Citation Nr: 0304441 Decision Date: 03/11/03 Archive Date: 03/18/03 DOCKET NO. 99-24 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and M.B., M.S.W., L.S.W. ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The veteran served on active duty from April 1957 to June 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in December 1998 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, that denied the veteran's application to reopen the claim for service connection for PTSD. In light of evidence that will be addressed below, the Board reopens the claim for service connection for PTSD in this decision and will undertake additional development. When the development is completed, that claim will be the subject of a separate Board decision. FINDINGS OF FACT 1. In a March 1997 decision, the Board denied the veteran's application to reopen the issue of service connection for a psychiatric disorder, to include PTSD. 2. Since the March 1997 Board decision, evidence has been submitted which was not previously before agency decisionmakers and which bears directly and substantially upon the specific matter under consideration. This evidence is neither cumulative nor redundant, and 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. CONCLUSIONS OF LAW 1. The March 1997 Board determination that denied a claim for service connection for PTSD is final. 38 U.S.C.A. § 7104 (West 2002). 2. Evidence submitted since the March 1997 Board decision denying service connection for PTSD, which was the last final denial with respect to this issue, is new and material; the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 There has been a significant change in the law during the pendency of this appeal with the enactment of the Veterans Claims Assistance Act of 2000 (the VCAA), Pub. L. No. 106- 475, 114 Stat. 2096 (2000) (codified at 38 U.S.C. §§ 5102, 5103, 5103A, 5107) (West Supp. 2002)). VA has recently issued final regulations to implement these statutory changes. See 66 Fed. Reg. 45,620, et seq. (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002)). These new provisions redefine the obligations of VA with respect to the duty to assist and include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This change in 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. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). First, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C. §§ 5102 and 5103. Second, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C. § 5103A. In the present case, the Board decides only to reopen the claim for service connection for PTSD, an outcome only favorable to the veteran. Under these circumstances, there is no prejudice to the veteran in adjudicating the claim to reopen without further discussion of the VCAA. Bernard v. Brown, 4 Vet. App. 384 (1993). I. Claim Reopened In a March 1997 decision, the Board denied the veteran's application to reopen the claim of service connection for a psychiatric disorder, to include PTSD. This denial of service connection for PTSD is final. 38 U.S.C.A. § 7104 (West 2002). Service connection for PTSD generally 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. 38 C.F.R. § 3.304(f). The veteran has never contended that she 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, standing alone, will not be sufficient. Id. The special provisions of VA Adjudication Procedure Manual M21-1 (M21-1), Part III, regarding personal assault must also be considered. M21-1 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 Board must also consider the U.S. Court of Appeals for Veterans Claims (Court) decision in Patton v. West, 12 Vet. App. 272 (1999). Patton involved an allegation of noncombat personal assault as the alleged stressor with respect to PTSD. The Court noted that certain provisions in VA Manual M21-1 apply to such claims. The veteran is provided this information not only for the purposes of this decision, but also to inform her of the law that the Board will use in the final adjudication of this case following development that will be requested. The evidence received since the March 1997 Board decision, which is the last final denial of the claim for service connection for PTSD, includes the August 2001 written medical opinion of a VA medical doctor that the veteran has PTSD as a result of an in-service sexual assault and sexual trauma. Also newly received into evidence are the veteran's November 2002 hearing testimony, including a detailed recounting of her claimed stressor, and additional statements from a mental health professional supporting her claim. The Board finds that this information is new and material evidence. It is evidence not previously submitted to agency decisionmakers which bears directly and substantially on the specific matter under consideration, which is neither cumulative nor redundant and which is, by itself or in combination with other evidence, so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The purpose behind the VA definition is not to require the veteran to demonstrate that the new evidence would probably change the outcome of the claim; rather it emphasizes the importance of a complete record for evaluation of the veteran's claim. Id. If new and material evidence has been received with respect to a claim which has become final, then the claim is reopened and decided on a de novo basis. 38 U.S.C.A. § 5108. Because new and material evidence has been submitted, the Board reopens the claim for service connection for PTSD. As noted in the introduction to this decision, the Board will conduct additional development of the reopened claim. 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. ____________________________________________ JOHN J. CROWLEY Acting Veterans Law Judge, 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.