Citation Nr: 0028747	
Decision Date: 10/31/00    Archive Date: 11/03/00

DOCKET NO.  99-15 462	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Whether new and material evidence has been submitted to 
reopen a claim of entitlement to service connection for 
bilateral metatarsalgia with history of calcaneal spurs.

2.  Entitlement to service connection for a psychiatric 
disorder, claimed as post-traumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Texas Veterans Commission







WITNESSES AT HEARING ON APPEAL

Appellant and friend


ATTORNEY FOR THE BOARD

A. P. Simpson, Associate Counsel


INTRODUCTION

The veteran served on active duty from June 1975 to April 
1977.

The current appeal arose from a March 1998 rating decision of 
the Department of Veterans Affairs (VA) Regional Office (RO) 
in Waco, Texas.  The RO denied entitlement to service 
connection for a low back disorder and a neck disorder; 
denied reopening the claim of entitlement to service 
connection for bilateral metatarsalgia with history of 
calcaneal spurs; and denied entitlement to service connection 
for PTSD.

The veteran did not submit a notice of disagreement as to the 
issue of entitlement to service connection for a neck 
disorder, and thus this claim is not considered part of the 
current appellate review.

Following the issuance of the statement of the case in March 
1999, the veteran filed a substantive appeal stating she 
wished to continue the appeal only as to the claims of 
whether new and material evidence has been submitted to 
reopen a claim of entitlement to service connection for 
bilateral metatarsalgia with history of calcaneal spurs, and 
entitlement to service connection PTSD.  

Therefore, the claim of entitlement to service connection for 
a low back disorder is not considered part of the current 
appellate review.

In her substantive appeal the veteran stated she wanted a 
hearing before a traveling section of the Board of Veterans' 
Appeals (Board).  The record reflects a hearing was scheduled 
for January 2000, for which the veteran did not show.

In January 2000 the RO affirmed the determinations previously 
entered.  

In April 2000 the veteran presented oral testimony before a 
Hearing Officer at the RO, a transcript of which has been 
associated with the claims file.

In April 2000 the Hearing Officer affirmed the determinations 
previously entered.


FINDINGS OF FACT

1.  The RO denied entitlement to service connection for 
bilateral metatarsalgia with history of calcaneal spurs when 
it issued an unappealed rating decision in February 1993.

2.  Evidence submitted since the final February 1993 rating 
decision does not bear directly or substantially upon the 
issue of entitlement to service connection for bilateral 
metatarsalgia with history of calcaneal spurs, is either 
cumulative or redundant, and by itself or in connection with 
the evidence previously of record, is not so significant that 
it must be considered in order to fairly decide the merits of 
the claim.

3.  The claim of entitlement to service connection for PTSD 
is supported by cognizable evidence showing that the claim is 
plausible or capable of substantiation.


CONCLUSIONS OF LAW

1.  Evidence submitted since the February 1993 rating 
decision, wherein the RO denied entitlement to service 
connection for bilateral metatarsalgia with history of 
calcaneal spurs, is not new and material, and the veteran's 
claim for this benefit has not been reopened.  38 U.S.C.A. 
§§ 5104, 5108, 7105 (West 1991);  38 C.F.R. §§ 3.104(a), 
3.156(a), 20.1103 (2000).

2.  The claim of entitlement to service connection for PTSD 
is well grounded.  38 U.S.C.A. § 5107(a) (West 1991).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Factual Background

The evidence which was of record prior to the February 1993 
rating decision wherein the RO denied entitlement to service 
connection for bilateral metatarsalgia with history of 
calcaneal spurs is reported in pertinent part below.

Service medical records reveal that at entrance clinical 
evaluation of the veteran's feet was normal.  She denied ever 
having had any foot trouble when she completed the report of 
medical history portion of the examination.

In September 1975 the veteran reported foot pain, which she 
stated was greatest along the ball of her foot while walking 
on her feet for long periods of time.  She complained of 
swelling in her feet.  The examiner entered an assessment of 
foot pain edema of unknown etiology.

In a separate September 1975 consultation report the examiner 
indicated the veteran was not to march for two weeks.  She 
was seen several days later and it was noted that there had 
been relief of foot pain.

A March 1977 treatment report shows the veteran was evaluated 
by the Department of Mental Health and diagnosed with 
inadequate personality with recommendations of an 
administrative discharge.  She was subsequently diagnosed 
with hysterical character and behavior disorder and 
situational stress reaction.

Separation examination reveals clinical evaluation of the 
veteran's feet were normal.  She admitted to a history of 
foot trouble when she completed the report of medical history 
portion of the examination.  No diagnosis was entered as to 
the veteran's feet by the examiner.

An August 1992 VA outpatient treatment report shows the 
veteran reported painful feet for the last three years.  The 
examiner entered a diagnosis of heel spur syndrome.  A 
September 1992 VA outpatient treatment report shows a 
diagnosis of typical peripheral neuropathy secondary to 
trauma secondary to tarsal tunnel syndrome.  

In October 1992 the reported that her feet had hurt her for a 
long time and she had taken care of them herself over the 
years.  She stated there were no medical records between 1977 
and 1992 that related to her feet.  She noticed her feet had 
started hurting her in the fall of 1975 during basic 
training.

A November 1992 VA foot examination report shows the veteran 
reported her feet had hurt her on and off for the last 20 
years.  The examiner entered an impression of bilateral 
metatarsalgia and history of bilateral calcaneal spurs with 
persistent pain.

The February 1993 rating decision shows the RO denied 
entitlement to service connection for bilateral metatarsalgia 
with history of calcaneal spurs because the veteran had not 
brought forth evidence of a chronic foot disorder during 
service.  

The RO notified the veteran of the decision in March 1993.  
She did not appeal it within one year of the determination, 
and thus that decision became final.

The evidence which was associated with the claims file 
subsequent to the February 1993 rating decision, wherein the 
RO denied entitlement to service connection for bilateral 
metatarsalgia with history of calcaneal spurs, is reported in 
pertinent part below, and includes the relevant evidence 
referable to the claim of entitlement to service connection 
for PTSD.

A March 1993 private psychological evaluation report shows 
the examiner entered diagnoses of major depression and to 
"rule out" PTSD.

In March 1997 the veteran submitted a letter as to the 
inservice stressors she felt were the cause of her PTSD.  She 
stated soon after her entrance into service, a soldier who 
was her superior made insinuating remarks that he intended to 
have a physical relationship with her, which terrified her.  
She reported that in September 1975 she was walking home and 
a young private asked her if he could walk with her.  She 
told him no and that she did not remember the remainder of 
that evening.  In the letter she indicated that her feet had 
hurt while she was in service.

VA outpatient treatment reports, dated from 1996 to 1997, 
show the veteran attended the sexual abuse support group.  A 
February 1996 Minnesota Multiphasic Personality Inventory 
(MMPI) examination revealed she was depressed.  In June and 
September 1996, diagnoses of PTSD due to childhood trauma 
were entered.

A September 1997 VA psychiatric evaluation report shows the 
veteran reported she had been sexually assaulted by two men 
while in service.  She realized this was the incident for 
which she had no memory.  She reported she had been sexually 
abused by her brother when she was a child.  She also 
reported she had pain and arthritis in both of her feet.  The 
examiner entered a diagnosis of cyclothymia and PTSD, 
secondary to history of previous sexual abuse as a child and 
in the service.

A March 1999 private medical record shows the counselor 
stated the veteran had experienced a sexual assault in 
service, and had recently remembered more of the details.  
The counselor noted she was currently being treated.

VA outpatient treatment reports, dated from 1997 to 2000, 
show the veteran was receiving psychiatric treatment at VA 
with the women's trauma group.

An April 2000 letter from the veteran's mother shows she 
noticed a difference at the time she was hospitalized in 
service and following her discharge.  She stated she did not 
know what had happened to her daughter, but that "something 
of huge proportions" must have happened to have changed her 
so much.

In April 2000 the veteran presented oral testimony before a 
Hearing Officer at the RO, a transcript of which has been 
associated with the claims file.  She testified she began to 
have trouble with her feet after basic training.  She was 
first treated for her feet at the Dallas VA Medical Center in 
1991.  She had quit jobs following her discharge from service 
because she could not stand on her feet for long periods of 
time.  She had been treated with cortisone shots in 1993 with 
a private physician because she was having trouble with her 
feet.

As to her claim for service connection for PTSD, the veteran 
testified she was sodomized and raped while in service.  They 
physically assaulted her and subsequently kicked her.  She 
did not have any recollection as to what had happened so she 
did not report the incident.  She noted she had subsequently 
remembered the incident in 1996.

She was later interrogated by two higher-ranked soldiers, who 
were interrogating her about her having bounced a check.  She 
felt violated by this invasion.  She had been treated for 
psychiatric problems while in service and tried to obtain 
those records, but they were unavailable.  She also tried to 
obtain the records from the Carswell Air Force base when she 
was treated in March 1977.  

She was treated in June 1977 by a private psychologist, but 
the psychologist died, and her records were not available.  
She was first diagnosed with PTSD in 1994.  Her initial 
diagnosis had not been attributed to service and instead to 
incidents that had occurred prior to service, but at that 
time, she had not been able to recall the incident of sexual 
assault in service.

The veteran's friend stated she had known her since 1969, and 
that she had always been an outgoing person.  When she saw 
her after she was discharged from service, her appearance and 
behavior had totally changed.  She had been an articulate 
person, but at that time following service, she could not 
even complete a sentence.  She had completely changed, which 
had astounded her.


Criteria

New and material evidence

The Board does not have jurisdiction to consider a previously 
adjudicated claim unless new and material evidence is 
presented.  Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 
1996).  When new and material evidence has not been submitted 
in a previously denied claim "[f]urther analysis . . . is 
neither required, nor permitted."  Butler v. Brown, 9 Vet. 
App. 167, 171 (1996) (finding in a case where new and 
material evidence had not been submitted that the Board's 
analysis of whether the claims were well grounded constituted 
a legal nullity).  Thus, the well-groundedness requirement 
does not apply with regard to disallowed claims and revising 
prior final decisions.  Jones v. Brown, 7 Vet. App. 134 
(1994).

If no notice of disagreement is filed within the prescribed 
period, the action or determination shall become final and 
the claim will not thereafter be reopened or allowed, except 
as otherwise provided by regulation.  38 U.S.C.A. § 7105 
(West 1991); 38 C.F.R. § 20.1103 (2000).
A decision of a duly constituted rating agency or other 
agency of original jurisdiction shall be final and binding on 
all field offices of the Department of Veterans Affairs as to 
conclusions based on the evidence on file at the time VA 
issues written notification in accordance with 38 U.S.C.A. § 
5104 (West 1991).

A final and binding agency decision shall not be subject to 
revision on the same factual basis except by duly constituted 
appellate authorities or except as provided in § 3.105 of 
this part.  38 C.F.R. § 3.104(a) (2000).

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 (West 1991).

The determination of whether evidence is new and whether 
evidence is material is governed by the test set forth in 38 
C.F.R. § 3.156(a) (2000), which is as follows:

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 evidence 
previously assembled is so significant 
that it must be considered in order to 
fairly decide the merits of the claim.

See Fossie v. West, 12 Vet. App. 1, 4 (1998); Hodge v. West, 
155 F.3d 1356 (Fed. Cir. 1998).

New evidence is considered to be material where such evidence 
provides a more complete picture of the circumstances 
surrounding the origin of the veteran's injury or disability, 
even where it will not eventually convince the Board to alter 
its decision.  See Hodge, 155 F.3d at 1363.
When determining whether the veteran has submitted new and 
material evidence to reopen a claim, consideration must be 
given to all the evidence since the last final denial of the 
claim.  Evans v. Brown, 9 Vet. App. 273 (1996).

New evidence is evidence which (1) was not in the record at 
the time of the final disallowance of the claim, and (2) is 
not merely cumulative of other evidence in the record.  Smith 
v. West, 12 Vet. App. 312 (1999); Evans, 9 Vet. App. at 283.

The Court has held that when determining whether the evidence 
is new and material, VA must conduct a three-step test.  
Elkins v. West, 12 Vet. App. 209 (1999) (en banc).  

First, VA must determine whether the appellant has presented 
new and material evidence 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).  Id.  

Second, if new and material evidence has been presented, 
immediately upon reopening the claim, 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).  Id.  

Third, if the claim is well grounded, VA may then proceed to 
evaluate the merits of the claim but only after ensuring that 
the duty to assist under 38 U.S.C.A. § 5107(b) has been 
fulfilled.  Id.  The Court noted in Elkins that by the ruling 
in Hodge, 155 F.3d 1356, the Federal Circuit Court 
"effectively decoupled" the determination of new and 
material evidence and well groundedness.

Thus, if the Board determines that the additionally-submitted 
evidence is "new and material," it must reopen the claim 
and perform the second and third steps in the three-step 
analysis, evaluating the claim for well-groundedness in view 
of all the evidence, both new and old, and, if appropriate, 
evaluating the claim on the merits.  Elkins, 12 Vet. 
App. 209.


Well-grounded claims

The Court has held that a well-grounded claim is "a 
plausible claim, one which is meritorious on its own or 
capable of substantiation.  Such a claim need not be 
conclusive but only possible to satisfy the initial burden of 
§ [5107(a)]."  Murphy v. Derwinski, 1 Vet. App. 78, 81 
(1990).

Additionally, the Court has held that although a claim need 
not be conclusive, the statute provides that it must be 
accompanied by evidence that justifies a "belief by a fair 
and impartial individual" that the claim is plausible.  
Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992).

"Where the determinative issue involves medical causation or 
a medical diagnosis, competent medical evidence to the effect 
that the claim is 'plausible' or 'possible' is required."  
Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. 
Brown, 5 Vet. App. 91, 93 (1993) (citing Murphy, 1 Vet. 
App. at 81).

When determining whether a claim is well grounded, the 
evidence submitted in support of the claim must be accepted 
as true.  Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995) 
(citing King v. Brown, 5 Vet. App. 19, 21 (1993)). 

A well-grounded claim requires competent evidence of current 
disability (a medical diagnosis), of incurrence or 
aggravation of a disease or injury in service (lay or medical 
evidence) and of a nexus between the in-service injury or 
disease and the current disability (medical evidence).  See 
Epps v. Brown, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza 
v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F. 3d 604 
(Fed. Cir. 1996).


The Court has held that a well-grounded claim for service 
connection for PTSD requires (1) medical evidence of a 
current PTSD disability; (2) medical or lay evidence 
(presumed credible for these purposes) of an in-service 
stressor; and (3) medical evidence of a link between service 
and the current PTSD disability.  Cohen v. Brown, 10 Vet. 
App. 128, 137 (1997); see Epps v. Brown, 9 Vet. App. 341, 
343-44 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) 
aff'd, 78 F.3d 604 (Fed. Cir. 1996).


Service connection

In order to establish service connection for a claimed 
disability the facts must demonstrate that a disease or 
injury resulting in current disability was incurred in active 
military service or, if pre-existing active service, was 
aggravated therein.  38 U.S.C.A. § 1131 (West 1991 & Supp. 
2000);  38 C.F.R. § 3.303 (2000).

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) (2000).

Continuous service for 90 days or more during a period of 
war, and post service development of a presumptive disease to 
a degree of 10 percent within one year from the date of 
termination of such service, establishes a presumption that 
the disease was incurred in service.  38 C.F.R. §§ 3.307, 
3.309 (2000).

Eligibility for service connection of a well-grounded PTSD 
claim requires medical evidence diagnosing the condition in 
accordance with 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.

When the claimed stressor is not related to combat, the 
veteran's lay testimony, by itself, will not be enough to 
establish the occurrence of the alleged stressor.  Instead, 
the record must contain enough evidence which corroborates 
the veteran's testimony as to the occurrence of the claimed 
stressor.  See Moreau v. Brown, 9 Vet. App. 389, 395-396 
(1996); see Dizoglio v. Brown, 9 Vet. App. 163 (1996).

The requisite additional evidence need for corroboration may 
be obtained from sources other than the veteran's service 
medical records.  Moreau, supra; see also Patton v. West, 12 
Vet. App. 272, 277 (1999).


Analysis

I.  Whether new and material evidence has 
been submitted to reopen a claim of 
entitlement to service connection for 
bilateral metatarsalgia with history of 
calcaneal spurs

The veteran seeks to reopen her claim of entitlement to 
service connection for bilateral metatarsalgia with history 
of calcaneal spurs, which the RO last denied when it issued a 
final rating decision in February 1993.  

When a claim is finally denied by the RO, the claim may not 
thereafter be reopened and allowed, unless new and material 
evidence has been presented.  38 U.S.C.A. § 7105 (West 1991); 
38 C.F.R. § 3.104(a).

When a claimant seeks to reopen a finally denied claim, the 
Board must review all of the evidence submitted since that 
action to determine whether the claim should be reopened and 
readjudicated on a de novo basis.  Glynn v. Brown, 6 Vet. 
App. 523, 529 (1994).  




In order to reopen a finally denied claim there must be new 
and material evidence presented since the claim was last 
finally disallowed on any basis; not only since the claim was 
last denied on the merits.  Evans v. Brown, 9 Vet. App. 273 
(1996).  Under Evans, evidence is new if not previously of 
record and is not merely cumulative of evidence previously of 
record.  See id.

Review of the RO's findings in the February 1993 rating 
decision shows, in essence, that it found that the veteran 
had not brought forth evidence to establish service 
connection for bilateral metatarsalgia with history of 
calcaneal spurs.  

The RO noted the service medical records showed a complaint 
of foot pain, but did not establish a chronic foot problem 
during service.  

At that time, the veteran had brought forth evidence of foot 
complaints in service and competent evidence of a diagnosis 
of bilateral metatarsalgia with history of calcaneal spurs.  
However, the veteran had not brought forth competent evidence 
of a chronic foot disorder in service nor a nexus between the 
diagnosis of bilateral metatarsalgia with history of 
calcaneal spurs and service.  Stated differently, the veteran 
had not brought forth a well-grounded claim for service 
connection for bilateral metatarsalgia with history of 
calcaneal spurs.  See Caluza, 7 Vet. App. 498.

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).  The Board has determined that the veteran 
has not presented evidence which is so significant that it 
must be considered in order to fairly decide the merits of 
the claim of entitlement to service connection for bilateral 
metatarsalgia with history of calcaneal spurs.  See id.  The 
specified basis of the RO's February 1993 denial is not 
changed materially by the additional medical evidence.



Specifically, the Board notes that the added evidence solely 
substantiates that the veteran has a current diagnosis of 
bilateral metatarsalgia with history of calcaneal spurs.  
Evidence establishing that the veteran had bilateral 
metatarsalgia with history of calcaneal spurs had already 
been of record at the time of the February 1993 rating 
decision.  The veteran still has not brought forth competent 
evidence of a chronic foot disorder during service nor a 
nexus between the diagnosis of bilateral metatarsalgia with 
history of calcaneal spurs and service.  

As to the veteran's contentions that bilateral metatarsalgia 
with history of calcaneal spurs are due to service, the Board 
finds that such contentions are not new and material, and are 
simply cumulative of those which were previously advanced by 
her and rejected by the RO.  The veteran had previously 
contended that the she had developed chronic foot problems 
while in service.  Therefore, the veteran's contentions 
provide no basis for reopening the claim, as she had 
previously asserted such facts, which had been previously 
rejected.

Although the veteran asserts that she incurred a bilateral 
foot disorder while in service, she has not been shown to 
have the medical credentials requisite to offer a competent 
medical opinion as to this matter.  Moray v. Brown, 5 Vet. 
App. 211 (1993) ("If lay assertions of medical causation 
will not suffice initially to establish a plausible, well-
grounded claim [for service connection], it necessarily 
follows that such assertions cannot serve as the predicate to 
reopen a claim under 38 U.S.C.A. § 5108"); see also Espiritu 
v. Derwinski, 2 Vet. App. 492, 494 (1992).

Additionally, as to the VA medical records and the private 
medical records, which do not relate to the veteran's 
petition to reopen the claim of service connection for 
bilateral metatarsalgia with history of calcaneal spurs, such 
are not relevant to the issue at hand and are cumulative, and 
thus cannot constitute new and material evidence.  See 38 
C.F.R. § 3.156(a).




For the foregoing reasons the Board holds that the added 
evidence is not both new and material, as it does not bear 
directly and substantially on the claim of entitlement to 
service connection for bilateral metatarsalgia with history 
of calcaneal spurs, is cumulative or redundant, and by itself 
or in combination with the other evidence of record, is not 
so significant that it must be considered in order to fairly 
decide the merits of the veteran's claim.  See 38 C.F.R. 
§ 3.156(a).

As the Board noted earlier, the Court announced a three-step 
test with respect to new and material cases.  Under the 
Elkins test, VA must first determine whether the appellant 
has submitted new and material evidence under 38 C.F.R. 
§ 3.156(a) to reopen the claim, and if so, VA must determine 
whether the claim is well grounded based on a review of all 
the evidence of record and lastly, if the claim is well 
grounded, VA must proceed to evaluate the merits of the 
claim, but only after ensuring that the duty to assist has 
been fulfilled.  Elkins, 12 Vet. App 209.

Accordingly, in view of the fact that the Board has 
determined that new and material evidence has not been 
submitted to reopen the veteran's claim of entitlement to 
service connection for bilateral metatarsalgia with history 
of calcaneal spurs, the first element has not been met.  
Thus, no further analysis of the application to reopen the 
claim is permitted.  Butler v. Brown, 9 Vet. App. 167, 171 
(1996) citing Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 
1995); see Elkins, 12 Vet. App 209.  

Although VA is obligated under 38 U.S.C.A. § 5103(a) to 
advise a claimant of the kind of evidence needed to reopen a 
previously denied claim, see Graves v. Brown, 8 Vet. App. 522 
(1996), this obligation depends on the particular facts of 
the case and the extent to which the Secretary has advised 
the claimant of the evidence necessary to be submitted with a 
VA benefits claim.  See Robinette v. Brown, 8 Vet. App. 69 
(1995).  




Here, the RO adequately fulfilled its obligation under 
section 5103(a) with the issuance of the March 1998 statement 
of the case, which provided the provisions of 38 C.F.R. § 
3.156, the regulation pertaining to new and material 
evidence.  

Additionally, the February 1993 rating decision explained 
that the veteran had not brought forth evidence of incurrence 
of a chronic bilateral foot disorder in service.  The Board 
finds that veteran has been informed as to what evidence she 
needs to bring forth to reopen her claim.

The Board notes that the veteran testified at the April 2000 
RO hearing that she had been treated at the VA Medical Center 
in Dallas, Texas, as to feet complaints.  The veteran did not 
state that such records would establish a nexus to service.  
In fact, she admitted that 1991 was the first time she had 
sought treatment for her bilateral foot complaints, which is 
many years following her discharge from service.  Thus, the 
Board does not find that a remand to obtain those records 
would serve any useful purpose.  

In this respect, it is not shown that the veteran has put VA 
on notice of the existence of any other specific, particular 
piece of evidence that, if submitted, could reopen her claim 
on the basis of new and material evidence.  Thus, no 
additional development action is warranted.

The denial of service connection for bilateral metatarsalgia 
with history of calcaneal spurs in the February 1993 rating 
decision was based, in essence, on the lack of evidence of 
service incurrence, and the lack of evidence of a 
relationship between the post service diagnosis of bilateral 
metatarsalgia with history of calcaneal spurs and service, 
which defects the veteran still has not cured.


II.  Entitlement to service connection 
for PTSD

To establish service connection for PTSD the three elements 
necessary are: (1) a current medical diagnosis of PTSD; (2) 
credible supporting evidence that the claimed in-service 
stressor actually occurred; and (3) medical evidence of a 
causal nexus between current symptomatology and the specific 
claimed in-service stressor.  To well ground the claim would 
of course require a somewhat less burdensome showing from the 
veteran.  Here, the claim is well grounded.  

In the September 1997 VA psychiatric evaluation report, the 
examiner entered diagnoses of cyclothymia and PTSD, which she 
attributed, in part, to sexual abuse in service.  See Cohen 
v. Brown, 10 Vet. App. 128, 137 (1997).

The recent amendment of § 3.304 was intended to correct 
certain regulatory deficiencies principally regarding PTSD 
claims based upon combat stressors.  Also in Cohen it was 
pointed out that the 1996 amending VA rating criteria 
pertaining to mental disorders included adoption of the 
nomenclature of DSM-IV (American Psychiatric Association, 
Diagnostic and Statistical Manual of Mental Disorders, Fourth 
Edition, 1994), and that § 3.304(f) did not specifically set 
forth any requirements regarding the sufficiency of a 
stressor and the adequacy of symptomatology to support a 
diagnosis of PTSD.  The amendment required that the medical 
evidence diagnosing PTSD comply with 38 C.F.R. § 4.125a, 
which requires that diagnoses of mental disorders conform to 
DSM-IV.

Accordingly, the record reflects the veteran was seen by a VA 
psychiatrist in September 1997 and was given a diagnosis of 
PTSD, which she attributed to service.  The Board finds that 
this establishes a well-grounded claim of entitlement to 
service connection for PTSD.  The examiner was presumably 
aware of the applicable diagnostic criteria then in effect 
and took them into account.  Cohen, 10 Vet. App. at 140.  

Additionally, the claimed stressors, though not corroborated, 
as acknowledged by the examiner, were viewed by the examiner 
as sufficient to support the diagnosis of PTSD.  The Board 
finds that such diagnosis is sufficient to well ground the 
claim of entitlement to service connection for PTSD.  Cohen, 
10 Vet. App. at 142-43; 38 U.S.C.A. § 5107(a) (West 1991); 
38 C.F.R. § 3.304(f).

With that in mind, the Board believes the claim requires 
additional development in view of the current state of the 
record in order to meet the duty to assist, and such 
development is addressed in the remand portion of the 
decision.


ORDER

The veteran, not having submitted new and material evidence 
to reopen a claim of entitlement to service connection for 
bilateral metatarsalgia with history of calcaneal spurs, the 
appeal is denied.

The veteran, having submitted a well-grounded claim of 
entitlement to service connection for a psychiatric disorder, 
claimed as PTSD, the appeal, to this extent only, is granted.


REMAND

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board or by the Court 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. 2000) (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.

The evidentiary considerations to establish service 
connection for PTSD in a merits adjudication are somewhat 
different from those in determining well groundedness.  Prior 
to the late 1990's there was no indication in the record of 
PTSD or any other psychiatric disorder, and the September 
1997 VA examiner concluded that PTSD was present.  The 
diagnosis was also predicated on pre-service stressors.  

Thus, there are several diagnoses as to the veteran's 
psychiatric disability, to include major depression and 
cyclothymia.  A diagnosis of PTSD meeting established 
criteria is an essential element to establish service 
connection for such.

Further, the Board believes that the determination must take 
into account the diagnostic assessments mentioned but not 
currently documented by more extensive clinical records to 
reach a determination of whether the veteran has PTSD or any 
psychiatric disorder related to the stressors alleged to have 
occurred in service.  The Board is bound by the regulations 
and the implied standard of proof for service connection 
under section 3.304(f).  See e.g., Patton v. West, 12 Vet. 
App. 272, 280 (1999).

Whether the diagnosis with respect to PTSD linked to service 
is established would seem to require confirmation of alleged 
noncombat stressors, the Board notes that such evidence is 
not of record nor has the RO informed the veteran of the need 
for her to submit corroboration of the noncombat stressors.  

The Board recognizes that corroboration of the noncombat 
stressors that are civilian in nature may not be a part of 
any official military record.  See e.g. Cohen, 10 Vet. 
App. at 134 regarding the limitations of official record 
sources in corroborating claimed civilian incidents.  



In claims such as the veteran's, "credible supporting 
evidence that the claimed in[-]service event actually 
occurred" cannot be provided by medical opinion based on 
post-service examination.  Moreau v. Brown, 9 Vet. App. 389, 
394-96 (1996).

The special obligation in personal-assault cases to assist a 
claimant in producing corroborating evidence of an in-service 
stressor is unique to that type of claim and the above 
categorical statement recited in Cohen and Moreau, and other 
cases where they may have been echoed, is not operative in 
that limited situation.  

Thus, in the context of discussing PTSD diagnoses, other than 
those arising from personal assault, the general rule applied 
is that something more than medical nexus evidence is 
required to fulfill the requirement for credible supporting 
evidence and that an opinion by a mental health professional 
based on a post service examination of the veteran cannot be 
used to establish the occurrence of the stressor.  See, e.g., 
Patton, supra.  Additionally, the noncombat-related stressor 
cannot be established solely by the veteran's lay testimony.  
Cohen, 10 Vet. App. at 142.

Under the controlling regulation, there must be credible 
supporting evidence that the claimed in-service stressor(s) 
actually occurred.  38 C.F.R. § 3.304(f).  In addition, the 
Court in Patton noted that evidence need only be in relative 
equipoise to prevail on the question of the existence of the 
stressor.  The Board notes that the VA examiner did not doubt 
the veteran's credibility.

The recent decision in Patton clearly alters the landscape in 
the adjudication of claims of service connection for PTSD 
based upon personal assault, but not the adjudication here in 
view of the facts of this case.  See also Doran v. Brown, 6 
Vet. App. 283, 289 (193).


The basic elements to establish service connection for PTSD 
are set forth under 38 C.F.R. § 3.304(f).  

The current standard for adjudication of claims such as the 
veteran's on the merits requires that consideration be given 
to developing corroborating evidence and a discussion of the 
application of the benefit of the doubt rule.  See, e.g., the 
discussion in Patton, 12 Vet. App. at 280-82 and in Cohen, 10 
Vet. App. at 142-43.  See also Gaines v. West, 11 Vet. 
App. 353, 358-60 (1998) for a detailed discussion of the 
significance of each element in the merits adjudication.

VA has adopted new criteria for psychiatric disorders that 
also include a change in PTSD considerations regarding the 
definition of a stressor.  The veteran is entitled to have 
her claim adjudicated under these provisions or applicable 
VBA ADJUDICATION PROCEDURE MANUAL, M21-1 (Manual M21-1) 
provisions.  See Cohen, 10 Vet. App. at 139-41.

As stated above, the Board finds that additional development 
is needed.  Accordingly, the case is hereby REMANDED to the 
RO for the following action:

1.  The veteran has the right to submit 
additional evidence and argument on the 
matter the Board has remanded to the RO.  
Kutscherousky v. West, 12 Vet. App. 369 
(1999).  

In this regard, the RO should advise her 
that she should identify the names, 
addresses, and approximate dates of 
treatment for all medical care providers, 
VA and non-VA, inpatient and outpatient, 
who may have additional records referable 
to her treatment for a psychiatric 
disorder, to include PTSD.  

After obtaining any necessary 
authorization or medical releases from 
the veteran, the RO should request and 
associate with the claims file legible 
copies of her complete treatment reports 
from all sources whose records have not 
previously been obtained.  

Regardless of the veteran's response, the 
RO should secure all outstanding VA 
psychiatric treatment reports and 
associate them with the claims file.

2.  The RO should attempt to obtain the 
psychiatric treatment the veteran 
received at the U.S. Air Force Regional 
Hospital at Carswell Air Force Base in 
March 1977, and associate those records 
with the claims file.  If those records 
cannot be obtained, the RO should attach 
a statement to the claims file stating 
such and document its attempt to obtain 
those records.

3.  The veteran should once again be 
asked to provide a comprehensive 
statement containing as much detail as 
possible regarding the stressor(s) to 
which she alleges she was exposed in 
service.  She should be asked to provide 
to the best of her ability any additional 
information including detailed 
descriptions of the stressful event, 
including the date, place, and 
identifying information concerning any 
other individuals involved in the 
stressful event, including their names, 
ranks, and units of assignment, her unit 
of assignment at the time of the 
incident, and any other identifying 
detail.  The veteran is hereby advised 
that this information might be needed to 
search for verifying information.  

She should be asked to recall anyone else 
who witnessed the claimed incidents, and 
whether the incident recalled might have 
been reported to military authorities by 
these other individuals.  

Additionally, she should be informed that 
if she reported the incident to a fellow 
soldier while in service, she should try 
to obtain a statement from that person, 
which indicates what the veteran 
reported.

The RO should afford the veteran the 
opportunity to submit any alternate 
available sources that may provide 
credible support to the in-service 
personal assault(s) to support her claim 
for service connection for PTSD, as 
provided in M21-1, Part III, para. 
5.14(c).

The veteran is advised that this 
information is necessary to obtain 
supportive evidence of the stressful 
events and that she be as specific as 
possible because without such details an 
adequate search for verifying information 
cannot be conducted.

4.  The RO should then request any 
supporting evidence from alternative 
sources identified by the veteran and any 
additional alternative sources deemed 
appropriate, if the veteran has provided 
sufficiently detailed information to make 
such a request feasible.

5.  The RO should review the entire 
claims file and prepare a summary of the 
unverified stressor(s) based on a review 
of all pertinent documents, to include 
any stressor statements and all medical 
records.

The summary and all associated documents, 
including a copy of this remand, all 
available service medical records, and 
any written stressor statements should 
then be sent to the U.S. Armed Service 
Center for Research of Unit Records 
(USASCRUR), 7798 Cissna Road, Suite 101, 
Springfield, Virginia 22150-3197, to 
obtain verification of the claimed 
stressors.

The USASCRUR should be requested to 
provide any information which might 
corroborate the veteran's alleged 
stressor(s).

6.  Thereafter, if any alleged 
stressor(s) is or are verified, the RO 
should afford the veteran a VA 
psychiatric examination by a specialist 
who has not previously examined or 
treated her.

The claims file, a separate copy of this 
remand, the stressor list compiled by the 
RO, any information provided the 
USASCRUR, and copies of the pertinent 
M21-1 criteria with respect to personal 
assault claims must be provided to the 
examiner for review prior and pursuant to 
conduction and completion of the 
examination and the examination report 
must be annotated in this regard.  Any 
further indicated special studies, 
including psychological studies, should 
be accomplished.

The examiner must determine whether the 
veteran has PTSD and, if so, whether the 
in-service stressor(s) is or are 
sufficient to produce PTSD.  


The examiner should utilize the DSM-IV in 
arriving at diagnoses and identify all 
existing psychiatric diagnoses.  If PTSD 
is diagnosed, the examiner should explain 
whether and how each of the diagnostic 
criteria is or is not satisfied.  Again, 
if PTSD is diagnosed, the examiner must 
identify the verified stressor(s), 
noncombat-related, supporting the 
diagnosis.

With respect to her reported personal 
assault(s) while in service, the examiner 
is requested to analyze the obtained 
service personnel records in light of the 
examples listed in M21-1, Part III, para. 
5.14(c)(7).  Specifically, the examiner 
should determine whether there is in-
service and/or post service evidence of 
behavior changes at the time of the 
alleged stressor incident(s), which might 
indicate its/their occurrence.  See M21-
1, Part III, 5.14(c)(7), (8).

In doing so, the examiner should 
carefully review all of the veteran's 
statements and hearing testimony dating 
back to her original stressors statement 
regarding the events of her assault(s), 
as well as the secondary evidence and 
evidence of behavior changes shown in the 
service personnel records.  It is 
requested that the examiner interpret the 
behavior changes and evidence pertaining 
thereto and render an opinion whether the 
behavior changes are related to the 
claimed stressor(s).





If a psychiatric diagnosis other than 
PTSD is entered, the examiner is asked to 
state whether such psychiatric diagnosis 
is related to the in-service stressor(s), 
and/or any other incident of service.  

If the examiner determines that any 
psychiatric disorder(s) found on 
examination existed prior to service, an 
opinion must be entered as to whether any 
such psychiatric disorder(s) was/were 
aggravated by the veteran's period of 
service.

The examiner should also be requested to 
determine whether clarification of the 
veteran's diagnosis, if any, would be 
assisted by a period of hospitalization 
for observation and examination.  If the 
examiner determines that a period of 
hospitalization is not required, he 
should so state.

The examiner is requested to determine 
whether any psychiatric disorder(s) found 
on examination, to include PTSD, is or 
are related to the event(s) that occurred 
during her period of active service, 
prior or subsequent thereto.

The examiner must clearly specify whether 
any psychiatric disorder(s) currently 
found on examination is or are a result 
of service, pre-service, or post service 
stressors.

If the examiner is not of the opinion 
that any psychiatric disorder(s) found on 
examination is or are related to the 
veteran's period of active service, the 
examiner must provide an opinion as to 
the most likely etiology of any 
psychiatric disorder(s) found on 
examination.  Any opinions expressed by 
the examiner must be accompanied by a 
complete rationale.

7.  Thereafter, the RO should review the 
claims file to ensure that all of the 
foregoing requested development has been 
completed.  In particular, the RO should 
review the requested examination 
report(s) and required opinions to ensure 
that they are responsive to and in 
complete compliance with the directives 
of this remand and if they are not, the 
RO should implement corrective 
procedures.  Stegall v. West, 11 Vet. 
App. 268 (1998).

8.  After undertaking any development 
deemed essential in addition to that 
specified above, the RO should 
readjudicate the claim of entitlement to 
service connection for a psychiatric 
disorder, claimed as PTSD, to include 
consideration of any additional evidence 
associated with the claims file and 
consideration of 38 C.F.R. § 3.303(d) 
(2000).

If the benefit sought on appeal is not granted to the 
veteran's satisfaction, the RO should issue a supplemental 
statement of the case.  A reasonable period of time for a 
response should be afforded.  Thereafter, the case should be 
returned to the Board for further appellate review, if 
otherwise in order.  


By this remand, the Board intimates no opinion as to any 
final outcome warranted.  No action is required of the 
veteran until she is notified by the RO; however, the veteran 
is hereby notified that failure to report for a scheduled VA 
examination may result in a denial of her claim for service 
connection.  See 38 C.F.R. § 3.655 (2000).



		
	RONALD R. BOSCH
	Veterans Law Judge
	Board of Veterans' Appeals