Citation Nr: 20008366 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 17-29 738 DATE: January 31, 2020 ORDER New and material evidence having been received; the claim for entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened. Entitlement to service connection for PTSD is granted. FINDINGS OF FACT 1. A June 2013 rating decision denied entitlement to service connection for PTSD; the Veteran did not timely appeal the denial; and new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of the rating decision. 2. Evidence received since the June 2013 rating decision is new and raises a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for PTSD. 3. Resolving all doubt in the Veteran’s favor, the evidence is sufficient to show that the Veteran’s PTSD had its onset in service or is related to service. CONCLUSIONS OF LAW 1. The June 2013 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156 (b), 20.200, 20.202, 20.302, 20.1103. 2. New and material evidence having been received; the claim for entitlement to service connection for PTSD is reopened. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.156 (a), 3.303. 3. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303 (a), (c), 3.304 (f), 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1986 to September 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In December 2019, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. 1. Service connection for PTSD is reopened In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board’s jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis beyond consideration of whether the evidence received is new and material is neither required nor permitted. Barnett, 83 F.3d at 1384. New evidence is existing evidence not previously considered by VA. Material evidence is 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In this case, the RO denied service connection for PTSD in a June 2013 rating decision because there was no evidence of a confirmed diagnosis of PTSD. Thus, service connection for PTSD could not be established. The Veteran was notified of the decision in a letter dated June 2013. The Veteran did not file a notice of disagreement with the June 2013 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of issuance of notice of the rating decision. See 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the June 2013 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1105. Evidence associated with the record since the final June 2013 rating decision includes a letter received in May 2015 from the Veteran’s VA treating psychiatrist. The psychiatrist opined that the Veteran’s PTSD was at least as likely as not related to the Veteran’s service and his symptoms meet the current DSM criteria for a PTSD diagnosis. This evidence is new in that it was not previously considered by VA. It is also material because it provides evidence that relates to an unestablished fact necessary to substantiate the claim. As such, the VA psychiatrist letter raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran’s claim for entitlement to service connection for PTSD, and the claim is reopened. 38 C.F.R. § 3.156 (a). 2. Service connection for PTSD is granted 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. To establish service connection for a disability, 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 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish entitlement to service connection for PTSD, there must be: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); (2) a link, established by medical evidence, between the current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). 38 C.F.R. § 3.304 (f) was amended regarding service connection for PTSD, by liberalizing the evidentiary standard for establishing the required in-service stressor. 38 C.F.R. § 3.304 (f)(3). Specifically, this amendment eliminates the requirements for corroborating that the claimed in-service stressor occurred if a stressor claimed by a Veteran is related to the Veteran’s fear of hostile military or terrorist activity. Id. Pursuant to 38 C.F.R. § 3.304 (f)(3), if a stressor claimed by a veteran 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. Id. For purposes of section 3.304(f)(3), “fear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. As an initial matter, the Board finds that the Veteran has current diagnoses of acquired psychiatric disorders including PTSD and depressive disorder. While the medical evidence is not in agreement as to what the Veteran’s psychiatric diagnoses are, there is no question that the Veteran does have a current acquired psychiatric disorder. Furthermore, the Veteran is competent to provide lay testimony regarding psychiatric problems he experienced during and immediately following service. The only matter still in question is whether there is a medical link between the Veteran’s current acquired psychiatric disability and his service. Here, May 2013 and October 2014 VA psychological evaluations found that the Veteran did not meet the criteria for PTSD. A March 2017 VA addendum opinion found the Veteran did not meet the criteria for PTSD due to a stabbing event in service but did not consider his reported stressors during Gulf War. However, other medical treatment records, including VA treatment records, a letter received in May 2015 from Veteran’s VA psychologist, and private treatment records found that the Veteran met the criteria for PTSD. As such, the evidence is sufficient to show that the Veteran has a current diagnosis of PTSD. The Veteran asserted stressors include experiencing fear of hostile military or terrorist activity while he served in a support role while deployed to Saudi Arabia during the Gulf War. The Veteran’s assertions are consistent with the places, types, and circumstances of his service. 38 C.F.R. § 3.304 (f)(3). In addition, the VA examiners and private mental health service providers have concluded that the Veteran’s reported stressors pertaining to his service in the Gulf War met the criteria to support a diagnosis of PTSD and were related to fear of hostile military or terrorist activity. A VA psychological evaluation received in May 2015 from Dr. D.K. opined the Veteran met current DSM criteria for a diagnosis of PTSD based on his experiences in service during the Gulf War. In rendering this diagnosis, Dr. D.K. considered the Veteran’s current sign and symptoms and how they related to the Veteran’s conceded fear of hostile military or terrorist activity while serving during the Gulf War. While the May 2013 and October 2014 VA psychological evaluations found that the Veteran did not meet the criteria for PTSD, the VA psychological evaluation received in May 2015 from Dr. D.K. relates the Veteran’s current psychiatric problems to his service and provides an adequate basis to support a diagnosis of PTSD and that the Veteran’s symptoms are related to the claimed stressor. Dr. D.K.’s opinion provides a plausible basis to conclude that the Veteran has a current diagnosis of PTSD related to his service. With resolution of all reasonable doubt in the Veteran’s favor, it is concluded that the evidence supports service connection for PTSD. 38 U.S.C. § 5107 (b). (Continued on the next page)   Accordingly, the Board resolves all doubt in favor of the Veteran and finds that his PTSD is related to his service. Therefore, service connection for PTSD is warranted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. St. Laurent, 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.