Citation Nr: 22017229 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 19-37 541 DATE: March 24, 2022 ORDER The petition to reopen previously denied claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), unspecified anxiety disorder (anxiety), and moderate recurrent major depression (depression) (previously claimed as nervous condition/chronic psychiatric disability), is granted. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression, is granted. FINDINGS OF FACT 1. The Board of Veterans' Appeals (Board) denied service connection claim for a chronic psychiatric disability in its September 1982 decision. 2. The evidence received since the September 1982 Board decision is new and material and relates to an unestablished fact necessary to substantiate the claim for service connection of an acquired psychiatric disorder. 3. Resolving reasonable doubt in favor of the Veteran, his acquired psychiatric disorder is related to his military service, to include his combat in the Republic of Vietnam. CONCLUSIONS OF LAW 1. Evidence received since the September 1982 Board decision is new and material and the claim for service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.303, 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1969 to May 1971. His awards include, among many, Vietnam Service Medal, Combat Infantry Badge, Bronze Star Medal, and Army Commendation Medal with "V" Device. This matter comes before the Board on appeal from June 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran offered testimony at a Board hearing before the undersigned Veterans Law Judge (VLJ) in March 2022. This decision is being prepared under the Board's "one-touch" program, and a transcript of the Veteran's hearing is not yet available. The transcript will be added to the Veteran's file under the normal course of business. Because the appeal is being granted, there is no prejudice to the Veteran. To more accurately reflect the scope of the Veteran's claim, the issue has been recharacterized as shown on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression Service connection for a nervous condition was denied in an August 1980 rating decision on the basis that there was no permanent disability incurred or aggravated in service. The Veteran appealed this determination to the Board. See November 1980 VA Form 9. In September 1982, the Board denied the Veteran's service connection claim for a chronic psychiatric disability. The September 1982 Board decision is final and new and material evidence is required to reopen the claim. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. The Veteran submitted a petition to reopen his claim in April 2018. The present claim for service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression, is based on the same symptoms and etiology reported by the Veteran in connection with his previous claim for service connection for nervous condition/chronic psychiatric disability. Valez v. Shinseki, 23 Vet. App. 199, 204 (2009); Boggs v. Peake, 520 F.3d 1330, 1335-36 (2008). Thus, the acquired psychiatric disorder, to include PTSD, anxiety, and depression, claim presently on appeal is a continuation of the Veteran's previous claim of service connection for nervous condition/chronic psychiatric disability and new and material evidence is required to reopen the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. At the time of the September 1982 Board decision, the pertinent evidence of record included service treatment records (STRs), service records, VA treatment records, an October 1980 "buddy statement," August 1981 VA examination, and May 1982 statement from the Veteran's representative. Since the September 1982 Board decision, October 2018 VA examination, February 2022 private opinion by Dr. J.C., and March 2022 Board hearing testimony have been added. As this evidence was not before the VA or considered in the prior denial, it is new. This evidence is also material as it relates to an unestablished fact necessary to substantiate the claim, namely, evidence of a present disability and a potential link between the Veteran's disability and his active military service. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. As such, new and material evidence has been received, and the request to reopen the prior denial is granted. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression Upon review of the evidence of record, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection for PTSD requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of such veteran's service, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As noted, the Veteran was awarded the Vietnam Service Medal, Combat Infantryman Badge, and Army Commendation Medal with "V" Device. Accordingly, the Board finds that he engaged in combat with the enemy. The Veteran underwent a VA mental health examination in May 2018, during which he reported that "he enjoyed his experiences in Vietnam, enjoyed the adrenaline and did not fear for his life." The examiner diagnosed the Veteran with an unspecified anxiety disorder and opined that his symptoms are less likely than not a result of an in-service stressor related event. The examiner based this opinion on the fact that the Veteran does not have symptoms that meet full criteria for a diagnosis of PTSD and there is no evidence that his anxiety symptoms have been continuous since his service in Vietnam. A review of the Veteran's STRs shows complaints and treatment for nervousness and anxiety. See December 1970 STR. A May 1980 post-service treatment record shows that the Veteran reported experiencing nervousness and shaking for the past 8-9 years. He reported first experiencing his symptoms during service in Vietnam, when one of soldiers under his command, and a close buddy, stepped on a booby trap and was killed. VA treatment records show complaints of and treatment for mental health diagnoses. Specifically, during a January 2018 initial psychiatric evaluation, a VA psychiatrist diagnosed the Veteran with PTSD following military combat, moderate recurrent major depression, and anxiety. The VA psychiatrist noted that the Veteran's symptoms are a result of his combat service in Vietnam. A history of mental health issues was noted, to include a pattern of excessive drinking of alcohol and anxiety resulting in hospitalization post-service. A February 2022 private opinion from Dr. J. C. is also of record. Dr. J. C. noted that the Veteran has been a patient of hers for over 15 years and during that time she has been treating him for PTSD, anxiety, and depression, as a direct result of his service in Vietnam. In his March 2022 correspondence, the Veteran reported being treated for his psychiatric disorder by another doctor prior to being under Dr. J. C.'s care. Although the May 2018 VA examiner opined that the Veteran did not have a current diagnosis of PTSD and his anxiety is not related to his military service, other probative medical evidence of record shows current diagnoses of PTSD, anxiety, and depression. As noted, the evidence also shows that the Veteran engaged in combat with the enemy during his service in Vietnam and that his psychiatric disorder is attributable to service. See January 2018 psychiatric evaluation; see also February 2022 statement from Dr. J.C. Based on the foregoing, resolving all reasonable doubt in the Veteran's favor, the Board finds that his acquired psychiatric disorder, to include PTSD, anxiety, and depression is related to his verified combat service. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.304(f); see also Gilbert, supra. Accordingly, the appeal is granted. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Kuzniar, 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.