Citation Nr: 1808052 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-22 988 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been submitted to reopen a previously denied claim for entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Christine E. Grossman, Associate Counsel INTRODUCTION The Veteran served in active duty in the U.S. Navy from October 1966 to August 1970. The matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction now lies with the RO in Muskogee, Oklahoma. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in July 2017. A transcript from that proceeding is associated with the Veterans Benefits Management System (VBMS) folder. This appeal was processed using the Veterans Benefits Management System (VBMS) and Caseflow Reader paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should take into account the existence of these electronic records. FINDINGS OF FACT 1. In an October 2009 rating decision, the RO denied the Veteran's service connection claim for PTSD. The Veteran was notified 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. The evidence received since the October 2009 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the Veteran's claim for service connection for PTSD. 3. The Veteran has been diagnosed with PTSD based on an established, in-service stressor. CONCLUSIONS OF LAW 1. The October 2009 rating decision that denied the Veteran's service connection claim for PTSD is final. 38 U.S.C. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2017). 2. The evidence received since the October 2009 rating decision is new and material, and the claim of entitlement to service connection for PTSD is reopened. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). 3. The criteria to establish entitlement to service connection for PTSD has been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION New and Material Evidence 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) (2017). 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 provided 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). Service Connection for 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 (2012); 38 C.F.R. § 3.303(a) (2017). 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-V). 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-V. 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 2014, which is before August 4, 2014. Thus, the DSM-IV 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. 38 C.F.R. § 3.304(f)(3). Analysis As noted above, an October 2009 rating decision initially denied entitlement to service connection for PTSD. The RO determined that the evidence was insufficient to determine whether the Veteran had any claimed in service stressors. The Veteran was notified of the decision and his appellate rights in the October 2009 rating decision. However, the Veteran did not file a timely Notice of Disagreement. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. There was also no new and material evidence submitted within one year of the date of mailing of the decision. Therefore, the October 2009 rating decision is final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103 (2017). Since the final October 2009 rating decision, the Board has received additional evidence regarding the Veteran's claim for service connection for PTSD, including service treatment records, a September 2014 PTSD Disability Benefits Questionnaire (DBQ), and a July 2017 videoconference hearing. This evidence is new and material because it was not of record at the time of the final rating decision in October 2009, and indicates the Veteran has PTSD symptoms which may be related to his military service. The Board finds this evidence would trigger VA's duty to provide an examination in adjudicating a non-final claim. Accordingly, the Board finds this new evidence raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD. See Shade, 24 Vet. App. 110. The Board will address the Veteran's claim for entitlement to service connection for PTSD on the merits, as the Board is granting the claim, there is no prejudice to the Veteran in the Board doing so without remanding to the RO first. With regard to diagnosis, the record does contain some contradictory opinions as to whether the Veteran has a valid diagnosis of PTSD. However, in reviewing the evidence, the Board finds the VA treatment records and the 2014 VA examiner's finding that the Veteran does have PTSD to be the most probative evidence of record as to whether the Veteran has PTSD. With regard to a stressor and a link between that stressor and the Veteran's active service, the Veteran has reported three stressors. First, in 1968, while the Veteran was aboard the U.S.S. Preston, the Veteran recalled a fire in one of the handling rooms that was directly below the Veteran, who was stationed in the gun mount. Second, in 1967, while on shore duty at Whidbey Island in Oak Harbor, Washington, the Veteran recalled not sleeping as he was fearful after encountering racist incidents. Third, the Veteran suffered from great distress after being involved in friendly fire while he was in South Vietnam. Neither the December 2011 or December 2012 PTSD DBQs addressed a relationship between the Veteran's stressors and his PTSD because they failed to find that the Veteran had a valid diagnosis of PTSD. The Board has already determined that the most probative evidence establishes such a diagnosis, thus, these examinations have no probative value with regard to whether the Veteran's diagnosis of PTSD is related to his reported stressors. In the September 2014 PTSD DBQ, the psychologist who examined the Veteran diagnosed the Veteran with PTSD. Specifically, the psychologist opined that the Veteran was exposed to traumatic events while serving in Vietnam. He feared for his life while in service because of threats he received from Caucasian soldiers in his unit as well as potentially being exposed to enemy fire while aboard the U.S.S. Preston during the Vietnam War and he responded with fear and feeling helpless. The September 2014 PTSD DBQ diagnosed PTSD based on stressors involving fear of hostile military activity. Given that the Veteran's reported stressors are consistent with the places, types and circumstances of his service and there is no clear and convincing evidence to contradict the reported stressors, the 2014 examiner's opinion is sufficient to establish the link between the stressor and the diagnosis and to establish the occurrence of the stressor. 38 C.F.R. § 3.304(f)(3) (2017). Thus, entitlement to service connection for PTSD is granted. The Board notes that the Veteran has received a diagnosis for another psychiatric disorder, major depressive disorder. However, the evidence does not differentiate symptoms attributable to PTSD versus those due to major depressive disorder. See Mittleider v. West, 11 Vet. App. 181 (1998). As such, the Board considers all manifested psychiatric symptoms as being due to his PTSD. ORDER New and material evidence having been submitted, the Veteran's service connection claim for PTSD is reopened. Entitlement to service connection for PTSD is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs