Citation Nr: 21011390 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-17 207A DATE: March 1, 2021 ORDER 1. The appeal to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED 2. Entitlement to service connection for a variously diagnosed psychiatric disability, to include PTSD, (on de novo review) is remanded. FINDINGS OF FACT 1. An unappealed November 2009 Board decision denied the Veteran service connection for posttraumatic stress disorder (PTSD), finding in essence that there was no nexus of a current PTSD diagnosis to a corroborated stressor event in service. 2. Evidence received since the November 2009 Board decision includes testimony from the Veteran regarding an alleged stressor event, and a buddy statement from a fellow service member who corroborates the alleged stressor event in service; relates to an unestablished fact necessary to substantiate the claim of service connection for PTSD; and raises a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for PTSD may be reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from December 1971 to June 1976. This matter is before the Board on appeal from a June 2016 Department of Veterans Affairs (VA) rating decision. In November 2020, a videoconference Board hearing was held before the undersigned; a transcript of the hearing is in the record. At the hearing the Veteran requested, and was granted, a 60-day abeyance period for the submission of additional evidence; such evidence has been received. The appeal to reopen a claim of service connection for PTSD is granted. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7104. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “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. 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of newly submitted evidence is presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§1110, 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disability first diagnosed after discharge may be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold one. The U. S. Court of Appeals for Veterans Claims (CAVC) interpreted the language of 38 C.F.R. § 3.156(a) and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding opening”. See Shade v. Shinseki, 24 Vet. App. 110 (2010). A November 2009 Board decision denied the Veteran service connection for PTSD, finding there was no verification of a stressor in service linking to a current diagnosis of PTSD. He was informed of that decision; did not appeal it; and it is final. 38 U.S.C. § 7104. The evidence of record at the time of the November 2009 Board decision included the Veteran’s STRs, his service personnel records, Social Security Administration records, lay statements from the Veteran and several family and friends, and VA and private treatment records. Evidence received since the November 2009 Board decision includes VA and private treatment records, lay statements by the Veteran and a fellow service member, and the Veteran’s hearing testimony. In May 2016, the Veteran submitted a statement from fellow service member S.C., who stated that he served in the same Army unit with the Veteran (2nd Battalion, 34th Armor) and that he was present at the time the alleged armored personnel carrier (APC) accident occurred. He stated that he believes the accident occurred in either the spring or summer of 1973 because it was warm at the time, and the personnel carrier hatch door was open during the training mission. He stated that he witnessed the Veteran unconscious on the floor of the APC, saw that the hatch door had closed, and realized that the hatch had struck the Veteran. He stated that the Veteran was then flown by helicopter to Fort Carson Hospital. He stated that he lived in the same barracks with the Veteran in their unit, and he believes the Veteran was returned to the unit the next day wearing a cast on his arm. He stated that he remembers the Veteran complaining about headaches, back pain, and nightmares about the accident afterward. At the November 2020 Board hearing, the Veteran testified that the fellow service member was in the APC with him at the time of the accident. Evidence received since the November 2009 Board decision was not before agency decision-makers at that time, is new, and directly addresses an unestablished fact necessary to substantiate the claim of service connection for PTSD. It (specifically, the buddy statement submitted in May 2016 from a fellow service member, and the November 2020 hearing testimony) suggests that the Veteran may have a valid diagnosis of PTSD based on stressors capable of corroboration in service. Considering the “low threshold” standard for reopening endorsed by the CAVC in Shade, the Board finds that the evidence is both new and material, and that the claim of service connection for PTSD may be reopened. De novo consideration of the claim is addressed in the remand below. REASONS FOR REMAND Entitlement to service connection for a variously diagnosed psychiatric disability to include PTSD (on de novo review). In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the U.S. Court of Appeals for Veterans Claims held that the scope of a mental health disability claim includes any mental disorder that may be reasonably encompassed by the claimant’s description of the claim, reported symptoms, and other information of record, i.e., that matter(s) of service connection for other psychiatric disability(ies) diagnosed is/are part and parcel of a service connection for a psychiatric disability claim. Accordingly, the matter is characterized as encompassing all psychiatric diagnoses in accordance with Clemons. Based on the Veteran’s testimony at the November 2020 Board hearing, it appears that there are service treatment records pertaining to the matter on appeal that are missing from the record. The Veteran testified that he received treatment at the hospital at Fort Carson, Colorado, following an APC accident when he was knocked unconscious and injured/broke his arm. The STRs currently in the claims file are silent regarding such treatment. However, the Veteran’s detailed accounts (which the Board finds no reason to question at this time) suggest there may be outstanding STRs, including from the Fort Carson, Colorado clinic/hospital while he was stationed there from March 1972 to August 1973. A review of the claims file found that that there has not been exhaustive development to locate/obtain such treatment records (from the Army clinic/hospital for the time period in question). Given the critical nature of any such records, further development to secure them is necessary. Further development for verification of the alleged stressor event in service is necessary, specifically to ascertain whether S.C. indeed served in the same unit at Fort Carson as the Veteran between March 1972 and August 1973. Although S.C. stated that he served in the 2nd Battalion, 34th Armor, it is unclear whether he was in the same unit as the Veteran (which is eminently verifiable). The Veteran has also consistently been assigned (by VA providers) diagnoses of psychiatric disabilities other than PTSD (bipolar disorder, depressive disorder), which he contends was incurred in, or caused by, service. Development to determine whether he has a diagnosis of PTSD based on a corroborated stressor event in service, and another psychiatric disability he has is etiologically related to service, is necessary. The matter is REMANDED for the following action: 1. Arrange for exhaustive development to locate and secure complete records of the alleged treatment the Veteran reports he received in service following an APC accident while stationed at Fort Carson from March 1972 to August 1973. The development must specifically include contacting the base medical facilities at Fort Carson, Colorado (and all facilities where the records sought may have been retired) with a request for such records. If no further records are located, it should be so noted in the record, along with a description of the scope of the search, and the Veteran should be so notified. 2. Arrange for verification of the corroborating evidence for the alleged stressor event, specifically whether S.C. served in the same unit as the Veteran at Fort Carson, Colorado between March 1972 and August 1973. Making a finding for the record addressing that question. 3. Seek verification of the specific stressor event alleged for which the Veteran provides sufficient identifying information. [If he provides partial (insufficient to seek verification) information regarding an alleged stressor event, he should be advised what further information is needed and afforded opportunity to provide it.] Then make a formal determination for the record regarding whether the specific stressor event alleged by the Veteran is corroborated by credible supporting evidence. The determination should cite to the factual data that support the conclusions reached and should encompass consideration of the alleged stressor event. 4. Then arrange for the Veteran to be examined by an appropriate VA psychologist or psychiatrist to determine whether he has a diagnosis of PTSD based on a corroborated stressor event in service, and to determine the nature and etiology of any psychiatric disability other than PTSD found. The examiner should be advised of what alleged stressor event in service, if any, has been corroborated. The Veteran’s record (to include this remand) must be reviewed by the examiner in conjunction with the examination. On review of the record and evaluation/interview of the Veteran, the examiner should respond to the following: (a.) Identify (by diagnosis) each psychiatric disability entity found or diagnosed during the pendency of this appeal. Specifically, does the Veteran have a diagnosis of PTSD related to a corroborated stressor event in service (if so, the stressor event must be identified)? If an acquired psychiatric disability is not diagnosed, please reconcile that conclusion with the diagnoses of PTSD in the medical evidence in the record, and explain what criteria required for that diagnosis are found lacking. (b.) Identify the likely etiology for each acquired psychiatric disability entity other than PTSD diagnosed, to include major depression. Is it at least as likely as not (a 50% or better probability) that such disability (1) began during the Veteran’s active service, (2) (whether a psychosis) was manifested within one year after his discharge from service, or (3) was noted during service with continuity of symptoms since? The examiner must include rationale that cites to supporting factual data and medical principles with all opinions. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechner, 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.