Citation Nr: 21008499 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-25 501A DATE: February 17, 2021 ORDER The request to reopen the finally disallowed claim for service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), is granted. Entitlement to service connection for an acquired psychiatric disorder, defined as PTSD, a major depressive disorder, a general anxiety disorder, and an adjustment disorder, is granted. FINDINGS OF FACT 1. In the September 2010 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for an acquired psychiatric disorder characterized as PTSD; the Veteran did not perfect a timely appeal of the decision, which therefore became final. 2. The additional evidence received since the September 2010 rating decision relates to an unestablished fact and raises the reasonable possibility of substantiating the claim of service connection for an acquired psychiatric disorder, to include PTSD. 3. Resolving reasonable doubt in favor of the Veteran, he has a current diagnosis of an acquired psychiatric disorder, characterized as PTSD, a major depressive disorder, a general anxiety disorder, and an adjustment disorder, that is related to his active duty. CONCLUSIONS OF LAW 1. The September 2010 rating decision continuing prior denials of service connection for an acquired psychiatric disorder, to include PTSD, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. 2. The criteria for reopening the finally disallowed claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for an acquired psychiatric disorder, characterized as PTSD, a major depressive disorder, a general anxiety disorder, and an adjustment disorder, have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1973 to August 1978. Originally, the Veteran requested a hearing before the Board. See October 2019 VA Form 9 (Substantive Appeal). However, the Veteran, through his attorney, has withdrawn the request for a hearing. See December 2020 Correspondence (Enclosed in December 2020 Medical Treatment Records). New and Material – Acquired Psychiatric Disorder, To Include PTSD Rating decisions that have not been timely appealed are binding and final based on the evidence on the record at the time of the prior decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). “New” evidence is evidence not previously submitted or considered by the agency decision makers. “Material” evidence is evidence which, either by itself or in conjunction with other previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can neither be cumulative or redundant of the evidence at the time of the last prior final denial of the claim, and must raise a reasonable possibility of substantiating a claim. 38 C.F.R. § 3.156(a). For the purposes of determining whether new and material evidence has been received to reopen a prior final disallowance of a claim, the recently submitted evidence will be presumed credible, unless the evidence is inherently false or untrue or, if in the nature of a statement or assertion, it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992); see also Duran v. Brown, 7 Vt. App. 216 (1995). VA must review the evidence submitted since the last final disallowance of the claim on any basis to determine whether a claim may be reopened based on new and material evidence. See Hickson v. West, 12 Vet. App. 247, 251 (1999). Here, in a September 2010 rating decision, the AOJ continued prior denials of service connection for an acquired psychiatric disorder, to include PTSD. The Veteran filed an NOD in December 2010. A Statement of the Case (SOC) was issued in March 2014. In July 2014, the Veteran submitted a VA Form 9. However, the submission was determined to be untimely. See August 2014 Notification Letter. As a result, the Veteran did not timely perfect his appeal. See 38 C.F.R. § 20.1103. Therefore, the September 2010 rating decision became final. In February 2017, the Veteran filed his current request to reopen this finally disallowed claim. In an April 2017 rating decision, the AOJ continued the prior denial, and this appeal ensued. Notwithstanding the AOJ’s actions, the Board has the legal duty to determine whether new and material evidence has been presented sufficient to reopen the previous and final disallowed claim for service connection for an acquired psychiatric disorder, to include PTSD. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). At the time of the last final prior denial of service connection for an acquired psychiatric disorder, to include PTSD—in September 2010, the AOJ determined that the evidence of record did not support a finding that the Veteran’s psychiatric condition was incurred as a result of his active duty, including events therein. See September 2010 Rating Decision. Evidence received since that prior final decision consists of a July 2019 VA Examination Report, Veteran’s statements, a November 2020 Private Psychological Evaluation, and VA Treatment Records. After a thorough review of this additional evidence, the Board finds that the evidence is new, as it was not considered at the time of the September 2010 rating decision. The evidence is also material, as it relates to an unestablished fact. Specifically, the report of the VA examination and private psychological evaluation indicate in-service events and occurrences that may be related to the development of the Veteran’s current psychiatric condition. The newly submitted evidence, taken together with the evidence of the prior record, does, in fact, raise a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, as new and material evidence has been received since the September 2010 rating decision, the request to reopen the finally disallowed claim of entitlement to service connection for an acquired psychiatric condition, to include PTSD, is granted. Service Connection – Acquired Psychiatric Disorder, To Include PTSD A veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. § 3.303(a). To establish service connection for PTSD, a veteran must satisfy three evidentiary requirements. First, there must be medical evidence diagnosis the condition in accordance with 38 C.F.R. § 4.145(a) (i.e., the criteria in the Diagnostic and Statistical Manual for Mental Disorders (DSM)). Then, there must be a link, established by medical evidence, between the current PTSD symptoms and an in-service stressor. Lastly, there must be credible supporting evidence that claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). In the current appeal, the Veteran contends that he has a psychiatric condition due to in-service events. The evidence of the record shows that the Veteran has been diagnosed with several psychiatric conditions. Specifically, the July 2019 VA examiner diagnosed the Veteran with an adjustment disorder with mixed anxiety and a depressed mood. VA outpatient treatment records document the Veteran’s assessment and treatment for PTSD and depression. In the November 2020 psychological evaluation, the psychologist diagnosed the Veteran with PTSD, a major depressive disorder, and a general anxiety disorder, in accordance with the DSM-V criteria. Regarding the second element for establishing service connection for PTSD, the Board notes that, although the July 2019 VA examiner found that the Veteran did not meet the full criteria for a PTSD diagnosis, the examiner determined that the in-service stressor regarding a motor vehicle accident, which resulted in the death of another driver, was adequate to support the diagnosis of PTSD (Criterion A). Further, the private psychologist opined that the motor vehicle accident event was a stressor that supported the Veteran’s PTSD diagnosis and provided a positive nexus opinion. The private psychologist also determined that two other stressor events contributed to the development of the Veteran’s psychiatric disorder. In order to establish entitlement to service connection for PTSD, there must be credible evidence that the in-service stressors occurred. Here, the service records show that, in December 1977, the Veteran was involved in a motor vehicle accident which resulted in the death of another driver. In the December 1977 Report of Investigation of Medical Examiner, it was noted that the victim was hit by a car which ran a red light. The service records also show that the Veteran was discharged for misconduct because of civil court disposition. Direct service connection may be granted only when a disability was incurred or aggravated in the line of duty, and not the result of the Veteran's own willful misconduct. 38 C.F.R. § 3.301. Pursuant to statute, the simple drinking of alcoholic beverage is not of itself willful misconduct; however, "[i]f, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct." 38 C.F.R. § 3.301(c)(2). In this current matter, the Veteran himself admits that he was drinking prior to the accident. The Veteran was administratively discharged pursuant to AFM 39-12, Chapter 2, which indicates “discharge for misconduct because of civil court disposition.” The Board determines that, while the Veteran’s service is considered to be honorable, the motor vehicle accident is considered to be the result of willful misconduct. Therefore, this in-service stressor, while credible and established by the record, cannot be used to warrant entitlement to service connection for PTSD. Indeed, and in this regard, the Veteran has asserted other stressors and experiences during his active service. He reports that, while stationed on the Luke Air Force Base, he witnessed a pilot crash his plane on the runaway, resulting in his death. The Veteran continues that the fuel truck he was maintaining caught on fire and that the crash and the fire caused him stress. Another stressor the Veteran asserts is learning of the death of a friend in a motorcycle accident. The AOJ asked the Veteran to provide for information regarding these stressors in order to send information to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification. See July 2011 VCAA/DTA Letter. The Veteran did not send more detailed information regarding the alleged stressors. In a November 2011 VA Memorandum, the JSRRC Coordinator made a formal finding that the information required to corroborate the stressful events described by the Veteran was insufficient to send to JSRRC or allow for meaningful research of Marine Corps or National Archive and Records Administration (NARA). It was stated that further attempts would be futile and included the efforts made to obtain the information. See November 2011 VA Memo. While these stressors could not be verified or corroborated, the Board notes that the Veteran’s service treatment records document multiple complaints and treatment regarding his psychiatric symptoms. In August 1975, he complained of increasing pressures from financial difficulty, which was interfering with his job performance. The provisional diagnosis was adult situational reaction. In January 1977, the Veteran was again seen in the mental health clinic, where he discussed his separation from his wife. On the February 1977 Report of Medical History, he reported experiencing sleep difficulties, depression, and excessive worrying. A February 1977 Report of Medical Examination notes that the Veteran had reactive depression due to marital problems. The Board also acknowledges that the Veteran expressed that he experienced general stress from his military duties, which included driving the fuel truck on the flight line. See January 2011 Statement in Support of Claim for PTSD (VA Form 21-0781). Service personnel records confirm that he worked as a fuel specialist. After a careful and thorough consideration of the evidence of the record, the Board finds that a nexus has been established between the Veteran’s psychiatric disorders, to include PTSD, and his in-service events and experiences. The Board finds the Veteran’s assertions regarding his stresses from his military duties to be credible and consistent with the types, places, and circumstances of his duties. The Board also takes into account the in-service visits to the mental health clinic, specifically the symptoms and assessments provided. The private psychologist opined that the Veteran has been experiencing psychiatric symptoms since, and due to, his service. Resolving reasonable doubt in favor of the Veteran, the Board finds that a nexus has been established. Accordingly, the criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, a major depressive disorder, an anxiety disorder, and an adjustment disorder, have been met, and entitlement to service connection for this condition is warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, 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.