Citation Nr: 21075938 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 19-26 123 DATE: December 21, 2021 ORDERS As new and material evidence has been received, the claim for entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened. Entitlement to service connection for PTSD is granted. FINDINGS OF FACT 1. In a January 2002 rating decision, the RO denied the Veteran's claim to PTSD; the Veteran did not submit a Notice of Disagreement (NOD), no new and material evidence was received within one year of the decision, and the decision became final. 2. The evidence received since the January 2002 rating decision is not cumulative or redundant of the evidence of record, relates to an unestablished fact, and raises a reasonable possibility of substantiating the Veteran's claims for entitlement to service connection for PTSD. 3. The Veteran's alleged in-service stressor is corroborated by the evidence of record. 4. Resolving all reasonable doubt in the Veteran's favor, it is at least as likely as not that the Veteran's PTSD was caused by his verified in-service stressor. CONCLUSIONS OF LAW 1. The January 2002 rating decision that denied the claim to entitlement for service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 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 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 This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a December 2020 videoconference hearing. A transcript of this hearing is of record. Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence Rating actions are final and binding based on the 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), (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302(a). VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); see also Manio v. Derwinksi, 1 Vet. App. 140, 145 (1991). New evidence is evidence not previously submitted to agency decisionmakers. Material evidence is 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 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited 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. See id. at 117-18. The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade, 24 Vet. App. at 120. 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for PTSD In the January 2002 rating decision, the RO denied the Veteran's claim for service connection for PTSD because there was insufficient evidence to verify the Veteran's alleged in-service stressor. The January 2002 decision was final. Since the Veteran's last prior final denial in January 2002, the record includes an article titled Operation Quick Service from the February 1968 edition of the Airman, the official magazine of the U.S. Air Force, indicating that the 602d Military Airlift Life Support Squadron (MAS) provided immediate maintenance on incoming C-141 planes at Elmendorf Air Force Base (AFB) in Alaska arriving with wounded soldiers from Vietnam. The Board finds that this evidence is new, as it was not previously of record, and tends to relate to a previously unestablished fact necessary to substantiate the underlying claim of service connection. The article will be presumed credible for the purpose of reopening the claim. Consequently, the claim of entitlement to service connection for PTSD is reopened. 2. Entitlement to service connection for PTSD Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an 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 current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection for PTSD requires specific findings. These are: (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f). A diagnosis of PTSD must comply with the criteria set forth in the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5). Id.; 38 C.F.R. § 4.125(a). If 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 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). For purposes of 38 C.F.R. § 3.304(f)(3), "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. Id. If a Veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, and the stressor is not related to "fear of hostile military or terrorist activity," then the Veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau, supra; Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Furthermore, service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283, 289 (1994). The question of whether a Veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on recon., 1 Vet. App. 406, 407 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. Effective August 4, 2014, VA amended the portion of its Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV) and replace them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 53, 14308 (March 19, 2015). The Veteran asserts that that his PTSD is related to his in-service traumatic experiences of providing maintenance on C-141 aircrafts at Elmendorf AFB in Alaska that were returning from Vietnam with wounded and dead soldiers. In multiple statements the Veteran indicated that he serviced C-141 planes while wounded soldiers were still aboard and worked extremely close to soldiers with amputations, convulsions, napalm burns, and horrible smells that he can never forget. In his December 2020 Board testimony, the Veteran indicated that he takes material to wash his hands with him everywhere he goes and washes his hands 20 to 25 times a day because he still has the psychological fear of blood, saliva, and vomit. He related that he often gets triggered by smells because the smells on the plane were so strong that he had to leave the plane to go vomit. The Veteran stated that his emotions have been stunted since his service and he cannot laugh, love, grieve, or enjoy life. The Veteran related that he experiences night sweats and wakes up and hides in a corner and turns on a flashlight to prevent demons. He indicated that he has been dealing with a lot of mental pain and when he goes to sleep at night he does not care if he wakes up in the morning and that he is running out of options. The Veteran's military personnel records indicate that his MOS was an aircraft pneudraulic repairman, he served in the 602d MAS, and that he was stationed on the Elmendorf AFB from January 1967 through January 1969. An article titled Operation Quick Service from the February 1968 edition of the Airman, the official magazine of the U.S. Air Force, indicating that the 602d MAS provided immediate maintenance on incoming aeromedical evacuation flights on C-141 planes at Elmendorf AFB in Alaska arriving with wounded soldiers. The article indicated that a team of flight nurses and medical technicians got onto the plane upon arrival at the base to fly with the patients to their next stop to Andrews AFB in Maryland. It related that at the same time the 602d MAS would board the plane to provide maintenance, a doctor would also go onboard to treat patients and seriously ill patients would be taken to the local base hospital. The article stated that on August 1, 1967 the 14,000th patient had passed through Elmendorf AFB. A September 2001 VA examination by a VA psychologist indicated that the Veteran reported distressing recollections and nightmares about working aboard aircrafts in Alaska that were filled with wounded soldiers from the war in Vietnam. The Veteran stated that he recalled having to work on top of coffins with remains of soldiers. The Veteran reported that he worked as a hydraulic mechanic servicing hundreds of aircrafts with wounded and dying soldiers. He described seeing soldiers without limbs, missing eyes, convulsing, and smelling the stench of dead and dying people. The Veteran stated that he suffered from depression because he experienced a lot of failures and things have not worked out the way he expected in his life. He indicated that in 1998 all of the frustration and memories about his Air Force experience came to the surface. The Veteran stated that he avoids crowds, is overreactive, and experiences sleep disturbances. He also stated that he sees flashes of bodies, faces of the wounded, and has nightmares where he is dealing with thousands of wounded people and he can smell the decaying tissue. The September 2001 VA psychologist reviewed the Veteran's medical record and noted that May 1998 medical records diagnosed the Veteran with PTSD and indicated that his speech was slow and laborious, he experienced intrusive memories and fear, and he suffered from olfactory hallucinations in connection with two traumatic memories, one of which was being exposed to death and injury working aboard airplanes returning from Vietnam in Alaska. The September 2001 VA psychologist diagnosed the Veteran with PTSD with secondary symptoms of depression and opined that the Veteran's PTSD stemmed from his military experiences, which he specified were a number of traumatic experiences while working as an Air Force mechanic in Alaska. VA mental healthcare records continued to diagnose the Veteran with PTSD. December 2016 VA mental healthcare records diagnosed PTSD according to the DSM-5 criteria and indicated that it was connected to military and childhood experiences. May 2019 VA medical treatment records diagnosed the Veteran with chronic PTSD. Regarding the first element of service connection for PTSD, the Board finds that the preponderance of the medical evidence of record establishes that the Veteran has a current diagnosis of PTSD, as determined by the Veteran's regular VA mental healthcare providers. The Veteran has received mental health treatment from the VA for over 20 years and continues to be diagnosed with PTSD by VA healthcare providers as recently as May 2019. The Veteran has only had one VA mental health examination, which was in September 2001, and the September 2001 VA psychologist conducted a very thorough examination and diagnosed the Veteran with PTSD. There is no evidence of record indicating that the Veteran does not have a PTSD diagnosis. Thus, the Board finds that the Veteran has a current diagnosis of PTSD. Therefore, the first element of service connection for PTSD is satisfied. Turning to the second element of credible supporting evidence that the claimed-in service stressor actually occurred, the Board finds that the Veteran's reported in-service stressor is corroborated by credible supporting evidence that the alleged event actually occurred. The Operation Quick Service article from the February 1968 edition of the Airman, the official magazine of the U.S. Air Force, indicated that the 602d MAS provided immediate maintenance on incoming aeromedical evacuation flights on C-141 planes at Elmendorf AFB in Alaska arriving with wounded soldiers. The article indicated that a team of flight nurses and medical technicians got on the plane upon arrival at the base to fly with the patients to their next stop to Andrews AFB in Maryland. It related that at the same time the 602d MAS would board the plane to provide maintenance, a doctor would also go onboard to treat patients and seriously ill patients would be taken to the local base hospital. The article stated that on August 1, 1967 the 14,000th patient had passed through Elmendorf AFB. The Veteran's military personnel records indicate that he served in 602d MAS, that his MOS was an aircraft pneudraulic repairman, and that he was stationed on the Elmendorf AFB from January 1967 through January 1969. The Veteran has provided credible testimony as to his exposure to the critically ill and dying service members arriving from Vietnam during his time at Elmendorf AFB. Therefore, the Board finds that there is sufficient credible evidence to corroborate the Veteran's claimed in-service stressor. (Continued on the next page) Finally, with respect to the third element, medical evidence of a link between current symptomatology and the claimed in-service stressor, the Board finds that the record contains sufficient medical evidence to establish this nexus. The Board finds the September 2001 VA psychologist's medical opinion to be highly probative as it was based on a review of the Veteran's clinical history and application of the doctor's medical expertise and knowledge as it is related to the facts of the Veteran's case. Additionally, the December 2016 VA mental healthcare records indicate that the Veteran's diagnosed PTSD was due to his military service, as well as his childhood. Significantly, there are no other etiology opinions of record to the contrary. As such, the Board finds that the nexus element is satisfied. Based on the foregoing and after resolving all reasonable doubt in the Veteran's favor, the Board concludes that the Veteran's PTSD is related to his in-service stressor. Accordingly, the Board finds that service connection for PTSD is warranted and the Veteran's appeal is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ahuva D. Sunshine 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.