Citation Nr: 0011645 Decision Date: 05/03/00 Archive Date: 05/09/00 DOCKET NO. 98-17 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether the veteran has submitted new and material evidence to reopen the claim for service connection for posttraumatic stress disorder (PTSD). 2. Whether the veteran has submitted new and material evidence to reopen the claim for service connection for borderline personality disorder. 3. Entitlement to an increased evaluation for hypertension, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. L. Mason, Associate Counsel INTRODUCTION The veteran had a period of active duty for training from March to August 1986, and served on active duty from January 1988 to February 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 1998 rating decision of the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO), which determined that new and material evidence had not been submitted to reopen the veteran's claims for service connection for PTSD and borderline personality and continued the 10 percent evaluation for hypertension. The reasons and bases provided in a November 1998 supplemental statement of the case as to the denial of service connection for PTSD indicate that the RO reopened the veteran's claim for service connection for PTSD. However, a rating decision stating such is not of record. The United States Court of Veterans Appeals (Court) has held that the Board is under a legal duty in such a case to determine if there was new and material evidence to reopen the claim, regardless of the RO's action. Barnett v. Brown, 8 Vet. App. 1 (1995). The veteran and her representative appeared at a hearing before a hearing office at the RO in February 1999. The Board notes that in the VA Form 9, dated in October 1998, the veteran appears to raise the issue of service connection for dysthymic disorder. However, the RO has not addressed this issue. The Court has noted that 38 U.S.C.A. § 7105 (West 1991) establishes a series of very specific, sequential, procedural steps that must be carried out by a claimant and the RO or other "agency of original jurisdiction" (AOJ) (see Machado v. Derwinski, 928 F.2d 389, 391 (Fed. Cir. 1991)) before a claimant may secure "appellate review" by the BVA. Absent a notice of disagreement, statement of the case, and substantive appeal, the Board does not have jurisdiction over the issue. Rowell v. Principi, 4 Vet. App. 9 (1993); Roy v. Brown, 5 Vet. App. 554 (1993). The RO should address the veteran's claim for service connection for dysthymic disorder. FINDINGS OF FACT 1. Service connection for PTSD was denied by the RO in unappealed rating decision in June 1996. 2. The additional evidence submitted since the June 1996 rating decision is new, relevant, and directly relates to the issue at hand. 3. The claim for service connection for PTSD is plausible. 4. Service connection for a personality disorder was denied in an unappealed March 1993 rating decision. 5. The veteran has not submitted evidence which must be considered in order to fairly decide the merits of the claim of service connection for a personality disorder. 6. The evidence submitted in support of the veteran's petition to reopen her claim for service connection for a personality disorder is cumulative. CONCLUSIONS OF LAW 1. The additional evidence received since the June 1996 rating decision constitutes new and material evidence to reopen the veteran's claim for service connection for PTSD. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1999). 2. The claim for service connection for PTSD is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The March 1993 decision denying service connection for a personality disorder is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 20.302(a), 20.1103 (1999). 4. Evidence submitted to reopen the claim of entitlement to service connection for a personality disorder is not new and material, and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Prior unappealed decisions of the RO are final. However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App 145 (1991). The Court has held that when determining whether the evidence is new and material, the VA must conduct a three-step test: first, the VA must determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108 (West 1991); second, if new and material evidence has been presented, immediately upon reopening the claim, the VA must determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a); and third, if the claim is well grounded, the VA may evaluate the claim after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Winters v. West, 12 Vet. App. 203 (1999), citing Elkins v. West, 12 Vet. App. 209 (1999). Service connection may be granted for chronic disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Service connection may also 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). I. PTSD Service connection for PTSD was previously denied in a June 1996 rating decision. The veteran did not appeal this decision and it became final. The evidence considered at the time of the June 1996 decision included the veteran's claim for service connection, service medical records, and VA medical records. In the June 1996 rating decision, the RO denied service connection for PTSD on the basis that there was no confirmed diagnosis of record which would permit a finding of service connection and there was no credible evidence of the occurrence of a claimed inservice stressor. The veteran did not appeal this decision. VA medical records dated from late June 1996 to February 1998 show diagnoses of PTSD secondary to assault. The veteran has stated that she was sexually harassed during service by her superior officer. The Board notes that VA Adjudication Manual M21-1 (M21-1) , Part III, 5.14(c) (February 20, 1996) provides that personal assault, to include rape, is an event of human design that threatens or inflicts harm, and VA recognizes that it is possible that a person could develop PTSD as a result of this type of stressful experience. The first part of the test is for VA to determine if the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a). New and material evidence means evidence not previously submitted to agency decision makers that bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with 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 (1998). See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). When the case was previously denied, there was no confirmed diagnosis of PTSD of record. Now, the record contains several diagnoses of PTSD secondary to assault. The Board has been presented with competent evidence of a diagnosis of PTSD. This evidence meets the definition of new and material evidence and must be considered to fairly decide the claim, thus, the claim is reopened. 38 U.S.C.A. § 5108 (West 1991). Further, in view of the fact that the veteran's assertions as to the alleged stressor are presumed credible at this point, the claim is also found to be well grounded. 38 U.S.C.A. § 5107(a) (West 1991). II. Personality disorder A personality disorder is not a disease or injury for compensation purposes. 38 C.F.R. § 3.303(c) (1999). The Court has reiterated that personality disorders are not disabilities for which service connection may be granted. Beno v. Principi, 3 Vet. App. 439, 441 (1992). The RO denied service connection for a personality disorder in March 1993. At that time, the evidence included the veteran's claim, service medical records, the veteran's statements, and VA medical evidence. Service medical records show that in December 1988 during service, the veteran was hospitalized and that the diagnoses included borderline personality disorder. A February 1993 VA psychiatric examination revealed no psychiatric diagnosis. At the time of the March 1993 RO decision, there was evidence of a diagnosis of borderline personality disorder and the veteran asserted that it developed during service. However, the RO stated that a personality disorder is determined to be a congenital or developmental disorder for which service connection is not established. The veteran did not appeal this decision, and thus this decision is final. Evidence submitted since the March 1993 decision includes VA medical records and the veteran's statements and testimony. VA medical records from July 1995 to August 1998 show continued diagnoses of borderline personality disorder. The Board finds that the veteran's statements and testimony and the VA medical records are all cumulative of that which was before the RO at the time of the March 1993 RO decision. See Reid v. Derwinski, 2 Vet. App. 312 (1992). None of the evidence submitted since the March 1993 denial is so significant that it must be considered in order to fairly decides the merits of the claim. At the time of the March 1993 decision, the records established that the veteran had a diagnosis of borderline personality disorder during service. The evidence of record currently show diagnoses of a borderline personality disorder. Accordingly, the Board concludes that the veteran has not submitted new and material evidence sufficient to reopen the previously denied claim for service connection for a borderline personality disorder. ORDER The veteran's claim for service connection for PTSD is reopened. The veteran's petition to reopen her claim for service connection for borderline personality disorder is denied. REMAND It is contended by and on behalf of the veteran that she should be service connected for PTSD. Specifically, the veteran maintains that she was the victim of a sexual harassment by a superior officer during service. Service connection for PTSD 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) (1999). Regarding non-combat stressors, the Court has held that "credible supporting evidence" means that the veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor; nor can credible supporting evidence of the actual occurrence of an in-service stressor consist solely of after-the-fact medical nexus evidence. See Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); and Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Moreover, the VA recognizes that it is possible that a person could develop PTSD as a result of this type of stressful experience. The VA Adjudication Manual M21-1 (M21- 1) , Part III, 5.14(c) (February 20, 1996) provides that personal assault, to include rape, is an event of human design that threatens or inflicts harm and that veterans claiming service connection for disability due to an in- service personal assault face unique problems documenting their claims. Because assault is an extremely personal and sensitive issue, many incidents are not officially reported, and victims of this type of in-service trauma may find it difficult to provide evidence to support the occurrence of the stressor. Therefore alternative evidence must be sought. Id. With regard to specific claims based upon personal assault, M21-1, part III, 5.14(c), provides an extensive list of alternative sources competent to provide credible evidence that may support the conclusion that the event occurred. While service connection for PTSD requires credible evidence to support the assertion that the stressful event occurred, this does not mean that the evidence must actually prove that the incident occurred. Rather, the preponderance of the evidence supports the conclusion that it occurred. In personal assault claims, secondary evidence may need an interpretation by a clinician, especially if it involves behavior changes. Id. In YR v. West, 11Vet. App. 393 (1998), the Court vacated and remanded a Board decision denying entitlement to service connection for PTSD, claimed to have been caused by a sexual assault in service. The Court found that PTSD was unequivocally diagnosed several times. It was also clear to the Court that the mental health professionals rendering the diagnoses accepted the veteran's account of an in-service sexual assault as the precipitating cause of her PTSD. Therefore the only remaining issue was whether the veteran had submitted credible evidence to establish that the claimed in service assault actually occurred. Assuming the truth of testimony from the veteran and the veteran's sister that the rape occurred in service, the claim was found to be well grounded. The Court found that as set forth in the M21-1, Part III, 5.14(c) development of alternative sources of information is critical with respect to claims based upon a personal assault, as service records "may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities." In Patton v. West, 12 Vet. App. 272 (1999), the Court stated that because of the unique problems of documenting personal- assault crimes, the RO is responsible for (1) assisting the claimant in gathering, from sources in addition to in-service records, evidence corroborating an inservice stressor, (2) sending a special letter and questionnaire, (3) carefully evaluating that evidence including behavioral changes, and (4) furnishing a clinical evaluation of behavior evidence. By failing to remand the matter so that the RO might assist the appellant in seeking and interpreting such alternative evidence, the Board failed to comply with M21-1, Part III, 5.14(c) and the duty to assist. In this case, the RO sent the letter referenced at M21-1, but in her reply, she did not provide a list of alternative sources likely to provide corroborative evidence. Another attempt should be made to have the veteran identify additional information sources. Additionally, at her February 1999 hearing, the veteran testified that shortly after he August 1998 VA examination, she developed an allergic reaction to her medication and she was hospitalized. According to the veteran, her blood pressure has remained high even on medication and she is followed every 2 to 3 weeks at the VA clinic. The Board observes that the most recent VA examination was in August 1998, and at that time, she had a blood pressure reading of 164/117. The VA's statutory duty to assist the veteran includes the duty to conduct a thorough and contemporaneous examination as well as to obtain recent treatment records so that the evaluation of the disability will be a fully informed one. In light of the foregoing, the case is REMANDED for the following actions: 1. The RO should again ask the veteran to provide a comprehensive list of potential alternative sources for supporting evidence regarding alleged sexual assault during service. The RO inquiry should include possible sources listed in M21-1, part III, 5.14(c)(5). The veteran should be advised that this information is necessary to obtain supportive evidence of the stressful event and that she must be as specific as possible because without such details an adequate search for verifying information cannot be conducted. 2. Thereafter, the RO should request any supporting evidence from alternative sources identified by the veteran. 3. The RO should determine whether any of the individuals named by the veteran as having knowledge of the alleged events can be located through VA sources, if necessary. If any of them can be located, the RO should offer to forward a letter from the veteran to such individuals for the purpose of obtaining a statement concerning their knowledge of the alleged stressful events. If any statements are obtained through this means or if the veteran provides any statements on her own, the RO should verify through service department sources that the individual offering a statement was actually stationed with the veteran at the time in question. 4. The RO then should review the file and prepare a summary including all associated documents and then make a specific determination, in accordance with the provisions of 38 C.F.R. § 3.304(f), with respect to whether the veteran was exposed to a stressor, or stressors, in service, and, if so, the nature of the specific stressor or stressors established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 5. If and only if the RO determines that there is credible supporting evidence that at least one claimed stressor actually occurred in service, the RO should arrange for the veteran to be afforded a VA psychiatric examination by a psychiatrist who has not previously examined her to determine the correct diagnosis of any psychiatric disorder present and to determine whether the diagnostic criteria for PTSD are satisfied. All indicated studies must be conducted. The examination report must reflect a review of pertinent material in the claims folder. If PTSD is demonstrated, the examiner should express an opinion as to whether the veteran has PTSD related to her military service, as opposed to any other traumatic event before or after service. For purposes of determining whether PTSD due to service is present, the examiner may only consider an alleged stressful event that the RO has found to be verified by credible supporting evidence. 6. The RO should obtain relevant copies of any VA medical records pertaining to treatment of the veteran after August 1998, including any hospitalizations, for incorporation in the record. 7. The RO should schedule the veteran for VA cardiovascular examination. All studies and tests should be performed. The examiner should provide an opinion as to the status of the veteran's hypertension. 8. The General Counsel, in representing VA before the Court, has noted that the regional office has duties. Pursuant to 38 C.F.R. § 3.655 (1999), when the claimant without good cause fails to report for examination, the claim will be denied. However, the Secretary must show a lack of good cause for failing to report. Further, VA has a duty to fully inform the veteran of the consequences of the failure to undergo the scheduled examination. The regional office must comply with all notification requirements regarding the duty to report and the failure to report for examination. This remand serves as notification of the regulation. Following completion of this action, the RO should review the claims. Thereafter, in accordance with the current appellate procedures, the case should be returned to the Board for completion of appellate review. The Board intimates no opinion as to the ultimate outcome of this case. 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. NANCY I. PHILLIPS Member, Board of Veterans' Appeals