Citation Nr: 1807270 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-16 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for posttraumatic stress disorder (PTSD), to include anxiety and depressive disorder. 2. Entitlement to service connection for PTSD, to include anxiety and depressive disorder. REPRESENTATION Veteran represented by: Jan Dils, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1963 to June 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in February 2017. The Board notes that the Veteran's wife was present as a witness. A transcript of the hearing is of record. FINDINGS OF FACT 1. A February 1992 RO rating decision denied entitlement to service connection for PTSD, to include anxiety and depressive disorder; the Veteran did not timely appeal that decision; new and material evidence was not submitted as to that issue within the one-year appeal period. 2. Evidence received since the February 1992 RO rating decision is new and raises a reasonable possibility of substantiating the Veteran's claim for entitlement to service connection for PTSD, to include anxiety and depressive disorder. 3. The Veteran has PTSD related to stressors during service. CONCLUSIONS OF LAW 1. The February 1992 RO rating decision which denied service connection for PTSD, to include anxiety and depressive disorder, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1100 (2017). 2. New and material evidence having been received, the claim for entitlement to service connection for PTSD, to include anxiety and depressive disorder is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156 (a); 3.303, 3.304 (f) (2017). 3. PTSD was incurred as a result of events during service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). "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. 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. 38 C.F.R. § 3.156 (a). In this case, the Veteran was initially denied entitlement to service connection for PTSD, to include anxiety and depressive disorder, in February 1992. He did not appeal or submit new evidence within the appeal period. Therefore, the February 1992 RO rating decision is final. 38 U.S.C.A. § 7105 (c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1992); currently 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). In the February 1992 RO rating decision, the RO denied the Veteran's claim for PTSD, to include anxiety or depressive disorder, because the claimed stressors could not be confirmed because the Veteran failed to respond to a stressor development letter, and a nervous condition was not shown in service treatment records. The rating also noted that the claimed post-traumatic stress disorder was not shown. Thus, for the Veteran's claim to be reopened, new evidence must have been added to the record since the last final rating decision that addresses this basis or supports a new theory of entitlement. Evidence submitted and obtained since the last final rating decision includes service personnel records, VA treatment records, private treatment records, and lay evidence. Notably, in November 2017, the Veteran's representative submitted deck logs from the Veteran's time during service. Upon review, the Board finds this evidence is both new and material evidence sufficient to reopen the Veteran's claim. The evidence is new in that it was not of record at the time of the February 1992 RO rating decision, and the evidence is "material" because it relates to an unestablished fact necessary to substantiate the claim. As a result, the Board finds that the evidence raises a reasonable possibility of substantiating the Veteran's claim. 38 C.F.R. § 3.156 (a). As the credibility of new evidence is generally presumed, the Veteran's claim of entitlement to service connection for PTSD, to include anxiety and depressive disorder, is reopened. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). II. Service Connection PTSD is a mental disorder that develops as a result of traumatic experience. It is possible for service connection to be established for PTSD that becomes manifest after separation from service. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with VA regulations; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). Service treatment records are silent for complaints, treatment or diagnosis of PTSD, anxiety or depression. In a June 1991 VA treatment record, the Veteran complained of problems with his nerves, which had progressively worsened over the years. The Veteran reported that he slept poorly and had flashbacks to an incident in service where he saw a shipmate get injured in a construction accident while aboard the ship. He reported being discharged from the hospital three weeks earlier for his nerves. The Veteran was diagnosed with hypertension, anxiety and possible PTSD. In September 1991, the Veteran described his stressor again where while aboard the U.S.S. Rankin, he watched his shipmate fall off a beam to the bottom of the ship. He reported how he could hear his shipmate's body hit each beam all the way down. In a September 2009 VA treatment note, the Veteran was given a provisional PTSD diagnosis. In a February 2013 VA treatment note, the Veteran was diagnosed with anxiety disorder. Overall, VA treatment records show treatment for PTSD symptoms despite his provisional diagnosis. In a February 2013 private treatment note, the private psychologist extensively looked through the Veteran's claims file and medical history. The Veteran again relayed his stressor incident to the psychologist, where he witnessed a fellow shipmate fall to the bottom of the ship. After review of the files and examination of the Veteran, the private psychologist diagnosed the Veteran with PTSD to include generalized anxiety disorder, persistent depressive disorder and alexithymia. The psychologist found that the Veteran's PTSD diagnosis was directly due to events occurring while on active duty in the US Navy in which he witnessed and was part of an event causing death to another person. In November 2017, the Veteran's representative submitted additional evidence which the Board finds verify the Veteran's claimed stressor. Specifically, in a February 1964 deck log entry, it was recorded that a shipmate fell from the main deck to the lower levels. The shipmate sustained injuries including fracture dislocation of the right knee, fractured right ankle, fracture of the lumbar vertebrae, and a one inch laceration of the forehead. Thus, the Veteran's reports of this main stressor to his February 2013 private psychologist and later verified by the February 1964 deck log, are sufficient to establish that that stressor occurred. In addition, the February 2013 private treatment note confirms PTSD diagnosis. The Board notes that the Veteran has described additional stressors; however, based on the evidence of record the Board was only able to verify the Veteran's main reported stressor. As the Board is granting the Veteran's claim for PTSD, further review of the Veteran's other reported stressors is not necessary and does not prejudice the Veteran. Therefore, the Board grants service connection for PTSD. ORDER New and material evidence having been received, the claim for service connection for PTSD, to include anxiety and depressive disorder, is reopened. Entitlement to service connection for PTSD, to include anxiety and depressive disorder, is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs