Citation Nr: 0100621 Decision Date: 01/10/01 Archive Date: 01/17/01 DOCKET NO. 93-09 702 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a chronic acquired psychiatric disorder to include schizoaffective disorder and post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: State of Georgia Department of Veterans Service ATTORNEY FOR THE BOARD K.L. Salas, Counsel INTRODUCTION The appellant has verified active duty from December 1976 to September 1978. His DD-214 indicates that he had prior inactive service, and a service abstract in his service medical records shows prior periods of active duty for training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 1991 and March 1992 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied entitlement to service connection for a chronic acquired psychiatric disorder, to include schizoaffective disorder and PTSD. The veteran raised the current claim with testimony at a personal hearing at the RO in April 1991; a copy of the transcript of that hearing has been associated with the claims folder. The Board remanded this matter in 1995 for a supplemental statement of the case (SSOC). While on remand, additional development was conducted. Thereafter the prior denial of the veteran's claim was continued as recently as June 2000. The appeal has been returned to the Board for further action. It is noted that in May 1979 the RO denied entitlement to service connection for a "psychiatric condition" on the basis that the veteran had only a personality disorder for which service connection cannot be established. The veteran was informed of the decision but did not appeal. The RO has addressed the veteran's current claim on a de novo basis. The Board does not have jurisdiction to consider a previously adjudicated claim unless new and material evidence is presented and before the Board may reopen the claim it must so find. 38 U.S.C.A. § 5108 (West 1991); Barnett v. Brown, 83 F. 3d 1380, 1384 (Fed. Cir. 1996). The issue on the title page has been amended accordingly. For reasons explained in more detail below, the claim is reopened, and to this extent the appeal is granted with respect to both disabilities at issue. The claim of entitlement to service connection for PTSD is further addressed in the remand portion of this decision. It is also noted as an introductory matter that the veteran was formerly represented by a private attorney. A VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, in favor of State of Georgia Department of Veterans Service dated in August 1997 was subsequently received. The attorney was notified in September 1997 that the effect of a new power of attorney is to revoke the power of attorney in his favor. He was informed that he could reestablish the representational relationship by submitting another declaration of representation. However, it does not appear that he did so. FINDINGS OF FACT 1. The RO denied entitlement to service connection for a psychiatric condition in May 1979; a notice of disagreement (NOD) was not filed within the prescribed period after the date that the veteran was notified of the decision. 2. The evidence submitted since the May 1979 decision is not wholly duplicative or cumulative, bears directly and substantially upon the issue at hand, and is so significant that it must be considered in order to fairly decide the merits of the claim. 3. All the evidence, including that pertinent to service, establishes that schizoaffective disorder as likely as not had its inception during the veteran's active service. CONCLUSIONS OF LAW 1. Evidence received since the final May 1979 determination wherein the RO denied the claim of entitlement service connection for a psychiatric condition is new and material, and the appellant's claim for that benefit is reopened. 38 U.S.C.A. §§ 5104, 5108, 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.1103 (2000). 2. Schizoaffective disorder was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131 (West 1991 and Supp. 2000); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The evidence which was of record prior to the May 1979 rating decision wherein the RO denied entitlement to service connection for a psychiatric condition is reported below. On an examination in February 1974, apparently in conjunction with the end of a period of active duty for training, the veteran reported a history of having, or having had, "nervous trouble of any sort," "depression or excessive worry," and "frequent trouble sleeping." His problem was described as frustration and situational disturbance. However the psychiatric portion of the examination was found to be normal. The history reported by the veteran in February 1974 was denied on a subsequent examination in March 1975, except for "frequent trouble sleeping," and again in December 1976, which was the examination directly prior to his recognized period of active duty. Psychiatric evaluations were normal on these examinations. Service medical records from the period of active duty show that the appellant was seen at his request by a social worker in July 1978. He complained of job dissatisfaction, stating that racial prejudice caused him not to get a job for which he felt he was better qualified than the person selected, and that tension at work caused him to overeat. The social worker found that occupational maladjustment was present but there were no significant findings on mental status examination to include any evidence of a thought disorder. The impression was that there was no psychiatric disease. An examination for the purpose of release from active duty conducted in August 1978 did not indicate any psychiatric abnormality. In a claim for VA benefits in February 1979 the veteran claimed a psychiatric condition with onset in 1978. He specified that he had treatment in July 1978. In the course of a VA examination conducted in April 1979, the appellant claimed that he was frustrated in service and gained weight. He also stated that he was discriminated against and felt that others were selected for jobs he was well qualified for. It was noted that he was again having conflict with people at work and felt that his current duties were assigned to him because of a conflict with a supervisor. He also reported that he had talked to a psychiatrist about an ulcer problem. The VA examiner found that the appellant was easily frustrated and felt discriminated against, but there was no evidence of psychosis or thought disorder. He showed animosity and pent up anger, but did not display an unusual degree of anxiety, depression or tension "other than what is normally seen in an unhappy work and life situation." He had no insight into his own behavior, which according to the examiner "causes him to have interpersonal conflicts." The diagnosis was passive-aggressive personality. The claim of entitlement to service connection for a psychiatric condition was denied in May 1979 on the basis of the service medical records and VA examination report. As stated above, the RO found that the veteran had only a personality disorder for which service connection could not be granted. The veteran was notified of the rating decision but did not file an NOD. The evidence associated with the claims file subsequent to the May 1979 rating decision is reported below. VA treatment records from February 1979 to July 1980 show complaints of nervousness, anxiety and depression as well as treatment for ulcer disease. A report from June 1979 noted that the veteran would become easily upset with people. He appeared depressed and reported being anxious. It was noted that there was a medical history of psychotherapy. The impression was anxiety and depression. Another June 1979 report stated that the veteran was not psychotic but complained of nervous anxiety and showed a hostile mood at times. During a hospital admission for treatment of ulcers in September and October 1979 the appellant was seen by the psychology service at his request. He wanted to discuss some unspecified personal problems with a psychologist. During hospitalization the veteran became agitated and it was felt by staff that he was possibly suicidal. The hospital psychiatrist felt that he had a characterologic disorder which was described in a treatment note as an oral and passive aggressive personality. He was referred for further therapy and medication was prescribed for anxiety. A counseling note during hospitalization noted that the veteran verbalized "many paranoid feeling[s] related to the fact that he is a 'man and black.'" Records of outpatient therapy from 1984 to 1988 show numerous impressions of anxiety or anxiety reaction as well as notations of a depressed mood or feeling of being depressed. He also expressed complaints about his churches and a church pastor. In March 1987 the veteran was noted to have symptoms including a labile affect, circumstantiality/ tangentiality, pressured speech and irritability. He became questionably "hyper-religious" at one point and reported some suicidal ideation. The impression was of a bipolar disorder. A Social Security Administration psychiatric review report from September 1987 noted that the veteran met the criteria for schizophrenic, paranoid and other psychotic disorders as well as for affective disorders. It was noted that there were psychotic features and deterioration as evidenced by delusions or hallucinations and loosening of associations, illogical thinking associated with frequently blunt affect and periodic inappropriate affect. He also showed evidence of emotional withdrawal and/or isolation. The evaluation showed no evidence of a sign or symptom cluster that appropriately fit within the criteria for an anxiety disorder. Some features of a personality disorder were also felt to exist including seclusiveness or autistic thinking and pathologically inappropriate suspiciousness or hostility. A state hospital report from March 1988 contains an admitting diagnosis of rule out bipolar disorder, manic. The reason for admission was homicidal ideation. The report noted that the veteran had alteration in thought processes manifested by angry affect, threatening behavior and hyperverbality. He had many somatic complaints, was very religious, and had a racial identity problem - namely he insisted that he be considered white. The mental status examination on discharge was normal. On discharge no Axis I psychiatric diagnosis was given. It was felt that the veteran had a mixed personality disorder but diagnoses in the future could include bipolar manic or paranoid schizophrenic. A psychiatrist's report from May 1988 indicates that the appellant had been treated for about six months. The initial complaint was severe mood swings, and after more thorough examination it was learned he had had difficulty functioning occupationally since the mid 1970's. It was at this time that he began to experience anxiety and developed various physical disorders. His work history had been characterized by sporadic work performance and marred by interpersonal problems with other staff since that time. In the doctor's opinion the veteran had a schizoaffective disorder and histrionic personality disorder. The veteran was also paranoid and found it difficult to work with others who violated his religious sensibilities. He was easily upset by criticism and often had decreased energy and evidence of depression. A Social Security Administration decision, including a psychiatric review report, issued February 10, 1989, reflects a finding that the appellant had paranoid schizophrenia with depression and anxiety or schizoaffective schizophrenia. At a hearing held in April 1991, the appellant denied that he had any mental health problems prior to service. He also denied any bad experiences involving the Ku Klux Klan (KKK). He further testified that during his Reserves service he had no mental health problems that he knew of. The veteran testified that during his active duty he was assigned to the U.S.S. Independence. He claimed that everything was fine until a dispute developed when he was made a supervisor in place of another sailor. Thereafter, according to his testimony, the individual whose job he had received harassed him and made trouble. The veteran testified that he was subjected to numerous incidents of racial harassment by an unknown person or persons. Pictures of rebel flags, photos of him with a noose drawn around his neck, and "KKK" signs were placed on his bed, and someone also wrote a note threatening that he would be stuffed in a laundry bag and dumped into the sea. He was also pushed in the back periodically when he was walking on the ship and that he was provoked into a fight on one occasion. According to the veteran he could not sleep and "freaked out" due to the incidents he related. He recalled that he had counseling in 1977 or 1978 but denied any other treatment for psychological problems in service. In terms of his current symptoms, the veteran testified that he would have flashbacks triggered by movies involving the KKK, and could not tolerate being exposed to anything with similar content. He also reported that he felt he experienced prejudice or discrimination in both his treatment through VA and in his church and felt that people were coming to his house and looking in his window. In connection with his hearing the veteran submitted newspaper articles which, although undated, are stamped as having been from September 1979. Those articles describe a series of racial incidents which occurred on the aircraft carrier Independence. In a report from November 1991, a psychiatrist wrote that he had been following the veteran since the end of July 1990 for a schizoaffective disorder. He stated that it had been recently brought to his attention that "delusions of having the [KKK] after him have some validity" given that he was on a ship from 1976 to 1978 that did have KKK, albeit covert, on the ship. This was confirmed by articles in a newspaper at the time. According to the psychiatrist's report, the veteran stated that he was threatened and harassed by the KKK and his family reported that he was "never the same" after that. The veteran reported that his first psychiatric encounter was at the end of his naval career. The Axis I diagnoses were schizoaffective disorder and rule out PTSD. A VA examination was conducted in January 1992. The examiner stated that he obtained information from the veteran, the veteran's sister and the claims file. The prior diagnosis of schizoaffective schizophrenia was noted along with the possibility of PTSD due to harassment which had not been confirmed but had been considered. The veteran related that he would become depressed and nervous easily. He reported to the examiner that "the Klan" would not leave him alone stating "they come and knock on my door, call my name, call me on the phone, puts black stuff on my teeth and in my bed." He also told the examiner that he would hear the voice of his father calling him. After an examination, which showed no evidence of significant anxiety or depression but contained numerous other abnormal findings including auditory and visual hallucinations and delusions with some evidence of paranoia, the examiner concluded that the veteran was not testing reality adequately. The diagnosis on Axis I was schizoaffective schizophrenia, psychotic at this time. The examiner stated that it was difficult to delineate nightmares or flashbacks from his psychosis. A schizoid personality was also diagnosed on Axis II. The examiner did not feel that the veteran was malingering or being manipulative during the examination. A VA clinical psychologist submitted a report dated in April 1993. He stated that original notes of treatment were missing from the veteran's chart. However, he recalled seeing the veteran in approximately the fall of 1977 at which time the veteran was extremely distressed by perceived mistreatment aboard a ship. He spoke of fears for his personal safety and of being the target of racial slurs and innuendo. He also expressed the fear that there were organized groups among his white shipmates, particularly the KKK, that were a constant menace to himself and other black shipmates. The psychologist noted that although the veteran was no longer in immediate danger he continued to ruminate about these experiences and have disruption of sleep and of concentration. VA treatment reports from 1993 onward pertain mostly to the veteran's physical problems. Several reports contained a history of manic depressive or bipolar illness. There were also indications of panic attacks, PTSD and anxiety. A VA examination was conducted in June 1998. The claims folder and medical records were available and were reviewed at length. It was noted that past diagnoses included bipolar disorder, schizoaffective disorder, and a personality disorder with a questionable diagnosis of PTSD based on the veteran's reported symptoms. The veteran reported difficulty dealing with an attack by white supremacist members of the KKK on the U.S.S. Independence in late 1978. He related that he was "harassed" on a daily basis as well as "attacked" by one member of the KKK. Referring to newspaper clippings from 1979 pertaining to KKK members on Navy ships he stated, "that was my incident." He explained that his abuse was going on long before anyone knew and the newspaper simply broke the news after he had been discharged from the Navy. The veteran then also stated that the men who attacked him in service followed him to his home and showed up on his balcony screaming at him and threatening his life. The veteran reported that as a result of the events he described he had poor sleep, panic attacks, depressed mood with crying spells, nightmares, and flashbacks triggered by things pertaining to racism - specifically television programming or seeing swastikas. The mental status examination was negative for paranoia or delusions although the veteran did insist that he saw "that guy from the KKK" on his balcony. It was difficult for the examiner to ascertain whether this was a factual event or delusions and paranoia on the veteran's part. He also endorsed having special powers (being able to "see death" or "see death angels around people who are going to die") and at times appeared hyper-religious. On the other hand he did not appear to have diminished concentration or to be responding to internal stimuli. The examiner remarked that the veteran's history and story were complicated. It was difficult to validate or refute his claim of KKK involvement on the U.S.S. Independence. It was also difficult to delineate PTSD symptomatology from actual paranoia and delusions as a result of his schizoaffective diagnosis. The diagnoses were schizoaffective disorder, bipolar type, and PTSD. The examiner explained the diagnoses with reference to specific criteria from the Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM IV). Anxiety at the present time was felt to be associated with the schizoaffective disorder as well as with PTSD. The examiner noted that the PTSD diagnosis was made assuming that the claimed stressors were true, and if the alleged attack by KKK members in service was refuted, it would cast doubt on the PTSD diagnosis. However, the schizoaffective disorder diagnosis was valid and indicated regardless. The examiner noted that he had no way of either refuting or validating the claims of abuse in service by KKK members but felt that the veteran had significant stress and symptomatology related to a perceived if not factual attack while on active duty. The examiner also stated that it was difficult to disprove the veteran's claims based on the claims folder information and the veteran had an excuse for discrepancies noted, such as the time frame between discharge and newspaper clippings that he provided. In addition, the veteran was fairly convincing with his symptomatology and did appear markedly disorganized. Another VA examination by a different psychiatrist was provided in October 1999. At this examination the veteran stated that when stationed on the U.S.S. Independence in service he applied for a promotion that was given to another, in his opinion, less qualified seaman. He attempted to appeal and have an investigation into whether he was denied the promotion on the basis of race. According to the veteran's history, after pressing for the investigation, problems began. He was harassed by other sailors, confederate flags and doctored photos of himself were placed in his room, and KKK slogans were written around his room. He stated that he was also threatened and even physically assaulted. He also reported that when he attempted to complain, the superior officers joined in the harassment and intimidation. Later there was an investigation into the KKK presence on his ship. The veteran related that he lived in constant fear in service and developed a peptic ulcer. He stated that he "got paranoid" due to his treatment. Reportedly, after service the veteran's old tormentors continued to harass him. He stated that some former shipmates came to his apartment and he fired a pistol at them after which he had "nervous breakdowns." He stated that he had some hallucinations that appeared real to him including seeing hooded Klansmen approaching him, and hearing voices with religious content. He stated that he used the Bible to "rebuke the demon" when hearing the voices. The examiner stated that the veteran presented a very compelling history that he was harassed, beaten, intimidated and ultimately run out of the service. However, there was no record of his condition in service or treatment since to confirm or disconfirm whether his current expressed beliefs have any basis in historical fact. It was felt that the veteran had significant delusional thought patterns involving themes of religion, persecution and apparent grandiosity. The examiner stated that it was difficult to offer any conclusion as to whether these symptoms were related in any way to the veteran's service without additional information. The claims folder was not available for review prior the examination. The diagnoses were schizoaffective disorder and panic disorder without agoraphobia. To reconcile the results of the prior examinations the veteran was examined by VA again in January 2000. The claims folder was reviewed. The examiner noted that diagnoses of schizoaffective disorder, bipolar type, and PTSD had been made and found that the 1998 examination results were reliable. However, it was noted that subsequently, another examiner did not feel that there was PTSD and the VA examiner who conducted the 1998 examination conceded that the veteran's history was complicated and it was difficult to validate or refute the claims of KKK involvement on the veteran's ship. Moreover, the 1998 examiner noted that it was difficult to delineate PTSD symptoms from paranoia and delusions as a result of schizoaffective disorder. The examiner concluded that if there was clear documentation of the stressor described, a diagnosis of PTSD would be reasonable and appropriate. However, he did not feel that this was established and could not make a PTSD diagnosis. He explained that a clear diagnosis of PTSD could not be made without clear and confirming evidence that the stressors occurred at the same level with the same reasonable perceptions of fears for safety as he recalled and that there be some evidence that PTSD was apparent in some way in the initial months or years after the stressor occurred. The examiner stated that he felt that it was possible that the veteran's psychiatric and psychotic illness coupled with personality problems that had been earlier noted might have led to his having "delusional memories" or memories that were tainted by his later experiences and later psychotic symptoms. With respect to the April 1993 report relating that the veteran did in fact experience various stressors in around 1977, the examiner stated, "I would be quite impressed if [the psychologist who wrote the April 1993 report] felt his memory for a particular patient, having symptoms of that particular type more than 15 years previously would be reliable enough to make this decision without other concurring evidence." Criteria If no NOD 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(c); 38 C.F.R. § 20.1103 (2000), 19.118 (1979). 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. Despite the finality of a prior final RO decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The Court has held that VA is required to review for its newness and materiality only the evidence submitted by an appellant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and readjudicated on the merits. Evans v. Brown, 9 Vet. App. 273 (1996). In order to reopen a claim by providing new and material evidence, the appellant must submit 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. 38 CFR § 3.156(a). 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 supra. 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 v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). There has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other things, this law eliminates the concept of a well-grounded claim, redefines the obligations of the Department of Veterans Affairs (VA) with respect to the duty to assist, and supercedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. The law now provides that the Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The Secretary may defer providing assistance pending the submission by the claimant of essential information missing from the application. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, ___ (2000) (to be codified at 38 U.S.C. § 5103A(a)). The law further provides that the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the evidence of record (lay or medical) includes competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but does not contain sufficient medical evidence for the Secretary to make a decision on the claim. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, ___ (2000) (to be codified at 38 U.S.C. § 5103A(d)). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by either wartime or peacetime service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which service connection is sought, must be considered on the basis of the places, types and circumstances of the veteran's service as shown by service records, the official history of each organization in which the veteran served, medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of VA to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a) (2000). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2000). In the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin. Personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 3.303(c)(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). Service connection is available for a psychosis that is manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (2000). When after consideration of all of the evidence and material of record in an appropriate case before VA there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. 38 C.F.R. § 3.102 (2000). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis New and material evidence The veteran seeks to reopen his claim of entitlement to service connection for a chronic acquired psychiatric disorder to include schizoaffective disorder and PTSD. The RO finally denied a claim of entitlement to service connection for an unspecified psychiatric condition in May 1979. 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; 38 C.F.R. § 3.104. The evidence submitted in connection with the veteran's claim to reopen the prior final May 1979 rating decision consists of VA and private treatment reports, VA examination reports, newspaper clippings, and the veteran's statements and hearing testimony. The Board concludes that this evidence is new and material and therefore the claim is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). See also Hodge, supra. The basis of the prior final denial was that the veteran had only a personality disorder and not a disability for which service connection could be granted. 38 C.F.R. § 3.303(c). The treatment records and examination reports submitted since the final decision are "new" in that respect. They are not cumulative or duplicative in that they show ongoing psychiatric treatment after service and additional psychiatric diagnoses of disorders for which service connection can be granted - primarily and notably schizoaffective disorder and PTSD. Furthermore, the records tend to shed light on the question of etiology or onset and therefore bear directly and substantially on the question at issue. As new and material evidence has been submitted, the appellant's claim of entitlement to service connection for a chronic acquired psychiatric disorder to include schizoaffective disorder and PTSD, is reopened. Accordingly, the Board's analysis must proceed to an evaluation of the claim on the merits. Entitlement to service connection for schizoaffective disorder With respect to the matter of entitlement to service connection for a chronic acquired psychiatric disorder other than PTSD - specifically schizoaffective disorder - the Board is satisfied that all relevant facts have been adequately developed for the purpose of adjudicating the claim; no further assistance in developing the facts pertinent to the claim is required to comply with the duty to assist as mandated by the recently enacted Veteran Claims Assistance Act cited above. Numerous medical records have been obtained including Social Security records, private records and VA records. Multiple VA psychiatric examinations have also been afforded the veteran. The veteran's affective and psychotic symptoms have been variously diagnosed over the years. Consistent with VA regulations, the veteran's case has been referred on several occasions for VA examinations to reconcile diagnoses and the most current and thorough examinations to date have concluded that the correct diagnosis is schizoaffective disorder. 38 C.F.R. § 4.125. The Board is also persuaded from the medical evidence that the diagnosis of schizoaffective disorder can coexist with the diagnosis of PTSD and that the outcome of this appeal does not depend on (is not inextricably intertwined with) the claim of entitlement to service connection for PTSD. It is apparent from review of the claims folder that no chronic acquired psychiatric disorder, to include schizoaffective disorder, was diagnosed or definitively shown by competent medical evidence in service. There was only one psychological evaluation shown - in 1978 - that contained any appreciable detail, and this was by a social worker. The summary assessment made at discharge was that the veteran had a normal psychiatric system although no detailed findings were made. A psychotic disorder was not demonstrated to a compensable degree within the first postservice year. In the absence of a showing of a chronic disorder in service there is no basis for service connection pursuant to 38 C.F.R. §§ 3.303(a) or (b). However, the veteran did seek counseling in service based on complaints of interpersonal problems and it was noted that he also had numerous physical complaints as well as weight gain. The question to be answered is whether, notwithstanding the absence of a diagnosis of schizoaffective disorder in service, the evidence sufficiently links symptoms and treatment in service and post service so as to create a nexus between the post service diagnosis of schizoaffective disorder and the veteran's service. Put another way, the question is whether the evidence creates a persuasive or likely enough case of a link to service that reasonable doubt arises on the question of etiology. Where the preponderance of the evidence favors the claim or the evidence in favor of the claim and that tending to weigh against the claim are approximately equally balanced (relative equipoise), the claim will be granted. 38 C.F.R. §§3.102, 4.3; Gilbert supra. That being stated, the absence of a diagnosis of a chronic acquired psychiatric disorder in service is not a barrier to a claim of service connection. Pursuant to 38 C.F.R. § 3.303(d), 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. The Board is persuaded that the evidence as a whole - both in service and post service -is at least evenly balanced as to whether schizoaffective disorder as likely as not had its inception during the veteran's active service or within the first postservice year. There is reasonable doubt on this point which is resolved in favor of the veteran. 38 C.F.R. §§ 3.102, 3.303(d), 3.307, 3.309(a); Gilbert supra. To explain this finding, the Board is persuaded from medical/psychiatric and psychological evaluation reports of record that the veteran's complaints in service of weight gain, somatic concerns, social and occupational dysfunction with interpersonal conflicts, claims of discrimination, anxiety, and feelings of depression (diagnosed only as a situational disturbance), and some of the same or similar symptoms shown within the first post service year (diagnosed as a personality disorder, anxiety, nervousness or depression) together with evidence of paranoid persecutory delusions, represented the beginning of the currently diagnosed schizoaffective disorder process. 38 C.F.R. § 3.303, 3.307, 3.309(a). It is unclear whether the veteran was actually discriminated against in service or whether he was subjected to racial or KKK harassment, intimidation or assault as claimed, or whether these claims represent paranoid/persecutory delusional ideation. However, only a few months after service the veteran began asserting that he had onset of a chronic acquired psychiatric disorder in service. Treatment providers in the year after service as well as a VA examination that year noted complaints similar to those in service as well as specific complaints of nervousness, anxiety and depression. Impressions included passive aggressive personality, anxiety and depression. During a hospitalization from September 1979 into October of 1979, the veteran was counseled for unspecified unresolved personal conflicts or problems. No psychosis was specifically found or diagnosed (he was felt to have a characterologic disorder described as a passive aggressive personality and was treated for anxiety) but there were references to him having paranoid (psychotic) thoughts. In fact, interestingly and consistent with the veteran's prior complaints of racial discrimination and persecution, these thoughts, while not specifically described in the records, had a racial overtone. It was reported that they had to do generally with the veteran being a man and being black. In summary, starting in service the veteran showed a history of numerous physical complaints, interpersonal problems, claims that he was subjected to racial discrimination, and complaints of nervousness and anxiety. He also showed, at approximately one year after service, some suggestion of paranoid or persecutory ideation that had a racial component. Subsequent treatment records showed similar complaints - namely anxiety, depression, and various frustrations through the mid to late 1980's when there were clear notations of alteration in thought processes. A Social Security workup during this period clearly found schizophrenic and affective symptoms. A psychiatrist report from May 1988 noted a diagnosis of schizoaffective disorder. The diagnosis was based on a history of mood swings together with other factors including a history of the veteran having difficulty functioning occupationally since the mid 1970's with development of anxiety and various physical disorders at that time, and sporadic work performance and interpersonal problems since that time. The examiner did not offer a clear opinion that schizoaffective disorder had its onset during the veteran's military service. However, the diagnosis of schizoaffective disorder was clearly based on an accurate and substantiated history of symptoms from the 1970's to present. A review of the record shows that the symptoms forming the basis for the diagnosis were not shown prior to service. Rather, they were first shown in service and then consistently thereafter. Subsequent VA examinations also tend to support the same conclusion on diagnosis and etiology and there has been no specific expert opinion that schizoaffective disorder is unrelated to service. The examiner who conducted the 1999 VA examination explained that delusional thought patterns involving themes of religion, persecution and apparent grandiosity were manifestations of schizoaffective disorder. The examiner who conducted the 2000 VA examination stated that it was certainly possible that the veteran's psychiatric and psychotic illness coupled with personality problems that had been earlier noted might have led to his having "delusional memories" or certainly having memories that were tainted by his later experiences and later psychotic symptoms. From these opinions and the other facts of record, the Board again must conclude that it is at least as likely as not that symptoms shown in service and within a year after service were the first manifestations of current schizoaffective disorder. Therefore entitlement to service connection for schizoaffective disorder is granted. ORDER The claim of entitlement to service connection for a chronic acquired psychiatric disorder to include schizoaffective disorder and PTSD is reopened. Service connection for schizoaffective disorder is granted. REMAND Service connection for PTSD requires medical evidence of a diagnosis comporting with 38 C.F.R. § 4.125, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128; See also e.g. Gaines v. West, 11 Vet. App. 353 (1998). The sufficiency of the stressor to cause PTSD is a medical determination. Cohen, supra. The veteran submitted medical/psychiatric and psychological reports showing a diagnosis of PTSD as well as competent opinion evidence that PTSD is possibly related to the report of inservice threats and assault. The VA Adjudication Manual M21-1 (M21-1) , Part III, 5.14(c) provides 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, and the manual contains detailed guidelines for developing and adjudicating these types of claims. It does not appear that these procedures have been sufficiently followed in this case. The manual provides that although the military record may contain no documentation that a personal assault occurred, alternative evidence such as behavior changes at the time of the incident might still establish that an inservice stressor occurred. Examples include visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; sudden requests for a change of military occupational series or duty assignment without other justification; lay statements indicating increased use or abuse of leave without an apparent reason such as family obligation or family illness; changes in performance and performance evaluations; lay statements describing episodes of depression, panic attacks or anxiety without identifiable reasons for the episodes; increased or decreased use of prescription or over the counter medications; evidence of substance abuse such as alcohol or drugs; increased disregard for military or civilian authority; obsessive behavior such as overeating or undereating; unexplained economic or social behavior changes; treatment for physical injuries around the time of the claimed trauma but not reported as a result of the trauma; and breakup of a primary relationship. A sample letter to be sent to the veteran in connection with a claim for an in-service personal assault is included in the M21-1. Id. The M21-1, Part III, 5.14(c) also provides that rating boards may rely on a preponderance of the evidence to support their conclusions even if the record does not contain direct contemporary evidence. This includes that although 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 should support the conclusion that it occurred. In personal assault claims, secondary evidence may need an interpretation by a clinician, especially if it involves behavior changes. In Patton v. West, 12 Vet. App. 272 (1999), the Court of Appeals for Veterans Claims (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. It is noted that VA is not required to accept the veteran's own statements as credible and conclusive proof of the existence of such stressors. See Moreau v. Brown, 9 Vet. App. 389 (1996); Zarycki v. Brown, 6 Vet. App. 91 (1993). In this case the RO has not satisfied the duty to assist with respect to the claim of entitlement to service connection for PTSD. The veteran has not apparently been sent the special letter and questionnaire related to personal assault cases. The RO has not endeavored to collect some of the types of evidence set forth in the relevant M21-1 provisions. For example, complete service personnel records have not been obtained. There has also not been adequate evaluation (to include a clinical evaluation) of evidence of behavioral changes. Therefore, pursuant to VA's duty to assist the appellant in the development of facts pertinent to his claim, the Board is deferring adjudication of the issue of entitlement to service connection for PTSD pending a remand of the case to the RO for further development as follows: 1. The veteran should be sent a letter and questionnaire related to personal assault claim. The attention of the RO is directed to M21-1, paragraph 5.14(c), Exhibits A.3 and A.4 for sample development letters. A field examiner should be utilized if a personal interview is deemed necessary to obtain any supporting evidence or if specific records or statements sought cannot otherwise be provided. The veteran should be advised that this information is vitally necessary to obtain supportive evidence of the stressful event and that he must be as specific as possible because without such details an adequate search for supporting information cannot be conducted. All alternate sources set forth in M21-1, paragraph 5.14c should be utilized. In this regard the RO should ensure that the veteran is notified of alternative sources that may provide credible evidence of the claimed inservice stressor, to include medical records from private (civilian) physicians or caregivers who may have treated him either immediately after the incident or sometime later; civilian police reports; testimonial statements from confidants such as family members, roommates, fellow service members, or clergy; and copies or personal diaries or journals; and that he should submit any such available evidence. 2. The RO should also make another attempt to obtain any additional available service department medical records and also ensure that it requests and obtains the service record jacket and complete military personnel records. Other service records that may be needed and which should be requested include any reports from the military police, shore patrol, provost marshal's office, or other military law enforcement entity. 3. The RO should request the veteran to identify the names, addresses, and approximate dates of treatment for all health care providers, VA or non-VA, inpatient or outpatient, who may possess additional records pertinent to his claim. After obtaining any necessary authorization or medical releases, the RO should request and associate with the claims file legible copies of the veteran's complete treatment reports from all sources identified whose records have not previously been secured. Regardless of the veteran's response, the RO should secure all outstanding VA treatment reports. 4. The RO should then review the file and make a note of potentially relevant behaviors shown in the record such as visits to a medical or counseling clinic or dispensary in service without a specific diagnosis or specific ailment; sudden requests for a change of military occupational series or duty assignment without other justification; lay statements indicating increased use or abuse of leave without an apparent reason such as family obligation or family illness; changes in performance and performance evaluations; lay statements describing episodes of depression, panic attacks or anxiety without identifiable reasons for the episodes; increased or decreased use of prescription or over the counter medications; evidence of substance abuse such as alcohol or drugs; increased disregard for military or civilian authority; obsessive behavior such as overeating or undereating; unexplained economic or social behavior changes; treatment for physical injuries around the time of the claimed trauma but not reported as a result of the trauma; and breakup of a primary relationship. The RO should prepare a summary including all associated documents and 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. After the foregoing development has been completed to the extent possible, and if it is determined that there is credible supporting evidence that a claimed stressor actually occurred, the RO should arrange for the veteran to be afforded a VA psychiatric examination by a psychiatrist who has not previously examined him (if possible) to determine whether the veteran has met the appropriate diagnostic criteria for PTSD. With the examination request, the RO should provide the examiner with a list of all stressors that have been identified and credibly established. The examination report must reflect that a review of pertinent material in the claims folder was conducted. If PTSD is found, the examiner is requested to express an opinion as to whether it is related to the veteran's military service - specifically, whether a diagnosis of PTSD is supportable solely by the stressors that have been recognized. The examiner should be asked to comment on the significance, if any, of evidence that is indicative of behavioral changes (see M21-1, paragraph 5.14c(8)(9)). The report of examination should include the complete rationale for all opinions expressed. All special studies or tests, to include psychological testing and evaluation, should be accomplished. Prior to the examination, the RO must inform the veteran, in writing, of the consequences of a failure to report for a scheduled examination. 38 C.F.R. § 3.655 (2000). 6. When the above requested development is completed, to the extent possible, the RO should review the case and undertake additionally indicated development. The RO is advised that where the remand orders of the Board are not complied with, the Board errs as a matter of law if it fails to ensure compliance, and further remand will be required. Stegall v. West, 11 Vet. App. 268 (1998). After any indicated corrective action has been completed, the RO should again review the record and readjudicate the issue of entitlement to service connection for PTSD. If any benefit sought on appeal is not granted, the veteran and his representative should be provided with an appropriate SSOC and afforded an opportunity to respond thereto. The veteran also has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The case should then be returned to the Board for further appellate consideration if otherwise in order. The purposes of this remand are to obtain additional information and to assist the veteran in the development of the claim. No inference should be drawn regarding the merits of the claim, and no action is required of the veteran until further notified. 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. HOLLY E. MOEHLMANN Member, Board of Veterans' Appeals