Citation Nr: 21030338 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-41 850 DATE: May 18, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT It is as likely as not the Veteran has PTSD because of a particularly traumatic event ("stressor") during his military service. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for PTSD. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1968 to April 1971. This appeal to the Board of Veterans' Appeals (Board) is from a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Board remanded this claim back to the RO (Agency of Original Jurisdiction (AOJ)) for further development and consideration including especially to try and verify the Veteran's claimed stressors and then for a medical opinion concerning whether he has PTSD or other mental illness as a result or consequence. In April 2021, to this end, the Veteran submitted an additional lay statement from a friend and several online news articles concerning his claimed stressor. This additional information was submitted after provision of the most recent Supplemental Statement of the Case (SSOC) in January 2021. But, according to 38 U.S.C. § 7105(e), for cases in which a Substantive Appeal (VA Form 9) was received on or after February 2, 2013, if the claimant or the claimant's representative submits evidence to the AOJ or the Board for consideration in connection with the claim on appeal, the Board may consider the evidence in the first instance unless the claimant or representative requests in writing that the AOJ initially review the evidence. This automatic waiver is an exception to the general requirement of a waiver of AOJ review or an SSOC considering new pertinent evidence. See 38 C.F.R. §§ 19.31, 19.37, 20.1304. Therefore, since the Veteran's VA Form 9 concerning his claim for PTSD was received in August 2016, after the delimiting date, the Board may consider this additional evidence in the first instance, meaning without again remanding this claim to have the RO (AOJ) address it in another SSOC. Moreover, since these additional news articles received in April 2021 tend to corroborate the Veteran's stressor during his service, the Board is granting his claim of entitlement to service connection for consequent PTSD. Entitlement to service connection for PTSD is granted. The Veteran contends that he has PTSD owing to witnessing an especially traumatic event ("stressor") while he was deployed in Malta. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection for PTSD, specifically, requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (meaning in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM)), credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f). The Veteran has the required current DSM diagnosis of PTSD and VA examiners have indicated it is more likely than not that his PTSD is related to his service. Consequently, there need only be confirmation of the claimed stressor, i.e., corroboration of the precipitating incident or event, to establish his entitlement to service connection for this condition. When a determination is made that the Veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat (as is the case, here) or does not involve one of the other exceptions discussed in the several subparts of § 3.304(f)(1)(5), the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Instead, the record must include service records or other credible evidence that supports and does not contradict the Veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressor. See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet. App. 128, 134 (1997) ("Anecdotal incidents, although they may be true, are not researchable. In order to be researched, incidents must be reported and documented"). The Veteran was afforded a VA compensation examination in March 2018. While the March 2018 VA examiner diagnosed PTSD, there was insufficient verification of the claimed stressor to link this diagnosis to the Veteran's service. In December 2015, VA had made a formal finding that the information required to corroborate the claimed stressor was insufficient. Partly for this reason, the Board remanded this claim back to the RO (AOJ) in February 2020 to obtain additional stressor information that might, in turn, permit the alleged stressor to be independently substantiated (objectively confirmed). The Veteran also was provided an additional VA compensation examination that again confirmed his PTSD diagnosis and that it is more likely than not related to his service. Very recently, in April 2021, the Veteran submitted several online news articles confirming the events he has described in his stressor statements regarding the murder victim he witnessed while stationed in Malta on the USS Shenandoah. The Board finds these news articles corroborating the events he has described both in his pleadings and to his VA healthcare providers to be sufficient to verify their occurrence. Consequently, and certainly when giving the Veteran the benefit of the doubt, there is now reason to grant his claim of entitlement to service connection for PTSD. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) ("a [V]eteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail.") KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. B. Kucera 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.