Citation Nr: 18157133 Decision Date: 12/13/18 Archive Date: 12/11/18 DOCKET NO. 15-19 978 DATE: December 13, 2018 ORDER New and material evidence has been submitted to reopen the claim for entitlement to service connection for a psychiatric disorder. Entitlement to service connection for PTSD and depression is granted. FINDINGS OF FACT 1. A July 2008 and January 2011 RO decision that denied service connection for PTSD was not appealed and the decision became final. 2. New and material evidence has been received since the January 2011 decision to substantiate the claim of entitlement to service connection for PTSD. The newly received evidence is neither cumulative nor redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim. 3. Resolving reasonable doubt in the Veteran’s favor, his PTSD and depression are at least as likely as not related to service. CONCLUSIONS OF LAW 1. The July 2008 and January 2011 rating decisions that denied entitlement to service connection for PTSD is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2018). 2. The criteria to reopen service connection for a psychiatric disorder have been met. 38 U.S.C. §§ 5103, 5103A, 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria to establish service connection for PTSD and depression have been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, had service from December 1973 to December 1975. A service connection claim for a mental disability may include claims for service connection of any mental disability that may reasonably be encompassed by several factors, including the claimant’s description of the claim, the symptoms the claimant describes, and the information the claimant submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As a result, the Board has taken an expansive view of the Veteran’s claim pursuant to Clemons. 1. New and material evidence has been submitted to reopen the claim for entitlement to service connection for a psychiatric disorder. The Veteran originally filed a claim for entitlement to service connection for posttraumatic stress disorder in December 2007. The RO initially denied the claim in a July 2008 rating decision on the grounds that there was insufficient evidence to verify the claimed in-service stressors. The Veteran did not appeal this decision and it became final as to the evidence then of record, and is not subject to revision on the same bases. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103. The Veteran filed another claim to reopen entitlement to service connection for PTSD in June 2010. A January 2011 RO decision denied reopening the claim because the evidence submitted was not new and material. The Veteran did not appeal, so this decision became final as to the evidence then of record, and is not subject to revision on the same bases. Id. Final decisions may only be reopened if new and material evidence is received. 38 U.S.C. 5108. “New evidence” is defined as existing evidence not previously submitted to agency decision makers; “material evidence” is defined as 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 most recent 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 current appeal stems from a November 2013 RO decision that denied reopening the claim for PTSD because no new and material evidence was received. Regardless of the RO’s determination as to whether new and material evidence has been received, the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The evidence received since the January 2011 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. In particular, an October 2018 VA medical nexus opinion (received in November 2018) represents evidence that had not previously been associated with the file and discusses the possibility of a nexus for the diagnosed depression. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). As these documents represent evidence not previously submitted to agency decision makers and relates to an unestablished fact necessary to substantiate the claim, the claim is reopened and will be considered on the merits 2. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder and depression. The Veteran contends that he acquired a psychiatric disability due to service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with §4.125(a) of this chapter; 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. The following provision applies as it is particularly relevant to this claim: if the evidence establishes a diagnosis of posttraumatic stress disorder during service and the claimed stressor is related to that service, 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. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997. In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board has an inherent fact-finding ability. Id. at 1076. The United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). The Board concludes that the Veteran has current diagnoses of PTSD and depressive disorder that are related to in-service events. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In a June 2006 statement, the Veteran initially claimed that he witnessed two traumatic incidents during service: a soldier died during a training exercise after a large boulder fell onto his head, and; a soldier improperly launched a grenade during a basic training exercise and a nearby drill sergeant was injured very badly by the shrapnel. A June 2008 VA Memo made a formal finding that there was a lack of information required to verify the Veteran’s claimed PTSD stressor events. A January 2013 VA psychiatrist’s statement clarified that the Veteran did not experience any combat-induced trauma. The Veteran claimed a new stressor-incident that involved a motor vehicle accident and he was badly injured after his vehicle rolled over. He also reiterated the aforementioned grenade shrapnel incident during basic training that injured a drill sergeant. The VA psychiatrist explained that the Veteran developed PTSD from these traumatic events and that it has continued to affect him since service. A November 2013 VA memo made another formal finding that there was a lack of information required to verify stressors in connection to the Veteran’s PTSD claim. An October 2014 VA administrative decision re-confirmed a formal finding on a lack of information required to verify stressors in connection with this claim. In an October 2018 opinion, a VA psychiatrist noted that the Veteran experienced two particularly traumatic events during service that caused him to feel “as if he was going to be injured or possibly killed.” The first event was the grenade incident during basic training and the second was the motor vehicle accident. The VA psychiatrist opined that the Veteran’s PTSD was “likely that these events are related to his diagnosis for PTSD.” He added that the stressors support the Veteran’s diagnosis for PTSD as exhibited by multiple mental health symptoms. The VA psychiatrist further noted the Veteran’s diagnosis for depression and opined, “It is likely that this diagnosis is related to his PTSD and the traumatic events he experienced in the service.” The Board finds this medical opinion highly probative of a positive nexus between the Veteran’s current condition and service because it not only contains a clear conclusion with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Veteran’s military personnel records reflect foreign service in Germany during the Vietnam Conflict. The evidence does not show, nor has the Veteran alleged combat service. Under these circumstances, corroborating evidence of a claimed in-service stressor is required. The Veteran’s service treatment records are silent for any diagnosis for a psychiatric disorder, but did document the injuries he sustained by the motor vehicle accident. Accordingly, the record contains credible evidence corroborating his claimed motor vehicle stressor as required to establish service connection for PTSD. Furthermore, the evidence establishes that the Veteran has a current diagnosis for PTSD and depression that are directly related to the traumatic events that he experienced during service. Based on the foregoing, and resolving any reasonable doubt in the Veteran’s favor, entitlement to service connection for PTSD is warranted and the claim is granted. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Connally, Counsel