Citation Nr: 20007941 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 14-01 951 DATE: January 30, 2020 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for a psychiatric disorder is granted. FINDINGS OF FACT 1. The RO initially denied the Veteran’s claim for service connection for a psychiatric disorder in April 2007; the Veteran did not appeal this decision, nor was new and material evidence submitted or received within a year of that decision. 2. Evidence added to the record since the final April 2007 denial is not cumulative or redundant of the evidence considered at the time of the earlier decision, and it raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. 3. The Veteran has a current diagnosis of PTSD found to be related to his fear of hostile military or terrorist activity. CONCLUSIONS OF LAW 1. The April 2007 rating decision that denied service connection for an acquired psychiatric disorder, to include PTSD is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a psychiatric disorder have 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 a period of active duty for training with the United States Army from January 1990 to May 1990; he thereafter served on active duty in the Army from December 1990 to July 1991, to include service in Southwest Asia. For his meritorious service, the Veteran was awarded the Southwest Asia Service Medal. Before turning to the merits of this claim, a brief recitation of the procedural history is illustrative. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued in March 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). After perfecting his appeal, in April 2014, the Veteran testified at a video conference hearing before Veterans Law Judge (VLJ) Crowley. A transcript of that hearing is of record. In June 2015, the Board remanded this issue, noting that it would be affected by an unadjudicated claim for revision of the earlier April 2007 rating decision on the basis of clear and unmistakable error (CUE claim). In January 2016, the RO issued a decision denying the Veteran’s CUE claim, and he filed a timely notice of disagreement in February 2016. This case then returned to the Board in July 2016. The Board remanded the claim in order that the RO could issue a statement of the case as to the Veteran’s CUE claim. The RO did so in August 2016, and the Veteran perfected his appeal as to that issue in August 2016. In January 2019, the Veteran testified before VLJ Deichert at a Travel Board hearing. A copy of that transcript is of record. At that hearing, the Veteran offered testimony and argument with respect to the claims listed above, as well as to his CUE claim. Because the CUE claim was unique to VLJ Deichert, he has issued a separate decision regarding that issue. As the claims listed above were discussed at both hearings, a panel decision is required for these issues. Importantly, at his January 2019 Travel Board hearing, the Veteran (with the guidance of his accredited attorney) waived the right to have a hearing before a third member of the panel that would decide his case. Accordingly, this case may move forward without the need for a third hearing. New and Material Evidence Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As noted above, the RO denied the Veteran’s claim for service connection for an acquired psychiatric disorder in an April 2007 rating decision. At that time, with respect to his PTSD claim, the RO found that the Veteran was not then diagnosed with PTSD, and that he had not provided information regarding his claimed stressors. With regard to other psychiatric disorders, the RO determined that there was no evidence of in-service treatment for his claimed disorders; in essence, these claims were denied for lack of an in-service incurrence. The Veteran did not appeal this decision, nor was new and material evidence submitted or obtained within a year of that decision. The April 2007 claim is thus final. To this point, the Board had refrained from determining whether new and material evidence had been submitted, noting that such a determination was dependent on the resolution of the Veteran’s CUE claim. In a separate decision, the Board has determined that the revision of the earlier, April 2007 rating decision on the basis of CUE is not warranted. Accordingly, the Board may now reach the merits of the Veteran’s petition to reopen his previously denied claim. Additionally, since the Veteran’s April 2007 rating decision, the Court of Appeals for Veterans Claims (Court) has held that a claim for service connection for PTSD serves as “a claim for any mental disability that may reasonably be encompassed by several factors.” Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has recharacterized the Veteran’s claims in accordance with the Court’s decision in Clemons. Doing so compels the result here. As noted above, the Veteran’s claim for PTSD specifically was denied, in part, on the basis that the Veteran was not then suffering from PTSD. Since that time, a February 2018 VA examination reflects a PTSD diagnosis. This evidence is new, as it was generated after the earlier April 2007 rating decision denying service connection for PTSD. It is also material, as it speaks directly to one of the bases for that previous denial, the lack of a current diagnosis. This evidence, being both new and material, warrants reopening. A great deal of evidence has been added to the file in addition to this examination, but given the fact that the Board is reopening the Veteran’s claim, there is no need to discuss that evidence in detail. In summary, new and material evidence sufficient to reopen the Veteran’s previously denied claim of entitlement to service connection for a psychiatric disorder, to include PTSD has been presented. The claim is reopened. Entitlement to service connection for a psychiatric disorder Having reopened the Veteran’s claim, the Board may turn to the merits of the underlying claim for service connection. For the reasons that follow, the Board shall grant the claim for service connection for a psychiatric disorder. As noted above, the Board has recharacterized the Veteran’s claim as one for service connection for a psychiatric disorder, to include PTSD. That said, PTSD and psychiatric disorders in general have differing criteria for service connection. For PTSD specifically, service connection requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), 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). If a claimed stressor is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran underwent a VA examination in February 2018. At that time, the examiner diagnosed the Veteran as suffering from PTSD; major depressive disorder, recurrent, severe without psychotic features; unspecified alcohol dependence in remission, and unspecified drug dependence in remission. The examiner noted that he was able to differentiate what symptoms were attributable to which diagnosis. With respect to the Veteran’s stressors supporting the PTSD diagnosis, the only listed stressor is the Veteran’s reports of incoming gunfire and explosions during his service in Southwest Asia. The examiner did not specifically link the Veteran’s current PTSD to his active service; indeed, there was no nexus opinion accompanying this examination whatsoever. Read as a whole, however, it is clear that the examiner attributed the Veteran’s PTSD to his active service. Again, the only stressor listed supporting the Veteran’s PTSD diagnosis was his fear of hostile military or terrorist activity, specifically that of incoming gunfire and explosions. When discussing the differentiation of symptoms between the Veteran’s PTSD and his other psychiatric disorders, the examiner specifically mentioned the Veteran’s PTSD symptoms in relationship to his service in Southwest Asia during the Gulf War. Considering these facts, remanding this specific element of his claim for service connection (i.e., entitlement to service connection for PTSD specifically), would only serve to delay the inevitable. Reading the February 2018 examination as a whole, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s current PTSD is related to the fear of hostile military or terrorist activity that is consistent with the circumstances of the Veteran’s service, service connection for a psychiatric disorder is warranted. The appeal is granted. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. K. Hall, 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.