Citation Nr: 20022049 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 16-60 003 DATE: March 30, 2020 ORDER The claim that clear and unmistakable error (CUE) was committed in a prior final April 2011 rating decision that failed to award service connection for posttraumatic stress disorder is denied. New and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. Entitlement to service connection for PTSD with major depression and anxiety disorder (accrued benefits) is granted. REMANDED Entitlement to service connection for the Veteran’s cause of death is remanded. FINDINGS OF FACT 1. The April 2011 rating decision that denied service connection for PTSD was based on the law at the time and evidence then of record. It is not shown to have been clearly and unmistakably erroneous. 2. The Appellant submitted evidence that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD. 3. There is medical evidence establishing a diagnosis of PTSD with major depression and anxiety disorder in accordance with 38 C.F.R. § 4.125(a), credible supporting evidence that the claimed in-service stressors actually occurred, and a link, established by medical evidence, between the symptomatology and the claimed in-service stressors. CONCLUSIONS OF LAW 1. The April 2011 rating decision denying service connection for PTSD is not clearly and unmistakably erroneous. 38 U.S.C. §§ 5108, 5109A (2012), 7105; 38 C.F.R. §§ 3.105a, 20.1403 (2019). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2019). 3. The criteria for service connection for PTSD with major depression and anxiety disorder (accrued benefits) are met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1976 to January 1980. The Veteran also had a period of Reserve service from January 1980 to September 2000. The Veteran passed away in November 2015. The Appellant is his surviving spouse. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and a March 2016 rating decision of the Department of Veterans Affairs (VA) St. Paul Pension Management Center in St. Paul Minnesota (PMC). The Appellant was afforded a hearing before the undersigned Veterans Law Judge in November 2019. A transcript of the hearing has been associated with the Veteran’s electronic claims file. Clear and Unmistakable Evidence (CUE) The Appellant maintains that clear and unmistakable error was committed in the denial of PTSD in an April 2011 rating decision. The Veteran filed a claim for service connection for PTSD on June 21, 2010, and the RO denied the claim in April 2011. The Veteran did not perfect a timely appeal. Therefore, the April 2011 rating decision became final. See 38 U.S.C. § 7105. Previous determinations which are final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 U.S.C. § 5109A(a); 38 C.F.R. § 3.105(a). For the purpose of authorizing benefits, a rating or other decision that constitutes a reversal or revision of a prior decision on the grounds of CUE has the same effect as if the decision had been made on the date of the prior decision. 38 U.S.C. § 5109A(b); 38 C.F.R. § 3.105(a). CUE is defined as "an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). Clear and unmistakable errors 'are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). In order to establish CUE, the claimant must show that an "outcome-determinative error occurred, that is, an error that would manifestly change the outcome of a prior decision." Yates v. West, 213 F.3d 1372, 1374 (Fed. Cir. 2000); see also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). In sum, CUE is the kind of error that "when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), aff'd on reconsideration, 6 Vet. App. 162, 163 (1994). The determination regarding CUE must be made based on the record and the law that existed at the time the decision was made. Damrel v. Brown, 6 Vet. App. 242, 245 (1994). Evidence that was not of record at the time of the decision cannot be used to determine if CUE occurred. See Porter v. Brown, 5 Vet. App. 233 (1993). Simply claiming CUE on the basis that the previous adjudication had improperly weighed and evaluated the evidence can never satisfy the stringent definition of CUE. Fugo, 6 Vet. App. at 44; see also Russell, 3 Vet. App. at 313-14. Similarly, general and unspecified allegations of error based on the failure to follow regulations, failure to satisfy due process requirements, failure to accord benefit of the doubt, failure of duty to assist, and any other general, non-specific claim of "error" are too broad to show CUE. See Fugo, 6 Vet. App. at 44. There is a three-part test to determine whether a prior decision was based on CUE: (1) '[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied,' (2) the error must be 'undebatable' and of the sort 'which, had it not been made, would have manifestly changed the outcome at the time it was made,' and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)); Wilson v. West, 11 Vet. App. 383, 386 (1998). At the time of the April 2011 rating decision, entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Specific to claims for PTSD, in order to grant service connection, there must be medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a), 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. 38 C.F.R. § 3.304(f). With regard to medical evidence of a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a), this regulation provided that, for VA purposes, all mental disorder diagnoses must conform to the Fourth Edition of the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (DSM-IV). In July 2010, the evidentiary standard outlined in 38 C.F.R. § 3.304(f)(3) for establishing in-service stressors in claims for PTSD was relaxed. The new regulations provide that 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. 75 Fed. Reg. 39,843, 39,852(July 13, 2010); 38 C.F.R. § 3.304(f)(3). For purposes of establishing service connection for PTSD, 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. 38 C.F.R. § 3.304(f)(3). In April 2011, the RO denied service connection for PTSD finding that the Veteran did not experience a stressful event in service, including fear of hostile military or terrorist activity. The RO noted that the service treatment records (STRs) do not contain complaints, treatment, or diagnosis for PTSD, and that the Veteran had no combat service, and that after several attempts VA was unable to acquire sufficient information to corroborate the Veteran’s claimed stressors. The RO further noted that the medical evidence showed a current diagnosis of PTSD from the Veteran’s private psychologist, but determined that the available medical evidence is insufficient to confirm a link between the Veteran’s current symptoms and an in-service stressor. As noted above, the April 2011 rating decision is final. In June 2013 the Veteran filed a supplemental claim asserting CUE in the April 2011 rating decision and requesting that his claim be reopened. In an accompanying statement in support of his claim, the Veteran asserted that the RO did not consider his lay information, disregarded clinical evidence from his private psychologist to include a diagnosis of major anxiety and depression disorders and a medical nexus between his service and his diagnoses. The Veteran asserted that VA is required to consider all psychiatric conditions as part of a claim for PTSD. In a March 2014 rating decision, the RO reopened the Veteran’s PTSD claim and determined that the Veteran’s assertions did not amount to CUE. The RO further determined that additional evidence submitted by the Veteran did not relate to an unestablished fact necessary to substantiate the claim. The Appellant subsequently perfected an appeal to the Board on the issues of whether CUE was committed in the prior final April 2011 rating decision, and whether new and material evidence was received to reopen the claim for PTSD. It appears that the Appellant claims CUE with the April 2011 rating decision on the basis that the statutory or regulatory provisions extant at the time were incorrectly applied. Specifically, the Appellant asserts that the RO improperly failed to consider lay evidence and failed to consider entitlement to service connection for acquired psychiatric disorders in addition to PTSD. The Board finds that the April 2011 rating decision does not contain CUE. The RO denied the Veteran's claim for PTSD because the RO found that he did not meet regulatory requirements for a grant of service connection for PTSD. More specifically, in 2011, 38 C.F.R. § 3.304(f) required that service connection for PTSD be established by credible supporting evidence of the claimed in-service stressor. While the Veteran submitted lay statements describing his claimed in-service stressors and private clinical records containing a diagnosis of PTSD and other acquired psychiatric disorders, the RO found that the evidence did not sufficiently support an in-service stressor. In addition, there was no evidence that the Veteran met the criteria allowing for a reduced evidentiary standard to establish a claimed in-service stressor. As such, the RO's findings do not constitute CUE. Although the clinical evidence provided by the Veteran’s private psychologist was acknowledged by the RO, the fact that the April 2011 rating decision did not grant service connection based on the private psychological evaluation was not CUE. The Appellant’s argument that the RO disregarded evidence of other psychiatric disorders and the private psychologist’s nexus statement is based on a disagreement with how the facts were weighed. A disagreement with how the facts were weighed cannot support a finding of CUE. Evans, 27 Vet. App. at 185 (2014), aff'd, 642 F. App'x at 982; Damrel, 6 Vet. App. at 245; Russell, 3 Vet. App. at 313-14. Service treatment records did not contain complaints or evidence of psychiatric treatment. The RO's decision to give more probative weight to the service records and development related to the claimed in-service stressor as opposed to the Veteran's lay statements and private psychological evaluation constitutes weighing of the evidence and thus cannot support a finding of CUE. The Board finds there was not CUE in the April 2011 decision, and on this basis, the Board denies this issue. New and Material Evidence Rating actions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A final decision cannot be reopened unless new and material evidence is presented or secured with respect to that claim. See 38 U.S.C. § 5108; see also Knightly v. Brown, 6 Vet. App. 200 (1994). 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). The question of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has held that 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. Id. A final denial on one theory is a final denial on all theories. Thus, a new theory in support of a claim for a particular benefit is not equivalent to a separate claim. See Ashford v. Brown, 10 Vet. App. 120 (1997). As such, new and material evidence is necessary to reopen a claim for the same benefit asserted under a different theory. See Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). For the purpose of establishing whether new and material evidence has been submitted, the evidence is presumed credible unless it is inherently false or untrue. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As noted above, the Appellant’s claim was originally denied by the April 2011 rating decision. Specifically, the RO determined that there was no credible evidence supporting the claimed in-service stressor and insufficient evidence to confirm a link between an in-service stressor and the Veteran’s currently diagnosed PTSD. Evidence of record at the time of the denial included lay statements in support of the Veteran’s claim, private treatment records from the Veteran’s psychologist, Dr. G.R., service treatment records (STRs), a VA Memorandum of a Formal Finding on a Lack of Information required to Verify Stressors in Connection to a Post Traumatic Stress Disorder Claim (VA Memo), and service personnel records. The Veteran did not initiate an appeal of this denial, and it became final. Since the April 2011 rating decision, private treatment records, an addendum to the VA Memo, service treatment records, VA treatment records, a transcript from the November 2019 Board hearing, correspondence from the Social Security Administration (SSA), an SSA Psychiatric Review Technique, journal articles discussing the relationship between mental health and pulmonary diseases, a summary of the August 2010 private psychological evaluation prepared by the Appellant’s representative, and correspondence from the Veteran’s insurance company have been added to the record. The service treatment records are duplicative, as they were a part of the record at the time of the April 2011 rating decision, which determined that these records do not show an in-service stressor or complaints or, treatment for, or diagnosis of PTSD in-service. Additional private treatment records, the SSA correspondence, summary prepared by the Appellant’s representative, SSA Psychiatric Review Technique, and correspondence from the Veteran’s insurance company further confirm information in the August 2010 psychological evaluation. The Appellant was afforded a Board hearing in November 2019. The Appellant testified that she believed the Veteran suffered from a mental disorder. The Appellant testified to the Veteran’s service as a medical corpsman and his claimed in-service stressors, to include working in a hospital and driving an ambulance to pick up a friend who died in a car accident. The Appellant testified to the Veteran’s symptoms of rage, anger issues, alcoholism, sleep disturbance, panic attacks, depression, lack of focus at work and difficulty maintaining employment, and inappropriate behavior. The Appellant testified that the Veteran was treated by a private psychologist and took prescription medication. The Appellant also testified to the Veteran’s use of insurance benefits as he was unable to work due to his psychiatric disability. The Board finds that the new private treatment records and the Appellant’s testimony contribute to a more complete picture of the Veteran’s medical history and therefore finds that the records and testimony are material. Accordingly, the claim is reopened. Service Connection for PTSD Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 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, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Specific to claims for PTSD, in order to grant service connection, there must be medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a), 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. 38 C.F.R. § 3.304(f). The Veteran submitted lay statements describing his claimed in-service stressors and private clinical records containing a diagnosis of PTSD. In an August 2010 psychological evaluation by Dr. G.R., he reported that he had been treating the Veteran for 10 years. Dr. G.R. provided Axis I diagnoses of PTSD due to being a corpsman in the Navy, Major Depression due to PTSD, and Anxiety Disorder NOS due to PTSD. Dr. G.R. discussed his treatment of the Veteran, and the Veteran’s exposure to stressful events while working as an ambulance driver and in the emergency room in service, and he provided a supporting rationale for his clinical assessments. The Veteran’s DD Form 214 shows his MOS was a Hospital Corpsman (HM). The Board finds that exposure to stressful events during the course of the performance of duties associated with being a Hospital Corpsman is consistent with the circumstances of such service. 38 U.S.C. § 1154(a). Therefore, the Board finds that there is credible supporting evidence that the claimed in-service stressors actually occurred. Id. As there is a link, established by medical evidence, between the symptomatology and the claimed in-service stressors, service connection for PTSD with major depression and anxiety disorder is warranted. REASONS FOR REMAND Entitlement to service connection for cause of death is remanded. Service connection for cause of death may be awarded for a Veteran’s death resulting from a service-connected disability or a disability related to service. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. To establish service connection for the cause of a Veteran’s death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. The death of a Veteran will be considered as having been due to a service-related disability when the evidence establishes that such disability was either the principal or the contributory cause of death. Id. The service-connected disability will be considered the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). The service related disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c). The debilitating effects of a service-connected disability must have made the Veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). Debilitation is assumed when the disease affecting a vital organ is evaluated 100 percent. 38 C.F.R. § 3.312(c)(3). In this case, the Veteran’s death certificate indicates that he died in November 2015 and that the immediate cause of death was complications of interstitial lung disease. Other significant conditions contributing to death listed were history of tobacco use, coronary artery disease, systolic heart failure, and PTSD. At the time of his death, service connection was in effect for tinnitus (10 percent disabling from June 24, 2013) and bilateral hearing loss (rated noncompensable from June 24, 2013). Through her representative, the Appellant asserts that the Veteran’s PTSD began in service and that the Veteran’s worsening mental health symptoms, including anxiety and depression, are correlated to worsening symptoms of chronic pulmonary conditions. See December 2019 Appellant’s Brief. The Appellant asserts that the Veteran experienced symptoms of interstitial lung disease in service. Id. The Appellant further asserts that the Veteran’s PTSD was a significant condition contributing to the Veteran’s death. Id. The Board acknowledges the Appellant’s belief that breathing problems caused by PTSD worsened the Veteran’s interstitial lung disease and contributed to his death. In support of this assertion, the Appellant has submitted journal articles discussing the link between symptoms of lung disease and worsening mental health. The Board finds that a VA opinion should be obtained that addresses the Appellant’s theory of entitlement. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate physician (M.D.) regarding the Veteran’s cause of death. A copy of the Veteran’s entire claims file should be provided to the physician and a note that such was reviewed should be included in the report. The physician should answer the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s interstitial lung disease and coronary artery disease, systolic heart failure, were etiologically related to his active duty service? In so opining, the physician is asked to consider the Appellant’s contention that the Veteran experienced symptoms of interstitial lung disease in service. (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s PTSD with major depression and anxiety disorder caused OR aggravated his interstitial lung disease, and coronary artery disease, systolic heart failure? In so opining, the physician is asked to consider the Appellant’s contention that the Veteran’s worsening mental health symptoms correlated to worsening symptoms of his pulmonary conditions, and that breathing problems caused by PTSD worsened the Veteran’s interstitial lung disease and contributed to his death. The physician is also asked to consider journal articles submitted by the Appellant discussing a link between symptoms of lung disease and worsening mental health. (c.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s PTSD contributed substantially or materially, combined to cause, or aided or lent assistance to the Veteran’s cause of death? TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Bynum, 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.