Citation Nr: 21006389 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 18-45 398 DATE: February 4, 2021 ORDER New and material evidence has been submitted and the Veteran's claim for service connection for posttraumatic stress disorder (PTSD) is reopened. Entitlement to service connection for PTSD is granted. FINDINGS OF FACT 1. In an unappealed August 2009 rating decision, the RO denied service connection for PTSD based on a finding that there was no evidence of current diagnosis of PTSD. 2. The evidence added to the record since the August 2009 rating decision, when viewed by itself or in the context of the entire record, relates to an unestablished fact that is necessary to substantiate the claim of service connection for PTSD. 3. The Veteran has a current diagnosis of PTSD which is due to combat. CONCLUSIONS OF LAW 1. The August 2009 rating decision that continued a prior denial of service connection for PTSD (previously claimed as depression and mood swings) is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 2. With respect to the Veteran’s claim for service connection for PTSD, new and material evidence has been received since the final August 2009 denial. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1154(b), 5107(b); 38 C.F.R. §§ 3.303, 3.304(f)(1). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 2002 to June 2006. New and Material Evidence Initially, the Board notes that whenever a claim to reopen is filed, regardless of how it was characterized by the agency of original jurisdiction, the Board must make a de novo determination as to whether new and material evidence has been received. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) (whether new and material evidence has been submitted must be asked and answered by the Board de novo whenever a claim to reopen is filed). New evidence is defined as existing evidence not previously submitted to agency decision makers. 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. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 1. New and material evidence has been submitted and the Veteran's claim for service connection for posttraumatic stress disorder (PTSD) is reopened The Veteran was denied service connection for PTSD in an August 2009 rating decision because there was insufficient evidence that the Veteran’s had a diagnosis of PTSD. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, consideration need not be limited to consideration of 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 VA’s duty to assist or through consideration of an alternative theory of entitlement. 38 C.F.R. § 3.156(a); Shade v. Shinseki, supra. The Veteran’s testimony in November 2020 that he has been diagnosed with PTSD is new in that it was not previously of record. It is also material because it relates to unestablished facts necessary to substantiate the Veteran’s claim for service connection for PTSD. Specifically, due to the prior lack of evidence showing a diagnosis for PTSD, this new evidence is material because it relates to an element that was previously not shown, an in-service incurrence. See Shade, supra. Accordingly, the Board finds that new and material evidence has been submitted, and the claim for service connection for PTSD is reopened. 38 U.S.C. § 5108. 2. Entitlement to service connection for PTSD Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(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-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Merits The Veteran contends that his PTSD is related to his in-service combat. The Board upon review finds that the evidence supports the Veteran’s contentions and that service connection is warranted. There is no dispute as to Veteran’s experienced combat in service as evidenced by his “Combat Action Ribbon” found on his DD-214. The Board notes that there is a dispute over whether the Veteran has a current diagnosis of PTSD. In particular, a VA examiner in an August 2017 VA examination report could not conclude whether the Veteran has a current diagnosis of PTSD or a personality disorder. However, the Veteran’s VA treatment records contain repeated confirmations of a diagnosis of PTSD and treatment as noted in December 2017, January 2018, January 2019 and November 2020. The Board finds that the Veteran’s treating physician is better situated to provide a diagnosis for PTSD and the August 2017 VA examination is too equivocal to provide any probative value. As such, the Board finds that the Veteran has a current diagnosis of PTSD. Turning to nexus, the Board finds that the Veteran’s treating physician in a November 2020 VA treatment record has provided a nexus statement linking the Veteran’s PTSD to his combat in service when he wrote unequivocally that the Veteran’s “PTSD is due to combat.” The Board finds that this evidence especially probative given the unique position the Veteran's private physician is in as a clinical professional that has treated the Veteran over a course of years. He is thus able to provide a more insightful opinion on the nature of the Veteran's disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board thus considers the Veteran's physician's opinion from November 2020 to be the most probative on the matter of the etiology of the Veteran's PTSD. In sum, the Board finds that evidence supports the Veteran’s contention that he suffers from PTSD and that this PTSD is related to his combat in service. Considering the foregoing, the Board finds that all elements of service connection are met, and service connection for PTSD is warranted. GAYLE E. STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Acosta, 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.