Citation Nr: 21072432 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 19-29 773 DATE: December 3, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for posttraumatic stress disorder is reopened. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, persistent depressive disorder, and alcohol use disorder is granted. FINDINGS OF FACT 1. A June 2008 Board of Veterans' Appeals (Board) decision denied service connection for PTSD. 2. Evidence received since the June 2008 Board decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for PTSD and raises a reasonable possibility of substantiating the claim. 3. The probative evidence of record attributes the Veteran's acquired psychiatric disorder to his active service. CONCLUSIONS OF LAW 1. The June 2008 Board decision that denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7103, 7104. 38 C.F.R. § 20.1100. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C. § 5108 (2017); 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, persistent depressive disorder, and alcohol use disorder, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army National Guard from July 1974 to December 1974 on active duty for training. The Veteran also served on active duty from January 1976 to January 1978. Evidence affiliated with the claims file also indicates that he served in the National Guard and Reserve beyond these periods of active duty for training and active duty service. This matter comes before the Board on appeal from an August 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in November 2021. 1. New and Material Evidence PTSD Under 38 U.S.C. § 5108 (2017), 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 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. Id.; Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 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. 215, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Although the RO reopened the claim in the August 2019 Statement of the Case (SOC), 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 entitlement to service connection for PTSD was initially denied by the RO on the merits in a January 2004 rating decision. The Veteran responded in March 2004 with a timely Notice of Disagreement (NOD). In March 2005, the RO issued an SOC, to which the Veteran responded in May 2005 by perfecting an appeal to the Board. The Board initially remanded this matter in January 2007 but ultimately denied the Veteran's appeal on the merits in a June 2008 decision. Unless the Chairman of the Board orders reconsideration or one of the other exceptions to finality applies, all Board decisions are final on the date stamped on the face of the decision. 38 C.F.R. § 20.1100; see also 38 U.S.C. § 511, 7103, 7104. The Veteran filed to reopen this claim in May 2017. The relevant evidence received since the June 2008 Board decision consists of service medical records, service personnel records, lay statements by the Veteran, VA medical records, and the Veteran's November 2021 hearing testimony. This evidence, evidence not previously submitted to agency decisionmakers and relating to unestablished facts necessary to support the claim (i.e., an in-service incurrence and/or PTSD stressor), raises a reasonable possibility of substantiating the claim; therefore, the Board finds that it constitutes new and material evidence. See 38 C.F.R. § 3.156(a). Accordingly, as the Board finds that new and material evidence has been submitted, the claim for entitlement to service connection for PTSD is reopened. 2. Service Connection Acquired Psychiatric Disorder Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires competent medical or lay evidence of three things: (1) a current disability; (2) an in-service incurrence or aggravate of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As a preliminary matter, the Board acknowledges that the record reflects various psychiatric diagnoses including PTSD, major depressive disorder, persistent depressive disorder, and alcohol use disorder. Because the scope of a psychiatric disability includes any mental disorder that may reasonably be included with the claimant's account of the claim, reported symptoms, and all other information of record, the Board finds that it is more appropriate to characterize the Veteran's claim broadly, as a single claim for entitlement to service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran asserts that his current psychiatric condition is due to an explosion from which he suffered in 1974 during basic training. Service treatment records affiliated with the claims file report that the Veteran lit a cigarette behind the post exchange in Fort Polk and an explosion occurred from leaking gas. He was injured with first and second degree burns on both of his arms. See August 1974 Clinical Record Cover Sheet. Regarding a nexus linking the in-service explosion to the Veteran's current psychiatric disability, the Board notes that a September 2000 VA note diagnosed the Veteran with PTSD "related to both childhood and adult trauma." See September 2000 VA General Medicine Psychiatry Note. In July 2003, the Veteran's VA provider indicated that his PTSD was due to an explosion during service. See July 2003 VA Psychiatry Consult. Even though there is an October 2003 opinion associated with the claims file indicating that the Veteran's psychiatric condition is less likely than not related to service, the Board previously found that, in part, the opinion relied on a lack of documentation. See January 2007 Board Decision. An examiner cannot rely on lack of documentation to formulate an opinion. See Fountain v. McDonald, 27 Vet. App. 258 (2015) (citing Horn v. Shinseki, 25 Vet. App. 231 (2012)). Consequently, this examination is inadequate to determine the Veteran's claim. When the Veteran was examined in June 2019, the examiner concluded that the Veteran's diagnosed PTSD was the result of childhood abuse. In formulating this opinion, the examiner reasoned "there are no indicators that [the Veteran's in-service stressor] has been an issue for him in approximately 15 years . . . [and] there are no indicators that the Veteran's PTSD was permanently exacerbated by military service." See June 2019 VA Initial PTSD C&P Examination. However, the examiner did not address the Veteran's March 1974 Report of Medical History, in which the Veteran reported not experiencing psychiatric symptoms. Additionally, the Veteran has consistently reported that his symptoms began after discharge from service. See July 2003 Correspondence from Veteran; October 2019 VA Form 9. The Veteran is competent to report the onset and continuity of his observable symptomatology and his first-hand experiences. Layno v. Brown, 6 Vet. App. 465 (1994); Washington v. Nicholson, 19 Vet. App. 362 (2005). Furthermore, the June 2019 examiner did not address the Veteran's VA medical records indicating that his diagnosed PTSD was the result of military service. See September 2000 VA General Medicine Psychiatry Note; July 2003 VA Psychiatry Consult. Therefore, because the examiner did not address all relevant pertinent evidence of record, the Board finds the June 2019 opinion to be inadequate to determine this matter. However, the Veteran was evaluated in May 2020, at which time the examiner concluded that his psychiatric diagnoses were more likely than not causally related to his military service. The examiner reasoned that the Veteran denied experiencing trauma symptoms prior to enlisting in the military and was reportedly of good mental and physical health at the time of enlistment. Furthermore, the examiner noted that the Veteran was avoiding cues for thoughts and emotions related to the in-service natural gas explosion and that his military experiences are "large contributing factors to his" psychiatric disability. See May 2020 Pacific Psychology & Comprehensive Health Clinic Assessment (labeled Medical Treatment Record Non-Government Facility). The Board finds this examination to be adequate to determine the etiology of the Veteran's psychiatric condition. Given the medical evidence diagnosing a current psychiatric disability, considering the Veteran's competent, credible, consistent reports of his experiencing a stressful event and service medical and personnel records reflecting said stressful event, in light of the medical evidence of a nexus between the Veteran's current psychiatric symptomatology and the claimed in-service experience, and in the absence of competent, probative evidence to the contrary, the Board finds that the evidence is at least in equipoise as to whether his current psychiatric disability is related to his active service. See 38 C.F.R. §§ 3.102, 3.303, 3.304; Gilbert, 1 Vet. App. at 55. Service connection for an acquired psychiatric disorder, to include, PTSD, persistent depressive disorder, and alcohol use disorder, is warranted. Id. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoffman 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.