Citation Nr: 22012004 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 20-03 316 DATE: March 2, 2022 ORDER New and material evidence having been presented, the Veteran's claim for entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened. Entitlement to service connection for PTSD is granted, subject to the laws that govern the payment of monetary benefits. FINDINGS OF FACT 1. In a final May 2008 rating decision, the Veteran was denied entitlement to service connection for PTSD. 2. The evidence received since the May 2008 rating decision is not merely cumulative and redundant of the evidence of record and does raise a reasonable possibility of substantiating the claim. 3. Resolving doubt in the Veteran's favor, his PTSD is related to his active duty service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Rating Decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a hearing in July 2021. A copy of the transcript is of record and has been reviewed accordingly. New and Material Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran initially filed a claim of service connection for PTSD in February 2008. In a May 2008 rating decision, he was denied service connection for PTSD based on a finding that there was no showing of any current disability. The Veteran expressed disagreement with that decision in May 2008 and was provided with a statement of the case in February 2009, but did not perfect an appeal of that decision and it became final in May 2009. In October 2017, the Veteran filed a petition to reopen the previously denied claim of entitlement to service connection for PTSD. In a December 2017 rating decision, the RO reopened the Veteran's claim, but denied it on the merits, again finding that the Veteran had not presented sufficient evidence of a current disability. The evidence that has been added to the record since the May 2008 rating decision includes the report of a November 2017 VA examination; private treatment records from January 2017, showing a diagnosis of PTSD and treatment of that condition throughout 2017 to 2018; and additional statements from the Veteran, particularly to include his July 2021 Board Hearing testimony in which he indicated that he had been treated for PTSD since 2017 and that his diagnosis had been based upon his military stressors as serving as a helicopter crewman during service in Vietnam. The Board notes that this evidence is new, as it has not been previously considered. Additionally, such evidence is found to be material, as it addresses a pertinent fact that was in issue in the last denial, namely that there was no current PTSD disability that was related to military service. Accordingly, the evidence is not merely cumulative and redundant of what has previously been received and reviewed and, at the very least, raises the possibility of substantiating the Veteran's claim. As new and material evidence has been found to be presented in this matter, the Veteran's claim is reopened. Service Connection The Veteran contends that he has a PTSD diagnosis which is related to stressors in service. Specifically, the Veteran has reported that during the performance of his duties in Vietnam as a helicopter crewman, he often engaged with the enemy, both firing upon and taking fire; witness much death and destruction; and felt an overall sense of dread. His contentions are further supported by his DD 214, showing his assignments in various respects with air units in Vietnam as well as receipt of medals, namely a Vietnam Service Medal with Bronze Service Star Device as well as the Air Medal with 7 oak leaf clusters indicating the nature of his service as he described it. As such, the Board finds that the Veteran's in-service stressors are credible and are, thus, conceded. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and a stressor event during active service; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). As provided by 38 U.S.C. § 1154 (a), VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. With specific regard to lay evidence, the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). For example, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Regarding nexus, although without describing specific situations, the Federal Circuit also has explicitly rejected the view that medical evidence is necessarily required when the determinative issue is etiology. See id., at 1376-77. In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Where there is an approximate balance of positive and negative evidence regarding the merits of any outstanding issues, VA is statutorily required to resolve any doubt in favor of the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran's service treatment records (STRs) are silent as to any psychiatric disorders. Both his entrance and separation exams were negative for any psychiatric disorders and there are no records indicating he sought help or treatment for any psychiatric symptoms during service. At the Veteran's Board hearing, he testified that it took many years for symptoms of his condition to manifest after leaving military service, although indicating that he may have been experiencing symptoms at that time that were, unbeknownst to him, a result of his Vietnam experiences that he was just suppressing. He indicated that, within the past 5 years, he began regular treatment and received a diagnosis of PTSD that was based upon his military stressors. In this regard, he testified that his treatment has focused on overcoming his reactions to these stressors. VA and private medical records indicate that the Veteran has been diagnosed to have several psychiatric disabilities, to include PTSD. It appears that PTSD has been treated regularly since at least 2017. In a January 2017 private record, the Veteran's providers, diagnosed the Veteran to have PTSD and began a treatment regimen addressing it. At the initial assessment as well as in subsequent treatment sessions throughout 2017 to 2018, the Veteran and his providers have discussed his PTSD within the context of his military stressors, particularly focusing on his combat experience as a helicopter crewmember. VA treatment records show that in 2015, the Veteran had a positive screen for PTSD, and in early 2016, was characterized as subclinical for PTSD, but shortly thereafter, his diagnosis came to include PTSD. VA treatment records from 2019, continue to include PTSD as a diagnosis. At a November 2017 VA examination, the examiner diagnosed an unspecified anxiety disorder and unspecified depressive disorder, finding that the Veteran did not meet the criteria for stressor and symptoms under the diagnostic criteria. Specifically, the examiner found that the Veteran did not suffer from recurring thoughts of Vietnam and actually brought up recollections of these purposefully and for enjoyment. It was opined that the other identified psychiatric disorders were unrelated to military service due to no mention of treatment during military service and no consistent report of ongoing mental health problems since service, as would otherwise support a nexus with service. After thorough review of the evidence, the Board finds that service connection for PTSD is warranted. As noted above, service connection for PTSD requires a current diagnosis, a link between current symptoms and a stressor during service; and finally, credible evidence that the claimed in-service stressor occurred. The record shows psychiatric diagnoses, including PTSD. Although the November 2017 VA examiner expressed the view the Veteran did not have PTSD, and offered cogent reasons for that conclusion, as indicated above, the Veteran's treatment providers who necessarily have more regular contact with the Veteran are of the view he has PTSD. In the Board's view, the evidence of a current diagnosis of PTSD is at the very least in equipoise, as there is competent favorable evidence from the Veteran's treatment providers and competent unfavorable evidence from the 2017 VA examiner. As such, resolving doubt in the Veteran's favor, the Board finds that the Veteran does have a current diagnosis of PTSD. As previously discussed above, the Veteran also has a conceded stressor. Regarding a link between current symptoms and a stressor during service, the private records have indicated that the Veteran directly experienced a traumatic event serving as a helicopter crewman in Vietnam. The Veteran has consistently and credibly reported that he developed psychiatric symptoms that stem from re-experiencing these events via flashbacks, nightmares, and intrusive thoughts. Military records indicate that the claimed stressor is consistent with the Veteran's military occupational specialty, dates, and scope of his duties. Therefore, resolving all reasonable doubt in the Veteran's favor, service connection for PTSD is granted. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.