Citation Nr: A21020598 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 191212-50421 DATE: December 28, 2021 ORDER Readjudication of the claim for service connection for an acquired psychiatric disability, to include PTSD, phobias of snakes, and adjustment disorder, with mixed anxiety and depressed mood is warranted. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, phobias of snakes, and adjustment disorder, with mixed anxiety and depressed mood is granted. FINDINGS OF FACT 1. New evidence was received after the November 2012 final denial, that is relevant to the issue of entitlement to service connection for an acquired psychiatric disability, to include PTSD, phobias of snakes, and adjustment disorder, with mixed anxiety and depressed mood. 2. The Veteran's PTSD is at least as likely as not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for readjudication of the claim for service connection for an acquired psychiatric disability, to include PTSD, phobias of snakes, and adjustment disorder, with mixed anxiety and depressed mood have been met. 38 C.F.R. § 3.156(d). 2. The criteria for entitlement to service connection for an acquired psychiatric disability, to include PTSD, phobias of snakes, and adjustment disorder, with mixed anxiety and depressed mood have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1971 to July 1973. This matter was previously before the Board in October 2020, at which time it denied readjudication of the claim of service connection for an acquired psychiatric disability, to include PTSD, phobias of snakes, and adjustment disorder, with mixed anxiety and depressed mood. The Veteran appealed that denial to the Court of Appeals for Veterans Claims (Court). In August 2021, the Court granted a Joint Motion for Remand (JMR), vacating the Board's prior decision and remanding the claim to the Board for further development and readjudication. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims on appeal, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Board notes that the Veteran's attorney submitted a request in September 2021 to not make any decision on the Veteran's claim for 30 days. The attorney is reminded that, under the Appeals Modernization Act (AMA), additional evidence may not be submitted after an appeal is vacated by the Court, as the record on appeal is closed. See Andrews v. McDonough, 34 Vet. App. 151 (2021). 1. Readjudication of the claim for service connection for an acquired psychiatric disability, to include PTSD, phobias of snakes, and adjustment disorder, with mixed anxiety and depressed mood The Veteran was denied service connection for an acquired psychiatric disability in a November 2012 Rating Decision. The AOJ denied the claim because the Veteran's stated in-service stressors could not be corroborated. The Veteran did not submit new and material evidence within a year, so as to reopen the claim prior to implementation of the AMA. The Veteran submitted a statement re-applying for service connection in August 2018, also prior to implementation of the AMA. The RO answered with a July 2019 rating decision continuing the denial, to which the Veteran responded with an HLR request. In a September 2019 Rating Decision, the AOJ found a Duty to Assist violation namely, that in-service aggravation of psychiatric symptoms had not been considered in the available nexus opinions, and that sufficient development had not been conducted to verify the Veteran's service in an area associated with fear of hostile military activity. After an October 2019 VA examination was administered, the AOJ declined to readjudicate the claim for service connection, in a November 2019 Rating Decision. The Veteran appealed, filing a VA 10182 in December 2019. VA will readjudicate a claim if new and relevant evidenced is presented or secured. "Relevant evidence" is evidence that tends to prove or disprove a matter in issue. 38 C.F.R. § 3.156(d). Here, the Board finds that the Veteran submitted evidence after the November 2012 final denial in the legacy system. Further, the evidence is new and relevant to his claims. Specifically, the Veteran reported to his May 2018 examiner that as a crew chief on a bomber, he flew 4-5 bombing sorties a week. This involved a constant fear of being hit by surface to air missiles. This statement tends to prove that the Veteran experienced an in-service event. This makes it relevant to the issue of service connection for PTSD, an acquired psychiatric disorder. The statement was not already of record and may prove or disprove an in-service stressor. Readjudication of the claim is therefore warranted. 2. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, phobias of snakes, and adjustment disorder, with mixed anxiety and depressed mood The Veteran contends that his PTSD onset as a result of several stressor events, to include constant checking for snakes in his living area, coming upon the body of a fellow servicemember who had died by suicide, and fear of hostile military activity while performing his duties. Based upon the evidence of record, the Board determines that service connection for the Veteran's PTSD is warranted. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303 (a), 3.304, 3.307, 3.309, 3.310. In order to establish service connection for PTSD, the evidence of record must include a medical diagnosis of PTSD 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). Lay testimony may be sufficient to corroborate an in-service stressor if, among other things, the stressor is related to fear of hostile military or terrorist activity. Id. However, in non-combat cases, service records or other credible evidence needed to corroborate the stressor. First, the Board concedes a clear diagnosis of PTSD. While the November 2019 Rating Decision on appeal does not refer to the diagnosis as "clear," the Veteran's May 2018 VA examiner noted three separate diagnoses, dated December 2017, January 2018, and April 2018. Furthermore, the October 2019 VA examiner's observation of no mental health diagnosis at all, is based solely on the lack of officially verified stressors. On the other hand, the Veteran's May 2018 examiner opines that the stressor described by the Veteran contributed to his PTSD diagnosis. Thus, a link between the Veteran's current symptoms and an in-service stressor is established. Finally, the Board finds in the record credible evidence corroborating the Veteran's claimed in-service stressor. The Veteran's DD-214 mentions his service as a crew chief in the 19th Organizational Maintenance Squadron. In a May 2011 record, the Veteran elucidates, telling his provider that he served in the US Air Force as a crew chief for B-52 bombers, and served two tours in Vietnam. In addition, the Veteran reported to his May 2018 examiner that he flew 4-5 sorties a week out of U-Tapao AFB, Thailand; since these missions occurred during the Vietnam era, they involved an attendant fear of being shot down. Moreover, given the amount of time that has passed since the Veteran's service, it would be surprising if he were to remember the details that the AOJ appears to have expected. While the JSRRC reported that the Veteran's personnel records do not specific dates and unit of assignment in Thailand, the Board finds that the absence of specific records is outweighed by the Veteran's largely credible testimony. Since the fear of being hit during missile sorties is consistent with his service as an Air Force crew chief, the Board finds the testimony of the Veteran credible evidence that the in-service stressor occurred. In light of credible evidence of an in-service stressor which contributed to the Veteran's diagnosis, the Board finds that service connection is warranted for PTSD. 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 B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Maskatia