Citation Nr: 21066022 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-54 868 DATE: October 28, 2021 ORDER As new and material evidence has been submitted, the previously denied claim of entitlement to service connection for post-traumatic stress disorder (PTSD) is reopened, and to that extent only, the appeal is granted. Entitlement to service connection for all acquired psychiatric conditions, variously diagnosed, to include posttraumatic stress disorder (PTSD) and major depressive disorder (MDD), is granted. FINDINGS OF FACT 1. An unappealed December 1999 rating decision denied service connection for PTSD finding no diagnosis of PTSD related to any confirmed stressor; the claim was last denied in an unappealed February 2002 rating decision, which continued to find inadequate stressor verification. 2. Additional evidence received since the February 2002 last final denial is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim of service connection for a psychiatric disorder, and raises a reasonable possibility of substantiating the claim. 3. Resolving all doubt in favor of the Veteran, the Board finds the evidence is at least in approximate balance as to whether the Veteran's PTSD under DSM-V is related to fear of hostile military or terrorist activity; and to the extent any stressors are unrelated to fear of hostile military or terrorist activity, the Veteran's MDD is related to service. CONCLUSIONS OF LAW 1. The RO's February 2002 rating decision continuing the denial of service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.1103. 2. New and material evidence has been submitted to reopen the claim for service connection for a psychiatric disorder, to include PTSD and MDD. 38 U.S.C. §§ 1110, 7105; 38 C.F.R. §§ 3.303, 3.156, 20.1103. 3. The criteria for entitlement to service connection for all acquired psychiatric disorders, variously diagnosed, to include PTSD and MDD have been met. 38 U.S.C. §§ 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to August 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Cleveland, Ohio. By way of background, the Veteran appealed the RO's most recent February 2014 rating decision that continued the denial of service connection for PTSD finding that the evidence submitted was not new and material. The Veteran requested a hearing before the Board which occurred in February 2021, a transcript of which has been associated with the claims file and reviewed. The Board notes the RO's decision not to reopen the claim is not binding on the Board and, consequently, the Board is obligated to consider the issue of new and material evidence and make an independent determination. Jackson v. Principi, 265 F.3d 1366 (2001). Thus, the issue has been appropriately recharacterized above. Of note, as part of the February 2014 rating decision, the RO denied service connection for carpal tunnel syndrome. The Veteran timely appealed both service connection for PTSD and carpal tunnel syndrome. Following an October 2017 Statement of the Case (SOC), the Veteran perfected his appeal to the Board regarding only PTSD. Thus, service connection for carpal tunnel syndrome is not properly on appeal before the Board and will not be addressed. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. As new and material evidence has been submitted, the previously denied claim of entitlement to service connection for PTSD is reopened, and to that extent only, the appeal is granted. Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104, 7105. 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 is defined as evidence not previously submitted to agency decision-makers. 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 Court of Appeals for Veterans Claims has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and has viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Id. 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 (1992). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. See Shade, 24 Vet. App. at 118. In this case, the Veteran's PTSD claim was originally denied in a December 1999 rating decision where the RO determined that the evidence only showed a provisional diagnosis of PTSD and no evidence of a confirmed PTSD diagnosis related to any verified in-service stressor. The Veteran did not appeal, and the decision became final. The Veteran has attempted to reopen this claim several times, and the last final denial was in February 2002 where the RO found the additional evidence submitted was not new and material because it did not relate to an unestablished fact necessary to substantiate the claim and did not raise a reasonable possibility of substantiating the claim. The RO found the Veteran had not submitted evidence of a stressor sufficiently detailed to permit verification. The RO notified the Veteran of its decision and the Veteran's appellate rights. The Veteran did not initiate an appeal of the RO's decision within one year nor submit additional evidence within one year of the RO's decision. As a result, the RO's February 2002 rating decision became final. Thus, the Veteran's service connection claim for PTSD may only be considered on the merits if new and material evidence has been received since the time of the prior adjudication. The Veteran filed a petition to reopen the claim in February 2013 contending that the additional evidence of record since the February 2002 rating decision is new and material. As will be discussed in more detail below, the Board agrees and finds reopening of the claim is warranted. Evidence of record at the time of the February 2002 rating decision, relevantly, included a June 1999 lay statement detailing several in-service stressors, to include a circumstance where a fellow serviceman was court-martialed for stabbing another person; a situation where his jeep hit a land mine, the general attitude of Americans disliking the Vietnam War and Vietnam War Veterans when he returned home, and other Vietnam-related experiences. The evidence also included several private physician opinions indicating the Veteran had depression and PTSD related to these Vietnam-related experiences, to include statements from Dr. B, MD, dated in February 1999 and December 2001. Since February 2002, the record now contains additional lay statements from the Veteran with additional details of in-service stressors, VA examinations dated in January 2014 and October 2017 with negative nexus opinions, and a private physician opinion received in October 2014 with a positive nexus opinion. See October 2014 non-government treatment record. The October 2014 private physician opinion at a minimum is both "new" and "material" as it is not duplicative, not cumulative, and raises a reasonable possibility of substantiating the Veteran's service connection claim for PTSD. Based on the above, the Veteran's service connection claim for PTSD is reopened. 2. Entitlement to service connection for all acquired psychiatric conditions, variously diagnosed, to include PTSD and MDD, is granted. The Veteran contends he has acquired psychiatric conditions related to service. The Board finds service connection for all psychiatric conditions, variously diagnosed, to include PTSD and MDD, is warranted. At the outset, the Board has recharacterized the Veteran's service connection claim as all acquired psychiatric disorder, to include PTSD and MDD under Clemons. As will be discussed in more detail below, the Veteran's treatment records reference PTSD and MDD; therefore, the claim has been recharacterized for all acquired psychiatric conditions. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for the aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). The elements of direct service connection are: "(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," also known as the nexus element. Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Alternatively, service connection may be established under 38 C.F.R. § 3.303 by evidence of the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and present manifestations of the same chronic disease; or when a chronic disease is not present during service, evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (2013). While "psychoses" are one of the enumerated conditions, for the purposes of 38 C.F.R. § 3.309(a), the term "psychosis" only includes diagnoses of brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. 38 C.F.R. § 3.384. As the Veteran's diagnoses of record do not reflect psychoses, service connection on a presumptive basis as a chronic disease is not warranted. Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125; a link, established by medical evidence, between the current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. §§ 3.304, 4.125; see also Cohen v. Brown, 10 Vet. App. 128, 140 (1997). With regard to medical evidence of a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125, 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 (DSM-V). Concerning the requirement that there be credible supporting evidence that the claimed in-service stressor occurred, section 3.304(f) sets forth circumstances that are exceptions to this rule and allow a claimant's lay testimony, alone, to establish the occurrence of the alleged stressor. In the first circumstance, if the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided the stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(1). In the second circumstance, if the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided the stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(2). In the third circumstance, if a stressor claimed by a Veteran is related to his "fear of hostile military or terrorist activity" and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms 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. 38 C.F.R. § 3.304 (f)(3). "Fear of hostile military activity" is defined to mean 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, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. In the fourth circumstance, if the evidence establishes the Veteran was a prisoner-of-war (POW) under the provisions of section 3.1(y) of the regulations, and the claimed stressor is related to that POW experience, in the absence of clear and convincing evidence to the contrary, and provided the stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(4). And in the fifth circumstance, if a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. 38 C.F.R. § 3.304 (f)(5). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107; see also Lynch v. McDonough, 999 F.3d 1391 (2021) (holding the Veteran is entitled to the benefit of the doubt when the evidence is in approximate balance or "nearly equal," and does not require that the evidence be in exact equipoise). Turning to the relevant evidence of record, upon entrance, the Veteran was clinically evaluated as normal. See August 1966 entrance examination. Service treatment records (STRs) lack mention of complaints, diagnosis, or treatment for an acquired psychiatric condition. At separation, the Veteran was again clinically evaluated as normal. See June 1969 separation examination. Following service, the Veteran's treatment records note diagnoses of PTSD under the DSM-V, MDD, and anxiety spectrum disorder. In 1998, a provider opined that the Veteran's depression resulted from a combination of health problems and job stresses. See May 1998 treatment records. He denied experiencing any problems until "a few years ago." See July 1998 treatment records. Another private provider opined in the same year that the Veteran's features of severe depression and anxiety are often found in combat-experienced Vietnam Veterans, exhibiting long-standing PTSD symptoms. See June 1998 treatment records. The provider recommended the Veteran be considered for individual or group treatment for PTSD related to his Vietnam experience. In a February 1999 private opinion, a provider stated that the Veteran has a diagnosis of anxiety spectrum disorder, a portion of which is attributable to his Vietnam service. See February 1999 Correspondence. The provider reasoned that the Veteran's tour of duty in Vietnam caused "inevitable psychic trauma" and the Veteran now suffers from PTSD that is directly related to his Vietnam experience. In December 2001, a private provider opined that the Veteran continued to suffer from depression and PTSD noting that the Veteran has suffered substantially because of his "PTSD and his Vietnam experience." See December 2001 Correspondence. VA received another private opinion in October 2014 within which the provider stated that the Veteran has PTSD related to war trauma. See October 2014 treatment records. The provider noted multiple Vietnam experiences including, but not limited to, being under small arms fire while serving perimeter duty, receiving rocket and mortar attacks, being shot at severely times by snippers while driving vehicles, and losing fellow service members when a jeep hit a land mine. The examiner attributed the Veteran's PTSD to other psychosocial and environmental problems and war trauma. The Veteran reported multiple contended stressors during service including: a circumstance where a fellow serviceman was court-martialed for stabbing another person; a situation where his jeep hit a land mine; being under fire while retrieving and delivering mail; and the general attitude of Americans disliking the Vietnam War and Vietnam War Veterans when he returned home. See July 1999 Statement in Support. The Veteran also testified to these contended stressors during the February 2021 hearing. See February 2021 hearing transcript. The Veteran has been afforded two VA examinations to determine the nature and etiology of any psychiatric conditions. In January 2014, a VA examiner opined the Veteran had a diagnosis of severe major depression and anxiety disorder, NOS. See January 2014 VA examination. The examiner opined that the Veteran's conditions are "very unlikely to be related" to the Veteran's reported military stressors and / or related to reported past fears of hostile military activity due to the extensive amount of time which as passed from then until the time of the VA examination. The examiner reasoned that the stressors provided were consistent over the course of the Veteran's claim but were insufficient for a diagnosis of PTSD. The examiner opined the Veteran's MDD in the late 1990's was based upon a personal foundation of perceived social failure and low self-worth per records. Another VA examination occurred in October 2017 during which the examiner noted a diagnosis of MDD. See October 2017 VA examination. The examiner opined that the Veteran's condition was less likely than not related to service. The examiner stated that the Veteran did not meet the DMS-V criteria for PTSD. The examiner stated that while he was diagnosed in the late 1990s with depression, it is not clear that the depression stems from military service. STRs were silent as to evidence of psychiatric problems during service. Based upon review of the record, the Veteran has multiple diagnoses of record including MDD and PTSD under the DSM-V. Although both formal VA examinations conducted in connection with this claim concluded the Veteran did not have PTSD, there are various entries in the VA treatment notes reflecting PTSD as a diagnosis under the DSM-V and multiple private treatment records and opinions listing a diagnosis of PTSD. Thus, the Board finds the Veteran has a diagnosis of PTSD and MDD. It is further observed the Veteran served in Vietnam and has conceded herbicide agent exposure presumed to have occurred during that Vietnam service. In this context, some of the stressors considered to have produced PTSD that has been diagnosed, may be reasonably construed as the Veteran's fear of hostile military activity. Indeed, the Board finds the Veteran competently and credibly testified to multiple instances of being under enemy fire. The Board finds these claimed stressors are consistent with the places, types, and circumstances of the Veteran's service. As such, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressors related to fear of hostile military activity. 38 C.F.R. § 3.304(f)(2). With the resolution of reasonable doubt in favor of the Veteran, the record reflects the criteria for service connection for PTSD are met. The Board also notes, to the extent some of the Veteran's contended stressors are unrelated to fear of hostile military activity, his treatment records consistently reflect a diagnosis of MDD that has been repeatedly associated, at least in part, with service by multiple private providers as early as 1998. The Board finds the evidence at least in equipoise as to whether the Veteran's MDD is related to service in light of the multiple private opinions offering a positive nexus to service and the VA examinations noting a negative nexus to service. Thus, resolving any doubt in favor of the Veteran, service connection for MDD is warranted. Lynch, 999 F.3d 1391. Thus, resolving any doubt in the Veteran's favor, the Board finds service connection for all acquired psychiatric disorders, to include PTSD and MDD, is granted. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.