Citation Nr: 20006899 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 17-61 336 DATE: January 28, 2020 ORDER The petition to reopen a claim for entitlement to service connection for a psychiatric disorder is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a disability rating in excess of 20 percent for degenerative joint/disc disease, cervical spine status post anterior discectomy and fusion (cervical spine disability) is remanded. FINDINGS OF FACT 1. In a June 1997 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for insomnia, sleep difficulties, situational stress, and anxiety; the Veteran did not perfect an appeal with that decision. 2. Evidence associated with the record since the June 1997 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder. 3. The Veteran’s has been diagnosed with PTSD based on his war experiences. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim seeking service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for PTSD have been satisfied. 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 served on active duty from July 1966 to February 1996, to include service in the Republic of Vietnam. He was awarded multiple Legions of Merit and Bronze Star Medals among other decorations. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. Claim to Reopen If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing 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 credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO denied the Veteran’s claim of service connection for insomnia, sleep difficulties, situational stress, and anxiety in a June 1997 rating decision, essentially finding that there was no current disability. While the Veteran initially disagreed with this decision, after a statement of the case was issued in September 2019, he did not submit a timely substantive appeal to perfect his appeal to the Board. Thus, the June 1997 rating decision is final. See 38 C.F.R. §§ 20.302, 20.1103 (1999). The evidence received since the June 1997 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, a January 2016 psychological evaluations shows diagnoses of PTSD and major depression. This new evidence addresses the reason for the previous denial; that is, a current disability, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. Service Connection for PTSD Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the condition; (2) credible supporting evidence that the claimed inservice stressor occurred; and, (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). Lay testimony alone can establish the occurrence of the claimed in-service stressor in certain circumstances, which include: when PTSD is diagnosed during service and the claimed stressor is related to that service, when the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, when the stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and certain other conditions are met, and when the veteran was a prisoner-of-war and the claimed stressor is related to that prisoner-of-war experience. Id. In other cases, the claimed stressor must be corroborated by credible supporting evidence. After a review of the Veteran’s service treatment records, service personnel documents, and separation document, the RO conceded the Veteran’s stressor of fear of hostile military or terrorist activity. See October 2017 Statement of the Case. The Board sees no reason to deviate from that finding. Thus, service connection is warranted if a diagnosis of PTSD is made based in part on the conceded stressor. While a VA examiner found that a PTSD diagnosis was not appropriate in 2012, a January 2016 psychological evaluation includes a diagnosis of PTSD. The psychologist who made the diagnosis indicated that the diagnosis is based at least in part on the Veteran’s war experiences. As the Veteran has a diagnosis of PTSD based on a conceded in-service stressor, service connection for PTSD is granted. REASONS FOR REMAND Increased Rating for cervical spine disability. At the October 2019 hearing, the Veteran testified to a worsening of his cervical spine disability, citing an example of being unable to turn his head as far as before. An additional examination should be scheduled to determine the current level of severity of this disability. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his cervical spine disability. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA cervical spine examination to determine the current symptoms, level of severity, and functional impairment associated with his cervical spine disability. The claims file should be reviewed by the examiner. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. J. Kim, 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.