Citation Nr: 0216000 Decision Date: 11/07/02 Archive Date: 11/14/02 DOCKET NO. 99-11 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Whether new and material evidence sufficient to reopen a claim for service connection for post-traumatic stress disorder (PTSD) has been submitted. [The issue of entitlement to service connection for PTSD will be the subject of a later decision.] REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD John J. Crowley, Counsel INTRODUCTION The veteran served on active duty from October 1968 to December 1971 with periods of absences without leave (AWOL). This matter is currently before the Board of Veterans' Appeals (Board) on appeal from a March 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). For reasons that will be made clear below, the Board is undertaking additional evidentiary development on the issue of entitlement to service connection for PTSD on a de novo basis. When the development is completed, that claim will be the subject of a separate Board decision. FINDINGS OF FACT 1. Service connection for PTSD was denied by the RO in July 1993; the veteran did not timely file an appeal of this determination. 2. Evidence received since the July 1993 decision is not either cumulative or redundant and, by itself or in connection with the evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim of entitlement to service connection for PTSD. CONCLUSION OF LAW The evidence received since the July 1993 decision of the RO that denied service connection for PTSD is new and material and that claim is reopened. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, and 7105 (West 1991 & Supp. 2002); 38 C.F.R. § 3.156 (a) (2001) and 66 Fed. Reg. 45,620 45,630-32 (Aug. 29, 2001) (to be codified at 38 C.F.R. § 3.159). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection for PTSD was denied by the RO in a July 1993 rating decision. The veteran was notified of that determination and did not appeal it within one year after notification. Accordingly, the decision became final. 38 U.S.C.A. § 7105(c). The veteran petition to reopen the denied claim in September 1997. On VA examination in January 1998, PTSD was diagnosed. The veteran indicated that he was sexually assaulted during service. It was also indicated by the examiner that "the story does have a consistency to it . . ." The veteran has also provided testimony in November 1999. Under 38 U.S.C.A. § 5108, VA must reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. See 38 U.S.C.A. § 7105(c) (West 1991) and Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). 38 C.F.R. § 3.156(a) (2001) provides as follows: New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. New evidence means more than evidence which has not been previously physically of record. To be "new" additional evidence must be more than merely cumulative. Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The veteran has never contended that he engaged in combat with the enemy as defined within 38 U.S.C.A. § 1154(b). As a result, as a matter of law, a medical provider cannot provide supporting evidence that the claimed in-service event actually occurred based on a post-service medical examination. Moreau v. Brown, 9 Vet. App. 389, 395-6 (1996). In addition, the veteran's own testimony will not be sufficient. Id. Other credible supporting evidence from any source must be provided. The special provisions of VA Adjudication Procedure Manual M21-1 (M21-1), Part III, regarding personal assault notes that: "Personal assault is an event of human design that threatens or inflicts harm. Examples of this are rape, physical assault, domestic battering, robbery, mugging, and stalking." M21-1, Part III, 5.14c. M21-1 identifies alternative sources for developing evidence of personal assault, including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals. M21-1, Part III, 5.14c(4)(a). When there is no indication in the military record that a personal assault occurred, alternative evidence, such as behavior changes that occurred at the time of the incident, might still establish that an in-service stressor incident occurred. Examples of behavior changes that might indicate a stressor include: visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; sudden requests that the veteran's military occupational series or duty assignment be changed without other justification; lay statements indicating increased use or abuse of leave without apparent reason; changes in performance or performance evaluations; lay statements describing episodes of depression, panic attacks or anxiety with no identifiable reasons for the episodes; increased or decreased use of prescription medication; evidence of substance abuse; obsessive behavior such as overeating or undereating; pregnancy tests around the time of the incident (clearly not at issue in the veteran's case); increased interest in tests for HIV or sexually transmitted diseases; 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; breakup of a primary relationship. M21-1, Part III, 5.14c(7)(a)-(o). The sole issue before the Board at this time is whether new and material evidence has been submitted. The standard for reopening a claim is low. Based on the veteran's testimony and the VA examination of January 1998, the Board finds that the evidence received since the July 1993 decision is not either cumulative or redundant and is so significant that it must be considered in order to fairly decide the merits of the claim. Thus, the claim is reopened. In light of the Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107(West Supp. 2002), the Board will undertake additional development in an effort to confirm the veteran's alleged stressors in service. The veteran is given notice that (in light of the facts of this case) without such confirmation, the claim of service connection may not be granted. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for PTSD is reopened. To that extent only, the appeal is granted. H. N. SCHWARTZ Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.