Citation Nr: 0806344 Decision Date: 02/26/08 Archive Date: 03/03/08 DOCKET NO. 05-16 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been submitted to reopen the veteran's claim for entitlement to service connection for post-traumatic stress disorder (PTSD); and if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and WRC, Esq. ATTORNEY FOR THE BOARD A. A. Booher, Counsel INTRODUCTION The veteran had active service from June 1989 to July 1991. He was born in 1971. This appeal to the Board of Veterans Appeals (Board) is from actions taken by the above Department of Veterans Affairs (VA) Regional Office (RO) in September 2003. In December 1997, the VARO denied the veteran's initial claim for service connection for PTSD on the basis that he had failed to report for a VA examination to clarify and/or confirm a diagnosis of PTSD, and there was a lack of confirmed stressors. He did not file a timely appeal, and hence that decision was final. He requested reopening of the claim in July 2001. In March 2002, the VARO denied the claim on the basis of there not being new and material evidence to reopen. However, in September 2003, the VARO found that, with a recent diagnosis of PTSD, new and material evidence had in fact been submitted and had reopened the claim, but then denied the claim on the substantive merits. The veteran and WRC provided testimony before the undersigned Veterans Law Judge at the VARO on a Travel Board in May 2007; a transcript is of record. The issue of service connection for PTSD, on the merits, is herein REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will provide notification when further action is required on the part of the veteran. FINDINGS OF FACT 1. In an December 1997 rating decision, the RO denied service connection for PTSD; that decision was not appealed, and became final. 2. The additional evidence added to the record since the December 1997 decision, by itself and/or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the appellant's claim for service connection for PTSD, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW Evidence received since the final December 1997 VARO determination wherein the RO denied service connection for PTSD is new and material, and the appellant's claim is reopened. 38 U.S.C.A. §§ 5104, 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.1103 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159, 3.326(a) (2007). Given the favorable decision with regard to whether new and material evidence has been submitted, as discussed below, the Board finds that any issue with regard to the timing or content of the VCAA notice provided to the veteran is moot or represents harmless error. II. Applicable Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 2002). The Court has held that, in order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of incurrence or aggravation of a disease or injury in service; and (3) medical evidence of a nexus between the claimed in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999). To establish entitlement to service connection for PTSD in particular requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in- service stressor. 38 C.F.R. § 3.304(f) (2007). See also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). Pursuant to 38 C.F.R. § 3.304(f), the relevant criteria require that a PTSD diagnosis must be established in accordance with 38 C.F.R. § 4.125(a), which mandates that for VA purposes all mental disorder diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM- IV). In this regard, the Board notes that the Court of Appeals for Veterans Claims has taken judicial notice of the mental health profession's adoption of the DSM-IV as well as its more liberalizing standards to establish a diagnosis of PTSD. Specifically, the Court took notice of the change in criteria from an objective requirement that a stressor "would evoke significant symptoms of distress in almost anyone" in assessing whether a stressor is sufficient to trigger PTSD, to a subjective standard which requires that "the person's response to the stressor involve intense fear, helplessness, or horror). Hence, the Court noted that a more susceptible person could have PTSD under the DSM-IV criteria given his or her exposure to a traumatic event that would not necessarily have the same effect on "almost everyone." Cohen, 10 Vet. App. 128, 140-41 (1997). Furthermore, the pertinent regulation provides that if the evidence establishes that the 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. See 38 C.F.R. § 3.304(f)(1). The type of evidence required to establish that the claimed in-service stressors actually occurred depends on whether the veteran "engaged in combat with the enemy." 38 U.S.C.A. § 1154(b) requires that the veteran have actually participated in combat with the enemy, meaning participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and does not apply to veterans who served in a general "combat area" or "combat zone" but did not themselves engage in combat with the enemy. See VAOPGCPREC 12-99 (Oct. 18, 1999). If VA determines that the veteran engaged in combat with the enemy and that his alleged stressor is related to combat, then the veteran's lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f). No further development or corroborative evidence is required, if the claimed stressor is "consistent with the circumstances, conditions, or hardships of the veteran's service." Id. Corroboration of every detail, including the veteran's personal participation, is not required; rather, the veteran only needs to offer independent evidence of a stressful event that is sufficient to imply his or her personal exposure. Suozzi v. Brown, 10 Vet. App. 307 (1997). See also Pentecost v. Principi, 16 Vet. App. 124 (2002). In considering and applying the relevant legal requirements for service connection for PTSD, it preliminarily warrants discussion that the record substantiates the reasonable likelihood of a current medical diagnosis of PTSD, and thus the determinative issue is that of whether PTSD has been objectively found to be etiologically linked with one or more confirmed stressors. See 38 C.F.R. § 3.304(f). New and material evidence means evidence not previously submitted to agency decision makers which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, which is neither cumulative nor redundant, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2007). See Hodge v. West, 155 F.3d. 1356 (Fed. Cir. 1998). Evidence which is solely cumulative or repetitious in character will not serve as a basis for reconsideration of a previous decision. Moreover, Hodge stressed that under the regulation new evidence could be material if that evidence provided "a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge, supra, at 1363. The Board notes that, effective August 29, 2001, changes were made to 38 C.F.R. § 3.156(a), which defines new and material evidence. Since the appellant's request to reopen his claim was initially filed thereafter, the new language of 38 C.F.R. § 3.156(a) will be applied. To whatever extent the new regulation has changed the approach to developing evidence in claims, it has not modified the longstanding requirement that a previously denied claim may not be reopened and readjudicated unless, and until, there has been a finding that new and material evidence has been submitted. Before the Board may reopen a previously denied claim, it must conduct an independent review of the evidence to determine whether new and material evidence has been submitted sufficient to reopen a prior final decision: "[T]he Board does not have jurisdiction to consider a claim which [has been] previously adjudicated unless new and material evidence is present, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g Barnett v. Brown, 8 Vet. App. 1 (1995); see Butler v. Brown, 9 Vet. App. 167, 171 (1996); 38 U.S.C.A. §§ 5108, 7104(b). Furthermore, if the Board finds that new and material evidence has not been submitted, it is unlawful for the Board to reopen the claim. See McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The claim will be reopened if new and material evidence is submitted. 38 U.S.C.A. §§ 5103A(f), 5108; 38 C.F.R. § 3.156(a). If the Board determines that the evidence is new and material, the case is reopened and evaluated in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In making this determination, the Board must look at all of the evidence submitted since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273 (1996). In the present case, this means that the Board must look at all the evidence submitted since the 1997, which was the last final adjudication which disallowed the veteran's claim. The appellant's claim initially turns upon the legal issue as to whether any of the evidence submitted since 1997 is new and material as to the central issues of verification of stressors, chronicity of disability, and current diagnosis. At the time of the 1997 VARO action, there was an absence of verified stressors, as well as absence of a definitive diagnosis of PTSD. Since then, the evidence submitted has included extensive evidence with regard to (1) the veteran's in-service stressors; and (2) diagnoses of several acquired psychiatric problems, including PTSD. This evidence presented in the aggregate in this case since 1997 is new, in the sense that it was not previously of record. And, when considered with the previous evidence of record, it relates to unestablished facts necessary to substantiate the claim, which is neither cumulative nor redundant, and which raises a reasonable possibility of substantiating the claim. Therefore, the Board finds that the evidence received in conjunction with the service connection claim for PTSD is new and material. Having found that the evidence is new and material, further adjudication of the claim on the merits is warranted. 38 U.S.C.A. § 5108; Kehoskie v. Derwinski, 2 Vet. App. 31 (1991). Prior to the Board considering the claim on the merits, however, additional developmental action is required, and will be addressed in the Remand below. ORDER New and material evidence has been submitted, and the claim for entitlement to service connection for PTSD is reopened. To this extent only, the appeal is granted. REMAND I. Evidence of Stressor(s) to Support PTSD Diagnosis The appellant, a Persian Gulf War veteran, had active service from June 1989 to July 1991. His DD Form 214 reflects that he had 4 months and 14 days of overseas service, and served for 1 year and 9 months as a Cavalry Scout. His awards and decorations included recognition as a sharpshooter with the M-16 rifle and an expert with the hand grenade. His last duty assignment was with B Troop, 1/4th Cavalry, 1st Infantry Division [the "Big Red One"], FORSCOM. His association with that unit has been conceded by the VARO. His revised separation document, DD Form 215, reflects that the veteran was authorized the Southwest Asia Service Medal with 3 Bronze Service Stars, and the Kuwait Liberation Medal, for service in the Southwest Asia (SWA) theater of operations from December 30, 1990, to May 12, 1991. Extensive statements are of record from the veteran and his service comrades and associates. Also of record are copies of unit histories, lessons learned, and extensive documents, maps, and other data associated with the actions by the designated Army division during its deployment in SWA. He has provided Army-generated data with regard to the duties of the Cavalry Scouts. His family has described his behavior on return from the Gulf. He has also obtained and submitted extensive documentation from service department units designated to research and confirm stressors for VA. The veteran has also submitted personal letters (and has indicated he has the accompanying envelopes and timely postmarks) that he wrote when he was in the combat zone, along with internet maps reflecting his locations. He has detailed the vehicles in which he was the driver and those with which he served, e.g., Bradley as well as Abrams Fighting Vehicles, in the spearhead of the ground assault as well as during the screening line. He has described a number of incidents, including the platoon taking and returning fire, and the capture of the first enemy flag; a fratricide incident involving an Apache helicopter and two infantry vehicles; witnessing deaths including of innocents, screaming, and burning of bodies and vehicles; close-up firing at and killing of some Iraqi troops although they seemed to be waving white flags in an attempt to surrender, etc. The veteran has explained that he was not awarded a combat infantryman badge (CIB) because he was not technically assigned to the Infantry, and it is only infantry personnel to whom that award may be given (and he has both cited and provided copies of pertinent official and unofficial criteria for the award in support of that statement). However, he avers, and he has submitted documentation of several sorts to confirm, that officers and NCO leaders of the several hundreds of troops in the units were recognized throughout for their combat service. A longtime Army veteran and lawyer testified on behalf of the veteran that the CIB is an infantry-only award, not given to Scouts even when they serve with the infantry. KMS, in a statement in January 2007, confirmed that he had served with the veteran from the time they were in Basic Training, in Advanced Individual Training as a roommate, and in the Gulf during Operations Desert Shield/Storm (and attached the Order 173-179 reflecting that the veteran had so been assigned, dated September 7, 1989, out of Ft. Knox, KY, and reassigned to the 1st Infantry Division there). They were also assigned as Cavalry Scouts with the same platoon at Ft. Riley, KS. He said the veteran had been deployed to Southwest Asia on January 1, 1991, and was with the unit for the entire time of their deployment. Mr. S had been assigned as a driver with the Bravo Troop, and as part of the training room staff he was able to confirm that the veteran was also a part of the unit and listed on the Troop Alpha Roster. Mr. S confirmed that in his job he had hand-carried the personnel records on the flight to the Saudi Arabia. He said that during their deployment he and the veteran had served in reconnaissance for the VIIth Corps and served with the stationary screen at the Iraq border. Their unit had conducted the initial breach into Iraq, and led the "left hook" through Iraq and into Kuwait. They had also blocked the "Highway of Death" for one night without ground support; were tasked with securing the airfield at Safwan, Iraq, for the Peace Talks; and conducted checkpoint operations in Iraq. Mr. S said he could confirm that the veteran was a combat veteran, having been present with the unit for the above activities and involved in both direct and indirect engagements with the enemy. The veteran had specifically been assigned to a combat maneuver platoon throughout the deployment, as a driver of an M3 Cavalry Fighting Vehicle. This assignment was part of his MOS as a 19D10D3 Cavalry Scout (also confirmed in documents associated with the claims file). It therefore appears that the veteran was assigned to one or more units which led the entry into the Persian Gulf combat operations, and those units are documented by military records as being engaged in combat operations at numerous levels. The veteran was affirmatively described as having been assigned to duty with a unit at the time when it was actively engaged in such combat. In addition, as a Cavalry Scout, it certainly could have been his duty to participate in some of those activities, and actual direct proof of such involvement or participation would not be required given his verified presence thereat. See Pentecost v. Principi, supra (holding that a veteran need not substantiate his actual presence during the stressor event, but that the fact that the veteran was assigned to and stationed with a unit that was present while such an event occurred may strongly suggest that he was, in fact, exposed to the stressor event); see also Suozzi v. Brown, supra. Nonetheless, in this case, it is noted that both he and others in the unit confirm his (and their and the unit's) actual presence during such combat activities. In essence, the Board concludes that the appellant's MOS and associated history are entirely consistent with his claims as to the actual circumstances of his service, as contemplated under 38 C.F. R. § 3.304 and Pentecost. In essence, the veteran has described being a part of one of the forward-most ground units of the Gulf War wherein he witnessed both combat itself and other stressful situations, and the Board finds that his contention in that regard is credible. As the veteran is shown to have been present with units actively engaged in combat operations, and because his assertion that he had direct involvement in those operations is reasonably supported by the evidentiary record, the Board finds for the purposes of this decision that he engaged in combat with the enemy within the regulatory parameters of definitions relating to such activities. Consequently, his lay statements alone are enough to establish the occurrence of the alleged stressor(s). See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The record need not contain other credible evidence to corroborate exposure to a stressor event. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f); Gaines v. West, 11 Vet. App. 353, 357-58 (1998). II. Evidence of Clear PTSD Diagnosis With the issue of stressor(s) having been resolved above, the remaining questions are whether the veteran actually suffers from PTSD or some other psychiatric disorder(s), and whether there is a link between current symptomatology and the claimed in-service stressor(s). The veteran was separated from active service in July 1991. In November 1995, he presented for VA medical care complaining of depression of 11/2 years' duration. The initial impression was of depression. When seen on several occasions in December 1995, he described dreams of combat. Depression, mild PTSD, and a "bashful bladder" problem (he could not urinate in public) were noted. In a May 1996 intake note, he was assessed with major depression. A VA PTSD examination was also performed in May 1996, and the examiner reported "some elements of [PTSD], with feeling of survivor guilt as the most prominent symptom that is evident," and said it could be "called a reactive depression, related to unresolved guilt." Because the above report was unclear as to the diagnosis, the RO requested a new examination, in October 1996, which diagnosed major depression in Axis I, PTSD in Axis II, and urinary hesitancy in Axis III. Persian Gulf Clinic notes in April and May 1997 indicated PTSD, for evaluation purposes only. As discussed above, the RO denied service connection for PTSD in December 1997, and the veteran did not appeal. After he sought reopening of his claim in July 2001, he was seen on numerous occasions on an outpatient basis. A Persian Gulf War examination in July 2002 noted pertinent impressions of anxiety/depressive symptoms and PTSD, noting that the latter symptoms "may be war related." An impression noted in May 2003 was "rule out" PTSD, major depression. A progress note in September 2003 listed Axis I diagnoses of PTSD, "rule out" impulse control disorder, and "rule out" bipolar disorder. Later in September 2003, the RO issued the rating decision in which it determined that the claim should be reopened, but again denied the claim. Subsequent VA outpatient records show the veteran being seen in a group support therapy group for Gulf War veterans with PTSD. However, there has not been a complete VA psychiatric examination in several years, and the Board believes that the various diagnoses reported above should be reconciled to verify whether the veteran has PTSD as a consequence of his military service. In view of the foregoing, the case is REMANDED for the following action: 1. Obtain records of the veteran's VA psychiatric treatment records since August 2005, and ask him whether he has received any pertinent treatment other than from VA (and, if so, obtain any records thereof). 2. Then, afford the veteran a psychiatric examination. The claims folder, to include the previous medical records and a copy of this remand, must be made available to the examiner for review in conjunction with the examination, and the examiner must indicate in the examination report that the claims folder was so reviewed. a. The examination report should include a definitive current diagnosis or diagnoses, with reference to the previous medical records on file, to include whether the veteran has PTSD. b. If there is a diagnosis of PTSD, the examiner should render an opinion as to whether it is at least as likely as not (i.e., to at least a 50/50 degree of probability) that such currently diagnosed PTSD is causally related to the veteran's in-service stressor(s) from 1989 to 1991, or whether such a causal relationship is unlikely (that is, less than a 50-50 probability). c. If there is any psychiatric disorder other than PTSD, the examiner should render an opinion as to whether it is at least as likely as not (i.e., to at least a 50/50 degree of probability) that such currently diagnosed mental disorder is causally or etiologically related to his military service from 1989 to 1991, or whether such a causal or etiological relationship is unlikely (that is, less than a 50-50 probability). d. The examiner should conduct all special studies, to include psychological testing, deemed necessary to render a diagnosis and the requested opinion. A complete rationale for all opinions expressed should be provided. e. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it 3. Once the above-requested development has been completed, readjudicate the veteran's claim for service connection for PTSD. If the decision remains adverse, provide him and his representative with an appropriate Supplemental Statement of the Case. Then return the case to the Board for further appellate consideration, if otherwise in order. The appellant has 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs