Citation Nr: 21001306 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-43 471 DATE: January 7, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened. Entitlement to service connection for PTSD and a major depressive disorder is granted. FINDINGS OF FACT 1. A July 2013 rating decision denied service connection for PTSD. The Veteran did not appeal. 2. Evidence received since the July 2013 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for PTSD and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s PTSD with an associated major depressive disorder is related to fear of hostile military or terrorist activity that occurred during active service. CONCLUSIONS OF LAW 1. A July 2013 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for PTSD with an associated major depressive disorder are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from April 2007 to March 2012 and in the Arizona National Guard from March 2012 to March 2015. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, that reopened the Veteran’s claim for service connection for PTSD and then denied the claim on the merits. The Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference in September 2020; a transcript is of record. 1. New and material evidence having been received, the claim of entitlement to service connection for PTSD is reopened. Under 38 U.S.C. § 5108, VA may reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. This requires a review of all evidence submitted by or on behalf of a claimant since the last final denial regardless of whether the denial was on the merits or on procedural grounds to determine whether a claim may be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). VA regulation defines "new and material evidence" as follows: "new evidence" means evidence not previously submitted to agency decisionmakers, and "material evidence" means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). To warrant reopening, the new evidence must neither be 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. Id.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a "low threshold" for reopening). To establish whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue, or, if it is a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Although the RO reopened the claim in the February 2015 rating decision, the Board must independently decide whether new and material evidence has been submitted that warrants reopening of the Veteran's claim regardless of the RO's decision. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran's claim for service connection for PTSD was originally denied on the merits in a July 2013 rating decision on the basis that the Veteran was not diagnosed as having PTSD. The Veteran was notified of the RO's decision in a July 2013 letter. See 38 U.S.C. § 5104; 38 C.F.R. §§ 3.103, 19.25. He did not file a notice of disagreement (NOD), or submit or identify additional evidence during the appeal period. See 38 C.F.R. §§ 20.200, 20.201, 20.302; see also 38 C.F.R. §§ 3.400, 3.156(b). Accordingly, the July 2013 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Since the July 2013 rating decision, additional VA treatment records have been obtained showing that the Veteran was diagnosed as having PTSD and a major depressive disorder in June 2015. This evidence, which was not previously submitted to decisionmakers and relates to an unestablished fact necessary to support the claim, raises a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a); see also 38 C.F.R. § 3.303; Shade, 24 Vet. App. at 122. Thus, the Board finds that it constitutes new and material evidence. Accordingly, as the Board finds that new and material evidence has been submitted, the claim for service connection for PTSD is reopened. 2. Entitlement to service connection for PTSD and a major depressive disorder is granted. The Veteran seeks to establish service connection for PTSD based, in part, on fear of hostile military or terrorist activity that occurred during active service. As the VA treatment records also show a diagnosis of a major depressive disorder, the claim for service connection for PTSD encompasses any diagnosed psychiatric disorder reasonably raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Service connection generally will be awarded when a veteran has 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(a). Service connection may 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 service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the current disability and the disease or injury incurred or aggravated in service (the “nexus” element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). To establish service connection for PTSD, there must be 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). With regard to medical evidence of a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a), this regulation provides that, for VA purposes, all mental disorder diagnoses must conform to the Fifth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DMM-V). Diagnoses of PTSD are presumed to have been made in accordance with the DSM criteria. Cohen v. Brown, 10 Vet. App. 128, 139-42 (1997). Concerning the requirement that there be credible supporting evidence that the claimed in-service stressor occurred, there are exceptions in which a claimant’s lay testimony alone may establish the occurrence of the stressor. 38 C.F.R. § 3.304(f). These exceptions include when PTSD is diagnosed during service and the claimed stressor is related to that service; when the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat; stressors related to being a prisoner of war; and stressors related to fear of hostile military or terrorist activity. Id. In all these cases, the claimed stressor must be consistent with the circumstances, conditions, or hardships of the veteran’s service. Id. As to "fear of hostile military or terrorist activity," "[i]f 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 posttraumatic stress disorder 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. For purposes of this paragraph, 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). As explained in the following paragraphs, during the appeal period, the Veteran had a diagnosis of PTSD in accordance with the DSM-5 that an appropriate VA examiner linked to fear of hostile military or terrorist activity in Afghanistan and Iraq. The Board concludes, therefore, that there is sufficient evidence of record to establish service connection for PTSD under 38 C.F.R. § 3.304(f)(3). The Veteran's DD Form 214 establishes that he served in Afghanistan and Iraq in an imminent danger area. VA treatment records show that in June 2015, the Veteran was diagnosed with PTSD and a major depressive disorder by a VA psychiatrist. The psychiatrist concluded that he met the criteria for a diagnosis of PTSD under the DSM-5. The diagnosis of PTSD was based on the Veteran's reports of fear that his life was in danger while he was serving in Iraq and Afghanistan. The Veteran has a diagnosis of PTSD in accordance with the DSM-5 by a VA psychiatrist. The diagnosis is based on the Veteran's fear for his life related to hostile military activity in Iraq and Afghanistan, and the stressor is consistent with the places, types, and circumstances of his service, an acknowledged imminent danger zone. As such, the stressor need not be independently verified. 38 C.F.R. § 3.304(f)(3). The Board notes that the Veteran was afforded a VA mental health examination in February 2013 in which no Axis I disorder was found. This fact does not negate the current diagnosis requirement, as the current diagnosis requirement is satisfied if a disability is present at any time during the pendency of a claim. McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board finds that the Veteran did have a valid PTSD diagnosis during the pendency of the appeal, which he filed in November 2014, as there is a valid PTSD diagnosis dated in June 2015, as well a diagnosis of an associated major depressive disorder. 38 U.S.C. § 5107(b); 38 U.S.C. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also 38 C.F.R. § 4.125(a). (Continued on the next page)   There being medical evidence showing a diagnosis of PTSD by an appropriate VA examiner in accordance with 38 C.F.R. § 4.125(a), a claimed in-service stressor properly established by the Veteran's fear of hostile military activity, and a link between the diagnosis of PTSD and the claimed in-service stressor, the criteria for service connection for PTSD with associated major depressive disorder are met. 38 C.F.R. § 3.304(f)(3). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gonzalez, Damian 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.