Citation Nr: 0010069 Decision Date: 04/14/00 Archive Date: 04/20/00 DOCKET NO. 97-06 785 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been submitted to reopen the claim of service connection for an innocently acquired psychiatric disorder, to include claimed post- traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph W. Spires, Associate Counsel INTRODUCTION The veteran served on active duty from January 1971 to September 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 1996 rating decision of the RO. FINDINGS OF FACT 1. In October 1973, the RO denied the veteran's original claim of service connection for a nervous disorder, but he did not file a timely appeal from that decision. 2. New evidence which is so significant that it must be considered in order to fairly decide the merits of the claim has been associated with the claims folder. 3. The veteran has presented evidence of a claim of service connection for an innocently acquired psychiatric disability, to include PTSD, which is plausible and capable of substantiation. CONCLUSIONS OF LAW 1. New and material evidence has been submitted for the purpose of reopening the veteran's claim of service connection for an innocently acquired psychiatric disorder, to include PTSD. 38 U.S.C.A. §§ 5107, 5108, 7104, 7105 (West 1991 & Supp. 1999); 38 C.F.R. § 3.156(a) (1999). 2. The veteran has submitted evidence of a well-grounded claim of service connection for an innocently acquired psychiatric disorder, to include PTSD. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304(f) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION New and Material When a claim is disallowed by the RO, appellate review is initiated by the filing of a Notice of Disagreement (NOD) within one year from the date of mailing of notice of the result of the initial disallowance. 38 U.S.C.A. § 7105(a), (b). If a NOD is filed within the one-year period, the RO shall issue a Statement of the Case. 38 U.S.C.A. § 7105(d). The appellant is provided a period of 60 days (or the remainder of the one-year period from the date of mailing of the notice of the determination being appealed) to file the formal appeal. 38 U.S.C.A. § 7105(d); 38 C.F.R. § 20.302(b). In the absence of a perfected appeal, the RO's decision becomes final, and the claim will not thereafter be reopened or allowed, except as otherwise provided. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (1999). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; 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). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) summarized the analysis in determining whether evidence is new and material in Evans v. Brown, 9 Vet. App. 273 (1996). 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 issue at hand. However, there is no longer a requirement that, in order to reopen a claim, the new evidence, when viewed in the context of all the evidence, both new and old, must create a reasonable possibility that the outcome of the case on the merits would be changed. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) (expressly rejecting the standard for determining whether new and material evidence had been submitting sufficient to reopen a claim set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991)). A November 1996 report to VA from a private psychiatrist recounted various traumatic events reportedly experienced by the veteran, including the witnessing a murder/suicide of his aunt and uncle at age 9, being attacked during basic training, in-service "disciplinary indoctrination" and being encouraged to drink in service by an alcoholic supervisor. The report included diagnoses of PTSD, mixed anxiety disorder, recurrent and persistent major depression and a history of alcohol dependence in remission for the previous two years. An October 1997 joint statement from a private psychiatrist and psychologist stated that the veteran "suffered severe mental, emotional and physical abuse in the military which led to his subsequent psychiatric difficulties with post- traumatic stress syndrome, depression and alcohol abuse." A June 1998 statement from the private psychologist reiterated that the severe mental, emotional and physical abuse suffered by the veteran in service resulted in his subsequent development of PTSD, depression and alcohol abuse. The veteran asserted in his February 1997 Substantive Appeal that he was hospitalized for three and a half days in service due to a forced injection of penicillin after he reported that he was allergic to it. The veteran also stated that he was forced to "recycle" during basic training because he reported the actions of another soldier "trying to get a section 8." The veteran also stated that he was physically attacked and harassed and called racial slurs by an officer and that he left the base for fear of his life. The Board finds that the veteran's new evidence is so significant that it must be considered in order to fairly decide the merits of the claim. The evidence is certainly new. Furthermore, it is material as it is probative of the issue of service connection. See 38 C.F.R. § 3.303. Thus, the Board finds that new and material evidence has been submitted to reopen the claim of service connection for an innocently acquired psychiatric disorder, to include PTSD. Well Groundedness As the veteran's claim has been reopened, the Board must now determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, the reopened claim is well grounded pursuant to 38 U.S.C.A. § 5107(a). Elkins v. West, 12 Vet. App. 209 (1999) (en banc). Initially, one who submits a claim for benefits under a law administered by VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). Only when that initial burden has been met does the duty of the Secretary to assist such a claimant in developing the facts pertinent to the claim attach. Id. The Court has further defined a well-grounded claim as a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). It has also held that where a determinative issue involves a medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The regulations concerning the adjudication of claims involving entitlement to service connection for PTSD have changed. In June 1999, revised regulations concerning PTSD were published in the Federal Register which reflected the decision of the Court in Cohen v. Brown, 10 Vet. App. 128 (1997). The changes to 38 C.F.R. § 3.304(f) were made effective the date of the Cohen decision. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with the provisions of 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in- service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 64 Fed. Reg. 32,807- 32808 (1999) (codified at 38 C.F.R. § 3.304 (f)); Cohen v. Brown, 10 Vet. App 128 (1997). To establish a well-grounded claim of service connection for PTSD, there must be medical evidence showing a diagnosis of PTSD, lay evidence of a stressor in service (presumed credible for purposes of well groundedness), and medical evidence of a nexus between the diagnosis and stressor. See Cohen v. Brown, 10 Vet. App. at 137. Here, the record includes several medical records which include the diagnosis of PTSD, as being secondary to traumatic in-service assaults and harassment. As the veteran's testimony, for the purposes of well groundedness, is competent evidence to establish in-service stressors, and because there is a current diagnosis of PTSD establishing a nexus between the diagnosis and the stressors, the Board finds the claim of service connection for an innocently acquired psychiatric disorder, including PTSD, to be well grounded. 38 U.S.C.A. § 5107. ORDER As new and material evidence has been received to reopen the claim of service connection for innocently acquired psychiatric disorder, including PTSD, and the claim is well grounded, the appeal is allowed to this extent, subject to further action as discussed hereinbelow. REMAND Because the claim of service connection for an innocently acquired psychiatric disorder, including PTSD, is well grounded, VA has a duty to assist the veteran in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). VBA's Adjudication Procedure Manual, M21-1, Part III, 5.14(b)(3) provides, "In cases where available records do not provide objective or supportive evidence of the alleged in[-]service traumatic stressor, it is necessary to develop for this evidence." The adjudication manual also provides, "If a VA examination or other medical evidence establishes a valid diagnosis of PTSD, and development is complete in every respect but for confirmation of the in[-]service stressor, contact [the United States Armed Services Center for the Research of Unit Records]." Although the Board is cognizant of the RO's July 1998 request for corroboration of the veteran's claimed stressors from the United States Armed Services Center for the Research of Unit Records (USASCRUR), the record indicates that the attempt was insufficient. As explained by the Court in Patton v. West, 12 Vet. App. 272 at 280 (1999), "in personal-assault cases the Secretary has undertaken a special obligation to assist a claimant, here one who has submitted a well-grounded claim, in producing corroborating evidence of an in-service stressor." Indeed, the Court held that this special obligation rendered non- personal assault PTSD evidentiary requirements inoperative in the context of personal assault PTSD cases. Id. Specifically, the requirement that "something more than medical nexus evidence is required to fulfill the requirement for 'credible supporting evidence,'" Moreau v. Brown, 9 Vet. App. at 396, and the requirement that "[a]n opinion by a mental health professional based on a postservice examination of the veteran cannot be used to establish the occurrence of the stressor," Cohen, 10 Vet. App. at 145, were held to be inoperative in the context of a personal assault PTSD case. Id. Additionally, the Court held that the M21-1, Part III, 5.14(c) requirement that the in-service stressor be shown by the "preponderance of the evidence" was inconsistent with the 38 U.S.C.A. § 5107(b). Id. The appropriate standard of proof is the equipoise standard, not the preponderance standard. Id. Furthermore, M21-1, Part III, 5.14(c)(2), states that because assaults are so extremely personal that many incidents are not reported, alternative evidence must be sought. For example, this alternative evidence includes military law enforcement records, which must be requested from the "unit at the military installation where the records may be located." M21-1, Part III, 5.14(c)(4)(b). Also, as indicated by the Court in Patton, "secondary evidence may need interpretation by a clinician, especially if it involves behavior changes. Evidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician." M21-1, Part III, 5.14(c)(9); 12 Vet. App. 272 at 281. Here, the record indicates that attempts to obtain corroborating evidence of the veteran's alleged stressors, as outlined in M21-1, Part III, 5.14(b) and (c), have been insufficient. For example, the record included a June 1998 written statement from the veteran which included the name of an alleged assailant, the name of the officer to whom he reported the incident, and the location of the incident. Although the RO's July 1998 request for corroboration of stressors to USASCRUR noted that a copy of the veteran's statement was included, the April 1999 response from USASCRUR indicates that it might not have been received. The response from USASCRUR stated that, in order for it to research this claim, the veteran would have to provide specific information such as names, dates and places. The record also includes lay statements from relatives as well as medical evidence which provided details of the various in-service stressors as described by the veteran. The lay statements also contained information regarding observations of the veteran's behavioral changes. In light of the foregoing, the Board is REMANDING this case for the following actions: 1. The RO should take appropriate action to contact the veteran in order to request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for psychiatric disorders since service. After obtaining any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran in response to this request, which have not been previously secured. 2. The RO should also take appropriate steps to contact the veteran in order to afford him another opportunity to provide additional information regarding the claimed stressors to which he was exposed during his period of service. He should provide specific details of the claimed stressful events during service, to include dates, places, detailed descriptions of the events, his service units, duty assignments and the names and other identifying information concerning any individuals involved in the events. The veteran is informed that the Court has held that requiring a claimant to provide this information to the VA does not represent an impossible or onerous task. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 3. The RO should also request any additional service medical and clinical records and seek alternative corroborating evidence of in-service stressors as provided in M21-1, Part III, 5.14(c). 4. Then, if required, the RO should review the claims folder thoroughly and prepare a summary of all stressors alleged by the veteran. This summary of stressors, with specific details regarding the veteran's alleged stressors, and all associated documents, should be sent to USASCRUR, 7798 Cissna Road, Suite 101, Springfield, Virginia 22150-3197. That agency should be requested to provide any information which might corroborate the veteran's alleged stressors. 5. Then, the RO should undertake to schedule the veteran for a VA examination in order to determine the nature and likely etiology of all claimed innocently acquired psychiatric disorders, including PTSD. All indicated testing should be done in this regard. The claims folder should be made available to the examiner for review. The examiner should elicit from the veteran and record a full medical history in this regard. Based on his/her review of the case, the examiner should offer an opinion as to whether the veteran is suffering from PTSD or other innocently acquired psychiatric disability due to disease or injury which was incurred in or aggravated by service. The examiner should be asked to provide comprehensive diagnoses of all psychiatric disorders indicated, complete with an opinion regarding the nature and likely etiology of all such disorders. If the examiner enters a diagnosis of PTSD, then the specific stressors to support that diagnosis should be identified for the record. 6. After undertaking any additional development deemed appropriate, including an interpretation of any reported behavior changes in relationship to the medical diagnosis by a VA neuropsychiatric physician, as explained in Patton and M21-1, Part III, 5.14(c)(8) and (9), if indicated, the RO should review the veteran's claim. Due consideration should be given to all pertinent laws, regulations, and Court decisions. If the benefit sought on appeal is not granted, the veteran and his representative should be issued a Supplemental Statement of the Case, which should include all pertinent laws and regulations, and be afforded a reasonable opportunity to reply thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no further action until he is otherwise notified, but he may furnish additional evidence and argument while the case is in remand status. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995); Kutscherousky v. West, 12 Vet. App. 369 (1999). In taking this action, the Board implies no conclusion as to any ultimate outcome warranted. This claim must be afforded expeditious treatment by the RO. 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 Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. STEPHEN L. WILKINS Member, Board of Veterans' Appeals