Citation Nr: 23051243 Decision Date: 09/15/23 Archive Date: 09/15/23 DOCKET NO. 20-08 252 DATE: September 15, 2023 ORDER New and material evidence has been submitted to reopen the claim for service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). Entitlement to service-connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), is granted. REMANDED Entitlement to service-connection for hypertension is remanded. FINDINGS OF FACT 1. The Veteran did not timely appeal a December 2014 rating decision which denied service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). No new and material evidence was associated with the claims file within one year. 2. Evidence received since the December 2014 rating decision is new, relates to an unestablished fact necessary to substantiate the claim, and raises the reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). 3. The Veteran's psychiatric disability, to include posttraumatic stress disorder (PTSD), is related to an in-service event. CONCLUSIONS OF LAW 1. The December 2014 rating decision that denied service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), is final. 38 U.S.C. § 4005(c) (1970); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1975). 2. New and material evidence has been received to reopen the claim of service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.102. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active-duty military service to include some periods of active duty for training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The Veteran's claim for service connection is expanded and characterized as service connection for a psychiatric disability in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). In January 2022, the Veteran testified at a Board hearing before an Acting Veterans Law Judge who is no longer with the Board. In March 2023 the Board informed the Veteran that the Judge who heard his testimony was no longer with the Board. The Veteran was offered the opportunity to have another hearing. On March 28, 2023, the Board received a response from the Veteran stating he declined another hearing before a different Judge. The Board will adjudicate the appeal based on the evidence of record. New and Material Evidence To reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance, because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. At issue is whether the Veteran has submitted new and material evidence to reopen a previously denied claim for entitlement to service connection for a psychiatric disability. New and material evidence having been received, service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), is deemed reopened. In a final December 2014 rating decision, the RO denied entitlement to service connection for posttraumatic stress disorder (PTSD) because the Veteran failed to report for VA examination. The decision became final after the Veteran failed to submit additional evidence or file a notice of disagreement (NOD) within one year of notification of the decision. In November 2016, the Veteran re-claimed entitlement to service-connection for PTSD and expressed a willingness to report for examination, citing improved stability. Therefore, the evidence submitted since the last final decision to deny is new, material, and gives rise to a reasonable possibility of substantiating the Veteran's claim. The Veteran's claim for the service connection of a psychiatric disability, to include posttraumatic stress disorder (PTSD) is reopened. 38 C.F.R. § 3.156. SERVICE CONNECTION Entitlement to service-connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), is granted. The Veteran contends that he has PTSD caused by incidents experienced during service in Southwest Asia and being fired at with live rounds at a firing range during a period of active duty for training (ACDUTRA). The March 2017 VA examinations and February 2020 VA examinations both opted to not associate the Veteran's PTSD with the events that transpired during his service in Southwest Asia. The Board now considers the firing range incident that occurred during a period of ACDUTRA. Service connection may be granted for an injury or disease incurred or aggravated during a period of ACDUTRA. 38 U.S.C. § 101(24)(B); 38 C.F.R. § 3.6(a). ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Inactive duty training (IDT) is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Active duty also includes authorized travel to or from such duty or service. 38 C.F.R. § 3.6(e). ACDUTRA is not defined as "active" service unless the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty while performing ACDUTRA. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). IDT is not defined as "active" service unless the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Id. The Board concludes that the Veteran has a current disability that is related to an event that occurred during a period of ACDUTRA. 38 U.S.C. § 101; 38 C.F.R. §§ 3.6(a), 3.303(a). The Veteran's personnel records confirm a period of ACDUTRA for 15 days in September 1993. In April 2014 the Veteran asserted, "I was fired at with live rounds on the firing range. This was accidental. No one was killed but it has bothered me ever since." In an October 2017 statement the Veteran clarified the incident, "On one of the days we were conducting a foot patrol for this training, we had an incident of multiple live rounds engage in danger (sic) close proximity to my unit. There was another Air Force Security Forces Squadron firing live ammo on a nearby firing range." The Veteran estimated that this event took place in 1993 "around August or September." In March 2020, the Veteran submitted a buddy statement that corroborated the 1993 event and reiterated that the event occurred in "August or September". In January 2022 the Veteran submitted a 1993 newspaper article that mentioned an upcoming "two-week deployment" to the base. At the January 2022 Board hearing the Veteran described the 1993 incident at the base. When asked by his representative to clarify the dates, the Veteran testified to the dates of September 1993. As the lay evidence is deemed competent, credible, and consistent, the Board finds that the evidence demonstrates that the Veteran was near a friendly fire incident during a period of ACDUTRA in September of 1993. The Board now turns to whether the Veteran has a psychiatric disability that is related to this incident. Both the March 2017 and the February 2020 examination reports show a diagnosis of PTSD while indicating that the 1993 friendly fire incident contributed to the Veteran's PTSD. Indeed, the February 2020 examination report declares, "The psychological evaluation done in 2017 appears to be fairly reasonable, and I agree that it is at least as likely as not that his exposure to friendly fire (not a misfire) (in the context of his entire tenure in the service with police/security forces) units could have resulted in PTSD." After resolving any reasonable doubt in favor of the Veteran, the Board finds that service connection for a psychiatric disability is warranted. 38 U.S.C. §§ 101, 5107; 38 C.F.R. §§ 3.6(a), 3.102, 3.303(a); Lynch v. McDonough, 21 F.4th 776, 781-782 (2012) REASONS FOR REMAND Entitlement to service-connection for hypertension is remanded. The Veteran indicated that his hypertension may have onset during his service in the Air Force Reserves. The AOJ should attempt to verify the Veteran's period of active duty for training or inactive duty for training. The Veteran's claims file does not appear to accurately reflect all potentially qualifying periods of service in the Air Force Reserve. Specifically, the period of prior active-duty service shown on his DD214, for the period of active service from October 2001 to April 2003, is not consistent with the period of active service reflected in VA systems. A remand is required to ensure that all qualifying periods are accurately identified and appropriately developed. Also, the Veteran served after August 2, 1990, in the Southwest Asia theater of operations during the Persian Gulf War. As such, he is presumed to have a toxic exposure pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act). Thus, upon remand, the RO should provide a TERA examination. PACT Act of 2022, Pub. L. No. 117-168 (2022); 38 U.S.C. § 1168. The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service personnel records, to include all documents pertaining to his service in the Air Force Reserves. Verify all active duty for training and inactive duty training dates for alleged service in the Air Force Reserves. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. 2. Upon receipt of all the Veteran's service personnel records and the verification thereof, please conduct appropriate development to include an examination for hypertension and medical opinion, if deemed necessary. 3. Provide the Veteran a TERA examination for hypertension. The VA examination must consider the total potential exposure through all applicable deployments and the synergistic, combined effect of all TERAs involving the Veteran. The examiner must also provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that there is a nexus between the Veteran's claimed disability and the TERA. 38 U.S.C. § 1168(a). S. Sorathia Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Graham 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.