Citation Nr: 20005306 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 19-08 376 DATE: January 23, 2020 ORDER New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for an acquired psychiatric disability is granted. FINDINGS OF FACT 1. Service connection for PTSD was denied in an unappealed March 2003 rating decision. 2. Evidence received since the March 2003 rating decision is new and material and raises a reasonable possibility of granting the claim of entitlement to service connection for PTSD. 3. Resolving all reasonable doubt in favor of the Veteran, his acquired psychiatric disability is etiologically related to service. CONCLUSIONS OF LAW 1. The March 2003 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.160(d). 2. The evidence received since the March 2003 rating decision is new and material, and the claim of entitlement to service connection for PTSD is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for an acquired psychiatric disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Unites States Marine Corps from February 1981 until May 1983. In March 2003, a Department of Veterans Affairs (VA) regional office (RO) issued a rating decision that denied the Veteran entitlement to service connection for PTSD. The decision was never appealed and became final. This case comes to the Board of Veteran’s Appeals (Board) on appeal from an August 2014 rating decision that denied reopening the Veteran’s claim for PTSD. Preliminarily, the Board notes that when a Veteran makes a claim for PTSD, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board has recharacterized the issue into a claim for any acquired psychiatric disability. See id. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot either be cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable probability of substantiating the claim. At the time of the March 2003 rating decision, the evidence of record included service records, VA treatment records, and statements from the Veteran. Evidence associated with the claims file since the previous March 2003 denial includes statements from the Veteran and numerous post-service treatment records. As the Board will discuss further below, the Veteran is in receipt of January 2017 positive nexus opinion linking his PTSD to service. Based on this new evidence, the Board finds that the new and material criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claim for entitlement to service connection for PTSD is reopened. Service Connection Under the relevant laws and regulations, 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. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Finally, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Entitlement to service connection for an acquired psychiatric disability is granted. At the outset, the Board notes that the Veteran has not participated in a VA examination for his acquired psychiatric disability. However, as the claim is resolved in favor of the Veteran, the Board sees no prejudice against him. Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f). The Veteran asserts that he suffers from an acquired psychiatric disability as a result of his time in service. The Veteran has been diagnosed with numerous psychiatric disabilities to include PTSD, persistent depressive disorder, unspecified mood disorder, and anxiety state as noted in May 2018 post-service treatment records. With regard to an in-service occurrence, the Veteran described many traumatic events in both lay statements to the Board and to his VA treatment providers. Specifically, the Veteran stated that in July 1984 he witnessed a grenade explode in the India Company barracks of the 3rd Battalion, 9th Marine Division, Camp Pendleton, California, from about 50 yards away and seeing the windows shatter and fellow Marines escaping the building covered in blood. The Veteran’s DD 214 confirms that he was a member of the 3rd Battalion, 9th Marine Division, Camp Pendleton, California. An April 2017 buddy statement from a servicemember also seems to confirm the Veteran’s report of this event; although the pair recollect different years, their statements are consistent in the description of the event and the time of year it occurred (July). In addition, the Veteran also reported that he was the subject of severe hazing including being forced into a dark room and beaten on at least five occasions. The Veteran noted that these hazing incidents were over the course of 1.5 years and that he often feared for his safety. Further, the Veteran reported learning that an entire battalion had been killed and that he was personal friends with two of the deceased. VA was unable to independently confirm these events. However, the Board finds the Veteran credible, especially considering that he has been consistent and specific in his report of the traumatic events throughout the entirety of the appeal. Therefore, the Board finds that the first and second Shedden elements are met. Accordingly, the Board will turn to the question of whether his acquired psychiatric disability is related to military service. In support of the claim, the Veteran submitted a January 2017 VA mental health outpatient assessment consult report. The Veteran’s treating VA clinical psychologist diagnosed the Veteran with PTSD and unspecified mood disorder. The Veteran informed the examiner of the same traumatic events from service which he alleges are his stressors. The psychologist noted that the Veteran “was tearful when describing these symptoms, and . . . appeared relieved when this writer acknowledged the existence of these symptoms.” The examiner thus concluded that the Veteran’s reports were “genuine” and that his PTSD was “related to the aforementioned military trauma.” The psychologist based her opinion on the in-person examination and a thorough review of the Veteran’s post-service treatment records, to include previous mental health intake sessions. Upon careful review of the record, the Board finds that entitlement to service connection for an acquired psychiatric disability is warranted. In so finding, the Board assigns great probative value to the January 2017 VA psychologist’s opinion. The probative value of a medical opinion comes from the factually accurate, fully articulated, and sound reasoning for the conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The January 2017 opinion is based upon a thorough review of the Veteran’s medical history and an examination of the Veteran, and the VA psychologist concluded that the Veteran’s symptomatology is attributable to his experiences in service. Indeed, the examiner concluded that the Veteran’s reports were “genuine.” The Board thus finds that the preponderance of the evidence supports the conclusion that the Veteran’s psychiatric disorder is etiologically related to the in-service trauma. The third Shedden element, the existence of a causal relationship or nexus between the Veteran’s psychiatric symptoms and service, is thus satisfied. Therefore, resolving all doubt in favor to the Veteran, the Board finds that the evidence supports a nexus between the Veteran’s current acquired psychiatric disability and his service. As all elements of service connection have been satisfied, service connection for an acquired psychiatric disability is granted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.303(d). The nature and extent of the disorder is not before the Board at this time. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Finelli, Associate 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.