Citation Nr: 18156596 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 16-51 492 DATE: December 10, 2018 ORDER New and material evidence having been received, the Veteran’s previously denied claim for entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened. Entitlement to service connection for a psychiatric disorder, diagnosed as PTSD, is granted. FINDINGS OF FACT 1. In a December 2013 rating decision, the RO denied entitlement to service connection for PTSD. The Veteran was informed of the decision and his appellate rights, but he did not appeal or submit new and material evidence within the one-year period thereafter. 2. Additional evidence received since the December 2013 rating decision relates to unestablished facts and raised the reasonable possibility for substantiating the claim for entitlement to service connection for PTSD. 3. The Veteran has been diagnosed with PTSD based on an established, in-service stressor. CONCLUSIONS OF LAW 1. The December 2013 rating decision that denied the Veteran’s service connection claim for PTSD is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The evidence received since the December 2013 rating decision is new and material, and the claim for service connection for PTSD is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria to establish entitlement to service connection for a psychiatric disorder, diagnosed as PTSD, have been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from October 1962 to October 1966. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision. The record shows that the Veteran's service connection claim for PTSD was previously denied by a final December 2013 rating decision. In the October 2015 rating decision, the RO reopened the claim and proceeded to consider the issue on its merits. However, the Board must make its own determination as to whether new and material evidence has been received to reopen the claim. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). As discussed in further detail below, the Board is reopening the claim herein. However, as the record includes diagnoses for psychiatric disorders other than PTSD, the Board has expanded the claim to include all current psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Whether new and material evidence has been submitted to reopen a previously denied claim for entitlement to service connection for PTSD. The Veteran's service connection claim for PTSD was initially denied in a December 2013 rating decision. The rating decision stated that there was no evidence of a current diagnosis of PTSD. The Veteran was informed of this decision and his appellate rights in a December 2013 letter. However, he did not file a notice of disagreement or submit additional evidence related to his claim within one year of the date of notification. Therefore, the December 2013 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103. Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. 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. New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Id. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. at 117. Notwithstanding the foregoing, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1). Such official service department records include, but are not limited to, records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name. Such records do not include any records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156(c)(2). At the time of the December 2013 rating decision, the evidence of record included the Veteran’s statements, military personnel records, service treatment records (STRs), a November 2013 VA examination, and VA treatment records dated from March 2007 to January 2013. The Veteran’s STRs are silent for any complaint, diagnosis, or treatment related to a psychiatric disorder. When the Veteran was provided with a VA examination related to his claim in November 2013, the examiner determined that the Veteran did not have a diagnosis of PTSD that conformed to the DSM-IV criteria. In addition, he did not have a diagnosis for any other psychiatric disorder under the DSM-IV. The evidence that has been associated with the record since the December 2013 rating decision includes a May 2015 Disability Benefits Questionnaire (DBQ) for PTSD that was completed by Dr. B., PhD, a clinical psychologist. Dr. B. documented that the Veteran had a PTSD diagnosis. The Board finds that this information, when presumed credible for purposes of reopening the claim, constitutes new and material evidence as it was not previously of record, and it pertains to the establishment of a current diagnosis of PTSD. As a result, the Veteran's service connection claim for PTSD is reopened. As discussed above, the RO has already addressed the merits of the Veteran's service connection claim for PTSD. Consequently, there is no prejudice to the Veteran in the Board proceeding to adjudicate this claim on its merits. Bernard v. Brown, 4 Vet. App. 4 Vet. App. 384, 390 (1993). 2. Entitlement to service connection for a psychiatric disorder, to include PTSD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection for PTSD requires medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which provides that all psychiatric diagnoses must conform to the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5). 38 C.F.R. § 3.304(f). Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the recently updated DSM-5. See 79 Fed. Reg. 45, 094 (August 4, 2014). VA adopted as final, without change, this interim rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014. See Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for VA Purposes, 80 Fed. Ref. 14,308 (March 19, 2015). In the present case, the RO certified the Veteran's appeal to the Board in January 2017, which is after August 4, 2014. Thus, the DSM-5 is applicable in the present case. The pertinent regulation provides that, if the evidence establishes that the Veteran engaged in combat with the enemy and that the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f)(1). For stressors unrelated to combat that are not based on fear of hostile military or terrorist activity, credible supporting evidence is necessary in order to grant service connection. Such evidence may be obtained from service records or other sources. See Moreau v. Brown, 9 Vet. App. 389 (1996). The United States Court of Appeals for Veterans Claims (Court) has held that the regulatory requirement for "credible supporting evidence" means that "the appellant's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor." Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Therefore, the Veteran's lay testimony, is insufficient, standing alone, to establish service connection. Cohen v. Brown, 10 Vet. App. 128, 147 (1997). Effective July 13, 2010, 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 that 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. For purposes of this paragraph, "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 (IED); 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 physiological state of fear, helplessness, or horror. See 75 Fed. Reg. 39843, 39852 (July 13, 2010) (now codified at 38 C.F.R. § 3.304(f)(3). The Veteran contends that he has PTSD as a result of stressful experiences that occurred during active service. In his March 2013 VA Form 21-0781, the Veteran reported that one of his stressors occurred during his service on the USS Wahoo, SS 565, a submarine, in August 1965. While snorkeling submerged off the coast of Vietnam, an air compressor exploded and caused a major fire in the engine room. Due to the smoke, they were short on air and emerged to the surface. They then came under enemy fire from a shore canon that fell too short. A destroyer later towed them out to sea, and they were able to reach the Subic Bay in the Philippines to undergo repairs. The November 2013 VA examiner and a September 2015 VA examiner, both VA psychologists, found that the Veteran's stressor regarding enemy fire was adequate to meet criterion A (i.e., it was adequate to support a diagnosis of PTSD). The examiners also agreed that the stressor was related to the Veteran's fear of hostile military or terrorist activity. The Board notes that the examiners determined that the Veteran did not experience symptoms of PTSD. However, in an October 2014 VA treatment record, a VA psychiatrist indicated that the Veteran had symptoms of PTSD that were related to the above stressor. Thus, and resolving any reasonable doubt in favor of the Veteran, the Board finds that the criteria set forth in 38 C.F.R. § 3.304(f)(3) regarding confirmation from a VA psychologist or psychiatrist are met. In addition, this stressor is consistent with the places, types, and circumstances of the Veteran's service. The Veteran’s military occupational specialty during active service was a machinist’s mate. See DD 214. The Veteran's military personnel records also reflect that he served on the USS Wahoo (SS-565), in the Vietnam area of operations in April 1965. The Board consequently finds that the Veteran’s stressor has been established. Thus, the only remaining question is whether the Veteran has a current diagnosis of PTSD based on his established stressor. As noted above, the November 2013 VA examiner found that the Veteran did not have a diagnosis of PTSD under the DSM-IV. In May 2015, the DBQ from Dr. B. noted that the Veteran had diagnoses for PTSD, pain disorder, short term memory disorder, and avoidant features. An associated report also noted a diagnosis of panic disorder. The DBQ and report reflects Dr. B.’s opinion that the PTSD diagnosis was more likely than not related to the Veteran's stressor regarding the engine room explosion and subsequent enemy fire. The Board notes that the diagnostic criteria in the DBQ form were based on the DSM-IV. Dr. B. noted that the Veteran had been referred to her for an evaluation by his representative. The tests administered by Dr. B. before reaching a diagnosis included a clinical interview with the Veteran, Wechsler Memory subtests, Trials A & B tests, clock drawing, Million Clinical Multiaxial Inventory III, suicide probability scale, Beck Depression Inventory, and posttraumatic disorder scale. The Veteran was provided with another VA examination in September 2015, and the examiner found that the Veteran did not meet the full diagnostic criteria for PTSD under the DSM-5. The examiner stated that based on a review of the Veteran's STRs and medical records, it appeared that the Veteran met the criteria for unspecified anxiety disorder. However, the examiner opined that this disorder was not related to service. The Board also notes that some copies of the examination report in the record include an October 2015 addendum in which the examiner references an opinion provided by Dr. Y. However, no opinion from a Dr. Y. is associated with the record. In this regard, a May 2016 letter from the Privacy/FOIA Officer of the Bay Pines VA Healthcare System noted that the Veteran's request for an amendment to the September 2015 VA examination report had been partially granted as the October 2015 addendum had been mistakenly added by the examiner to the report and needed to be deleted. In a May 2016 report and DBQ, Dr. B. reiterated her findings from May 2015. She also noted that she had reviewed the Veteran's STRs and post-service treatment records. In June 2016, Dr. G., a board-certified psychiatrist, also completed a DBQ related to PTSD. Dr. G. also noted that the Veteran had diagnoses for anxiety and depression. In an accompanying letter, Dr. G. noted that the Veteran's PTSD was based on his experience in the Navy in Vietnam, specifically referencing the stressor that began with the engine room explosion. Although the DBQ form used by Dr. G. was again based on the DSM-IV, Dr. G. also noted in the letter that the PTSD diagnosis was in accordance with the ICD-10 (The International Classification of Diseases, Tenth Revision, Clinical Modification). The Board notes that Health Insurance Portability and Accountability Act (HIPPA) covered entities transitioned from using ICD-9 codes to ICD-10 codes on October 1, 2015. See How to Use DSM-5 in the Transition to ICD-10, Psychiatric News, American Psychiatric Association (Aug. 13, 2015), https://psychnews.psychiatryonline.org/doi/full/10.1176/appi.pn.2015.8b15. In this regard, the DSM-5 contains the standard criteria and definitions of mental disorders now approved by the American Psychiatric Association (APA), and it also contains both ICD-9-CM and ICD-10-CM codes (in parentheses) selected by the APA. Since the DSM-IV only contains ICD-9-CM codes, the Centers for Medicare and Medicaid Services (CMS) noted that it would cease to be recognized for criteria or coding for services with dates of service of October 1, 2015 or later. The Psychiatric News article noted that providers needed to continue to use the DSM-5 to determine the correct diagnosis of a mental disorder as the ICD-10 did not contain information to help guide a diagnosis; it was simply a listing of disease names and their corresponding codes. Thus, it appears that in addition to the DSM-IV diagnostic criteria that were listed in the DBQ form, Dr. G. also considered the criteria of the DSM-5 before determining that a PTSD diagnosis was appropriate under both criteria. In an August 2016 addendum opinion, a VA examiner, a clinical psychologist, noted that he had reviewed the relevant evidence, including the determinations from Dr. B. and Dr. G. However, the examiner indicated that he was unclear about the credentials of these providers, noting that the evidence did not reveal whether Dr. B. was a VA clinician. The examiner also referred to Dr. G. as a physician's assistant. The examiner observed that it was unclear whether Dr. B. or Dr. G. treated the Veteran, and it did not appear that they had access to, or reviewed the Veteran's claims file. The examiner added that these providers also appeared to not follow the American Academy of Psychiatry and Law's "Practice Guideline for the Forensic Evaluation of Psychiatric Disability," the American Psychological Association's Specialty Guidelines for Forensic Psychology, or VA's "Best Practice Manual for Posttraumatic Stress Disorder (PTSD) Compensation and Pension Examinations in reaching diagnostic conclusions. The examiner noted that the role of the treating provider is to aid the person being treated and to further treatment. The therapeutic relationship is based primarily on the acceptance of the Veteran's subjective self-report. In contrast, the role of the VA examiner or any forensic examiner was to offer opinions regarding the historical truth and validity of the psychological aspects of a disability claim. Thus, the compensation and pension examiner had an obligation to be neutral and objective in reaching decisions. There was an inherent conflict and dual relationship that arose when a treating therapist delved into providing psycho-legal opinions. Nevertheless, the examiner stated that without the benefit of an in-person evaluation, he could not confirm or deny a PTSD diagnosis. However, the available objective evidence supported the conclusions from the September 2015 VA examination and the October 2015 addendum that the Veteran had a diagnosis of unspecific anxiety disorder that was less likely than not caused by active service. The Board finds that the majority of the examiner’s criticism of the DBQs submitted by Dr. B. and Dr. G. appears to be unsupported by the record. Neither Dr. B. nor Dr. G. indicated that they were the Veteran’s treating provider. In fact, Dr. B. noted that the Veteran had been referred specifically for the purpose of an evaluation; and Dr. G. also indicated that the Veteran presented for an evaluation of PTSD. Thus, it does not appear that they were unable to objectively evaluate the Veteran. The examiner also disregarded Dr. B.’s May 2016 report in which she reported reviewing the STRs and post-service medical evidence. Dr. G.’s report additionally reflects that he was aware of the relevant evidence from the record, including the Veteran’s established stressor and post-service symptoms. Moreover, the examiner appeared to misunderstand Dr. G.’s medical credentials. In this regard, the Board notes that in Dr. G.'s letter, he wrote "PA" after his name in the letterhead. However, it appears from the name of the practice that Dr. G. was referring to himself as a psychiatric associate. As previously indicated, Dr. G. signed the letter with the credentials of medical doctor and noted that he was board-certified in psychiatry. In reviewing the evidence from this period, the Board notes that the opposing determinations from the November 2013 VA examiner and Dr. B. have limited probative value as they were based solely on the DSM-IV criteria rather than the DSM-5 criteria that apply in this case. The diagnoses from the September 2015 VA examiner and Dr. G. were based on the DSM-V, and they both provide probative value as they were based on an examination of the Veteran and the providers’ respective medical expertise. Although the August 2016 examiner opined that the evidence supported the September 2015 VA examiner’s diagnosis, the August 2016 examiner’s ultimate finding that he could not definitively conclude whether the Veteran had PTSD without an examination reduces the opinion’s probative value. Based on the foregoing, Board finds that the evidence is at least evenly balanced as to whether the Veteran has a current diagnosis of PTSD under the DSM-5 criteria that is related to his established stressor. With resolution of reasonable doubt in favor of the Veteran, entitlement to service connection for PTSD is warranted. 38 U.S.C. §§ 101, 1110; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304(f), 4.125(a). The Board notes that during this period, the Veteran has also received diagnoses for other psychiatric disorders, including anxiety, depression, pain disorder, short term memory disorder, avoidant features, and panic disorder. However, the records from this period have not distinguished the symptoms associated with the Veteran's PTSD from those associated with his other psychiatric disorders. With resolution of the benefit of the doubt in the Veteran's favor, the Board considers all manifested psychiatric symptoms as being due to his PTSD. See Mittleider v. West, 11 Vet. App. 181 (1998). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel