Citation NR: 9632483 Decision Date: 11/19/96 Archive Date: 12/02/96 DOCKET NO. 92-02 514 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD John D. Nachmann, Associate Counsel INTRODUCTION The veteran had active service from June 1964 to June 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of March 1991 by the Department of Veterans Affairs (VA), Los Angeles, California, Regional Office (RO). As a further preliminary matter, the Board notes that the issue of entitlement to service connection for post-traumatic stress disorder will be addressed in the remand portion of this decision. DECISION OF THE BOARD The veteran contends that the RO was incorrect in not granting the benefit sought on appeal. He maintains that new and material evidence sufficient to reopen his claim of entitlement to service connection for an acquired psychiatric disorder has been submitted. The veteran further asserts that this evidence demonstrates that he developed an acquired psychiatric disorder during active service. Therefore, he requests a favorable determination by the Board. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran’s claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence has not been submitted to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran’s appeal has been obtained by the RO. 2. In an April 1982 rating decision, the RO determined that the veteran was not entitled to service connection for an acquired psychiatric disorder. The veteran did not appeal that determination. 3. The additional evidence associated with the claims file subsequent to the April 1982 rating decision provides no reasonable possibility that such evidence, when viewed in the context of all the evidence of record, would change the outcome of the case. CONCLUSIONS OF LAW 1. The April 1982 rating decision that determined that the veteran was not entitled to service connection for an acquired psychiatric disorder is final. 38 U.S.C.A. § 7105(b), (c) (West 1991); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (1995). 2. The evidence received since the RO denied entitlement to service connection for an acquired psychiatric disorder in April 1982 is not new and material; thus, the veteran’s claim for that benefit is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the law, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, where a veteran served ninety (90) days or more and a psychosis becomes manifest to a degree of 10 percent within one year of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1133; 38 C.F.R. §§ 3.307, 3.309. Service connection for an acquired psychiatric disorder was initially denied in April 1982. The evidence of record at that time which pertained to a psychiatric disorder consisted of the service medical records; a VA hospital discharge summary dated from January to February 1970; a VA hospital discharge summary dated from December 1970 to March 1971; records from the VA Hospital in Brentwood, California, dated from January 1977 to July 1978; a March 1979 statement from People Coordinated Services of Southern California, Inc.; and the report of a March 1989 VA examination. The service medical records are devoid of any complaints, treatments, or diagnoses referable to a psychiatric disorder. In fact, the report of a June 1968 service medical examination, which was conducted one week prior to the veteran’s separation from service, indicates that the veteran did not have a psychiatric abnormality. The VA hospital discharge summary dated from January to February 1970 reveals that the veteran was hospitalized for approximately two weeks. The veteran improved gradually during his hospitalization and he was competent as well as employable on a full-time basis at the time of his discharge. A diagnosis of paranoid schizophrenia was recorded. The VA hospital discharge summary dated from December 1970 to March 1971 discloses that the veteran was hospitalized for 81 days due to excessive alcohol drinking and being difficult to get along with. The veteran was referred to the alcohol treatment unit for evaluation and was subsequently accepted into that unit. Diagnoses of paranoid schizophrenia and episodic excessive drinking were recorded. The records from the VA Hospital in Brentwood, California, show that the veteran underwent an examination in January 1977. At that time, the veteran was oriented in all spheres and his speech was coherent as well as relevant. The veteran’s memory was intact and although he had insight into the nature of his problems, his judgment was poor. In addition, no evidence of depression, delusions, or hallucinations was found. The examiner noted that the veteran was of low intelligence as well as apparently not sufficiently motivated to make a commitment to sobriety and the examiner therefore felt that the veteran’s prognosis was poor. In July 1978, the veteran complained of depression, nervousness, and recent suicidal thoughts. Upon examination, the veteran was oriented in four spheres, his sensorium was clear, and his memory was intact. Diagnoses of alcoholism in remission and depression due to tinnitus were recorded. The March 1979 statement from People Coordinated Services of Southern California, Inc., indicates that the veteran was in the outpatient component of the alcohol abuse program after having spent seven months in the residential recovery program from May to December 1978. Upon his entry into the program, the veteran reported that his excessive alcohol consumption began during service in 1966 and that his depression and tinnitus were motivating actors behind his drinking binges. The report of the March 1989 VA examination reveals that the veteran appeared to be fully oriented and that he answered all questions to the best of his ability. Although the veteran denied being depressed, he began to cry during the interview for no apparent reason. No hallucinations, delusions, or suicidal intentions were noted. In addition, the veteran’s arithmetic ability was somewhat slow and his interpretations of popular proverbs were often inappropriate. Diagnoses of alcoholism in remission and mild depressive neurosis were recorded. The veteran did not appeal the April 1982 denial of service connection for an acquired psychiatric disorder. If a notice of disagreement is not filed within the prescribed period, an RO decision on a claim becomes final and the claim may not thereafter be reopened and allowed, except on the basis of new and material evidence. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.302(a), 20.1103. In determining whether to reopen a previously denied claim, the Board must first determine whether the evidence is "new and material." If it is determined that the evidence is new and material, the case is reopened and evaluated in light of all the evidence, both new and old. See Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). New and material evidence means evidence not previously submitted to agency decision makers, which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). To justify the reopening on the basis of new and material evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The United States Court of Veterans Appeals (Court) recently summarized the proper analysis in determining whether evidence is new and material in Evans v. Brown, 93-1220 (U.S. Vet. App. Aug. 1, 1996). The VA must first determine whether the newly presented evidence is “new,” that is, not of record at the time of the last final disallowance of the claim and not merely cumulative of other evidence that was then of record. If new, the evidence must be “probative” of the issues at hand. Finally, if the evidence is new and probative, then VA must determine whether, in light of all the evidence of record, there is a reasonable possibility that the outcome of the claim on the merits would be changed. Evidence pertaining to the veteran’s acquired psychiatric disorder that has been added to the record since the April 1982 rating decision consists of: (1) a VA hospital discharge summary dated from January to February 1970; (2) a VA hospital discharge summary dated from December 1970 to March 1971; (3) a VA hospital discharge summary dated from October to December 1979; (4) VA outpatient treatment records dated from 1980 to 1992; (5) a VA hospital discharge summary dated from July 1981 to June 1982; (6) the report of an October 1985 VA examination; (7) the report of a January 1991 VA examination; (8) the report of a January 1991 VA psychological assessment; (9) an April 1992 statement from [redacted]; (10) an April 1992 statement from [redacted] [redacted]; (11) a May 1992 statement from [redacted] [redacted]; (12) a May 1992 statement from [redacted]; (13) an undated statement from the veteran’s mother; and (14) an undated statement from [redacted]. The VA hospital discharge summaries dated from January to February 1970 and from December 1970 to March 1971 are photocopies of the summaries that were of record at the time of the April 1982 rating decision. The VA hospital discharge summary dated from October to December 1979 indicates that the veteran was hospitalized for 40 days due to loneliness, lack of self-esteem, and feeling overly dependent on his mother. The veteran was placed in a highly structured and therapeutic community offering peer group and individual intervention aimed at heightened self- awareness and the development of new coping skills. The veteran remained primarily nonverbal in group settings and he requested a discharge because he “didn’t feel like he was living.” It was felt that the veteran was unwilling to confront his feelings and that he had difficulty tolerating the social interaction inherent in his treatment modality. A diagnosis of alcohol abuse was recorded. The VA outpatient treatment records dated from 1980 to 1992 reveal that the veteran sought treatment for psychiatric problems on a number of occasions. During this time, the veteran reported experiencing insomnia, paranoid ideation, nervousness, sleep disturbances, loss of interest in going out, intrusive thoughts, nightmares, and alcoholism. A number of diagnoses were recorded during this time, including problems with assertiveness, depression, post-traumatic stress disorder, schizophrenia in remission, schizoaffective disorder, and alcoholism. The VA hospital discharge summary dated from July 1981 to June 1982 shows that the veteran was hospitalized for depression and alcoholism. During this time, the veteran missed several appointments and he was discharged due to his failure to contact the hospital. The report of the October 1985 VA examination indicates that the veteran was confused and disoriented. In addition, the veteran’s insight was apparently absent, his judgment was confused, and it was impossible to check his memory. The examiner noted that the veteran was obviously not competent and that he was apparently unable to hold a job due to his thought disorder. A diagnosis of chronic undifferentiated schizophrenia was recorded. The report of the January 1991 VA examination reveals that the veteran’s psychomotor activity was slightly slow and his speech was normal in tone as well as pace. The veteran’s mood was depressed and his affect was appropriate to the content of the interview. No looseness of associations or formal thought disorder was found. The veteran admitted that he was suspicious and that he sometimes heard voices calling his name. No suicidal or homicidal ideas were found and the veteran was alert and oriented to time, person, and place. In addition, the veteran’s memory was good, his intelligence was within average range of normal, and his insight as well as judgment were fair. Diagnoses of post-traumatic stress disorder, rule out schizoaffective disorder, and alcohol abuse by history were recorded. The report of the January 1991 VA psychological assessment discloses that the veteran’s intellectual functioning was within the normal range and that he had no difficulty expressing himself in a clear and logical manner. Psychological testing pertaining to the veteran’s affect indicated that he may have been trying to exaggerate his symptoms in order to increase the possibility of obtaining compensation. During the interview, the veteran indicated that there were very few people that were close to him and that he had to be very careful due to the number of plots to kill him. The examiner noted that although the veteran was personable and had good basic social skills, the veteran’s personal relations were very limited due to his symptoms. The examiner concluded that the most likely cause of the veteran’s current and past symptoms was paranoid schizophrenia and that his first break may have occurred prior to his entrance into active service. Diagnoses of paranoid schizophrenia and alcohol dependence were recorded. The April 1992 statement from [redacted] indicates that the veteran had acted in a violent and bizarre manner since his discharge from service. For example, the veteran ran through the house yelling at night, he slept with a rifle and knife hanging over his bed, he threw furniture across the room, he was involved in several automobile accidents, and he often stood on a street corner yelling obscenities and threats at passing cars. Lastly, Ms. [redacted] opined that the veteran’s experiences during active service were the cause of his current psychological problems. The April 1992 statement from [redacted] [redacted] reveals that after the veteran’s return from active service, he experienced nightmares that caused him to run through the house screaming and he was very depressed. In addition, Ms. [redacted] noted that the veteran had attempted to jump through a second-story window. Ms. [redacted] concluded that since the veteran had not been violent or experienced nightmares prior to his entrance into active service, it was his experiences in Vietnam that caused his current psychological problems. The May 1992 statement from [redacted] discloses that the veteran significantly changed during his active service. For example, the veteran had a severe drinking problem and he was no longer friendly or outgoing after his discharge from service. It was concluded that the veteran’s Vietnam experiences had “scarred” him for life. The May 1992 statement from [redacted] indicates that the veteran was a very responsible, trustworthy, and cooperative person prior to his entrance into active service. Subsequent to the veteran’s separation from service, however, he had an entirely different personality and his struggle for adjustment into society had been an arduous one. The undated statement from the veteran’s mother reveals that the veteran returned from active service a mere shell of the man he was prior to his entrance into active service. For example, he attempted to jump from a second floor bedroom window, drove his fists through his girl friend’s window, and threatened to jump from a second-floor porch. The undated statement from [redacted] discloses that the veteran had been unable to cope with civilian life or to help his mother in her time of need since his separation from active service. Items (1) and (2) do not constitute new evidence as they are photocopies of evidence that was of record at the time of the April 1982 rating decision. Items (3) and (7) are new because they were not of record at the time of the April 1982 rating decision. These items, however, do not constitute material evidence because they do not show that the veteran currently has an acquired psychiatric disorder. Although item (7) shows that the veteran has post-traumatic stress disorder, this issue, as previously mentioned, is addressed in the remand portion of this decision. Consequently, there is no reasonable possibility that this evidence, when viewed in the context of all the evidence of record, would change the outcome of the case. Items (4)-(6) and (8) constitute new evidence because they were considered by the RO at the time of the April 1982 rating decision. These items, however, are not material as they merely provide an update of the treatment that the veteran received for psychiatric problems and do not relate any psychiatric disorder, other than post-traumatic stress disorder, which, as previously mentioned, is addressed in another portion of this decision, to the veteran’s active service. As such, this evidence is not probative of the issue at hand. See Montgomery v. Brown, 4 Vet.App. 343, 345 (1993). Lastly, items (9)-(14) constitute new evidence because they were not of record at the time of the April 1982 rating decision. Nevertheless, these items do not constitute material evidence because even though they relate a current psychiatric disorder to the veteran’s active service, lay assertions of medical causation cannot suffice to reopen a claim under 38 U.S.C.A. § 5108. See Moray v. Brown, 5 Vet.App. 211, 214 (1993). Consequently, there is no reasonable possibility that this evidence, when viewed in the context of all of the evidence of record, would change the outcome of the case. On the basis of the foregoing, the Board concludes that no new and material evidence has been presented to reopen the veteran’s claim. Accordingly, the April 1982 denial of service connection for an acquired psychiatric disorder remains final. ORDER New and material evidence not having been submitted to reopen the veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, the appeal is denied. REMAND In regard to the veteran’s claim of entitlement to service connection for post-traumatic stress disorder, the Board notes that service connection for post-traumatic stress disorder requires medical evidence establishing a clear diagnosis of the condition; credible supporting evidence that the claimed in-service stressor actually occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (1995). Evidence necessary to establish occurrence of a recognizable stressor during service to support a diagnosis of post- traumatic stress disorder will vary depending upon whether the veteran was engaged in combat with the enemy. Where it is determined, through recognized military citations or other supportive evidence, that the veteran engaged in combat with the enemy and the claimed stressor is combat-related, the veteran's lay testimony may be sufficient to establish the occurrence of such stressor, provided such testimony is credible and consistent with the circumstances, conditions, and hardships of service. Where the veteran did not engage in combat or the claimed stressor is not combat-related, however, the record must contain evidence which corroborates the veteran's testimony as to the occurrence of the claimed stressor. Moreau v. Brown, No. 94-883 (U.S. Vet. App. Sept. 12, 1996). The veteran contends that he has post-traumatic stress disorder as a result of the traumatic experiences that he underwent during active service. These experiences include being subjected to “explosions,” beatings, death threats, and other forms of racial discrimination; lacking resources to defend himself during operations when the enemy was nearby; having a mortar round land next to him; being involved in an operation where 1,100 fellow servicemen died; and witnessing a number of fellow servicemen killed. Although the veteran has reported these experiences, no attempt has been made to verify them. In this respect, while the Board acknowledges that the veteran’s descriptions probably do not include the type of detail necessary to confirm the claimed stressors, the provisions of the VA ADJUDICATION PROCEDURE MANUAL (MANUAL M21-1) pertaining to the adjudication of post-traumatic stress disorder provide that, “where records available to the rating board do not provide objective or supportive evidence of the alleged in-service traumatic stressor, it is necessary to develop this evidence.” Manual M21-1, Part VI, 7.46(f)(2) (emphasis added). Accordingly, as the development outlined in MANUAL M21-1 includes providing information to the United States Joint Services and Environmental Support Group (ESG), such development is mandatory. Therefore, in order to give the veteran every consideration with respect to the present appeal, it is the Board’s opinion that further development of the case is warranted. Accordingly, this case is REMANDED for the following actions: 1. The RO should request from the veteran a statement containing as much detail as possible regarding any and all stressful events to which he was exposed in service. He should be asked to provide specific details of the claimed stressful events to the best of his ability, including particularly, dates, places, detailed descriptions, units of service, duty assignments, as well as the full names, ranks, units of assignment and any other identifying information concerning other individuals involved in the events. The Board takes this opportunity to inform the veteran that the United States Court of Veterans Appeals has held that asking the veteran to provide the underlying facts, i.e., the names of individuals involved, the dates, and the places where the claimed events occurred, is not an impossible or onerous task. Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). The RO should caution the veteran that failure to provide all of the requested information may have an adverse effect on the outcome of his appeal. 2. After obtaining the foregoing requested information from the veteran, the RO should forward it with a copy of his record of service (DD-214) to the United States Army and Joint Services Environmental Support Group (ESG), 7798 Cissna Road, Springfield, Virginia 22150, in an attempt to verify any claimed stressor. Any information obtained is to be associated with the claims file. Even if the veteran does provide the information requested in the above paragraph, the RO must still attempt to verify the claimed stressors by providing the ESG with the information which is currently of record. 3. Following receipt of the ESG’s report, and the completion of any additional development warranted or suggested by that agency, the RO should prepare a report detailing the nature of any combat action, or in-service stressful event, verified by the ESG. If no stressor has been verified, the RO should so state in its report. The report is then to be added to the claims file. 4. Then, and only then, should the RO schedule the veteran for a special psychiatric examination by a board of two VA psychiatrists who have not seen or treated him. All appropriate studies, including post-traumatic stress disorder sub scales, are to be performed. The claims file must be made available to and reviewed by the examiners prior to the examinations. In determining whether or not the veteran has post-traumatic stress disorder due to an in-service stressor, the examiners are hereby notified that only the verified history detailed in the reports provided by the ESG and/or the RO may be relied upon. If the examiners believe that post-traumatic stress disorder is the appropriate diagnosis they must specifically identify which stressor detailed in the ESG’s and/or the RO’s report is responsible for the conclusion. Any and all opinions expressed must be accompanied by a complete rationale. The examiners must assign a Global Assessment of Functioning Score which is consistent with the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, and explain what the assigned score means. The examination report should be typed. 5. Following completion of the foregoing, the RO should review the claims file to ensure that all of the foregoing development has been completed in full. In particular, the RO should review the VA psychiatric examination report to verify that any diagnosis of post-traumatic stress disorder was based on the verified history provided by the ESG and/or the RO. If the examiners relied upon a history which was not verified, the examination report must be returned as inadequate for rating purposes. The Board emphasizes that the Court has held that a diagnosis of post- traumatic stress disorder, related to service, based on an examination which relied upon an unverified history is inadequate. West v. Brown, 7 Vet.App. 70, 77 (1994). 6. After undertaking any development deemed appropriate in addition to that specified above, the RO should readjudicate the issue of entitlement to service connection for post-traumatic stress disorder. If the determination remains adverse to the veteran, the case should be returned to the Board after compliance with the provisions for processing appeals, including the issuance of a supplemental statement of the case and provision of the applicable time period for response thereto. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the veteran until he is notified. WARREN W. RICE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West Supp. 1995), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994). - 2 -