Citation Nr: 21010769 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 20-30 524 DATE: February 25, 2021 ORDER New and material evidence has been received to reopen the claim for entitlement to service connection for posttraumatic stress disorder (PTSD). Entitlement to service connection for PTSD is granted. FINDINGS OF FACT 1. A final June 2016 rating decision denied the Veteran’s claim for entitlement to service connection for PTSD, and the subsequent evidence received is not cumulative and redundant of the other evidence of record and raises a reasonable possibility of substantiating the Veteran’s claim. 2. The Veteran’s PTSD is due to a stressor event incurred during his active-duty service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the issue of service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for entitlement to 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 The Veteran served on active duty from January 1952 to February 1962. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of August 2018 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. Following the rating decision on appeal, the Veteran timely filed his notice of disagreement (NOD) in August 2019. The RO issued a statement of the case (SOC) in October 2020 and the Veteran’s timely appeal to the Board followed in November 2020. Because the Veteran did not request a hearing in his appeal to the Board, no hearing before the undersigned Veterans Law Judge (VLJ) was scheduled. See November 2020 VA Form 9 at 2. A supplemental statement of the case (SSOC) was issued in November 2020. 1. The claim for entitlement to service connection for PTSD is reopened. The Veteran’s claim on this issue was originally denied in a rating decision of June 2016, which became final when it was not timely appealed. Once a rating decision has become final, new and material evidence is generally required to reopen that claim. See 38 C.F.R. § 3.156(a). The Board notes that the RO has previously found that new and material evidence has been submitted in this case. See October 2020 SOC at 34. However, under the legacy system of regulations, the Board reviews the RO’s findings de novo. See 38 C.F.R. § 3.104 (2018); cf. 38 C.F.R. § 3.104. Generally, “[if] new and material evidence is presented or secured with respect to a claim which has been disallowed, [VA] shall reopen the claim and review the former disposition of the claim.” 38 U.S.C. § 5108 (2018). “New evidence is evidence not previously part of the actual record… [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. However, new and material evidence can be sufficient to reopen a claim if it can satisfy at least one previously unproven element thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010) (holding that regulations do not require evidence “as to each previously unproven element of a claim”) (emphasis added). The elements of service connection are the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). The Veteran submitted supporting lay evidence in February 2020 and underwent a VA examination on this issue in September 2020. The Board therefore finds that additional evidence has been submitted in support of the second and third Shedden factors and that the Veteran has presented new and material evidence sufficient to reopen his claim to service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Entitlement to service connection for PTSD. As noted above, the elements of service connection are the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). 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). The Veteran asserts that he has PTSD due to three stressor events incurred during his active-duty service. These include exposure to a distinctive aircraft noise, an incident in which another service member entered the Veteran’s sleeping quarters while intoxicated and brandished an armed hand grenade, and an incident in which an allied Korean service member was reported to have committed suicide. See August 2019 Correspondence; see also February 2020 VA Form 21-0781; see also February 2020 VA Form 21-4138 at 2-3; see also September 2020 VA Examination Report at 8. As noted above, the Veteran underwent a VA examination on this issue in September 2020. After examining the Veteran and reviewing his medical history, the VA examiner opined that “it is at least as likely as not that the current PTSD diagnosis was incurred or caused by the ‘hand grenade incident in Korea’ during which [the Veteran] was exposed to threatened death or serious injury… the majority of the Veteran’s current PTSD-related symptoms are due to the hand grenade incident in 1953 or 1954.” See September 2020 VA Examination Report at 23 (capitalization omitted). The RO had previously denied the Veteran’s claim for lack of corroborating evidence that this incident actually occurred as the Veteran asserts. See October 2020 SOC at 36; see also November 2020 SSOC at 5-8. The Board notes that neither military service records establishing the occurrence of this event nor statements from corroborating eyewitnesses have been found. Id.; see also May 2016 VA Memorandum. The applicable regulations provide various circumstances under which lay testimony, alone, may be sufficient to establish the occurrence of a stressor event during a veteran’s active-duty service in a claim for service connection for PTSD. See 38 C.F.R. § 3.304(f). As an initial matter, the Board notes that several of these exceptions are not applicable to the facts of the Veteran’s case, because the evidence of record does not establish that the Veteran was diagnosed with PTSD during his active-duty service, that his stressor event occurred during combat with an enemy force, or that his stressor event occurred during time as a prisoner of war. See id. at (1), (2), and (4). However, these regulations also provide in pertinent part as follows: If a stressor claimed by the veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist… 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. See 38 C.F.R. § 3.304(f)(3). The Board particularly notes that “fear of hostile military or terrorist activity,” in this context, is expressly defined: For purposes of this paragraph, “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. See id. (emphasis added). The VA examiner found that the Veteran’s stressor event was not related to fear of hostile military or terrorist activity. See September 2020 VA Examination Report at 9. On the basis of this finding, the RO in turn found that 38 C.F.R. § 3.304(f)(3) was not applicable to the Veteran’s case and that his lay testimony alone was therefore insufficient to demonstrate that the applicable stressor event had actually occurred. See November 2020 SSOC at 7. The Board finds that the RO and the September 2020 VA examiner incorrectly applied this provision and that 38 C.F.R. § 3.304(f)(3) is applicable to the Veteran’s claim. In reaching this conclusion, the Board notes that the VA examiner’s rationale on this point was as follows: “[the] events described above are unrelated to combat- or terrorist-related activity, though were said to be traumatic events incurred during military service while deployed to Korea in the 1950s.” See September 2020 VA Examination Report at 9 (emphasis added). As discussed above, the plain language of 38 C.F.R. § 3.304(f)(3) does not require actual combat with an enemy force. The regulations instead expressly address combat-related stressor events in a separate provision, 38 C.F.R. § 3.304(f)(2). As will be explained below, because the Veteran was serving in theater during a period of war for VA purposes encompassing the Korean Conflict (See 38 C.F.R. § 3.2(e)), the phrase “fear of hostile military or terrorist activity” is potentially applicable in this case. The Board further notes that it is unclear from the evidence of record whether the Veteran was immediately aware, at the moment of the stressor event, of the armed individual’s status as a fellow Marine: While serving in Korea during the winter of 1953-1954… [a] Marine who was highly intoxicated and angry stood next to me with a hand grenade in one hand and the pin being held in his other hand[,] [and] threatened to blow up myself and six other Marine [sic] who were in the same sleeping quarters… Fortunately, a couple of Marines were able to subdue him and disarm the situation. See July 2018 VA Form 21-4138 at 1; see also September 2020 VA Examination Report at 8. During the winter of 1953/54… in Pohang, Korea, there occurred a live hand grenade incident in my sleeping quarters. An unknown person with an armed hand grenade was acting threateningly. He was removed from the immediate area by senior roommates. See August 2013 Correspondence at 1 (emphasis added). The… “hand grenade” incident occurred soon after my arrival to the First Marine Air Wing in Pohang[,] Korea in winter 53/54. An unknown soldier arrived in my sleeping quarters with a hand grenade with the pin pulled and someone shouted “get rid of that hand grenade.” Being the “new guy” in Korea I didn’t know people’s names, but several senior Marines escorted the perpetrator with the grenade out.” See February 2020 VA Form 21-4138 at 2 (emphasis added). The Board notes that despite the signing of the Korean Armistice Agreement in July 1953, applicable VA regulations provide that the Korean War was still ongoing for VA compensation purposes at the time of this stressor event. See 38 C.F.R. § 3.2(e) (providing that the dates of the Korean War are “June 27, 1950, through January 31, 1955, inclusive”); cf. “Armistice Agreement for the Restoration of the South Korean State,” National Archives (accessed via https://www.archives.gov/historical-docs/todays-doc/index.html?dod-date=727) (providing that “[the] Korean War… officially ended on July 27, 1953”). The Board therefore finds it at least as likely as not that at the moment of this stressor event, the Veteran reasonably feared hostile military activity as contemplated by 38 C.F.R. § 3.304(f)(3). The Veteran’s stressor event satisfies each of the elements of this legal definition: he “experienced, witnessed, or was confronted with an event” which “involved… threatened death or serious injury, or a threat to the physical integrity of the veteran or others… [from a] grenade[.]” 38 C.F.R. § 3.304(f)(3). The Veteran’s response to the event “involved a psychological or psycho-physiological state of fear, helplessness, or horror.” Id.; see also September 2020 VA Examination Report at 8. “Simply because [§] 3.304(f)(5) was designed to address in-service personal assaults does not preclude VA from evaluating in-service personal assaults under [§] (f)(3) as long as the circumstances are such that the veteran’s claimed stressor is related to [his] ‘fear of hostile military or terrorist activity.’” Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). The Veteran’s lay testimony may therefore be accepted as sufficient proof of the occurrence of this event if it is consistent with the places, types, and circumstances of his service and if it is not otherwise contradicted by clear and convincing evidence. 38 C.F.R. § 3.304(f)(3). The Board has found no such clear and convincing contradictory evidence in the record, nor has it found evidence which would otherwise seriously undermine the Veteran’s credibility as a witness. The Veteran’s discharge certificate corroborates his active-duty service in Korea. See May 1997 Discharge Certificate (noting receipt of Korean United Nations Ribbon). Given the not-inconsiderable time period between this stressor event and the filing of the Veteran’s claim, the Board is not prepared to find that the absence of corroborating military records constitutes dispositive evidence that the stressor event did not occur. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (providing that the absence of records may comprise substantive negative evidence where such records would ordinarily be made). The Board therefore concludes, based on the Veteran’s testimony and the September 2020 VA examiner’s report, that each of the three Shedden factors has been met and that service connection for PTSD is warranted. 38 C.F.R. §§ 3.303, 3.304. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.