Citation Nr: 21074390 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 20-20 862 DATE: December 15, 2021 ORDER The application to reopen a claim of service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for PTSD is granted. FINDINGS OF FACT 1. The Veteran's claim of service connection for PTSD was originally denied in a September 2013 rating decision on the basis that there was no evidence that the disability was related to a corroborated stressor in service; additional relevant evidence was received and the agency of original jurisdiction (AOJ) re-adjudicated and again denied the claim of service connection for PTSD in an April 2014 rating decision on the basis that there was no evidence that the disability was related to a corroborated stressor in service; the Veteran submitted a timely notice of disagreement (NOD) with the denial of service connection for PTSD in May 2015 and a statement of the case (SOC) was issued in April 2016, but the Veteran did not file a substantive appeal. 2. Evidence received since the April 2014 AOJ decision includes information that was not previously considered and which relates to an unestablished fact necessary to substantiate the claim of service connection for PTSD, the absence of which was the basis of the previous denial. 3. The Veteran has been diagnosed as having PTSD based on a corroborated in-service stressor. CONCLUSIONS OF LAW 1. The AOJ's April 2014 rating decision which denied the claim of service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.20, 19.32, 19.52, 20.1103. 2. The evidence received since the April 2014 AOJ decision is new and material and reopening of the claim of service connection for PTSD is therefore warranted. 38 U.S.C. § 5108 ; 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304 (f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1974 to September 1976. These matters come before the Board of Veterans' Appeals (Board) from an April 2018 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a December 2021 hearing. A transcript of the hearing has not yet been associated with the claims file. However, in light of the fact that the Board is awarding service connection for PTSD (thus reflecting a full grant of the benefit sought), and the fact that there is no information in the hearing transcript that will affect the decision herein, the transcript is not necessary at this time. As for characterization of the issues on appeal, a claim of service connection for PTSD was denied by way of a final April 2014 rating decision. Where the claim in question has been finally adjudicated, the Board must initially determine whether new and material evidence has been submitted with regard to the claim of service connection for PTSD. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Only where the Board concludes that new and material evidence has been received does it have jurisdiction to consider the merits of this claim. Hickson v. West, 11 Vet. App. 374, 377 (1998). Therefore, the Board has included the issue of whether new and material evidence has been received to reopen the claim of service connection for PTSD. I. Application to Reopen Generally, an AOJ decision denying a claim which has become final may not thereafter be readjudicated or allowed. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 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. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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 newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The application to reopen a claim of service connection for PTSD The Veteran's claim of service connection for PTSD was originally denied in a September 2013 rating decision on the basis that there was no evidence that the disability was related to a corroborated stressor in service. Additional relevant evidence was received and the AOJ re-adjudicated and again denied the claim of service connection for PTSD in an April 2014 rating decision on the basis that there was no evidence that the disability was related to a corroborated stressor in service. The Veteran submitted a timely NOD with the April 2014 decision in May 2015 and an SOC was issued in April 2016. Appellate review is initiated by an NOD and completed by a substantive appeal filed after an SOC has been furnished to an appellant. 38 U.S.C. § 7105 (a); 38 C.F.R. § 19.20. A substantive appeal must be filed within 60 days from the date of mailing of an SOC, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 U.S.C. § 7105 (b)(2); 38 C.F.R. § 19.52 (b)(1). In the absence of a properly perfected appeal, the AOJ may close the appeal and the decision becomes final. 38 U.S.C. § 7105 (d)(3); Roy v. Brown, 5 Vet. App. 554, 556 (1993); 38 C.F.R. § 19.32. The AOJ did so in this case, as evidenced by the fact that it did not certify to the Board the issue of entitlement to service connection for PTSD following the April 2016 SOC. As neither the Veteran nor his representative submitted any document that could be construed as a timely substantive appeal pertaining to the claim of service connection for PTSD following the April 2016 SOC, the AOJ closed the appeal. The AOJ did not certify this issue to the Board at that time and no further action was taken by VA to suggest that the issue was on appeal. Thus, the April 2014 rating decision became final as to the denial of service connection for PTSD. See 38 U.S.C. § 7105 (d)(3); Fenderson v. West, 12 Vet. App. 119, 128-31 (1999) (discussing the necessity of filing a substantive appeal which comports with governing regulations); 38 C.F.R. §§ 3.104, 20.1103. The pertinent new evidence received since the April 2014 denial of service connection for PTSD includes a November 2017 VA attending critical care unit note, a December 2017 statement from the Veteran, and a statement from K.D. received in August 2021. This additional evidence includes reports of a physical assault in service, continuous psychiatric symptoms in the years since the assault, and a diagnosis of PTSD that is partially related to the physical assault in service. Therefore, the additional evidence pertains to an element of the claim of service connection for PTSD that was previously found to be lacking and raises a reasonable possibility of substantiating the claim by indicating that the Veteran has current PTSD that is related to a stressor in service. The evidence is, therefore, new and material, and the claim of service connection for PTSD is reopened. II. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after 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). Entitlement to service connection for PTSD Service connection for PTSD requires 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). When there is a current diagnosis of PTSD, the sufficiency of a claimed in-service stressor is presumed. Cohen v. Brown, 10 Vet. App. 128, 144 (1997). Nevertheless, credible evidence that the claimed in-service stressor actually occurred is still required. 38 C.F.R. § 3.304 (f). Credible supporting evidence cannot consist solely of after-the-fact medical evidence containing an opinion as to a causal relationship between PTSD and service. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996). If a PTSD claim is based on in-service personal assault, evidence from sources other than a veteran's service records may corroborate his account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304 (f)(5). Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to, a request for a transfer to another military duty assignment; deterioration in work performance, substance abuse, episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Id. The Veteran contends that he has current PTSD that is related to a physical assault in service. The Board finds, for the following reasons, that the Veteran has a current diagnosis of PTSD and that the disability is based on a corroborated in-service stressor. Medical records, including the November 2017 VA attending critical care unit note, show the Veteran has been diagnosed as having PTSD. Therefore, current psychiatric disability has been demonstrated. The Veteran contends that his psychiatric disability is due to a physical assault that occurred in service. Specifically, he has reported that he was physically assaulted by fellow service members during a race riot while stationed in Germany sometime between April and July 1976. Medical records establish a link between the Veteran's PTSD and the reported in-service assault. For example, the November 2017 VA attending critical care unit note indicates that the diagnosis of PTSD was partially based on the Veteran's reported assault in service. In light of this evidence, the Board concludes that the Veteran has a current diagnosis of PTSD and that there is competent medical evidence of a nexus between his PTSD and his claimed in-service stressor. Hence, the only remaining question is whether there is credible supporting evidence that the reported stressor occurred. The Veteran's service personnel records confirm that he was stationed in Germany from approximately April 1975 to September 1976. Also, his post-service treatment records and lay statements from the Veteran, K.D., and the Veteran's daughters document a history of anxiety beginning in service following the reported assault and worsening psychiatric and substance abuse problems continuing in the years since his separation from service. In particular, K.D. reported that he had known the Veteran since before service and that he witnessed the Veteran experience anxiety and other psychiatric problems since his separation from service. The Veteran is competent to report continuous psychiatric symptoms in the years since service and K.D. and the Veteran's daughters are competent to report their observations of the Veteran's symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). There is nothing to explicitly contradict these reports and they are generally consistent with the evidence of record. Thus, the Board finds that the lay reports of continuous psychiatric symptoms in the years since service are credible. In sum, the Board finds that the above-cited evidence of psychiatric problems in service and continuous symptoms in the years since service constitutes credible supporting evidence of the Veteran's in-service stressor and behavior changes in response to the stressor. Thus, the Veteran has a current diagnosis of PTSD, there is competent medical evidence of a nexus between his PTSD and his claimed in-service stressor, and credible evidence that the stressor occurred. In light of this evidence and resolving reasonable doubt in the Veteran's favor, the criteria for service connection for PTSD are met and service connection for this disability is warranted. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.304 (f). The Board points out that the benefit granted herein is service connection for PTSD. His medical records include diagnoses of other psychiatric disabilities during the claim period, including, but not limited to, major depressive disorder. Nevertheless, given that there is no evidence to distinguish between all of the symptoms of the Veteran's psychiatric disabilities, a separate decision as to entitlement to service connection for psychiatric disability other than PTSD is unnecessary. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (explaining that the Secretary must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability). Thus, in applying the benefit of the doubt doctrine, all of the Veteran's psychiatric symptoms must, therefore, be attributed to his now service-connected PTSD. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.