Citation Nr: 18156313 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 15-46 410 DATE: December 7, 2018 ORDER New and material evidence having been received, the claim for service connection for posttraumatic stress disorder (PTSD) is reopened. REMANDED Service Connection for acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. A June 2006 rating decision denied service connection for PTSD, and the Veteran was notified of the rating action and of his appellate rights. The Veteran did not perfect an appeal on this issue, and new and material evidence was not submitted within one year of the decision. 2. The evidence received since the June 2006 denial relates to an unestablished fact necessary to substantiate the claim for service connection PTSD and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The June 2006 rating decision that denied service connection for PTSD is 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 the previously denied claim for service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1987 to February 1988 and December 1990 to May 1991. New and Material Evidence Generally, a final decision issued by the agency of original jurisdiction may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c), (d)(3). However, if evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. “New evidence” is evidence that has not previously been reviewed by VA adjudicators. “Material evidence” is existing 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). The claim for service connection was previously denied in a June 2006 rating decision on the basis that there was no evidence showing that the Veteran had a confirmed diagnosis of PTSD and the Veteran had not submitted a sufficient evidence of a stressor for the RO to verify. The Veteran did not perfect an appeal on this issue, nor did he submit new and material evidence within one year following the decision. Thus, the decision became final. Accordingly, new and material evidence must be received to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The pertinent evidence received since the above discussed denial includes VA treatment records indicating a PTSD diagnosis and multiple written statements of an alleged in-service stressor. The Veteran’s statements are presumed credible for the limited purpose of reopening the claim, and, thus, raise a reasonable possibility of substantiating his claim for service connection. Thus, as new and material evidence has been received, the claim for service connection for PTSD is reopened. REASONS FOR REMAND The Veteran contends that he has PTSD as a result of his military service. He specifically reported that during his deployment to Saudi Arabia during the Gulf War, he served in Camp 13 NMCB-24 Security Unit. He asserts that he experienced scuds, air raids, and unit alerts, but was not allowed to retreat to bunkers with other solders, because he was on security duty. Veteran was afforded a VA PTSD examination in October 2013 in an effort to ascertain the etiology of his psychiatric disorder. The VA examiner determined that the Veteran’s reported stressors and symptoms combined did not satisfy the criteria for a diagnosis of PTSD under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The examiner noted that the VA records did not include mental health treatment, thus, he was unable to document PTSD symptoms, severity, frequency and the level of impairment. However, after the July 2017 Supplemental Statement of the Case (SSOC), was issued and before the February 2018 certification to the Board, VA mental health treatment records were received in August 2017 showing the Veteran is diagnosed with an acquired psychiatric disability including PTSD. Furthermore, VA implemented DSM-5, effective August 4, 2014, and the Secretary, VA, determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014. 79 Fed. Reg. 45,093, 45, (Aug. 4. 2014). The RO certified the Veteran’s appeal to the Board in February 2018; hence; DSM-5 is for application in this claim. Accordingly, the Veteran should be given a new VA examination to determine whether his symptoms satisfy the criteria for PTSD or other any other psychiatric disorder under the DSM-5. 38 C.F.R. §3.304(f)(3) no longer requires the verification of an in-service stressor if the Veteran was in a location involving “fear of hostile military or terrorist activity.” Such a location can be evidenced by awards such as the Iraq Campaign Medal or the Vietnam Service Medal. Lay testimony alone can be used to establish the occurrence of an in-service stressor in these situations. The new regulatory provision requires that: (1) A VA psychiatrist or psychologist, or contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service; and (3) the Veteran’s symptoms are related to the claimed stressor. Id. In the present case, the Veteran served in Saudi Arabia during the Gulf War. It is unclear from the record if the Veteran’s location involved “fear of hostile military or terrorist activity.” As such, a remand is warranted for further development. The matter is REMANDED for the following action: 1. Attempt to corroborate the Veteran’s in-service stressor, including the Veteran’s claim that he was deployed to Saudi Arabia during the Gulf War and served in Camp 13, NMCB-24 Security Unit. He states that as a member of the security force he was not allowed to leave his post no matter what the circumstances were. The Veteran states that he experienced scuds, air raids, and unit alerts, but was not allowed to retreat to a bunker with other solders, because he was on security duty. If more details are needed, contact the Veteran to request the information. 2. Schedule the Veteran for a VA psychiatric examination with a VA psychiatrist or psychologist. The examiner should diagnose any acquired psychiatric disability using the DSM-5, to include PTSD. If the Veteran is physically unable to attend an examination, a medical opinion should be obtained. For any psychiatric disability diagnosed the examiner should opine as to whether it is at least as likely as not (50 percent or greater) that the acquired psychiatric disability either began during or was otherwise caused by his military service. Why or why not? If PTSD pursuant to the DSM-5 is found, the examiner should identify the in-service stressor the diagnosis is based on or explain why PTSD should be considered to be the result of the Veteran’s fear of hostile military or terrorist activity. (Continued on the next page)   “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; 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. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Franklin, Associate Counsel