Citation Nr: 20003972 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 17-31 651 DATE: January 16, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as posttraumatic stress disorder (PTSD), is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the probative evidence of record demonstrates that the Veteran has a current diagnosis of PTSD related to a verified in-service stressor. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1984 to June 1989 and from February 1991 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for PTSD. A notice of disagreement (NOD) was submitted in September 2015; a statement of the case (SOC) was issued in April 2017; and the Veteran perfected his appeal with the timely submission of a VA Form 9 in June 2017. The Veteran testified before the undersigned at a hearing held in October 2019; a transcript of that hearing is of record. Of note, in November 2013, a rating decision denied the claim for PTSD. However, in August 2014 during the one-year appellate period following the November 2013 rating decision, the Veteran submitted a PTSD DBQ from the Veteran’s psychiatrist diagnosing PTSD and relating it to service. The Board finds this evidence was both new and material as it related to the previously unestablished but required element of a PTSD diagnosis/nexus, and no such evidence had previously been submitted. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see also Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Accordingly, because the Veteran submitted new and material evidence within one year of the November 2013 rating decision, that decision remained pending until VA adjudicated the claim. See 38 C.F.R. § 3.156 (b). Therefore, the November 2013 rating decision did not become final, and because there is no prior denial, new and material evidence is not required. 1. Entitlement to 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, 1131; 38 C.F.R. § 3.303 (a). 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)). 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-5). 38 C.F.R. § 3.304 (f). 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). The Veteran contends that he has PTSD as a result of different stressors that occurred during his active duty service. He specifically asserts that he was involved in numerous, highly stressful situations in association with his duties as a Criminal Investigative Division (CID) agent, Military Police (MP), and MP Dog Handler. See, e.g., VA Form 21-0781; May 2016 Statement from Veteran (reports dangerous undercover work in narcotics in association with joint operations with the local authorities). As an initial matter, service personnel records confirm that the Veteran served as a CID agent, MP, and MP dog handler. The personnel records also include a citation for the Veteran’s receipt of the Navy Commendation Medal. The citation reads as follows: For meritorious service while serving as a Military Police Patrol, Drug Detection Dog Handler, and Criminal Investigator, Marine Corps Air Ground Combat Center, Twentynine Palms, California, from October 1985 to June 1989. During this period, [Veteran] performed his duties in an exemplary and highly professional manner. Through aggressive deployment of his patrol drug detector dog to deter criminal action and drug abuse, he contributed significantly to the effective law enforcement effort aboard the center. As criminal investigator, he participated in a Joint Provost Marshal’s Office/Naval Investigative Service/San Bernardino County Drug Suppression Operation which required long and arduous hours of undercover work under extremely hazardous conditions. Because of his superb efforts and creative ability, he obtained valuable intelligence which was related to the illicit use, sale, and distribution of marijuana, cocaine, and methamphetamines. (Emphasis added). The aforementioned personnel records and medal citation corroborate the Veteran’s competent reports of in-service stressors associated with his CID and MP duties. Accordingly, there is credible supporting evidence that the claimed in-service stressor occurred. Thus, the remaining question for consideration is whether the Veteran has a PTSD diagnosis that is related to the in-service stressor. VA treatment records dated from 2015 to 2017 confirm that the Veteran has a DSM-V PTSD diagnosis. A May 2015 VA mental health note confirms that this diagnosis, rendered by a psychiatrist, was based on the Veteran’s experiences as a CID agent in-service. In addition, the Veteran submitted an August 2014 PTSD DBQ completed by Dr. J.T.G. (psychiatrist) which expressly diagnosed the Veteran with PTSD (DSM-V) and directly linked it to the Veteran’s undercover work in-service. The Board acknowledges that an April 2017 VA examiner found that the Veteran did not meet the diagnostic criteria for PTSD; however, the medical opinion did not give due consideration to the Veteran's previous VA diagnoses or his continued treatment and therapy at his local VAMC for diagnosed PTSD. Thus, the Board finds that the April 2017 VA examination has little probative value. In short, the most competent and probative evidence of record medical indicates that the Veteran has been diagnosed with PTSD in accordance with VA regulations due to a corroborated stressor during the pendency of the appeal. Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for PTSD must be granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Hoeft 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.