Citation Nr: 0115253 Decision Date: 06/01/01 Archive Date: 06/13/01 DOCKET NO. 00-24 885 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION The appellant served on active duty from September 1963 to September 1966. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a May 2000 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). Service connection for PTSD was previously and finally denied by the RO in May 1999. Notwithstanding the RO's inferred reopening of this claim by statement of the case issued in November 2000, the Board has a legal duty to consider the issue of whether new and material evidence has been submitted to reopen the claim regardless of the RO's actions. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) ("it is well-established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over each case before adjudicating the merits, that a potential jurisdictional defect may be raised by the court or tribunal, sua sponte or by any party, at any stage in the proceedings, and, once apparent, must be adjudicated"); see also Marsh v. West, 11 Vet. App. 468 (1998) (Board has the jurisdiction - indeed, the obligation - to assess its jurisdiction) and Wakeford v. Brown, 8 Vet. App. 237 (1995) (Board cannot ignore "threshold" issue of new and material evidence). Accordingly, this issue is addressed below. FINDING OF FACT Evidence associated with the claims folder since the prior denial in May 1999 of service connection for PTSD is so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSION OF LAW New and material evidence has been submitted to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a), (c) (2000). REASONS AND BASES FOR FINDING AND CONCLUSION Governing statutory and regulatory provisions stipulate that unappealed decisions of the RO and decisions of the Board are final, and may be reopened only upon the receipt of additional evidence that, under the applicable statutory and regulatory provisions, is both new and material. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991); 38 C.F.R. §§ 3.104(a), 3.156 (2000). New and material evidence means evidence not previously submitted 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 C.F.R. § 3.156(a); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Evidence is material if it "tend[s] to prove the merits of the claim as to each essential element that was a specified basis for that last final disallowance of the claim." See Evans v. Brown, 9 Vet. App. 273 (1996) (question of what constitutes new and material evidence requires referral only to the most recent final disallowance of claim). Entitlement to service connection for PTSD was previously and finally denied by the RO in an unappealed rating decision issued in May 1999. The appellant submitted additional evidence in March 2000, but he did not specifically appeal the May 1999 rating decision. See 38 C.F.R. § 20.304 (2000) (filing additional evidence after receipt of notice of adverse decision does not extend time limit for initiating or completing appeal). Therefore, the May 1999 rating decision is final. 38 U.S.C.A. § 7105(c) (West 1991). The additional evidence submitted in March 2000 as well as in connection with the present appeal consisted of VA outpatient treatment reports dated from February 2000 through June 2000, which showed treatment for chronic PTSD based on some of the appellant's stressors he allegedly experienced while serving in Vietnam between October 1965 and March 1966. Based on these reports, read together with the balance of the evidence, it appears that the RO conceded that new and material evidence had been submitted to reopen the claim. See Statement of the Case under cover letter dated December 5, 2000. In looking at the entire evidentiary record, the Board also finds that under the more relaxed new and material standard set forth under Hodge and its progeny, this claim now deserves further consideration on a de novo basis. Accordingly, in applying the fair process review contemplated by the terms of 38 C.F.R. § 3.156(c), the Board concludes that new and material evidence has been submitted to reopen the claim of service connection for PTSD. However, for the reasons set forth below in the REMAND section of this decision, further development of the claim is in order. ORDER To the extent of the finding that evidence submitted since the May 1999 rating decision constitutes new and material evidence sufficient to reopen the appellant's claim of service connection for PTSD, the appeal is granted. REMAND The regulation governing the award of service connection for PTSD, 38 C.F.R. § 3.304(f), was amended in June 1999. See 64 Fed. Reg. 32807 (June 18, 1999). The new version of the regulation is effective from March 7, 1997, and hence, as this claim was initiated with the submission of additional evidence in March 2000, and appealed from a May 2000 rating decision, the revised version must be considered, which has not been done in this case, to include when the RO adjudicated the claim by statement of the case in November 2000 and supplemental statement of the case in December 2000. Of significance here is the change to section 3.304(f) which eliminated the requirement for a "clear diagnosis" of PTSD and replaced it with the criteria that an award of service connection depended on whether there was medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), which the Board observes is a reference to a diagnosis made on the criteria set forth in the DSM-IV. In its decisions issued with this appeal, the RO applied the now-deleted "clear diagnosis" standard. As additional evidentiary development will be required, to include stressor-verification development, as set forth below, the Board believes that the RO should have the appellant examined by VA in order to determine whether he has a DSM-IV diagnosis of PTSD based on his reported stressors and a complete review of all the evidence in the claims file. The Board notes that precedent holdings of the United States Court of Appeals for Veterans Claims (the Court) provide additional guidance for the adjudication of claims for service connection for PTSD, particularly, with respect to non-combat stressors, at issue in this case. See e.g. Patton v. West, 12 Vet. App. 272 (1999) (verification of non-combat stressors); Suozzi v. Brown, 10 Vet. App. 307 (1997) (sufficiency of information to verify stressors); Cohen v. Brown, 10 Vet. App. 128 (1997) and Moreau v. Brown, 9 Vet. App. 389 (1996). In the Patton case, the Court found error in the Board's decision because the Board did not discuss the special evidentiary procedures for PTSD claims based on non-combat stressors. With regard to combat service/stressor verification, the record does not reflect that the appellant received any individual awards or decorations for valor, combat experience or combat injuries, nor are there official military documents verifying that he had a combat occupational specialty such as rifleman, mortarman, etc., to establish that he engaged in combat with the enemy. Where a veteran-claimant did not serve in combat or the stressor is not related to combat, his lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. West (Carelton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Instead, the record must contain evidence which corroborates his testimony as to the occurrence of the claimed stressor, and special development procedures are required pursuant to the M21-1. 38 C.F.R. § 3.304(d), (f); VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, Section 5.14(c) (Feb. 20, 1996). Although the appellant provided stressor accounts in his statement dated in January 1999, some of which are combat- related while others are non-combat based (for example, experiencing the effects of monsoons and an encounter with a large black snake), in light of the Court's precedent holdings cited above, the Board finds it necessary to address the matter of whether there is sufficient corroboration of the appellant's stressors upon completion of the special development procedures under M21-1, Part III, Sec. 5.14(c) for non-combat stressors, and upon completion thereof, further medical development to determine whether any "behavioral changes" that occurred at or close in time to the alleged stressor incidents could possibly indicate the occurrence of one or more of the alleged in-service stressors, as described in detail in the M21-1. With respect to the issue of stressor-verification, it is noted that in Suozzi, the Court expressly held that a veteran need not prove "every detail" of an alleged stressor. Id. at 311. In addition, in Moreau, the Court stated that credible supporting evidence of a stressor may be obtained from service records or "other sources." Id. at 395. Finally, the Board notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA) became law. The VCAA eliminated the concept of a well-grounded claim and redefined VA's obligations with respect to the duty to notify and the duty to assist. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991) (where law/regulation changes after a claim has been filed, but before administrative/judicial appeal process has concluded, the version most favorable to claimant should apply). Because the VCAA is clearly more favorable to a readjudication of the appellant's claim of service connection for PTSD, full and complete compliance with the enhanced duty-to-notify and duty-to-assist provisions enacted by the VCAA must be accomplished, as this claim was pending as of the date of passage of the VCAA. The Board notes further that a recent decision of the Court specifically held that all provisions of the VCAA are potentially applicable to claims pending on the date of the VCAA's enactment, and that concerns of fundamental fairness and fair process demanded further development and readjudication under the VCAA by the lower adjudicatory authority (the Board and RO). See Holliday v. Principi, 14 Vet. App. 280 (2001) (holding, inter alia, that VCAA provisions are potentially applicable to claims pending on the date of enactment, and that Court may not determine in the first instance the specific applicability of VCAA) (reconsideration denied, Apr. 27, 2001). Accordingly, this case is REMANDED to the RO for the following development action: 1. The RO should contact the appellant and inform him that may submit any corroborating lay and/or medical evidence he may have pertaining to treatment, including self-treatment, for his PTSD, that have not already been associated with the claims file. The RO should assist the appellant in obtaining such evidence, as appropriate. If he identifies medical treatment and provides specific dates, all VA records identified in this manner should be obtained pursuant to established procedures. With regard to any private medical treatment, if identified as such, after securing appropriate releases, attempts to secure copies of records pertaining to any indicated private physicians and/or facilities should be undertaken. All records received in response to the request should be associated with the claims folder. The RO should proceed with all reasonable follow-up referrals that may be indicated by the inquiry. 2. In addition, the RO should contact the appellant and inform him that may submit any other corroborating evidence he may have pertaining to alleged stressors experienced during his war-time tour of duty in Vietnam, both combat and non-combat related. The appellant should be advised that a meaningful research of his stressors will require him to provide the "who, what, where and when" of each stressor. Further, the RO should inform the appellant that he may submit any other evidence to verify his alleged stressors from military as well as nonmilitary sources. The RO should assist the appellant in obtaining such evidence, as appropriate. In connection with this development, the RO should ensure that all appropriate special development procedures mandated by M21-1, Section 5.14(c) for verification of non- combat stressors is fully accomplished and documented in the claims folder, to include issuance of the special development letter to the appellant advising him of the steps necessary to verify his non-combat stressors. 3. The RO also should request verification of the appellant's reported stressors with the U. S. Armed Services Center for Research of Unit Records (USASCRUR). USASCRUR should attempt to verify any detailed stressor information provided by the appellant. All documents, correspondence, reports or statements obtained or generated as a result of these inquiries should thereafter be associated with the claims folder. 4. With respect to the above, all attempts to obtain records which are ultimately not obtained should be documented, and in accordance with the VCAA, § 5103A(b)(2), the RO should notify the appellant of the records it was unable to obtain, briefly explain the efforts made to obtain such records, and describe any further action that the RO will take to obtain such records. For any VA or other Federal department or agency records, the RO should, in accord with the VCAA, § 5103A(b)(3), continue its efforts to obtain any records while the case is under development on remand until it becomes reasonably certain that such records cannot be obtained because they do not exist or until it becomes reasonably certain that further efforts to obtain records from the such sources would be futile. 5. Following the above, the RO must make a specific determination, based upon the complete record, with respect to whether the appellant was exposed to a stressor or stressors in service, and if so, what was the nature of the specific stressor or stressors. In rendering this determination, the attention of the RO is directed to the law cited in the discussion above. If official service records or alternative records discussed in M21-1, Part III, Sec. 5.14c corroborate the appellant's allegations of stressors occurring, the RO should specify that information. The RO should also indicate whether any behavioral changes that occurred at or close in time to the alleged stressor incidents could possibly indicate the occurrence of one or more of the alleged in-service stressors and if so should decide whether this evidence needs the interpretation by a clinician. See M21- 1, Part III, 5.14c (9). If the RO determines that the record establishes the existence of a stressor or stressors, the RO must specify what stressor or stressors in service it has determined are established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 6. Upon completion of the above, the RO should schedule a comprehensive VA psychiatric examination to determine the diagnoses of all psychiatric disorders that are present. This examination, if feasible, should be conducted by a psychiatrist who has not previously examined, evaluated or treated the appellant. The claims folder and a copy of this remand must be provided to the examiner prior to the examination. The examiner should determine the true diagnoses of any currently manifested psychiatric disorder(s). The diagnosis(es) must be based on examination findings, all available medical records, complete review of comprehensive testing for PTSD, and any special testing deemed appropriate. A multiaxial evaluation based on the current DSM-IV diagnostic criteria is required. If a diagnosis of PTSD is deemed appropriate, the examiner should specify (1) whether each alleged stressor found to be established by the record was sufficient to produce PTSD; and (2) whether there is a link between the current symptomatology and one or more of the in-service stressors found to be established by the record and found sufficient to produce PTSD by the examiner. In addition, the examiner must comment on the approximate date of onset and etiology of any diagnosed psychiatric disorder as shown by the evidence of record, and in so doing, the examiner should attempt to reconcile the multiple psychiatric diagnoses and/or assessments of record based on his/her review of all of the evidence of record, particularly with respect to prior diagnoses of PTSD. Further, in line with the M21-1 provisions, the examiner is requested to provide detailed medical analysis and interpretation of the diagnoses found present on examination in light of all the evidence of record for the purpose of addressing whether any behavioral changes that occurred at or close in time to the alleged stressor incidents could possibly indicate the occurrence of one or more of the alleged in-service stressors. A complete rationale for all opinions expressed must be provided. The copy of the examination report and all completed test reports should thereafter be associated with the claims folder. 7. The appellant must be given adequate notice of any requested examination, which includes advising him of the consequences of failure to report for a scheduled examination. If he fails to report for an examination, this fact should be documented in the claims folder. A copy of all notifications must be associated with the claims folder. 8. Subsequently, the RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. Specific attention is directed to the examination reports to ensure that they are in compliance with the directives of this REMAND. 9. After completion of the above, the RO should readjudicate the issue of service connection for PTSD with consideration given to all of the evidence of record, including any additional medical evidence obtained by the RO pursuant to this REMAND. The readjudication of this claim must be on the merits, as the well- grounded claim requirement is no longer part of the statutory scheme governing veterans benefits, and in accord with the revised version of 38 C.F.R. § 3.304(f), as amended in June 1999. Further, the RO should address this claim after ensuring that all duty-to-notify and duty-to- assist provisions have been fulfilled in accord with the VCAA. The RO should also carefully consider the benefit of the doubt rule, and in this regard, if the evidence is not in equipoise the RO should explain why. Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991). If any benefits sought on appeal remain denied, the RO should provide the appellant and his representative an adequate supplemental statement of the case. The supplemental statement of the case must contain notice of all relevant actions taken on his claim for benefits as ordered by this REMAND, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. The RO should then allow the appellant an appropriate period of time for response. 10. The appellant is hereby informed that he should assist the RO, to the extent possible, in the development of his claim, and that failure to cooperate or to report for any scheduled examination may result in an adverse decision. Wood v. Derwinski, 1 Vet. App. 191, 193 (1991). Thereafter, the case should be returned to the Board, if in order. The appellant need take no action until otherwise notified. The appellant 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). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 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. C. P. RUSSELL Member, Board of Veterans' Appeals