Citation Nr: 0425500 Decision Date: 09/16/04 Archive Date: 09/23/04 DOCKET NO. 03-17 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for post- traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Tracy Alsup, Associate Counsel INTRODUCTION The veteran had active duty service from May 1969 to March 1972. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in January 2003, a statement of the case was issued in February 2003, and a substantive appeal was received in June 2003. The Board notes that the substantive appeal was not received within 60 days of the statement of the case nor within one year of the rating decision; however, the RO accepted the appeal in its subsequent supplemental statement of the case and so does the Board. The Board, therefore, has appellate jurisdiction. See generally 38 U.S.C.A. § 7105 (West 2002). The issue of entitlement to service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. By a rating decision in November 1987, entitlement to service connection for PTSD was denied; and the veteran did not file a notice of disagreement. 2. Certain evidence received since the November 1987 rating decision is so significant that it must be considered to fairly decide the veteran's claim of service connection for PTSD. CONCLUSIONS OF LAW 1. The November 1987 rating decision which denied service connection for PTSD is final. 38 U.S.C.A. § 7105(c) (West 2002). 2. Evidence received since the November 1987 rating decision is new and material, and the veteran's claim of service connection for PTSD has been reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A claim by the veteran to reopen a claim for entitlement to service connection for PTSD was denied by a rating decision in November 1987. The veteran was advised of that determination and furnished notice of appellate rights and procedures, but a timely notice of disagreement was not received to initiate an appeal. That decision therefore became final. 38 U.S.C.A. § 7105(c). However, applicable law provides that a claim which is the subject of a prior final decision may nevertheless be reopened if new and material evidence is presented or secured. 38 U.S.C.A. § 5108. In October 2001, the appellant requested that the claim for service connection of PTSD be reopened. For claims received on or after August 29, 2001, 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 (2003). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Entitlement to service connection for PTSD was denied by the RO in November 1987 on the basis that there was no evidence on record of PTSD. There was nothing in service and the veteran failed to respond to a stressor verification letter and failed to report for a VA examination. Subsequent to the November 1987 decision, the veteran provided information about his alleged stressor on the VA Form 9 and the VA Form 646 and received a VA mental health examination in September 2003 indicating PTSD based upon history. Since these new items of evidence demonstrate some indication of PTSD and a rationale for its relationship to service, they are material and not cumulative. The veteran's claim for entitlement to service connection for PTSD has, therefore, been reopened. In closing, the Board acknowledges the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002) and implementing regulations at 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2003). The Board also acknowledges that various judicial decisions have addressed the notice and assistance requirement of VCAA. See generally See Quartuccio v. Principi, 16 Vet.App. 183 (2002); Charles v. Principi, 16 Vet.App. 370 (2002); Huston v. Principi, 17 Vet.App. 195, 202 (2003); Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003). However, the Board need not address whether there has been compliance with VCAA since any VCAA deficiencies will be remedied as a result of actions directed by the Board in the remand section of this decision. ORDER The veteran's claim of service connection for PTSD has been reopened. To this extent, the appeal is granted. REMAND Preliminary review of the record reveals that the veteran has not returned a PTSD stressor questionnaire, although one was sent to him. The veteran did provide some information about his stressor in service on his VA 9 Form and VA 646 Form. The information provided by the veteran, however, was not specific as to dates and locations. This specific information is needed to verify the claimed stressor. The Board also finds that it is necessary to search for additional service personnel records. The veteran's claimed stressor involves his service on board the USS MEEKER COUNTY (LST 980) and it is important to establish the dates the veteran was attached to the ship. Additionally, in the veteran's mental health examination of September 2003, the examiner noted "post-traumatic stress disorder by history". It does not appear the examiner diagnosed the veteran with PTSD based upon the examination. The Board feels another examination is necessary to determine whether a diagnosis of PTSD can be made. Accordingly, the case is hereby REMANDED for the following actions: 1. The RO should review the record and take any necessary action to ensure compliance with all VCAA notice and assistance requirements. The RO should ensure that the veteran is furnished proper notice in compliance with 38 C.F.R. § 3.159(b)(1), including notice of (a) the information and evidence not of record that is necessary to substantiate his claim, (b) the information and evidence that VA will seek to provide, (c) the information and evidence that the veteran is expected to provide, and (d) any evidence in the claimant's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet.App. 183 (2002); Charles v. Principi, 16 Vet.App. 370 (2002). 2. The RO should take appropriate action to obtain all the veteran's service personnel records, to include records regarding the dates he was stationed on the USS MEEKER COUNTY (LST 980). 3. The RO should again send a letter to the veteran requesting that the veteran provide the dates, location, and more details about the incidents stated in his VA Form 9 involving the USS MEEKER COUNTY (LST 980) coming under fire. 4. Assuming the veteran provides such information, the RO should forward copies of pertinent documents (the veteran's response and a copy of his VA Form 9) listing the veteran's assigned unit and claimed stressful events, as well as his dates of service, U.S. Armed Services Center for Research of Unit Records (CRUR). The RO should request that the CRUR provide, if possible, documentation verifying the veteran's participation in combat, as well as documentation verifying the occurrence of certain events claimed by him as stressors for his PTSD. All information supplied by CRUR should be associated with the claims file. 5. If, and only if, a claimed stressor is verified, the veteran should be scheduled for a special VA PTSD examination. The examiner should be informed as to which stressor or stressors have been verified or are presumed verified because of combat. The examiner should indicate whether the diagnostic criteria to support a diagnosis of PTSD have been satisfied. The examiner should utilize the Fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV), in arriving at diagnoses and enumerating the specific diagnostic criteria satisfied and the specific findings meeting the criteria for any disorder found. If PTSD is diagnosed, the stressor(s) supporting the diagnosis must be identified, including the evidence documenting the stressor. If the examiner find that PTSD is related to stressors other than those claimed to have occurred in service, it should be so noted and explained. If PTSD is diagnosed, the examiner should specify what symptoms are related to PTSD as opposed to any other psychiatric disorders. The claims file should be reviewed by the examiner in connection with the examination. 6. After completion of the above the RO should review the expanded record and determine if the benefit sought can be granted. If the benefit remains denied, the veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded and opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant and his representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2