Citation Nr: 21008432 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 19-24 480 DATE: February 17, 2021 ORDER The claim for service connection for posttraumatic stress disorder (PTSD) is reopened. Service connection for PTSD is granted. REMANDED Entitlement to service connection for lower extremity peripheral neuropathy. FINDINGS OF FACT 1. Service connection for PTSD was denied in an October 2009 rating decision, which the Veteran did not appeal. 2. Since the October 2009 decision was issued, new evidence has been associated with the file that relates to an unestablished fact necessary to substantiate the claim for PTSD. 3. The medical evidence shows a diagnosis of PTSD. 4. The Veteran has reported an in-service stressor related to fear of hostile military or terrorist activity that is consistent with the circumstances, conditions, or hardships of his service in Vietnam. 5. The Veteran’s PTSD has been medically linked to the in-service stressor. CONCLUSIONS OF LAW 1. The October 2009 rating decision, which denied service connection for PTSD, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The evidence received since the October 2009 rating decision is new and material; the claim for PTSD is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Under VA’s legacy appeal system, which is applicable here, a determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if no notice of disagreement (NOD) is filed within the prescribed time period, or an appeal is not timely perfected pursuant to 38 C.F.R. § 20.302. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see 38 C.F.R. §§ 20.200, 20.201, 20.302 (setting forth requirements and timeframe for initiating and perfecting an appeal under VA’s legacy system). To reopen a previously and finally disallowed claim under VA’s legacy appeal system, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). “New evidence” means existing evidence not previously submitted to agency decision makers. “Material evidence” means existing 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). 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. Id. In determining whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue. Duran v. Brown, 7 Vet. App. 216, 220 (1994). PTSD The Veteran’s claim for PTSD was originally denied in an October 2009 rating decision. He was notified of the decision and his appellate rights in an October 2009 letter. See 38 U.S.C. § 5104; 38 C.F.R. §§ 3.103, 19.25. He did not file a NOD, or submit or identify additional evidence during the appeal period. See 38 C.F.R. §§ 20.200, 20.201, 20.302; see also 38 C.F.R. §§ 3.400, 3.156(b). Accordingly, the October 2009 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The October 2009 rating decision denied service connection for PTSD, in part, because it found that the evidence did not establish a medical nexus between the Veteran’s diagnosed PTSD and an in-service stressor. Evidence submitted since the October 2009 final denial includes two VA examination reports, as well as VA and private medical records. Both a December 2017 VA examiner and an August 2017 private psychologist submitted opinions relating current psychiatric disorders, including PTSD, to active service in Vietnam. As this evidence directly addresses a previously unestablished element of the claim and was associated with the claims file after the final denial in October 2009, it is both new and material; therefore, the claim for PTSD is reopened. Service Connection Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the current disability and the disease or injury incurred or aggravated in active service (the “nexus” element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). 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; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). PTSD For the following reasons, the Board finds that the criteria for service connection for PTSD have been met. To establish service connection for PTSD, there must be 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). With regard to medical evidence of a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a), this regulation provides that, for VA purposes, all mental disorder diagnoses must conform to the Fifth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DMM-V). Diagnoses of PTSD are presumed to have been made in accordance with the DSM criteria. Cohen v. Brown, 10 Vet. App. 128, 139-42 (1997). Concerning the requirement that there be credible supporting evidence that the claimed in-service stressor occurred, there are exceptions in which a claimant’s lay testimony alone may establish the occurrence of the stressor. 38 C.F.R. § 3.304(f). These exceptions include when PTSD is diagnosed during service and the claimed stressor is related to that service; when the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat; stressors related to being a prisoner of war; and stressors related to fear of hostile military or terrorist activity (as defined in the regulation). Id. In all these cases, the claimed stressor must be consistent with the circumstances, conditions, or hardships of the veteran’s service. Id. The medical evidence establishes a current diagnosis of PTSD. A December 2017 VA examiner diagnosed the Veteran with an unspecified trauma-related disorder, but not PTSD, and a July 2016 VA examiner diagnosed him with a nightmare disorder. However, an August 2017 private psychologist diagnosed him with PTSD due to his experiences in Vietnam. The VA treatment records also show diagnoses of PTSD, including a July 2005 VA psychological assessment reflecting a diagnosis of PTSD by a psychologist based on the Veteran’s Vietnam experiences related to fear of hostile military activity, as described in that record. More recent records dated in 2017 and 2018 also show diagnoses of PTSD. As these diagnoses are presumed to be made in accordance with the DSM criteria, the Board finds that the evidence is at least in relative equipoise that the Veteran has a current diagnosis of PTSD, and resolves any reasonable doubt in favor of the claim. See 38 C.F.R. § 3.102. The balance of the medical evidence supports a link between the Veteran’s current PTSD symptoms and an in-service stressor. Several medical opinions have drawn different conclusions. A June 2016 VA examiner diagnosed the Veteran with a nightmare disorder, but said that the nightmares were not based on factual events, and thus not trauma re-experiencing symptoms, and that there was no continuum of treatment that would suggest a relationship among nightmares and associated sleep disturbance and military service. As a “continuum of treatment” is not required to support service connection, and as the examiner does not account for the Veteran’s other symptoms, this opinion has little probative value In contrast, a December 2017 VA examiner found the Veteran had an unspecified trauma-related disorder that was as likely as not caused by service, as there were no pre- or post-military stressors that better accounted for his symptoms than his combat exposure. An August 2017 private psychologist found that the Veteran had PTSD directly related to his experiences servicing in Vietnam, and provided a detailed rationale explaining how these experiences were linked to the Veteran’s nightmares and re-experiencing of trauma. Further, VA medical records show that in July 2005 a VA psychologist diagnosed the Veteran with PTSD due to his experiences in Vietnam, and he has been treated for PTSD by VA medical professionals during the appeal period. The VA treatment records show complaints of reoccurring Vietnam flashbacks and nightmares similar to what was reported to the December 2017 VA examiner and the August 2017 private psychologist. Resolving any reasonable doubt in favor of the claim, the Board finds that the medical evidence establishes a link between the Veteran’s PTSD symptoms and an in-service stressor. See 38 C.F.R. § 3.102. Finally, the Board finds that the Veteran’s competent and credible testimony establishes the occurrence of the in-service stressor, which is related to fear of hostile military activity. In this regard, the service personnel records show that the Veteran served in Vietnam during the Vietnam Era. In a December 2008 statement and during the December 2017 VA examination, he reported stressors of being under rocket and mortar attacks in Vietnam, as well as being shot at while driving heavy equipment and clearing jungles. His service personnel records show that he served, in part, as a crawler tractor operator in Vietnam, which is consistent with his testimony regarding driving heavy equipment. Accordingly, as he has provided competent and credible statements that he experienced an in-service stressor related to fear of hostile military activity that is consistent with the circumstances, conditions, and hardship of his service, that testimony is sufficient to establish the occurrence of the stressor without additional supporting evidence. See 38 C.F.R. § 3.304(f). In sum, the evidence is at least in equipoise as to whether the criteria for service connection for PTSD have been satisfied; therefore, the claim is granted. See id.; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND Service connection for lower extremity peripheral neuropathy is remanded. Additional development is necessary with regard to the claim for lower extremity radiculopathy. VA treatment records dated in April 2015 show that the Veteran saw a private neurologist for treatment of neuropathy. A review of the claims file shows that in September 2013 he submitted three pages of records showing diagnostic testing for neuropathy. However, there are no additional private medical records from this provider. The RO should make reasonable efforts to associate these records with the claims file. The Veteran seeks to establish service connection for peripheral neuropathy on the basis that it is linked to in-service exposure to an herbicide agent. A VA medical opinion has not been obtained to determine the likelihood that his neuropathy may be related to service, including herbicide exposure. Although it was not diagnosed within the presumptive period to warrant service connection on a presumptive basis under 38 C.F.R. §§ 3.307(a)(6)(ii) and 3.309(e), that does not preclude service connection due to herbicide agent exposure on a direct basis. This matter is REMANDED for the following actions: 1. Add to the file any outstanding VA treatment records pertaining to the Veteran dated since July 2019. 2. Request the Veteran to identify and authorize the release of any private treatment records pertaining to treatment for his neuropathy. Appropriate efforts should then be made to obtain these records, if he has provided the necessary authorization. He should also be invited to submit these records himself. 3. Obtain a VA medical opinion as to whether it is as likely as not that (50 percent or greater probability) that the Veteran’s lower extremity peripheral neuropathy is related to his presumed exposure to an herbicide agent such as Agent Orange. A complete explanation must be provided in support of the conclusion reached. J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brendan A. Evans, Associate 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.