Citation Nr: 1817683 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 14-29 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder ("PTSD"). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Timbers, Associate Counsel INTRODUCTION The Veteran served as a member of the United States Army, with active duty service from January 1969 through August 1970. The Veteran served in the Vietnam War and is a recipient of the Combat Medical Badge, National Defense Service Medal, and Army Commendation Medal, among other distinctions. This appeal comes to the Board of Veterans' Appeals ("Board") from a February 2013 rating decision by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Louisville, Kentucky (hereinafter Agency of Original Jurisdiction ("AOJ")). The Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, has previously been before the Board. Specifically, the Veteran's claim for service connection was denied in a March 1984 decision. The Veteran was notified of this denial, and his appellate rights, but he did not appeal this denial and it became final. See 38 U.S.C. §§ 7103, 7104(a); 38 C.F.R. §§ 20.1100, 20.1103. The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is as stated on the title page. Regardless of the AOJ's actions, the Board must make its own determination as to whether new and material evidence has been received to reopen this claim. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Veteran testified before the undersigned Veterans Law Judge in March 2015, via videoconference hearing. A transcript of this hearing has been reviewed and associated with the claims file. At the conclusion of the March 2015 video hearing, the Veteran requested his claim be held in abeyance for an additional 60 days, to allow him to submit additional medical evidence. This request was granted, and the Veteran subsequently submitted additional medical records and personal statements. Included with these submissions was a waiver of initial review by the AOJ, thus allowing the Board to proceed with a determination on his appeal. See U.S.C. § 7105(e). The Board additional notes that the electronic record contains additional medical records of VA treatment submitted subsequent to the Veteran's December 2015 statement, waiving initial AOJ consideration. However, the Board finds that appellate consideration may proceed without any prejudice to the Veteran, as these medical records are not relevant to claim decided herein. This appeal was processed using Virtual VA and the Veterans Benefits Management System ("VBMS"). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Board denied the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, in a March 1984 decision. The Veteran was notified of this denial, and his appellate rights, but he did not appeal this denial and it became final. 2. Evidence received since the March 1984 Board decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service-connection for an acquired psychiatric disorder, to include PTSD. 3. The Veteran engaged in combat during his active military service. 4. Resolving all doubt in favor of the Veteran, the Veteran has a PTSD diagnosis that meets the VA requirements and is causally or etiologically related to service. CONCLUSIONS OF LAW 1. The March 1984 Board decision which denied the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is final. 38 U.S.C. § 7104(b) (West 2012); 38 C.F.R. §§ 3.156, 3.160(d), 20.1100, 20.1103 (2017). 2. The evidence submitted subsequent to the March 1984 Board decision is new and material, and the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD is reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for the grant of service connection for an acquired psychiatric disorder, to include PTSD, have been met. 38 U.S.C. § 1101, 1110, 1154, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act ("VCAA") must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). The current appeal stems from the Veteran's application to reopen a previously denied claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD. This request was received by the AOJ in May 2012. In response, the AOJ issued a VCAA notice letter dated January 2013, which the Veteran of the information and evidence not of record that is necessary to substantiate his claim, the information and evidence that the VA will seek to provide, and the information and evidence the Veteran is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). This letter also informed the Veteran how disability ratings and effective dates are established. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). As complete notice was provided prior to the February 2013 rating decision now on appeal before the Board, no timing of notice deficit exists. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. Of record are the Veteran's service treatment records and post-service medical treatment records, including VA treatment records from the Cincinnati VA Medical Center ("VAMC"). It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the electronic claims file; the Veteran has not contended otherwise. The Veteran was afforded the opportunity to appear and testify before the undersigned Veterans Law Judge ("VLJ") at a March 2015 Board videoconference hearing. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge ("VLJ") who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the basis of the prior determination and noted the element of the claims that was lacking to substantiate the claims for benefits. The VLJ specifically noted the issues as including the issues listed on the title page of this decision. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error. Based upon the above, the Board finds that VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. The Veteran has not made the AOJ or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the claims on appeal. He has been given ample opportunity to present evidence and argument in support of his claims. Moreover, the Veteran has not advanced any procedural arguments in relation to VA's duties to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . ."). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Lastly, the Board has thoroughly reviewed all the evidence in the electronic claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). General Laws and Regulations Governing Entitlement to Service Connection: In seeking VA disability compensation, a claimant generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). Service connection for PTSD has unique evidentiary requirements. It generally requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). As to the first requirement, of a medical diagnosis for PTSD, 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 Diagnostic and Statistical Manual (Fifth Edition) (the DSM-V). See 79 Fed. Reg. 45,094 (August 4, 2014). VA adopted as final, without change, this interim final 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 Certain VA Purposes, 80 Fed. Reg. 14,308 (March 19, 2015). Here, as the Veteran's claim was certified to the Board in February 2015, the amended regulation applies. Furthermore, with regard to an actual diagnosis of PTSD, lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must consider the type of condition specifically claimed and whether it is readily amenable to lay diagnosis or probative comment on etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In this regard, the Federal Circuit recently held that "PTSD is not the type of medical condition that lay evidence . . . is competent and sufficient to identify." Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). Regardless, the Board acknowledges the Veteran is competent to report psychiatric symptoms both during and after service. See 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); (discussing that Veteran is competent to report a contemporaneous medical diagnosis); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (discussing general competency of a Veteran to report psychiatric symptoms). That is, 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, 581 F.3d at 1316. See also Jandreau, 492 F.3d at 1376-77. As for the second requirement, an in-service stressor, the evidence necessary to establish the occurrence of any in-service stressor varies depending upon the circumstances of the case. VA has provided for specific types of cases where lay evidence alone may be sufficient to describe the stressor and further corroborating evidence will not be required. Corroborating evidence is not required in cases where (1) PTSD is diagnosed in service; (2) the evidence establishes the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat; (3) the stressor is related to the Veteran's fear of hostile military or terrorist activity; or (4) the evidence establishes that the Veteran was a prisoner-of-war and the stressor is related to that prisoner-of-war experience. 38 C.F.R. § 3.304. In any of the above situations, the Veteran's lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required providing that such testimony is found to be consistent with the circumstances, conditions, or hardships of service and there is no clear and convincing evidence to the contrary. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304. The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99 (Oct. 18, 1999). Service in a combat zone does not establish that a veteran engaged in combat with the enemy. Id. Whether the veteran engaged in combat with the enemy is determined through the receipt of certain recognized military citations or other supportive evidence. West v. Brown, 7 Vet. App. 70 (1994). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). i. Whether new and material evidence has been submitted sufficient to reopen the claim for entitlement to service-connection for an acquired psychiatric disorder, to include PTSD: Prior to the Board's determination as to whether the Veteran is entitled to an award of service connection, the Board must first determine whether new and material evidence has been submitted sufficient to reopen the claim. As noted in the introduction to this decision, the Veteran's claim for entitlement to an acquired psychiatric disorder, to include PTSD, was previously denied by the Board in a March 1984 decision. At that time, the Veteran's claim was denied as the evidence did not show the presence of a diagnosis of PTSD, either during his active duty service or subsequent to his separation. The Veteran filed the instant appeal, to reopen his claim for entitlement to service connection in May 2012. In support of his petition to reopen the prior denial, the Veteran submitted additional medical records and statements describing his in-service stressors. Despite this additional evidence, the AOJ denied the Veteran's request to reopen his claim for entitlement to service connection in a February 2013 Rating Decision. Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied may be properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)); See also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end. A previously denied claim may be reopened by the submission of new and material evidence. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as evidence not previously submitted to agency decision makers. 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). The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Moreover, the Court of Appeals for Veterans Claims ("Court") explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Following a review of the evidentiary record, the Board finds that the evidence submitted since the date of the March 1984 Board decision is constitutes "new" evidence, as it was not available at the time of the March 1984 Board decision. Moreover, the Board finds that this new evidence, including medical records received subsequent to the Veteran's March 2015 video hearing, is material, as it shows the Veteran has been diagnosed with PTSD. See e.g. May 2015 Psychological Assessment. Therefore, based upon the above analysis, the Board finds sufficient evidence to reopen the previously denied claim for entitlement to service-connection for an acquired psychiatric disorder, to include PTSD as the record now reflects that the Veteran has PTSD. ii. Entitlement to service connection for and acquired psychiatric disorder, to include PTSD: With consideration of the above described regulations governing PTSD claims, the Board finds the evidence, when considered in a light most favorable to the Veteran, warrants a finding of entitlement to service connection for PTSD. As to the first requirement, evidence of a current diagnosis for PTSD, the Board observes that the Veteran has been diagnosed with a PTSD disability. Specifically, during a May 2015 psychological evaluation, the Veteran was examined and found to meet the clinical diagnosis for a PTSD disability, under the DSM-V criteria. During this encounter, the Veteran described his combat service. He stated that he served as a medic and would render medical assistance to those badly injured from gun and mortar fire. He also recounted an event in which he was called upon to provide medical assistance to civilians who had been dismembered by a solider assigned to the Veteran unit. In addition, the Veteran also reported living in conditions in which he constantly feared for his safety, due to weapons fire and enemy combat. In addition to these events in service, the Veteran reports current symptoms of anxiety, depression, and flashbacks. He described physical manifestations of his anxiety, which included avoidance of places and people, trouble breathing, sweating, and shaking. The Veteran stated that he is easily irritable, and experiences angry outbursts. He described difficulty sleeping, due to intrusive thoughts and persistent anxiety. During this examination, the clinician observed the Veteran's hands were shaking with nervousness and his overall mood was described as irritable and anxious. Based on this encounter, and a review of the Veteran's medical records, the clinician diagnosed the Veteran with PTSD, based upon the DSM-V criteria. In rendering this diagnosis, the examiner noted that the past VA examination, dated January 2013, had concluded that the Veteran did not meet the diagnostic criteria for a PTSD diagnosis. The examiner explained that at the time of the January 2013 VA examination, the Veteran was still working on a full time basis. Continuing, the examiner noted that his prior work helped the Veteran cope with his symptoms, and now that he has retired, he experienced an increased in his symptoms, including increased severity and frequency of these symptoms. In regards to the second element, the Board finds the Veteran's lay reports of his military history sufficient to establish the occurrence of an in-service stressor. As noted above, VA regulations allow lay evidence to support a Veteran's claim of a stressor, without further corroborating evidence, where the Veteran is found to have "engaged in combat with the enemy." See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304. The Board finds that the Veteran's DD-214 supports his contention that he saw combat while in service in Vietnam. Notably, the Veteran is in receipt of the Combat Medical Badge, National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, and Army Commendation Medal, among other distinctions. As such, the Veteran is entitled to the combat exemption and his lay testimony alone establishes the occurrence of the claimed in-service stressors. Finally, with respect to the third requirement, medical evidence of a link between current symptomatology and the claimed in-service stressor, the Board finds sufficient credible evidence which establishes this nexus. Notably, during the May 2015 psychological assessment, the clinician found the Veteran's current symptoms were related to his traumatic exposures during his active duty service, to include combat service as a medic in Vietnam. Based on the foregoing and after resolving all doubt in the Veteran's favor, the Board concludes that the probative medical evidence of record weighs in favor of finding that the Veteran has a current diagnosis of PTSD related to his conceded in-service stressor. Therefore, the Board finds that service connection for an acquired psychiatric disorder, to include PTSD, is warranted. ORDER New and material evidence having been received; the claim for entitlement to service connection for an acquired psychiatric disorder, is reopened. Service connection for an acquired psychiatric disorder, to include PTSD and depression is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs