Citation Nr: 23039261 Decision Date: 07/15/23 Archive Date: 07/15/23 DOCKET NO. 09-27 157 DATE: July 15, 2023 ORDER New and material evidence having been received, the previously denied claim for service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), is reopened. Service connection for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. New and material evidence has been submitted to substantiate the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD. 2. The Veteran has been diagnosed with PTSD by a VA psychologist based on his fear of hostile military or terrorist activity. CONCLUSIONS OF LAW 1. The criteria for reopening the previously denied claim for service connection for PTSD have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1966 to June 1969, with service in Vietnam. During the pendency of his claim, in March 2011, the Veteran unfortunately passed away. His widow has since been recognized as the appropriate substitute. She is referred to as the Appellant. In connection with this appeal, the Appellant testified at a Board hearing. The Veteran first filed for service connection for PTSD in October 1998, which was denied in an August 1999 rating decision. The Veteran did not timely appeal this decision, and it became final. In September 2004, the Veteran filed a request to reopen his previously denied claim. A May 2005 rating decision denied his claim. The Veteran did not timely appeal this decision, and it became final. In November 2006, the Veteran submitted a new claim for service connection for PTSD. In June 2007, the Agency of Original Jurisdiction (AOJ) issued a rating decision finding that the Veteran's claim for service connection for PTSD remained denied because the evidence he submitted was not new and material. New and Material Evidence Generally, a final decision issued by the agency of original jurisdiction (AOJ) may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c), (d)(3). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim 38 U.S.C. § 5108. Here, as stated above, the Veteran's claim for service connection for PTSD was initially denied in August 1999, and then again in May 2005. A June 2007 rating decision found that no new and material evidence had been submitted to reopen the claim, and the prior denial was continued. In May 2009, the AOJ issued a statement of the case (SOC) finding that no new and material evidence was submitted to reopen the previously denied claim. The pertinent evidence received since the previous denials includes testimony from the Appellant, who stated that the Veteran experienced nightmares, did not like being in crowded areas, that he often sought treatment from a psychologist, and that he saw a lot of children die in Vietnam. These statements are presumed credible for the limited purpose of considering whether to reopen the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Thus, as this evidence was not previously reviewed by the prior adjudicators, it constitutes both new and material evidence. As new and material evidence has been received, the claim for service connection for an acquired psychiatric disorder, to include PTSD, is reopened. Service Connection The Veteran's service treatment records do not show any complaints of or treatment for any psychiatric conditions. His military personnel records show that he received the Air Medal in 1968 for meritorious achievement while participating in aerial flight. As such, his combat exposure is conceded. The Veteran underwent a VA examination in July 1999 where he reported that he had psychiatric symptoms since returning from service, and that he was different after being in Vietnam. The Veteran's post-service VA treatment records show that he was diagnosed with PTSD based on his Vietnam experiences by a VA psychologist in 2006. As such, the evidence shows that he has a confirmed diagnosis of PTSD based on his fear of hostile military or terrorist activity rendered by a VA psychologist. Thus, he meets the criteria for service connection for PTSD and the claim is granted. See 38 C.F.R. § 3.304(f) MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Elizabeth A. Gadson, 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.