Citation Nr: 20003003 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 15-46 562 DATE: January 14, 2020 ORDER 1. The petition to reopen the claim for service connection for a left thumb disability is dismissed. 2. The petition to reopen the claim for service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), is granted. 3. The reopened claim of entitlement to service connection for a psychiatric disorder, to include PTSD, is denied. FINDINGS OF FACT 1. During the July 2019 Board videoconference hearing, and prior to the promulgation of a decision in this matter, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew his petition to reopen the claim for service connection for a left thumb disability. The undersigned Veterans Law Judge (VLJ) clearly identified the withdrawn issue, and the Veteran affirmed that he was requesting a withdrawal as to that appeal. In addition, the VLJ discussed the consequences of withdrawing an appeal, and the Veteran expressed that he fully understood those consequences. 2. A December 2011 rating decision denied the Veteran’s claim for service connection for PTSD because the evidence did not show a verified military stressor that occurred or was aggravated by a result of active service. The Veteran was notified of this determination within a December 2011 notification letter, which included his appeal rights; however, the Veteran did not appeal that decision or submit new and material evidence within the one-year appeal period. 3. Evidence received since the December 2011 rating decision was not previously of record, is not cumulative or redundant of evidence already of record, and relates to an unestablished fact necessary to substantiate the Veteran’s claim for service connection for a psychiatric disorder, to include PTSD. 4. A psychiatric disorder, to include PTSD, did not have its onset during active service and is not otherwise related to active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the petition to reopen the claim for service connection for a left thumb disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The December 2011 rating decision that denied the Veteran’s claim for service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 3. New and material evidence sufficient to reopen the claim for service connection for a psychiatric disorder, to include PTSD, has been added to the record. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The criteria for service connection for a psychiatric disorder, to include PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from January 1984 to January 1988 and from November 2001 to March 2002, with additional periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) in the Air National Guard of New Mexico from January 1988 to March 1989 and from February 1991 to May 2006. The Veteran testified before the undersigned VLJ at a July 2019 videoconference hearing and a transcript of the hearing has been associated with the claims file. 1. Whether new and material evidence has been submitted to reopen the claim for service connection for a left thumb disability. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2018). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During the July 2019 Board videoconference hearing, and prior to the promulgation of a decision in this matter, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew his petition to reopen the claim for service connection for a left thumb disability. The undersigned VLJ clearly identified the withdrawn issue, and the Veteran affirmed that he was requesting a withdrawal as to that appeal. In addition, the VLJ discussed the consequences of withdrawing an appeal, and the Veteran expressed that he fully understood those consequences. As such, there remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review the matter, and it is dismissed. 2. Whether new and material evidence has been submitted to reopen the claim for service connection for a psychiatric disorder, to include PTSD. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. However, a claim may be reopened if new and material evidence is submitted. New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while 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 last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. A December 2011 rating decision denied the Veteran’s claim for service connection for PTSD. At that time, the Veteran stated he had been diagnosed with PTSD in 1992 and that service he had right after Hurricane Katrina had aggravated his PTSD. The RO, in denying the claim, acknowledged that the Veteran had been diagnosed with PTSD, but found that the evidence did not show a verified military stressor that occurred or was aggravated by a result of active service. The Veteran was notified of this determination within a December 2011 notification letter, which included his appeal rights; however, the Veteran did not appeal that decision or submit new and material evidence within the one-year appeal period. As such, the December 2011 rating decision is final. Since the December 2011 rating decision, relevant evidence added to the record includes private treatment records documenting the Veteran’s psychiatric treatment, including a March 1993 diagnosis of PTSD, a May 2014 private nexus opinion by Dr. Michael Rodriguez that the Veteran’s PTSD was caused in service and is related to his fear of hostile military or terrorist activity, and a July 2014 private nexus opinion by Dr. Matthew Myers that it is more likely than not that the Veteran suffered from PTSD prior to service (diagnosed in 1993 as a paramedic) which was aggravated during his active service. Additional evidence added to the record includes ongoing VA treatment records documenting the Veteran’s PTSD with related treatment, as well as lay statements from the Veteran and others regarding his PTSD being worsened by deployment to a hostile area in 2003 and his activation in September 2005 to assist with cleanup and recovery after Hurricane Katrina. The Board finds that the above evidence is new and material evidence sufficient to warrant reopening of the Veteran’s claim for service connection for a psychiatric disorder, to include PTSD, as it was not of record at the time of the prior final December 2011 Board decision, and it relates to a material element of the Veteran’s claim. Given the above, the claim for service connection for a psychiatric disorder, to include PTSD, is reopened. 3. Service connection for a psychiatric disorder, to include PTSD. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 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. Service connection for PTSD specifically requires the presence of three particular elements: (1) a current medical diagnosis of PTSD; (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. For the purposes of establishing service connection for PTSD, medical evidence diagnosing PTSD must be in accordance with the American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders (DSM) as the source of criteria for the diagnosis of claimed psychiatric disorders. In essence, the Veteran contends that his PTSD, which was originally diagnosed in 1992 as a result of his civilian occupation as a firefighter and an emergency medical technician (EMT), was worsened due to his active service, including a deployment to a hostile area of Colombia in 2003 and later activation to assist with cleanup and recovery due to Hurricane Katrina in Louisiana in September 2005. As discussed below, regarding the Veteran’s claimed in-service stressors and whether there exists credible supporting evidence that the claimed in-service stressors actually occurred, to the extent the Veteran has asserted combat service and fear of hostile military or terrorist activity, the Board finds that the evidence of record in this regard is inconsistent and inadequate to support a grant of service connection for PTSD under the relevant liberalizing regulation. Additionally, while the Veteran has submitted supporting lay evidence regarding his in-service stressor involving service after Hurricane Katrina, the Board finds that such service cannot, as a matter of law, lead to a grant of service connection on the basis of aggravation of pre-existing PTSD. Moreover, the Veteran’s reports in this regard have varied as to whether his PTSD symptoms were attributed to his occupational history as a firefighter and an EMT or to his active service. As such, the Board concludes that the preponderance of evidence weighs against the Veteran’s claim. The reasons for this decision follow. Regarding the first element of a service-connection claim, the requirement of a current disability, the Board finds that post-service private treatment records from February 1992 document mental health treatment for stress, anxiety, and rule out PTSD, and a March 1993 letter from a private physician documents a diagnosis of PTSD, with related treatment. VA treatment records throughout the appeal period further document the Veteran’s PTSD diagnosis. Thus, a current psychiatric disorder, including PTSD, is documented by the medical evidence of record. Regarding the in-service element of the Veteran’s claim, the Board initially notes that service treatment records do not document complaints, treatment, or diagnosis of a psychiatric disorder during active service in the United States Air Force from January 1984 to January 1988 and from November 2001 to March 2002. For example, a November 1987 Report of Medical Examination at separation documents a normal psychiatric evaluation, without any psychiatric defects or diagnoses, and the Veteran specifically denied a history of frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort within a concurrent Report of Medical History at discharge. A February 1991 Report of Medical Examination upon the Veteran’s enlistment in the Air Force National Guard of New Mexico likewise documents a normal psychiatric evaluation, without any psychiatric defects or diagnoses, and the Veteran again denied a history of psychiatric symptoms within a concurrent Report of Medical History. Similarly, Reports of Medical Examination in February 1996 and February 2001 also document normal psychiatric evaluations, within any psychiatric defects or diagnoses. A February 2003 Pre-Deployment Health Assessment prior to the Veteran’s service in Colombia documents that the Veteran had not sought counseling or care for his mental health in the prior year, and no treatment referral was indicated. Additionally, an October 2003 post-deployment health assessment following his deployment to Colombia from August 2003 to October 2003 documents the Veteran’s report that his health stayed about the same or got better during the deployment, and that he was not seen in sick call. He reported seeing dead coalition and enemy forces in body bags but denied being involved in direct combat or feeling in great danger of being killed. It was documented that the Veteran was not currently interested in receiving help for a stress, emotional, alcohol, or family problem, and denied all psychiatric symptoms. Moreover, within an October 2003 Report of Medical Assessment, he again stated that his overall health since his last physical in February 2002 was about the same; he denied any illnesses, injuries, or treatment, and stated that he had no questions or concerns about his health and that he did not intend to seek VA disability. Finally, in an October 2005 Post-Deployment Health Assessment, he again checked “No” to all psychiatric symptoms and denied that he saw anyone wounded, killed, or dead during the deployment, being engaged in direct combat, or ever feeling that he was in great danger of being killed. Given the above, the Board finds that the service treatment records weigh against a finding that a psychiatric disorder first had its onset during active service. Notably, private treatment records from Lovelace mental health in February 1992 document that the Veteran had a history of alcohol abuse, relationship problems, stress/anxiety, and rule out PTSD. Similar assessments were again documented in January 1993. A March 1993 letter from Dr. Robert Ericson of Mesa Mental Health reported treatment for the Veteran’s PTSD and a recommendation to limit the Veteran’s professional assignment to the least traumatic exposure possible. VA treatment records from October 2009 document the Veteran’s report that he was diagnosed with PTSD in 1993 by Lovelace for events that occurred during his career as a paramedic for 20 years. Notably, he stated that his affirmative answers regarding psychiatric symptoms were not due to events he experienced during active service in Afghanistan. However, the following month, he reported PTSD traumatic events, including a deployment to Colombia in 2004 where he “occasionally came under small arms fire” in Afghanistan from August to November of 2003 where he “saw lots of dead and wounded” and “came under attack” at the base six to seven times and under “small arms fire . . . regularly.” The examiner noted that the Veteran clearly met the criteria for PTSD, likely as a result from multiple traumas experienced during both his military and civilian experiences. As discussed above, the Veteran’s service treatment records do not document any combat service. Rather, the evidence of record documents that the Veteran consistently denied exposure to combat or fear of death, in addition to other psychiatric symptoms. Thus, his conflicting October 2009 and November 2009 reports lower the probative value of his lay statements insofar as they attempt to attribute his PTSD to active service in Afghanistan or Colombia, where he has inconsistently reported combat exposure and/or fear of hostile military or terrorist activity. Upon VA PTSD examination in August 2010, the Veteran reported stressors including while serving with the New Mexico Air National Guard in New Orleans following Hurricane Katrina in September 2005, where he provided law enforcement related to looters and marshal law and feared for his safety and feeling “an overwhelming sense of helplessness” while attempting to help thousands of people. He reported experiencing the smells of death, decaying dead bodies, sewage, and dead animals. The examiner noted that the Veteran’s occupational history was significant for his work as a paramedic and firefighter for the city of Albuquerque from 1988-2007; the Veteran served as a paramedic from 1989-2005, when he requested a transfer to the firefighter force and served as lieutenant until his retirement in 2007. The examiner documented that the Veteran reported extensive trauma working as a paramedic, which he related to excessive alcohol consumption for coping until he received a DWI in 1992 and was required to attend treatment; in the course of that treatment for trauma associated with his paramedic duties, he was diagnosed with PTSD. Regarding his National Guard deployment to Afghanistan, the Veteran reported that he was not bothered by viewing body bags or seeing dead soldiers and civilians. He further reported that the deployment for Hurricane Katrina showed him that he “could no longer handle the emotions and responsibility of having someone’s life in [his] hands,” and he requested termination of his assignment to Hurricane Katrina, and subsequently sought to downgrade his license to a lower EMT status through the fire department. The Veteran reported he then retired from the New Mexico Air National Guard in 2006 because he feared he would not be able to manage responsibilities to his unit, and he retired from the fire department in 2007 to reduce his stress, save his marriage, and find an alternative career. Upon VA mental health follow up in February 2013, the Veteran reported trauma due to his experience following Hurricane Katrina with the National Guard. He stated that this was his most traumatic experience, after which he had to retire from the city fire department because he could not do it anymore. However, in April 2013, the Veteran reported that his symptoms were due to his combat experience as a medic where he was unable to save the lives of wounded soldiers, followed by 20 years as a paramedic, and his months spent as a disaster medic following Hurricane Katrina where he felt the crisis was overwhelming. In September 2016, the Veteran stated he experienced combat, but that his current PTSD symptoms related less to his combat history and more to his National Guard deployment during Hurricane Katrina. The Veteran reported similar statements during a June 2019 VA PTSD trauma assessment and an October 2019 PTSD follow up visit. At the time of his initial July 2010 claim, the Veteran stated that his PTSD was originally diagnosed in 1992 and “was severely aggravated during Hurricane Katrina being exposed to the devastation and numerous decomposed bodies.” In a concurrent statement, he reported having served in a combat theater in 2003 but noted that he found the firefights exhilarating and exciting, and though he saw death, he was unaffected given his prior occupational experiences. He noted that his later experience with Hurricane Katrina in 2005 was the most difficult, with the constant smell of death and decay, and he was sent home early. He stated that this deployment to Louisiana was a turning point in his life that resulted in a request to transfer to be a “regular” firefighter and to downgrade his EMT license. In a December 2012 statement, the Veteran reported that his original PTSD diagnosis in November 1992, after a court ordered alcohol treatment program following a DWI charge, was a result of his work as a paramedic/firefighter in a major metropolitan area. Within a buddy statement submitted that same month, a fellow soldier reported having known the Veteran for 20 years and serving on various deployments together, including to “a hostile area” in Colombia in 2003 where they flew Medevac choppers to unload body bags (which the Veteran was unaffected by) and in September 2005 to Hurricane Katrina cleanup after which the Veteran returned home due to PTSD. In April 2019, the Veteran stated that his PTSD was a result of EMS work as a paramedic in the Albuquerque Fire Department, and that his PTSD was worsened by deploying to a hostile area in 2003 and by volunteering to go and help those in need after Hurricane Katrina in September 2005. An April 2019 buddy statement from a friend, who is licensed clinical social worker (LCSW), reported that the Veteran shows many signs of chronic PTSD from his work in the streets of Albuquerque and with military deployments. As discussed above, the Veteran’s conflicting statements regarding his 2003 deployment to a “hostile” area lower the probative value of his statements in this regard. Numerous statements above document the Veteran’s denial of being affected by such service, as he was already dealing with the symptoms of PTSD prior to that time as a result of his paramedic occupational exposure. A September 2019 buddy statement from the commander of the New Mexico Air National Guard personnel who were activated in support of the federal response to Hurricane Katrina notes that the first assignment included the search for human life or remains, coupled with an effort to clean and activate the pumping systems to lower the water levels, which exposed a much larger loss of animal life, including cows or cattle, horses, and even a heard of elk. Additionally, their job included the inventory and raising of coffins/human remains from various cemeteries, and the sight and smell of the decaying tissue affected the personnel, after which the Veteran (who the commander had “a long history and exposure to the tragedies of human carnage in his civilian job as a supervisor paramedic”) asked to be relieved from the assignment and sent home. At the July 2019 Board hearing, the Veteran testified that his PTSD began in 1993 as a result of his civilian career as a paramedic for the fire department. He stated that his military career involved carrying weapons, so he consistently had to deny any type of psychiatric issues, but that it started really becoming a problem after he deployed to Hurricane Katrina. He later noted that he was previously advised to say that his overseas deployments worsened his symptoms, but that they did not worsen until his deployment after Hurricane Katrina. The Veteran has submitted two private nexus opinions in support of his claim. First, in May 2014, Dr. Michael Rodriguez stated that the Veteran’s stressors included service in Colombia, where the Veteran experienced fear of hostile military or terrorist activity from small arms fire by rebels and witnessing body bags and the stench of decay, as well as his later deployment to New Orleans during Hurricane Katrina where he was faced with violence from the looters, fear of harm, and exposed to dead remains and body parts, after which he was unable to remain with his unit because of the aggravated symptoms from the trauma he witnessed while deployed for Hurricane Katrina. Dr. Rodriguez ultimately opined it is more likely than not that the Veteran’s PTSD was caused in service and is related to his fear of hostile military or terrorist activity, and that his response to the event involved a psychological or psychophysiological state of fear, helplessness, and horror. However, as discussed above, the evidence clearly documents that the Veteran’s PTSD first had its onset in 1992-1993 and was due to the Veteran’s civilian occupational history as a paramedic. Thus, the opinion is based upon an inaccurate factual premise, which renders it of no probative value. Moreover, in order to qualify for the liberalizing regulation for service connection for PTSD where the stressor is related to the Veteran’s fear of hostile military or terrorist activity, a PTSD diagnosis and nexus must be rendered by a VA psychiatrist or psychologist or a psychiatrist or psychologist with whom VA has contracted. Dr. Rodriguez is not a VA medical professional, and the evidence does not show that he was contracted by VA. 38 C.F.R. § 3.304(f)(3). As such, the Board affords no probative value to the private nexus opinion of Dr. Rodriguez. Similarly, in July 2014, Dr. Matthew Myers reviewed the Veteran’s PTSD stressors, which appear to be copied and pasted from the May 2014 private opinion by Dr. Rodriguez, and opined that the stresses associated with the Veteran’s service, led to his aggravated PTSD. He concluded that it is more likely than not that the Veteran suffered from PTSD prior to service (diagnosed in 1993 as a paramedic) and that such PTSD was aggravated in service. For the same reasons discussed above, the Board affords no probative value to the July 2014 private nexus opinion, as it is based upon in inaccurate factual premise concerning any aggravation related to the Veteran’s deployment to Colombia in 2003. Finally, the Board acknowledges that the lay and medical evidence of record clearly document that the Veteran’s PTSD symptoms appear to have worsened as a result of his service following Hurricane Katrina in September 2005. Significantly, however, to the extent that the Veteran asserts that a psychiatric disorder, to include PTSD, started while he was not on active duty but was subsequently aggravated by military duty, the Board notes that where there is a claim based on a period of active duty for training or inactive duty training, and the claimant has not yet achieved veteran status for a single disability incurred or aggravated during a period of ACDUTRA/INACDUTRA, the presumption of aggravation is not applicable. See Smith v. Shinseki, 24 Vet. App. 40, 48 n. 7 (2010). Thus, while it appears that the Veteran correctly asserts that his PTSD was worsened as a result of his Hurricane Katrina clean-up service, service connection for such experiences is not warranted as a matter of law. The Board is sympathetic to the Veteran and appreciative of his service, both military and civilian, but the Board cannot base a grant of service connection in equity, and as the preponderance of evidence otherwise weighs against the claim, the claim must be denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chad Johnson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.