Citation Nr: 20042369 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 20-04 965 DATE: June 23, 2020 ORDER New and material evidence having been received, the claim of service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) is reopened and to that extent the appeal is granted. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder with anxiety is denied. FINDINGS OF FACT 1. In an unappealed July 2015 rating decision, the RO denied the Veteran’s claim of service connection for PTSD and depressive disorder with anxiety. 2. Evidence added to the record since the July 2015 RO decision relates to an unestablished fact necessary to substantiate the claim of service connection for a PTSD and raises a reasonable probability of substantiating the claim. 3. The Veteran’s claimed psychiatric disorder, to include PTSD and Veteran’s unspecified depressive disorder, did not have its onset during active service and was not caused by his active service; there is no credible supporting evidence of the occurrence of an in-service stressor for PTSD. CONCLUSIONS OF LAW 1. The July 2015 decision disallowing service connection for PTSD is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim of service connection for PTSD have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder with anxiety, have not all been met. 38 U.S.C. §§ 1131, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1995 to November 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the October 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which reopened the claim of service connection for PTSD and confirmed the previous denial of the claim. Reopening Service Connection for an acquired psychiatric disorder, to include PTSD Where service connection for a disability has been denied in a final decision, a subsequent claim of service connection for that disability may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Therefore, the issues in this case is whether a prior decision regarding service connection for PTSD is final, and, if so, whether new and material evidence has been received to reopen the claim. Regardless of the RO’s actions, the Board must make its own determination as to whether new and material evidence has been received to reopen this claim. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). New evidence means evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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. See 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA initially received the Veteran’s claim of entitlement to service connection for PTSD in December 2014. The RO denied the claim in the July 2015 decision and the Veteran was notified of that decision in a letter mailed that same month. The RO denied the claim on the basis that the evidence showed that the Veteran did not have a PTSD diagnosis and in addition denied a claim for unspecified depressive disorder, on the basis that this disability was not incurred in service and is not related to such service, after it was diagnosed by the April 2015 VA examiner. As such, the Board finds that the claim should be recharacterized as entitlement to service connection for an acquired psychiatric disorder in order to contemplate the Veteran’s psychiatric symptoms, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran did not file a notice of disagreement (NOD) within one year of notification of that decision and no new and material evidence was added to the record within that year. That decision is therefore final. See 38 C.F.R. §§ 20.202, 20.1103. New and material evidence is therefore required to reopen the claim of service connection. See 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. In July 2017, the Veteran submitted a request to reopen his claim for an acquired psychiatric disorder. In October 2017, the RO reopened the claim for service connection for an acquired psychiatric disorder and the Veteran was notified of that decision in a letter that same month. The RO continued the previous denial on the basis that the Veteran did not have a PTSD diagnosis and the Veteran’s unspecified depressive disorder was not incurred in service nor was aggravated by such service. The Veteran submitted a NOD in February 2018. A statement of the case (SOC) was issued in December 2019. In this SOC, the RO noted that the Veteran has not provided sufficient detail of any stressful events in which he witnessed that could be verified. The Veteran perfected his appeal in January 2020. The evidence received since the July 2015 RO decision includes VA treatment records, a September 2017 Initial PTSD Disability Benefits Questionnaire, U.S. National Archives & Resources Administration (NARA) records, and a psychological evaluation from Tampa Bay Psychological Services. This evidence relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for PTSD and raises a reasonable possibility of substantiating the claim. Therefore, the claim must be reopened. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2018). “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 between the present disability and the disease or injury incurred or aggravated during service”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, 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’s awards and decorations do not indicate that the Veteran engaged in combat with the enemy. There is no other evidence sufficient to find that he engaged in combat with the enemy. Thus, the combat provisions of 38 U.S.C. § 1154(b) are not applicable in this case. This means that with regard to the in-service stressor element for PTSD, the Veteran’s own report is not sufficient in this case to establish the occurrence of the in-service stressor. See 38 C.F.R. § 3.304(f)(2). This also means that his claimed in-service events are not established with no further proof. On appeal, the Veteran contends that his PTSD disability was caused by his military service. Turning to the evidence of record, in the private medical records from Seagate Medical Group dated October 1999, the examiner noted that a physical examination of the Veteran’s mental status was normal. A review of the service treatment records (STRs) reveals no complaints, treatment, or diagnosis of an acquired psychiatric disorder during military service. In fact, the Report of Medical History dated October 1999 shows that the Veteran reported that he had never had depression or excessive worry or nervous trouble of any sort. The separation examination reflects that a psychiatric clinical evaluation of the Veteran was normal. This is evidence against a finding of onset of psychiatric symptoms during active service. In the September 2017 Initial PTSD Disability Benefits Questionnaire (DBQ), the VA psychologist opined that the Veteran did not have PTSD as his symptoms did not meet the diagnostic criteria for PTSD under DSM-5 criteria. However, the VA psychologist noted that the Veteran had unspecified depressive disorder. In this DBQ, the Veteran reported 3 stressors. First, he reported that while he was deployed in Malaysia, he witnessed protestors fighting and killing each other. He stated that he was not able to prevent it or intervene and that later the foreign government brought a truck and began placing the dead bodies inside the truck. Next, he reported that during the second deployment between 1998 to 1999, he was in a helicopter and the pilot was going to deviate from the landing pattern. He stated that he was sitting at the window side when he saw the enemy pointing rockets at the helicopter, and he positioned the gun ready to pull the trigger. He thought they were going to open fire. Lastly, he reported that during the first deployment, he was in training excessively before going overseas. He stated that the helicopter went down and then the next day they went to recover body parts. He stated that he saw wreckage of the helicopter. The VA psychologist opined in the September 2017 Medical Opinion DBQ that the Veteran’s claimed condition, PTSD, was less likely than not incurred in or caused by the claimed in-service events during deployment. The psychologist stated that consistently, the medical records showed negative scores for PTSD. She stated “[a]t present, the symptoms reported by the claimant don’t meet full criteria for the diagnosis of PTSD.” She further stated, “[t]he symptoms reported by the claimant are better explained by a diagnosis of Unspecified Depressive Disorder. After review of available medical records, there is no sufficient evidence to support that his symptoms associated with Unspecified Depressive Disorder were incurred in or caused by his time during service.” In January 2020, the Veteran underwent a psychological evaluation from his private licensed clinical psychologist at Tampa Bay Psychological Service. The private psychologist concluded that the Veteran has a PTSD diagnosis in accordance with DSM-5. He further opined that the Veteran’s PTSD disability is more likely than not solely due to trauma he experienced while in the military. The private psychologist provided a rationale. The psychologist referenced the Veteran’s claimed traumatic incidents during service. The psychologist further stated that the Veteran suffers from emotional scars that have significantly affected his functioning since his military service. The psychologist noted that the enlistment medical examination indicates that the Veteran did not have symptoms of mental illness. The psychologist further discussed the Veteran’s symptoms and the effects since his military service. The evidence of record also includes a news report of the crash in which the Veteran reported he witnessed, the protests and records from the NARA of a list of U.S. military officers and soldiers who died as a result of either hostile or non-hostile occurrence in the Korean War, Vietnam War, Gulf War, or War on Terrorism. After a review of all lay and medical evidence of record, the Board finds that the preponderance of evidence is against a finding that the Veteran has PTSD or has had PTSD at any time since he filed his claim. The diagnosis from the private psychologist is based on occurrence of the claimed stressors. Although the Veteran reports that he experienced these stressors, the Board finds that his own reports are insufficient to find that these stressors occurred, even helicopter crashes occurred or riots in Malaysia occurred, the evidence is insufficient to find that he was present at any such occurrence. Hence, the Board affords little probative weight to the private psychologist’s diagnosis and finds it outweighed by the VA examination findings. Clearly, the requirement of credible supporting evidence that the claimed in-service stressor actually occurred is not met in this case so irrespective of the finding that the Veteran has not had PTSD, the claim of entitlement to service connection for PTSD must also independently be denied because that element of a claim of entitlement to service connection for PTSD has not been met. The Board acknowledges the Veteran’s reports of the claims of the in-service stressors, the news reports, and the NARA reports. The news report of the crash and the protests demonstrate that the crash and the protests occurred. Furthermore, the NARA records show that a number of U.S. military officers and soldiers died as a result of either hostile or non-hostile occurrence in the Korean War, Vietnam War, Gulf War, or War on Terrorism. This does not demonstrate that the Veteran witnessed the incidents. The Board affords greater weight to the service records that do not demonstrate that the Veteran’s claimed in-service stressors occurred. Specifically, these records do not reflect that the Veteran received treatment for an in-service event, nor do they reflect that the Veteran was involved in these incidents. As such, there is no credible supporting evidence of the occurrence of an in-service stressor for PTSD. (Continued on the next page)   The Board notes that the Veteran’s attorney argues that the VA has determined that the Veteran’s statements regarding his claimed in-service stressors were sufficient to establish their occurrence. However, the VA has not determined that the Veteran’s statements were sufficient to establish the occurrence of the claimed in-service stressors as indicated in the December 2019 SOC. Thus, the Board finds that service connection for PTSD is not warranted. The most probative evidence regarding service connection for depressive disorder consists of the STRs and the VA medical opinion. That evidence preponderates against a finding that his depressive disorder is related to active service. For these reasons, the Board must deny the appeal as to entitlement to service connection for an acquired psychiatric disorder. There is no reasonable doubt to be resolved in this case. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Williams, 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.