Citation Nr: 21061543 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-50 063 DATE: October 4, 2021 ORDER New and material evidence has been submitted to reopen the previously denied claim for entitlement to service connection for posttraumatic stress disorder (PTSD). New and material evidence has been submitted to reopen the previously denied claim for entitlement to service connection for depressive disorder. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, tobacco use disorder, alcohol use disorder in remission, and cocaine use disorder in remission (also claimed as depressive disorder and generalized anxiety disorder) is granted. FINDINGS OF FACT 1. A January 2006 rating decision, of which the Veteran was notified that same month, denied service connection for PTSD; the Veteran did not perfect a timely appeal with respect to the January 2006 rating decision and no pertinent exception to finality applies. 2. A September 2012 rating decision, of which the Veteran was notified that same month, denied service connection for depressive disorder; the Veteran did not perfect a timely appeal with respect to the September 2012 rating decision and no pertinent exception to finality applies. 3. Evidence received since the January 2006 and September 2012 rating decisions raises a reasonable possibility of substantiating the claims to establish service connection for PTSD and depressive disorder. 4. Resolving reasonable doubt in the Veteran's favor, his acquired psychiatric disorder was incurred in or caused by military service. CONCLUSIONS OF LAW 1. The January 2006 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. 2. The September 2012 rating decision that denied service connection for depressive disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. 3. New and material evidence has been received which is sufficient to reopen the previously denied claims of service connection for PTSD and depressive disorder. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156(a). 4. The criteria for entitlement to service connection for an acquired psychiatric disorder to include PTSD, tobacco use disorder, alcohol use disorder in remission, and cocaine use disorder in remission, have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1973 to November 1976 with additional service in the Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2015 and November 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified during an informal Decision Review Officer (DRO) hearing. A transcript is of record. The Veteran testified before the undersigned Veterans Law Judge during a June 2021 hearing. A transcript of the hearing is associated with the Veteran's claim file. New and Material Evidence 1. New and material evidence having been received to reopen the previously denied claim for entitlement to service connection for depressive disorder 2. New and material evidence having been received to reopen the previously denied claim for entitlement to service connection for PTSD Rating actions are final, and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). If new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a statement of the case), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, under 38 C.F.R. § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO 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 evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence 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 last final decision and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A January 2006 rating decision to which the Veteran was notified in that same month denied service connection for PTSD. The Veteran did not perfect a timely appeal with respect to the January 2006 rating and none of the pertinent exceptions to finality applies to this decision, i.e., no additional evidence was received within the one-year appeal period following the January 2006 rating decision and no additional service department records have since been associated with the claims file warranting reconsideration of the claim for service connection for major depressive disorder. Therefore, the January 2006 rating decision is final as to the evidence then of record and is not subject to reconsideration on the same factual basis. 38 U.S.C. § 4005(c); 38 C.F.R. §§ 3.104, 19.118, 19.153. A September 2012 rating decision to which the Veteran was notified in that same month denied service connection for depressive disorder. The Veteran did not perfect a timely appeal with respect to the September 2012 rating and none of the pertinent exceptions to finality applies to this decision, i.e., no additional evidence was received within the one-year appeal period following the September 2012 rating decision and no additional service department records have since been associated with the claims file warranting reconsideration of the claim for service connection for major depressive disorder. Therefore, the September 2012 rating decision is final as to the evidence then of record and is not subject to reconsideration on the same factual basis. 38 U.S.C. § 4005(c); 38 C.F.R. §§ 3.104, 19.118, 19.153. By way of background, the Veteran's initial claim for service connection for PTSD was denied by a January 2006 rating decision. The RO determined that the evidence did not show a confirmed diagnosis of PTSD and the service department was unable to corroborate the claimed stressors as the Veteran did not claim any. The evidence of record at the time of the only final rating decision addressing the claim for service connection for PTSD in January 2006 included the service treatment records (STRs), treatment records from Weems Community Mental Health Center, and VA treatment records. The Veteran's initial claim for service connection for depressive disorder was denied by a September 2012 rating decision. The RO determined that there was no medical evidence to show that current depressive disorder was associated with his military service. The evidence of record at the time of the only final rating decision addressing the claim for depressive disorder in September 2012 included the STRs and VA treatment records. The evidence of record since the January 2006 and September 2012 rating decisions, includes a July 2016 VA examination, additional VA treatment records, and sworn testimony from the Veteran at the June 2021 hearing before the undersigned. As the credibility of the Veteran's lay statement and testimony must be presumed for the purposes of determining whether it represents new and material evidence, the undersigned finds that the Veteran's lay statements and testimony-when considered in conjunction with the other evidence of record-raises a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disorder. Thus, the Board finds that the evidence submitted is both new and material, and his claim for service connection for PTSD and depressive disorder is reopened. Service Connection 3. Entitlement to service connection for an acquired psychiatric disorder (also claimed as depressive disorder and generalized anxiety disorder) Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with §4.125(a) of this chapter; 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). Once the claimed stressor has been verified, the Veteran's personal exposure to the event may be implied by the evidence of record. A Veteran need not substantiate his actual presence during the stressor event; the fact that the Veteran was assigned to and stationed with a unit that was present while such an event occurred strongly suggests that he was, in fact, exposed to the stressor event. See Pentecost v. Principi, 16 Vet. App. 124 (2002); Suozzi v. Brown, 10 Vet. App. 307 (1997). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends that his acquired psychiatric disorder is related to his military service. Specifically, the Veteran contends that he witnessed his good friend get shot in front of him. See June 2021 Board hearing transcript at pg. 12. The Veteran initially claimed service connection for PTSD in August 2005 and submitted a claim for depression in July 2010. He later submitted a claim for generalized anxiety disorder in October 2015. The Board has recharacterized the issue on appeal as entitlement to service for an acquired psychiatric disorder. The claim encompasses any diagnosed acquired psychiatric disorders, and thus, has been recharacterized. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran's STRS are silent for any treatment or complaints for an acquired psychiatric disorder. The Veteran was afforded a VA examination in August 2008. The VA examiner indicated the Veteran meets the full criteria for PTSD. During the examination, the Veteran mentioned one traumatic experience where his best friend, H.P. was killed and the Veteran saw his body lying on the street in a pool of blood. The examiner found that the Veteran's exposure to significant trauma was present. In a March 2016 Physician's Opinion Statement, the Veteran's treating primary care provider for his PTSD at the VA Medical Center, Dr. M.G., stated that the Veteran's PTSD is related to his military service. She indicated she reviewed his psychiatric reports and treatment records and has been providing treatment to the Veteran for over three years. She noted that the Veteran witnessed the killing of his best friend while stationed in Ft. Hood. The Veteran was examined by the VA in July 2016 and diagnosed with PTSD, tobacco use disorder, alcohol use disorder in remission, and cocaine use disorder in remission. The VA examiner stated it was not possible to differentiate what symptoms are attributable to each diagnosis as PTSD is strongly associated with substance abuse and dependence. The Veteran specified that one of his stressors was that he witnessed his best friend killed in an outpost near base while hanging out. He was shot in the head by a girlfriend's boyfriend or husband. The examiner noted that the stressor was adequate to support the diagnosis of PTSD. The Veteran's diagnosis is based on the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM)-V. Regarding depression, the Veteran completed a self-report assessment which is suggestive of depression, but the examiner stated it is not sufficient to use alone for diagnostic purposes. Here, while the July 2016 VA examiner does not explicitly provide a positive nexus opinion regarding the in-service stressor and the Veteran's PTSD diagnosis, the examiner does note that the Veteran's stressor in which his best friend was killed in front of him is adequate to support the diagnosis of PTSD. Furthermore, the Veteran's treating psychiatrist at the VA Medical Center provided a positive opinion indicating the Veteran's PTSD is related to military service in March 2016. An April 2009 VA Memorandum found that the Veteran's stressor where he experienced the death of a fellow soldier, H.P., off post in Killeen, Texas was confirmed. However, in a May 2010 VA Memorandum, the RO indicated that the Veteran was not present at the site where H.P. was shot and found that a verifiable stressor did not exist. In July 2009, the RO obtained the police report involving the death of H.P. The report noted that H.P.'s address was the 55th Sig. Co. 2nd AD in Ft. Hood, Texas and he had his military I.D. on him. The victim was H.P., who was killed by a gunshot wound to the head in June 1976. See July 2009 Correspondence. The Veteran's friend, E.F. submitted a statement in January 2011 attesting that he was also assigned to the same unit in Ft. Hood and that H.P. and the Veteran were very close friends. E.F. also stated that while he was not present at the shooting, he had heard from fellow soldiers that the Veteran was nearby at the time of the event. See January 2011 Buddy Statement. At the June 2021 Board hearing, the Veteran testified that when he changed units from the first calvary division to the sixth calvary division, he became good friends with H.P., who took him in and watched over him. See June 2021 Board hearing transcript at pgs. 10-11. The Veteran explained that H.P. was shot by the girlfriend's boyfriend during a jealous rage and he witnessed this happen. The Veteran was not involved in any sort of investigation where he had to testify about the event because the military did not know he had left, and he did not want anyone knowing he was there because he was already in trouble for going AWOL due to hardships in the military. See June 2021 Board hearing transcript at pgs. 12-13. The Veteran's military personnel records show that the Veteran was assigned to the 55th Sig. Co. in Ft. Hood, Texas from May 1975 to his separation from active duty in November 1976. Based on review of the record, the undersigned finds that sufficient verification of the Veteran's stressor has been established. Although the police report does not list the Veteran as a witness, the Veteran had stated at the June 2021 Board hearing that he did not want anyone knowing he was there as he was not supposed to have left and he was already in trouble for going AWOL. The Veteran's friend from service, E.F., attested to the fact that the Veteran and H.P. were close friends and that the Veteran was present at the time of the June 1976 shooting. Under these circumstances, the Board will concede that this stressor is verified. The Board acknowledges that the Veteran asserted that his PTSD also stems from various other in-service stressors. However, as the Board concedes that the Veteran was present at the incident involving the death of his close friend, H.P., the Board finds it does not need to further discuss the other alleged stressors. (CONTINUED ON NEXT PAGE) Accordingly, as the March 2016 Physician's Opinion Statement and July 2016 VA examination are the most probative evidence of record and relates the Veteran's psychiatric disability to his service, and the Veteran's stressor has been conceded, the Board resolves all doubt in the Veteran's favor and finds that service connection for an acquired psychiatric disability, to include tobacco use disorder, alcohol use disorder in remission, and cocaine use disorder in remission, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.