Citation Nr: A23005122 Decision Date: 03/15/23 Archive Date: 03/15/23 DOCKET NO. 200212-75568 DATE: March 15, 2023 ORDER New and relevant evidence has been received to readjudicate the claim for entitlement to service connection for posttraumatic stress disorder (PTSD). Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. A February 2016 rating decision denied the claim of entitlement to service connection for PTSD; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period, and that decision is now final. 2. The evidence received since the February 2016 rating decision, when considered by itself or in connection with evidence previously assembled, is new and relevant to the Veteran's claim for entitlement to service connection for PTSD. 3. The most probative evidence of record shows that the Veteran's PTSD is related to military service. CONCLUSIONS OF LAW 1. The February 2016 decision denying service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103. 2. New and relevant evidence sufficient to readjudicate the claim for service connection for PTSD has been received. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for service connection PTSD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1965 to June 1985. The new and material evidence issue regarding service connection for PTSD has been recharacterized to reflect the proper evidentiary standard. 38 C.F.R. §§ 3.2501 (a)(1), 19.2. Regarding this issue, a rating decision was initially issued under the legacy appeals system in February 2016. The Veteran subsequently sought to reopen the claim in September 2017. In December 2017, the Agency of Original Jurisdiction (AOJ) determined that new and material evidence had not been submitted. In January 2020, the AOJ issued a Statement of the Case (SOC). The Veteran appealed that decision directly to the Board of Veterans' Appeals (Board) and opted the claim into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a February 2020 VA Form 10182, Decision Review Request: Board Appeal, identifying the January 2020 SOC. Therefore, the January 2020 SOC is the decision on appeal. See 38 C.F.R. § 19.2 (d). In the January 2020 VA Form 10182, the Veteran elected the Hearing with a Veterans Law Judge docket. Therefore, the Board may only consider the evidence of record at the time of the January 2020 SOC, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302 (a). In August 2022, the Veteran testified at a virtual hearing before a Veterans Law Judge. A copy of the transcript is associated with the evidentiary record. New and Relevant Evidence Generally, a final and unappealed decision issued by the AOJ or a decision from the Board may not thereafter be readjudicated and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). An exception exists if new and relevant evidence is presented or obtained with respect to a claim which has been disallowed; then, VA shall readjudicate the claim taking into consideration all of the evidence of record. 38 U.S.C. § 5108. "New evidence" means evidence not previously part of the actual record before agency adjudicators. "Relevant evidence" means information that tends to prove or disprove a matter at issue in a claim and includes evidence that raises a theory of entitlement that was not previously addressed. The Board notes that because the statutory definition of "relevant" does not require that the evidence relate to an unestablished fact necessary to substantiate the claim, or raise a reasonable possibility of substantiating the claim, "new and relevant" evidence is a lower standard than the former "new and material" evidence standard. 1. Whether new and relevant evidence was presented to warrant readjudicating a claim for service connection for PTSD. A February 2016 rating decision denied service connection for PTSD based on the determination that the claimed stressor could not be corroborated and that without verifiable in-service stressor information, corroboration of the in-service stressor could not be conducted. The Veteran did not appeal the February 2016 rating decision and no further evidence was received within the applicable appeal period. See 38 C.F.R. § 3.156 (b). As such, the February 2016 rating decision became final. Evidence received since the February 2016 rating decision includes a March 2017 VA examination report finding that the Veteran's PTSD stressor was related to his fear of hostile military or terrorist activity. The evidence constitutes new evidence as it was not previously part of the actual record before agency adjudicators, and it is relevant because it tends to prove or disprove a matter at issue in a claim. Accordingly, reopening of the claim of service connection for PTSD is warranted. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM). 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 the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(2). If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304 (f). 2. Entitlement to service connection for PTSD The Veteran claims that his PTSD is due to military service. In relevant part, the Veteran has alleged that he endured several in-service stressors including that his brother was killed in Vietnam shortly after he joined the military and that he witnessed a fellow service member's finger being cut off and noted the stressors of serving on missions aboard the U.S.S. Sirago. As an initial matter, the Board notes that the Veteran's DD Form 214 shows that he served aboard the U.S.S. Sirago. Additionally, the Veteran's service treatment records show that his brother was killed in Vietnam from combat action and, in January 2019 Correspondence, VA conceded that the Veteran served as a pall bearer or alternatively escorted his brother's body to the funeral. The Veteran was afforded an Initial Post-Traumatic Stress Disorder (PTSD) DSM V Disability Benefits Questionnaire in March 2017. The examiner noted a diagnosis of PTSD that conformed to the DSM-5 criteria based on the evaluation. The Veteran continued to describe his in-service stressors, to specifically include that he witnessed a young man's fingers being cut off after being caught in a hatch and that shortly after joining the military, his brother was killed in Vietnam. The examiner noted that both stressors were related to the Veteran's fear of hostile military or terrorist activity. Additionally, the examiner opined that the Veteran's PTSD was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran's service personnel records showed that he transported the remains of his brother and that the Veteran's similarly reported that he transported his brother's remains back home. The examiner also reasoned that the Veteran's outpatient treatment records showed a diagnosis of PTSD and that because he had no history of a mental condition prior to service, his diagnosed PTSD was at least as likely as not caused by the fear of military hostility and terrorist activity and transporting the remains of his brother during service. Thus, the examiner concluded that the Veteran's claimed stressor caused his subsequent PTSD diagnosis. The Board affords probative weight to this opinion as it is consistent with and supported by the evidence of record. Further, there are no medical opinions of record to the contrary. (Continued on next page) Accordingly, as the evidence of record shows the Veteran has a current diagnosis of PTSD that is associated with an in-service stressor, consistent with the places, types, and circumstances of his military service, which is related to fear of hostile military activity, entitlement to service connection for PTSD is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Wimbish, 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.