Citation Nr: 0313614 Decision Date: 06/23/03 Archive Date: 06/30/03 DOCKET NO. 95-16 345 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and J.E. ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The veteran served on active duty from January 1978 to July 1980. This appeal arises from an October 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, which reopened the veteran's claim for service connection for PTSD and denied the claim on the merits. Regardless of how the RO ruled on the question of reopening the claim, the Board must re-decide that matter on appeal, because reopening is jurisdictional. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial) and Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). The decision that follows reopens the veteran's claim for service connection for a psychiatric disorder, to include PTSD, and that claim is the subject of a remand appended to the decision. FINDINGS OF FACT 1. The RO denied the veteran's claim for service connection for PTSD in a March 1977 rating decision. The veteran did not perfect her appeal by submitting a timely substantive appeal of that decision. 2. The additional evidence submitted since the March 1977 RO decision is not cumulative or redundant, and is so significant that it must be considered in order to fairly decide the merits of the claim for service connection for a psychiatric disorder, to include PTSD. CONCLUSIONS OF LAW 1. A March 1977 RO decision denying service connection for PTSD is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 19.153 (1976). 2. New and material evidence has not been submitted to reopen the claim of entitlement to service connection for a psychiatric disorder, to include PTSD. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This newly enacted legislation provides, among other things, for notice and assistance to claimants under certain circumstances. VA has issued final rules to amend adjudication regulations to implement the provisions of VCAA. See 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). The intended effect of the new regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits, or who attempts to reopen a previously denied claim. Where laws or regulations change after a claim has been filed or reopened and before the administrative or judicial process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or has permitted the Secretary of Veterans Affairs to do otherwise and the Secretary has done so. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). The implementing regulations also redefine "new and material evidence" and clarify the types of assistance VA will provide to a claimant attempting to reopen a previously denied claim. 38 C.F.R. §§ 3.156(a) and 3.159(c). A review of the claims folder reveals the RO informed the veteran of the passage and pertinent provisions of the VCAA in a June 2001 letter. However, as to the duties to notify and assist, as noted above, the decision below reopens the veteran's claim and it is the subject of a Board remand for further development, to include fully complying with such duties. Factual Background. The veteran's Form DD 214 reveals she was on active duty from January 1978 to July 1980. Her specialty was chemical operator specialist. She was discharged due to failure to maintain acceptable standards and given an under honorable conditions discharge. On her service induction examination report in October 1977 no psychiatric abnormality was noted. On her Report of Medical History dated in October 1977 she denied any history of depression or excessive worry, or nervous trouble of any sort. April 1980 service medical records reveal the veteran was a possible assault victim. She had a small laceration on her left upper arm. There was a scape on her left elbow area. She complained of pain in the left side of her jaw. The examiner noted she appeared slightly intoxicated. Seven days later the veteran returned to the clinic to discuss reevaluation of her Profile. She wanted reclassification of her foot problem. The examiner noted she had a substantial amount of personal problems with significant anxiety. A ADAPCP Military Client Intake and Follow-Up Record dated in September 1980 reveals a diagnosis of episodic excessive drinking. Non-resident rehabilitation was ordered. It was noted the veteran had two Article 15's. On service separation examination no psychiatric abnormality was noted. On her Report of Medical History dated in June 1980 the veteran checked a history of frequent trouble sleeping, depression and excessive worry, loss of memory and nervous trouble. In April 1996 the veteran submitted her claim for service connection for post-traumatic stress disorder with anxiety and depression. A Request for Information sheet was returned from DARP-VSE-B in May 1996. It revealed the veteran's records were currently charged out to the Army Board of Corrections at Military Records in Washington. The RO received the veteran's VA records from the VA Medical Center in Bedford in May 1996. Those records reveal the veteran was admitted to the domiciliary in July 1995. The veteran gave a history of living in the street since her discharge. She reported using alcohol rather heavily since age 14. She recalled drinking steadily to intoxication while in the service at approximately age 28. Her psychiatric history was significant for major intractable depression since age 33. The impressions and diagnoses included long term alcohol dependence, status post heroin use, and major depression. In November 1996 the RO sent the veteran a letter. The letter explained that it was necessary to verify some of the events which led to the onset of the veteran's condition. The RO requested she fill out and return a PTSD questionnaire. The letter was returned by the Postal Service. A March 1997 Compensation and Pension Exam Inquiry sheet reveals the veteran failed to report for a VA examination scheduled in conjunction with her claim for service connection for PTSD. A March 1997 rating decision denied service connection for PTSD. The RO sent the veteran a letter in March 1997 informing her the claim for service connection for PTSD had been denied. In March 1998 the veteran submitted a notice of disagreement with the RO's March 1997 decision denying her claim. The RO issued a statement of the case in June 1998 denying the veteran's claim. The veteran did not submit a substantive appeal as to the March 1997 RO decision denying service connection for PTSD. In April 1997 the RO received part of the veteran's DA Form 2-1, with no additional service personnel records attached. In June 1998 the RO denied service connection for an acquired psychiatric disorder other than PTSD. The veteran was notified by the RO of that decision in July 1998. In conjunction with another claim for service connection the RO obtained the veteran's service medical records from the Salt Lake VA in June 1998. They included an October 1997 record of treatment for productive cough which noted an impression of PTSD/anxiety/depression-stable. November 1997 VA records of treatment for vomiting with a diagnosis of personality disorder with manipulative type behavior, ETOH abuse and questionable narcotic-seeking behavior, history of nausea and vomiting, and a history of stomach cancer and hepatitis C that they were unable to reproduce or confirm. A January 1998 intake report of the Outpatient Mental Health Service contained the first report by the veteran of experiencing sexual harassment or trauma in service. February 1998 records included complaints of dyspareunia and history of major depression consistent with multi-diagnoses, with diagnosis since the age of 33. Another February 1998 record revealed the veteran had been seen for depression, anxiety, agoraphobia, panic and "?PTSD." In April 1998 the veteran reported having racing thoughts. February 1999 records include diagnoses of Major Depressive Disorder, Panic Disorder and a Generalized Anxiety Disorder. An undated psychological evaluation included a conclusion that the veteran's current functioning was impeded by anxiety, including panic attacks, agoraphobia and depression which the veteran believed had existed since 1983. In March 1999 the veteran filed a claim for service connection of clinical depression, which she indicated started in 1980 and had continued to that day. The RO in March 1999 sent the veteran a letter and explained that her claim had been denied in June 1998 as not well grounded and asked the veteran to submit any additional evidence to support her claim. (As the instant decision reopens the veteran's claim for service connection for a psychiatric disorder, to include PTSD, the question of whether the veteran has depression linked to service will be considered as part of the veteran's claim on the merits, pending completion of additional development.) The veteran submitted additional evidence in April 1999 to reopen her claim for service connection for PTSD. In support of her claim she submitted a report from her VA psychologist which included the results of psychological testing. The report revealed the veteran's score on the Penn Inventory for PTSD fell within the PTSD range. The veteran stated she was not in combat, however, she reported that she was raped and abused in the military. The veteran had endorsed feeling different than others, having no interest or enjoyment, being jumpy and uptight, being anxious when reminded of the trauma, being distracted, feeling no one can understand, having nightmares, feeling confused about life, having intrusive memories and feeling that she was not achieving. The psychologist concluded that the veteran's test results were consistent with symptoms of PTSD. The RO sent the veteran a letter in November 1999. The RO explained to the veteran that her claim had been denied in March 1997 and that it was necessary for her to submit new and material evidence to reopen her claim. In November 1999 the veteran submitted her PTSD Secondary to A Personal Assault Questionnaire. The veteran wrote that she did not understand why there was so much concern over one incident, when she had been physically, mentally and psychologically abused in the service from the time of basic training. She related that as a woman in the service she had been told constantly that women were not wanted in the service. Due to her age, high scores and qualification for a top men's physical training group she become the center of much abuse. The veteran submitted a letter she had sent to the National Personnel Records Center (NPRC) in January 2000. She listed the dates of her treatment in service and also listed her treatment after her separation from the service as a military dependent spouse at service medical facilities. The veteran submitted statements in August 2000 from her parents and her former spouse. Her former spouse stated he was married to the veteran from 1979 to 1988. During her tour of duty the veteran had related to him that she was having stomach problems related to stress. She had also received counseling for alcohol related problems. She was discharged in July 1980. He recalled she was depressed for several months, had dramatic and sudden mood swings and drank heavily. The RO received the veteran's outpatient treatment reports for the period from January 1998 to September 2000. They included records of the veteran's treatment at the VA Mental Health Clinic in Salt Lake City beginning in June 1998. Continuing treatment for depression and anxiety was noted. September 1999 records noted the veteran had panic attacks and nightmares. January 2000 VA records included a notation that the veteran had major depression with possible PTSD, probable histrionic personality disorder with borderline features. Also recorded was a telephone call from the veteran when her speech was described as slow and slurred. Later that month the veteran reported buying a large bottle of alcohol a couple of weeks previously and drinking heavily for four days. In October 2000 the RO arranged for a Fee Basis examination by a psychiatrist, Dr. SLM. Dr. SLM reviewed the veteran's claims folder and VA medical records in detail. After interviewing the veteran he concluded her stress disorder symptoms likely began in childhood. He indicated it was unclear if they were aggravated by events during her time in service. Her nightmare recollection was not typical of a PTSD nightmare. On Axis I he diagnosed Panic Disorder with agoraphobia; Major depressive disorder, recurrent, moderate; Dysthymic disorder; Polysubstance use disorder, in remission; Alcohol abuse and dependence, in remission; and on Axis II Personality disorder with borderline and avoidant features. In October 2000 the RO denied the veteran's application to reopen her claim for service connection for PTSD. The veteran submitted her notice of disagreement with that decision in November 2000. The RO issued a statement of the case in December 2000. The veteran submitted her substantive appeal in December 2000. She asserted the last evaluator had not listened to her and requested another evaluation. In January 2001 the RO received the veteran's records from the Civilian Personnel Records division of the NPRC. They included October 1981 records of treatment for Alcoholic Ketoacidosis/starvation ketosis. Also included were May 1985 records of treatment for Alcoholic gastritis. In February 2001 additional records from the Civilian Personnel Records division were received. They included treatment records from Walter Reed for vomiting of unknown etiology, alcohol abuse and family violence. The veteran submitted a statement from her VA psychologist in February 2001. The VA psychologist opined that the veteran met the criteria for a diagnosis of PTSD as a result of an in-service rape. In June 2001 the RO sent the veteran a letter which outlined the provisions of the VCAA. The RO arranged for a second VA Fee Basis examination in July 2001 by Dr. DB. After reviewing the record and interviewing the veteran his Axis I diagnosis was Panic disorder, Major Depression and Polysubstance Abuse in remission. In his Further Discussion he stated that in his opinion the veteran did not meet the criteria for PTSD. Though she did have symptoms which were suggestive, he did not feel she met the full criteria. Relevant Laws and Regulations. Once entitlement to service connection for a given disorder has been denied by the RO and has not been timely appealed, that determination is final. In order to later establish service connection for the disorder in question, it is required that new and material evidence be presented warranting reopening the claim and reviewing the former disposition. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.104, 3.156(a) (2002). A Notice of Disagreement shall be filed within 1 year from the date of mailing of notification of the initial review and determination; otherwise, that determination will become final and is not subject to revision. The date of the letter of notification will be considered the date of mailing for the purposes of determining whether a timely appeal has been filed. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104(a) (2002). 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) 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. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Kutscherousky v. West, 12 Vet. App. 369 (1999) the United States Court of Appeals for Veterans Claims (Court) held that the prior holding in Justus that the evidence is presumed to be credible was not altered by the decision in Hodge. Analysis. The Court has held VA is required to review for newness and materiality only the evidence submitted by a claimant 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, 283 (1996) (overruled on other grounds). In March 1977 the RO denied service connection for PTSD. The veteran filed a notice of disagreement with the determination and the RO issued a statement of the case. The veteran did not submit a substantive appeal. 38 C.F.R. § 3.104, 19.153 (1976). Thus, the March 1977 rating decision became final. The evidence submitted since the March 1977 decision includes the veteran's statement describing her claimed in-service stressors, records of treatment from the VA Mental Health Clinic and psychiatric evaluations that contain diagnoses of PTSD, and two recent competent opinions that address the question of whether the veteran has a current diagnosis of PTSD and whether such is linked to service. As to the latter opinions, a VA psychologist concluded in February 2001 that the veteran met the criteria for diagnosis of PTSD as a result of being raped while on active duty, whereas a VA Fee Basis psychiatrist indicated in July 2001 that, after reviewing the record and interviewing the veteran, the diagnoses were panic disorder, major depression and polysubstance abuse in remission. The psychiatrist opined that, while the veteran had symptoms suggestive of PTSD, she did not meet the diagnostic criteria for PTSD. While the evidence of whether the veteran has PTSD is conflicting and one of the opinions clearly goes against the claim, the veteran has submitted a competent opinion that supports her claim that she has PTSD due to an in-service sexual assault, albeit apparently without a review of the claims file. There is also consistent medical evidence of other variously diagnosed psychiatric disorders other than PTSD, as well as alcohol abuse. The Board finds that this evidence bears directly on the issue of whether or not the veteran has PTSD related to her military service and, in order to fairly decide the veteran's claim, it must be considered. 38 C.F.R. § 3.156 (2002). For that reason the veteran's claim for service connection for PTSD is reopened. ORDER New and material evidence having been submitted, the veteran's claim for service connection for a psychiatric disorder, to include PTSD is reopened; the appeal is granted to this extent only. REMAND As noted in the decision above, the veteran contends, in part, that she was physically and psychologically abused while on active duty beginning with basic training. She also asserts that she was raped while on active duty and she attributes her psychiatric disorders, to include PTSD, to these incidents of service. The veteran's former spouse has submitted a statement noting that he was married to the veteran from 1979 to 1988, and that, during her tour of duty, she related to him that she was having stomach problems related to stress. He indicated that she also received counseling for alcohol related problems and that she was depressed for several months, had dramatic and sudden mood swings and drank heavily. 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, the Board must verify the veteran's claimed in-service stressor. Moreau v. Brown, 9 Vet. App. 389, 395-6 (1996). Following a review of the record, the Board finds that there is an additional duty to assist the veteran with the development of her claim for service connection for a psychiatric disorder, to include PTSD. Specifically, the RO must consider all of the special provisions of VA Adjudication Procedure Manual M21-1 (M21-1), Part III, regarding personal assault. 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 under eating; pregnancy tests around the time of the incident; 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). See also 38 C.F.R. § 3.304(f)(3) (2002) (effective March 7, 2002, essentially codifying these M21 manual provisions); Patton v. West, 12 Vet. App. 272 (1999) (holding that certain special M21 manual evidentiary procedures apply in PTSD personal assault cases). The RO should also ensure compliance with the duty to notify and assist provisions of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475, 114 Stat. 2096 (2000) (VCAA), to include notifying the veteran of the evidence needed to substantiate her claim and the avenues through which she might obtain such evidence, and of the allocation of responsibilities between herself and VA in obtaining such evidence. See 38 U.S.C.A. § 5103(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In view of the foregoing, this case is remanded to the RO for the following development: 1. The appellant should again be afforded the opportunity to identify potential alternative sources of information to verify the claimed sexual assault and harassment as set forth in M21-1, part III, 5.14(c). She should be informed that these alternative sources could include, but are not limited to, private medical records; civilian police reports; reports from crisis intervention centers; testimonials from family members, roommates, fellow service members, or clergy; and copies of any personal diaries or journals. 2. The RO should also ask the appellant to identify all VA and non-VA health care providers that have treated her for a psychiatric disorder or alcohol abuse since service. The RO should then obtain from each health care provider the records that the appellant identifies. 3. Contact the appropriate State or Federal agency and obtain service personnel records regarding: any evaluations of job performance, Article 15's, facts and circumstances of discharge and any discharge upgrade information. The desired records relate to active duty performed in the U.S. Army during the period of January 1978 to July 1980. If no such service personnel records can be found, or if they have been destroyed, ask for specific confirmation of that fact. 4. The RO must also assure compliance with the requirements of the VCAA, codified, in pertinent part, at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). See also 38 C.F.R. §§ 3.102, 3.159, 3.326 (2002). The RO's attention is directed to Quartuccio, supra, pertaining to the amended version of 38 U.S.C.A. § 5103(a), which requires that the Secretary identify for the veteran which evidence the VA will obtain and which evidence the veteran is expected to present. 5. Thereafter, the veteran should be scheduled for a VA psychiatric examination for the purpose of determining the nature and etiology of any current psychiatric disorder, to include claimed PTSD. The claims file must be made available to the examiner; the psychiatrist must review the service medical evidence of alcohol abuse and injuries sustained in an April 1980 incident while on active duty, a VA psychologist's opinion linking PTSD to service, two VA fee-basis psychiatrists indicating that the veteran did not meet the diagnostic criteria for PTSD but diagnosing other psychiatric disorders, any evidence obtained as a result of this remand (see #s 1-4 above), and any other relevant evidence in the file. Following that review, the mental status examination and any tests that are deemed necessary, the examiner should opine whether it is at least as likely as not (50 percent or more likelihood) that the veteran has any current psychiatric disorder, to include PTSD, that began during or is causally linked to any incident of service. 6. Thereafter, the RO should complete any additional development that is indicated and readjudicate the issue of entitlement to service connection for a psychiatric disorder, to include PTSD. If the benefit requested on appeal is not granted to the appellant's satisfaction, the RO should issue a Supplemental Statement of the Case, which must contain notice of all relevant action taken on the claim. A reasonable period of time for a response should be afforded. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if otherwise in order. No action is required of the veteran until she is otherwise notified by the RO. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. 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 2002) (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. ____________________________________________ R. F. Williams 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.