Citation Nr: 0119488 Decision Date: 07/27/01 Archive Date: 07/31/01 DOCKET NO. 00-16 545 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for post- traumatic stress disorder. 2. Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, appellant's son ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The veteran had active duty from December 1952 to November 1954. This appeal arose from a July 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which denied entitlement to service connection for post-traumatic stress disorder (PTSD). FINDINGS OF FACT 1. In April 1992, the RO denied the veteran's claim of entitlement to service connection for a neuropsychiatric disorder, to include PTSD. 2. The veteran, through his guardian, was notified of that decision, and of appellate rights and procedures. No timely disagreement was thereafter received. 3. Insofar as it pertains to PTSD, the evidence received since the RO's April 1992 decision, that was not previously of record, and which is not cumulative of other evidence of record, bears directly and substantially upon the specific matter under consideration, and is so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The RO's April 1992 decision, which denied a claim of entitlement to service connection for a neuropsychiatric disorder, to include PTSD, became final. 38 U.S.C.A. § 7105(c) (West 1991 & Supp. 2000). 2. New and material evidence has been received since the RO's April 1992 decision denying the veteran's claim for service connection for PTSD; the claim for PTSD is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In April 1992, the RO denied a claim of entitlement to service connection for a neuropsychiatric disorder. There was no appeal, and the RO's April 1992 decision became final. See 38 U.S.C.A. § 7105(c). However, applicable law provides that a claim that is the subject of a prior final decision may nevertheless be reopened upon presentation of new and material evidence. See 38 U.S.C.A. § 5108. In October 1998, the veteran filed to reopen his claim for PTSD. Although the RO had previously denied a claim for PTSD in a final decision dated in April 1992, the RO determined that the veteran's October 1998 PTSD claim was not a "new and material" claim, and analyzed it as a straightforward claim for service connection. The RO denied the claim in July 1999. Despite the RO's denial of the claim as a straightforward claim for service connection, the Board must consider the threshold question of whether new and material evidence has been submitted to reopen the claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Under section 3.156 of the Code of Federal Regulations, when presented with a claim to reopen a previously finally denied claim, VA must determine if new and material evidence has been submitted. 38 C.F.R. § 3.156. New and material evidence is defined as follows: [E]vidence not previously submitted to agency decisionmakers 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. Id. Therefore, in this case, with regard to PTSD, the Board must determine if new and material evidence has been submitted since the RO's April 1992 decision. See 38 U.S.C.A. § 5108. When determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The evidence of record at the time of the RO's April 1992 decision included service medical records, VA and non-VA medical records, and statements from the veteran and his wife. The veteran's DD 214 showed that he served with Company B, 519th MP (military police) Battalion, and that his awards included the Korean Service Medal and the Untied Nations Service Medal. Service records did not show that the veteran participated in combat. Service medical records did not show treatment, complaints or a diagnosis involving psychiatric symptoms. Post-service medical records, collectively dated between 1965 and 1991, contained psychiatric diagnoses that included chronic schizophrenic reaction, but did not contain a diagnosis of PTSD. Based on this evidence, the RO determined that the evidence was insufficient to warrant a grant of service connection for PTSD. Evidence received since the RO's April 1992 decision includes the veteran's testimony, in which, for the first time, he alleged that he was sexually assaulted by two soldiers during his service in Korea. VA outpatient treatment, hospital and examination reports, as well as non-VA treatment reports, have also been submitted. Of particular note, a VA outpatient treatment report, dated in August 1997, shows that the veteran reported to Peterson Tapia, M.D., that he had been sexually assaulted during service. Other VA outpatient treatment reports, dated between 1998 and 2000, show that Dr. Tapia diagnosed the veteran with PTSD. Generally, for a successful claim, at a minimum a claimant must present: (1) competent evidence of a current disability; (2) proof as to incurrence or aggravation of a disease or injury in service; and (3) competent evidence as to a nexus between the inservice injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498 (1995). Applicable regulations provide that service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125; 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. See 38 C.F.R. § 3.304(f). The previously discussed VA outpatient treatment reports were not of record at the time of the RO's April 1992 decision, are not cumulative, and are "new" within the meaning of 38 C.F.R. § 3.156. The Board further finds that material evidence has been received to reopen the claim for service connection for PTSD. Specifically, the VA outpatient treatment reports show that a VA physician has diagnosed the veteran with PTSD, and that he has apparently based his diagnoses of PTSD on the veteran's reports of one or more sexual assaults during service. This evidence therefore pertains to the evidentiary defect that was the basis for the RO's April 1992 decision (insofar as it denied service connection for PTSD). The Board therefore finds that the submitted evidence bears directly and substantially upon the issue at hand, that this evidence is probative of the issue at hand, and is material. See, e.g., Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). The claim is therefore reopened. ORDER Having submitted new and material evidence, the claim of entitlement to service connection for PTSD is reopened; the appeal is granted to this extent only and is subject to the following development. REMAND A review of the veteran's statements, and the transcript from his hearing, held in October 2000, show that he asserts that he has PTSD, in part, as the result of participation in combat. However, the veteran has not specified full names of soldiers whom he saw killed or wounded in combat (if any), nor has he provided reasonably specific dates and locations of participation in combat. This fact is likely to complicate an attempt to verify participation in combat. In this regard, the Court has held that it is not an impossible or onerous task for appellants who claim entitlement to service connection for PTSD to supply the names, dates and places of events claimed to support a PTSD stressor. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also M21-1, Part VI, 11.38f(2) (Change 65, October 28, 1998). His personnel record is not associated with the claims file. On remand, the RO should request that the veteran provide additional details of participation in combat, followed by an attempt to obtain his personnel file, and to verify participation in combat through inquiry to the U.S. Armed Service Center for Research of Unit Records (USASCRUR). The veteran has also asserted that he has PTSD, in part, due to being sexually assaulted by two soldiers. He stated that he never reported these incidents. The Board notes that a recent decision by the United States Court of Appeals for Veterans Claims (Court), Patton v. West, 12 Vet. App. 272 (1999), clearly alters the landscape in the adjudication of claims of service connection for PTSD based upon personal assault. In Patton, the Court emphasized that statements contained in prior decisions indicating that "something more than medical nexus evidence is required to fulfill the requirement for 'credible supporting evidence'" of a claimed stressor and that "[a]n 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," were made in the context of discussing PTSD diagnoses other than those arising from personal assault. Id. at 280; see also Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996). With regard to personal assault cases, the Court pointed out that "VA has provided special evidentiary development procedures, including the interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis." Id. (citing VA Adjudication Procedure Manual M21-1 (M21-1), Part III, 5.14c (8), (9)). The Court has also held that these provisions of M21-1, which provide special evidentiary procedures for PTSD claims based on personal assault, are substantive rules that are the equivalent of VA regulations. See YR v. West, 11 Vet. App. 393 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997). Specifically, M21-1, Part III, 5.14c subparagraph (8) (redesignated PartVI, paragraph 11.38b(2)), provides that "[i]f the military record contains no documentation that a personal assault occurred, alternative evidence might still establish an inservice stressful incident. Behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor. Examples of behavior changes that might indicate a stressor are (but not limited to): visits to a medical or counseling clinic or dispensary without specific diagnosis or specific ailment; changes in performance and performance evaluations; increased disregard for military or civilian authority; increased interest in tests for Human Immunodeficiency Virus (HIV) or sexually transmitted diseases; and breakup of a primary relationship. Subparagraph (9) provides that "[r]ating boards may rely on the preponderance of evidence to support their conclusions even if the record does not contain direct contemporary evidence. In personal assault claims, secondary evidence which documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician." The Court in Patton went on to note that the manual improperly appeared to require that the existence of the in- service stressor be shown by a preponderance of evidence. Any such requirement would be inconsistent with the so-called equipoise doctrine, where the benefit of the doubt is given to the claimant unless the evidence preponderates against the claim. Under the circumstances, the Board has determined that a remand is required for the veteran to be given the opportunity to submit a full and detailed list of: 1) any evidence of behavioral changes which may support his claim; and 2) a list of fellow soldiers and/or civilians who may be able to provide lay statements as to either the occurrence of the claimed stressor, or changes in the veteran's observed behavior. The Board stresses that under M21-1, Part VI, 11.38b(2) the changes in the veteran's observed behavior must have been witnessed "at the time of the claimed stressors." The RO should also attempt to obtain the veteran's service records. Finally, the Board notes that although M21-1 provides that evidence of changes of behavior that occurred at the time of the incident may indicate the occurrence of an in-service stressor, such evidence may need interpretation by a clinician. See M21-1, Part VI, 11.38b(2). The Board further notes that the medical evidence in this case contains many different psychiatric diagnoses. Therefore, following the requested development, an opinion should be obtained from a VA psychiatrist, as outlined below. Based on the foregoing, additional development is necessary and this case is REMANDED to the RO for the following action: 1. The RO should contact the veteran and request that he provide a list of the claimed stressors, to include a comprehensive statement containing as much detail as possible regarding the stressors he alleges he was exposed to in service. The veteran should be asked to provide specific details of the claimed stressful events during service, including the date of the specific incident(s) to within seven days, type and location, units involved, and any other identifying details. The veteran should be advised that this information is vitally necessary to obtain supporting evidence of the stressful events, and that he must be as specific as possible because without such details an adequate search for verifying information can not be conducted. The veteran should be informed that he has the ultimate responsibility to obtain such information. 2. The RO should request that the veteran identify independently verifiable evidence of behavioral changes which occurred at the time of the alleged sexual assault(s), and to provide a list of any fellow soldiers and/or civilians, and their addresses, who may be able to provide lay statements as to the occurrence of these claimed stressors, and/or changes which they observed in his behavior at the time of these claimed stressors. 3. The RO should attempt to obtain the veteran's personnel file. 4. The RO should forward a summary of the veteran's claimed inservice stressors (other than sexual assault) and copies of his service personnel records to the U.S. Armed Service Center for Research of Unit Records (USASCRUR), 7798 Cissna Road, Springfield, Virginia 22150-3197, and request USASCRUR to attempt to verify the veteran's claimed stressors, to include furnishing any relevant unit histories. If the veteran does not respond to the request as outlined in the first paragraph of this remand after a reasonable period of time has passed, the RO should forward a copy of the veteran's written statements involving his claimed stressors to the USASCRUR to attempt to verify the veteran's claimed stressors. 5. The RO should ensure that its efforts conform to all relevant provisions of Manual 21-1 regarding development in PTSD claims based on personal assault, to include undertaking all reasonable efforts to locate any witnesses identified, and, if located, to obtain statements from them regarding their knowledge of the veteran's alleged stressors. 6. The RO should schedule the veteran for a VA psychiatric examination to determine whether he has PTSD under the criteria as set forth in DSM-IV. If the veteran has PTSD, the examiner should report whether it is at least as likely as not that the veteran has PTSD as a result of his service. The RO should provide the examiner with a summary of any verified stressor(s), as well as the all evidence pertaining to changes in behavior at the time of the claimed stressor(s). The claims file should be provided to the examiner in connection with the examination. The examiner is to indicate on the examination report that he or she reviewed the veteran's claims file prior to this examination. 7. After undertaking any additional development deemed appropriate, the RO should review the complete evidentiary record and adjudicate the issue of service connection for PTSD, to include a formal determination as to whether the veteran was engaged in combat. 8. The veteran is to be advised that it is his responsibility to obtain evidence in support of his claim, and that if he has or can obtain evidence which shows that he witnessed stressors and/or participated in combat during service, and that he has PTSD as a result, he must submit that evidence to the RO. If the benefits sought are not granted, the appellant and his representative should be furnished a supplemental statement of the case, and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The veteran's claims must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See the Veterans' Benefits Improvement Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994) and 38 U.S.C.A. § 5101 (West 1991 and Supp. 1998) (Historical and Statutory Notes). In addition, the Veterans Benefits Administration's ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the RO is 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 purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant is free to submit any additional evidence he desires to have considered in connection with his current appeal. M. S. SIEGEL Acting Member, Board of Veterans' Appeals