Citation Nr: 21040664 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 18-41 937 DATE: July 6, 2021 ORDER As new and material evidence has been received, the Veteran's claim to reopen entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for PTSD is remanded. FINDINGS OF FACT 1. The agency of original jurisdiction (AOJ) last denied the Veteran's service-connection claim for PTSD in an April 2013 rating decision. Although notified of the denial, the Veteran did not initiate an appeal, and no pertinent exception to finality applies. 2. The evidence pertaining to the Veteran's psychiatric disability, submitted after the April 2013 AOJ denial is not cumulative or redundant of evidence of record at the time of the prior denial, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The AOJ's April 2013 denial of the Veteran's service-connection claim for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104; 20.1103. 2. As additional evidence received since the AOJ's April 2013 denial is new and material, the criteria for reopening the claim for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1131, 5100, 5102, 5103, 5103A, 5107, 5108; 38 C.F.R. §§ 3.156, 3.159. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to December 1967, to include service in the Republic of Vietnam. He testified at a videoconference hearing before the undersigned in April 2021; a transcript is of record. Whether new and material evidence has been received to reopen the Veteran's service connection claim for PTSD. The AOJ last denied the Veteran's claims for service connection for PTSD in an April 2013 rating decision because the evidence of record failed to demonstrate a current disability. The Veteran did not appeal, nor did he submit new and material evidence within a year of the rating decision. As such, the April 2013 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Newly received evidence includes a June 2017 private opinion indicating a diagnosis of PTSD, an October 2017 VA examination, and the Veteran's VA treatment records. The Board finds that the evidence received constitutes new and material evidence under the provisions of 38 C.F.R. § 3.156, and his claims for service connection for PTSD are reopened. REASONS FOR REMAND Entitlement to service connection for PTSD is remanded. The Veteran asserts that his PTSD is a result of stressful combat-related experiences and fear of hostile military activity while serving in the Republic of Vietnam. During the pendency of the appeal the Veteran has reported numerous stressor events, including transporting supplies close to active combat and hearing gunfire and artillery close by, experiencing the fear of being overrun by enemy forces when conducting supply runs, and an incident of active combat where he was injured by shrapnel which struck his eye while taking cover with several other soldiers in a hole. See April 2021 Hearing Transcript. However, more information is needed to allow the Board to make a fully informed decision. While the Veteran obtained a diagnosis of PTSD from Dr. A.W., a private practitioner, in June 2017, her opinion relied solely on the Veteran's self-reports of traumatic in-service experiences. No VA examiner has diagnosed the Veteran with PTSD nor has VA attempted to corroborate his in-service stressors involving combat experience. See January 2013 VA examination; October 2017 VA examination; January 2018 VA addendum opinion. Consequently, information contained within the claims file is not sufficient to corroborate the Veteran's statements asserting combat with the enemy. Under 38 C.F.R. § 3.304(f)(3), where a stressor is related to the veteran's fear of hostile military activity, only a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted can confirm that the claimed stressor is adequate to support a diagnosis of PTSD. Moreover, the Board recognizes that absent objective evidence that the Veteran engaged in combat with the enemy, lay statements, alone, are not sufficient to establish the occurrence of an in-service stressor. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). Rather, in those cases, the record must contain service records or other corroborative evidence that substantiates the Veteran's testimony or statements as to the occurrence of a claimed stressor. 38 C.F.R. § 3.304; West v. Brown, 7 Vet. App. 70 (1994); Zarycki v. Brown, 6 Vet. App. 91 (1993). Based on the foregoing, the Board finds that remand is warranted to so VA may attempt to corroborate the Veteran's in-service stressors and so that the Veteran can be afforded a new VA examination. The matters are REMANDED for the following action: 1. Attempt to corroborate the Veteran's in-service stressors, including the combat incident described during the April 2021 videoconference hearing. If more details are needed, contact the Veteran to request the information. 2. After the Veteran's reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD). If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor and/or the Veteran's fear of hostile military or terrorist activity. In answering the posed question, the examiner must discuss the June 2017 private opinion obtained from Dr. A.W. diagnosing the Veteran with PTSD. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the Veteran's service in the Republic of Vietnam. The examiner should consider VA treatment reports noting diagnoses of anxiety (February 2018 VA Mental Health Outpatient Note) and depression and other specified trauma- and stressor- related disorder (February 2015 VA Mental Health Treatment Plan Note.) 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bristow Williams, 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.