 C.F.R. 3.304(f) provides for an exception to this rule in four situations: 1) PTSD is diagnosed in service, 2) the claimant was engaged in combat with the enemy and has a stressor related to combat, 3) the stressor is based on a fear of hostile military or terrorist activity, or 4) the claimant was a prisoner of war as defined under 38 C.F.R. §3.1(v). Following this previous final denial, the Veteran submitted lay statements indicating that while he was stationed in Frankfurt, Germany he was subject to mortar fire sometime in 1970 and witnessed an army friend get injured by the mortar fire. The Veteran also stated that his friend, L. M., could corroborate the event. New and material evidence is presumed to be credible, if it is first determined to be competent. Justus v. Principi, 3 Vet. App. 510.513 (1992) However, the presumption can be rebutted if the evidence is patently incredible. Duran v. Brown, 7 Vet. App. 216, 220 (1994). Here, the Veteran’s statements about his stressor are patently credible as there have been accounts of attacks on U.S. military bases in Germany during the 1970s. Therefore, the presumption of credibility applies to the Veteran’s statements. The claimed stressor, along with the information that could corroborate the stressor, provides sufficient evidence to warrant the re-opening of the Veteran’s claim. The claimed stressor also relates to the question of whether the Veteran’s service could potentially qualify as service that was related to fear of hostile military or terrorist activity, and only presuming its credibility for such purposes warrants the re-opening of the Veteran’s claim on this ground as well. 38 C.F.R. 3.304(f). Therefore, the Veteran’s lay statements serve as new and material evidence sufficient to reopen the previous final denial. Although the evidence is sufficient to reopen, it is not sufficient to grant the claim, and the claim on the merits including the threshold question of whether the Veteran’s service does qualify as that which was related to fear of hostile military or terrorist activity, is discussed in the Service Connection section below. Whether new and material evidence has been received to reopen a previously denied claim of service connection for an acquired psychiatric disorder, to include major depressive disorder The Veteran filed a claim for entitlement to service connection for an acquired psychological disorder, to include major depressive disorder, in February 2010. The RO denied the claim in September 2010 and the Veteran did not file a NOD; therefore, the decision became final. 38 C.F.R. §§ 3.156(b), 20.1103. In its September 2010 rating decision, the RO denied the Veteran’s claim because there was no clinical link between the Veteran’s depression disability and his military service, and there was no evidence that the Veteran’s depression as incurred in military service. In July 2015, the Veteran filed a claim for a mental condition and requested that the RO reopen the previously denied service connection claim. The Veteran also submitted additional evidence from Case Management Inc. establishing a clinical diagnosis for depression. In October 2015, the RO denied the claim to reopen. The RO determined that while the evidence was new, it did not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim, and therefore did not constitute new and material evidence. Generally, to establish service connection for a psychiatric disorder other than PTSD, a Veteran 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the instant case, the Veteran had already established that he was diagnosed with depression and he had enumerated various incidents in service that he claimed led to his depression. These incidents are: a truck generator falling on him causing back injuries and the associated pain medication that was prescribed, stress from cold weather, guilt over his deployment in Germany while his brother was stationed in Vietnam, witnessing a man freeze to death, sustaining mortar fire and witnessing a fellow soldier get injured by the mortar fire. Therefore, in the instant case, the unestablished fact necessary to substantiate the claim is the nexus between the Veteran’s claimed in-service incidents and his depression disability. A review of the medical and lay evidence provided by the Veteran since the previous final denial in September 2010 shows that the Veteran has submitted evidence of his clinical diagnosis of depression, worsening of his depression symptoms and treatment he has received for depression. Although the Veteran submitted new evidence, the evidence did not relate to the causal relationship between the Veteran’s depression disability and his claimed in-service events, which is the unestablished fact necessary to substantiate the claim. Because the new evidence submitted by the Veteran since the previous final denial was cumulative of the evidence previously of record, and did not raise a reasonable possibility of substantiating the claim, it did not satisfy the threshold for reopening the Veteran’s claim. 38 C.F.R. § 3.156(a). Service Connection Entitlement to service connection for PTSD Entitlement to service connection for PTSD requires that three elements be present: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125 (a); (2) combat status or credible supporting evidence that the claimed in-service stressors actually occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressors. See 38 C.F.R. § 3.304 (f) (2016); see also Cohen v. Brown, 10 Vet. App. 128 (1997). Therefore, service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability in accordance with the DSM-V, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304 (f), 4.125(a). As with all claims for service-connection, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Furthermore, the evidence necessary to establish that a claimed in-service stressor occurred varies depending on whether a veteran “engaged in combat with the enemy.” See 38 U.S.C. § 1154 (b) (West 2014); 38 C.F.R. § 3.304 (d) (2016). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, a veteran’s lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence, and no further development or corroborative evidence will be necessary. Service department evidence that the veteran engaged in combat or that a veteran was awarded the Purple Heart, Combat Action Ribbon, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. See 38 C.F.R. § 3.304 (f) (2016). If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA or VA-contracted psychiatrist or psychologist 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. In this context, “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 ... and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See 38 C.F.R. § 3.304 (f)(3). In this case, the VA outpatient records show a diagnosis of PTSD. Therefore, the issue on appeal is whether the Veteran has a verifiable in-service stressor that is related to that diagnosis. The Veteran stated that he was exposed to the following stressors while deployed in Germany: a truck generator falling on him causing back injuries and the associated pain medication that was prescribed, stress from cold weather, guilt over his deployment in Germany while his brother was stationed in Vietnam, witnessing a man freeze to death, experiencing a mortar attack and witnessing a fellow soldier get injured by the mortar fire. The Board notes that the Veteran’s DD-214 shows his military occupational specialty (MOS) as an army wire systems installer, and served in Europe for about one year and five months. The Veteran DD-214 also shows that the Veteran was assigned to the 143rd Signal Battalion 3rd Armored Division. The Veteran’s military personnel records do not indicate that he is a veteran with combat status. The Veteran’s military personnel records also do not show that he was diagnosed with PTSD or any other psychiatric condition in service. Furthermore, the Veteran’s claimed stressors have not been corroborated. The VA requested additional details about the claimed in-service stressors and provided examples of documents that could be submitted to substantiate his claim. However, the Veteran did not provide the VA with the additional information requested. With regards to the stressor involving the soldier injured during a mortar attack, the Veteran was not able to provide the name of the injured man, who he claimed was his friend, nor was he able to provide a letter from L. M., who the Veteran said could corroborate the incident. The Veteran was also not able to provide the name of the man who he claimed to have seen freeze to death in Germany. The VA reached out to the Defense Personnel Records Information Retrieval System (DPRIS) to corroborate the Veteran’s claimed stressors. In April 2012, DPRIS provided the following response: “We researched the available records and were unable to locate any unit records pertaining to the 143rd Signal Battalion 3rd Armored Division (143th Sig Bn 3rd Armd Div) for the period indicated by [the Veteran]. We also coordinated our research with the National Archives and Records Administration located in College Park Maryland and they were unable to locate any unit records for the 143rd Sig Bn 3rd Armd Div. Additionally we coordinated our research with the Librarian at Military Professional Resources Inc (MPRI) an L3 Division US Army Europe G3 Lessons Learned, and he replied that no information was available to confirm or deny the incident described by [the Veteran] in 1970.” The VA was unable to verify the stressful incidents based on records from the service department and could not obtain the necessary records from the service department. Additionally, in November 2017, the VA determined that the information received from the Veteran did not meet the minimum level of detail needed for VA to seek assistance from the U.S. Army and Joint Services Records Research Center (JSRRC) to verify the Veteran’s claimed stressful incidents. In that regard, the Veteran’s descriptions of his claimed stressors are not so specific that they give rise to independent corroboration by VA or the service department; it would thus serve no useful purpose to remand for such a futile exercise. Given the lack of evidence to corroborate the Veteran’s lay statement that an in-service stressor occurred, the Board has also considered whether the Veteran’s claimed in-service stressor meets the criteria of “fear of hostile military or terrorist activity”, which allows VA to accept the Veteran’s lay testimony alone as evidence that an in-service stressor occurred. 38 C.F.R. § 3.304 (f)(3) However, the claimed stressor is not consistent with the place, type and circumstances of the Veteran’s service in Germany. While it has been documented in the news that terrorist organizations, composed of scattered groups of leftwing extremists, sprang up in Germany in the late 1970s and bombed U.S. military bases; there is no reporting of mortar attacks on US army bases in Germany in 1970, during the time that the Veteran was on deployment in Frankfurt. Also, the Veteran’s claims file does not include evidence that a VA or private psychiatrist or psychologist confirmed that the Veteran’s claimed stressor is adequate to support a diagnosis of PTSD. Therefore, there is insufficient evidence to show that Veteran’s claimed stressor is related to his fear of hostile military or terrorist activity or that his particular service was related to such fears. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In the instant case, as the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply, and service connection for an acquired psychiatric disorder, to include PTSD, must be denied. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. White, Associate Counsel