Citation Nr: 0327015 Decision Date: 10/09/03 Archive Date: 10/20/03 DOCKET NO. 01-08 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for post- traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The veteran had active military service from June 1960 to April 1963. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to service connection for post-traumatic stress disorder (PTSD). A review of the claims file reveals that, in an unappealed June 2000 decision, the Board denied the veteran's claim of entitlement to service connection for PTSD. At that time, the Board also declined to find that new and material evidence had been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder (other than PTSD). The Board notes that, thereafter, the veteran's September 2000 request to reopen his claim expressly addressed only the matter of service connection for PTSD although, in a September 2003 written statement, the veteran's accredited service representative phrased the issue as service connection for an acquired psychiatric disorder described as PTSD. Thus, the Board believes that the issue as characterized on the first page of this decision most accurately reflects the veteran's current claim on appeal. The Board points out in this regard that it appears that, in November 2000, the RO reopened the veteran's claim and denied it on the merits. However, before the Board may reopen a previously denied claim, it must conduct an independent review of the evidence to determine whether new and material evidence has been submitted sufficient to reopen a prior final decision. See Barnett v. Brown, 8 Vet. App. 1 (1995); 83 F.3d 1380 (Fed. Cir. 1996). Furthermore, if the Board finds that new and material evidence has not been submitted, it is unlawful for the Board to reopen the claim. See McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). Consequently, the first issue that must be addressed by the Board is whether the previously denied claim ought to be reopened. 38 U.S.C.A. § 5108 (West 2002). Finally, in September 2001, the veteran requested to appear at a personal hearing at the RO. He was scheduled for an RO hearing in March 2002, but failed to report and did not request that the hearing be rescheduled. As a result, the Board believes all due process requirements were met with regard to his hearing request. REMAND The veteran contends that he has PTSD as a result of his active military service. In an April 2001 written statement, he maintains that, while stationed in Landsthul, Germany, he was assaulted on the head, knocked unconscious, and taken by ambulance to the Army Hospital Emergency Room. He said SP 4 [redacted] and PFC [redacted] told him he was attacked by a another soldier, identified as Cleveland, whom the veteran said was placed in the stockade at some point. The veteran further maintained that, immediately after his attack, while still in Landsthul, he experienced headaches and flashbacks, was treated by Army doctors, and needed psychiatric help. According to the veteran, the doctors recommended rest, and he was on sick call. He said that he has been unable to work as a result of the attack. During the pendency of the veteran's appeal, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), which substantially modified the circumstances under which VA's duty to notify and assist claimants applies, and how that duty is to be discharged. See Public Law No. 106- 175 (2000) (now codified at 38 U.S.C.A. §§ 5100-5103A, 5106-7 (West 2002)). The new statute also revised the former section 5107(a) of title 38, United States Code, to eliminate the requirement that a claimant must come forward first with evidence to well ground a claim before the Secretary of Veterans Affairs is obligated to assist the claimant in developing the facts pertinent to the claim. VA has published regulations implementing many of the provisions of the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2003)). Under regulations issued after enactment of the VCAA, and effective February 22, 2002, the Board has been conducting evidentiary development of appealed cases directly. See 38 C.F.R. § 19.9(a)(2) and (a)(2)(ii) (2003). But see Paralyzed Veterans of America v. Secretary of Veterans Affairs, ___ F.3d ___, No. 02-7007 (Fed. Cir. Sept. 22, 2003) (holding that the regulation codified at 38. C.F.R.§ 3.159(b)(1) is invalid because it imposes an arbitrary new deadline that does not represent a reasonable exercise of VA's authority). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); 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) (2003); Cohen v. Brown, 10 Vet. App. 128, 139-143 (1997). In November 2000, the RO denied the veteran's claim, in part, on the basis that there was no competent evidence of record to corroborate that he was actually assaulted during service. However, pertinent provisions of Manual M21-1 specifically address the types of documentation that may be used to corroborate the occurrence of a stressor where the alleged stressor event is physical or sexual assault. See Cohen v. Brown, 10 Vet. App. at 128. M21-1, Part III, Change 49 (February 1996) par. 5.14c. See also YR v. West, 11 Vet. App. 393, 399 (1998). In verifying the existence of an in- service stressor and any other material issue, the equipoise standard of proof, not the preponderance standard, must be applied. See Patton v. West, 12 Vet. App. 272 (1999); see also YR v. West, infra ("[i]n a system where equipoise is the standard of proof, evidence of this nature cannot be ignored"). A review of the claims file reveals that a previously considered undated service medical record indicates that the veteran was seen in the clinic after being hit on the head behind the left ear; it indicates he had not been unconscious. A previously considered 1985 statement from W.M., the veteran's comrade, is to the effect that Mr. M. recalled the veteran being hit over the head from behind, which caused him to pass out. It was noted that the veteran was taken to the hospital, but Mr. M. did not recall any more specifics of the incident. A December 1999 VA neuropsychological evaluation describes findings suggestive of "a significant history of" PTSD. It is also unclear from the claims file whether the veteran receives Social Security Administration (SSA) disability benefits. The recent VA medical records indicate he received SSI (Supplemental Security Income) benefits. However, a May 1976 SSA record is to the effect that the veteran was awarded both SSA disability benefits and SSI, effective December 1974. An August 1999 SSA record indicates that he received SSA disability benefits, although the records do not indicate for what disability the veteran received benefits. The Board is of the opinion that the duty to assist the claimant by obtaining the SSA records attaches in this case. However, on May 1, 2003, the United States Court of Appeals for the Federal Circuit (Federal Circuit) invalidated the new duty-to-assist regulations codified at 38 C.F.R. § 19(a)(2) and (a)(2)(ii)(2002), under which the Board was conducting evidentiary development on its own, without remanding to the ROs. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). That decision emphasized the Board's status as "primarily an appellate tribunal," and held that 38 C.F.R. § 19.9(a)(2) is invalid because, in conjunction with the amended regulation codified at 38 C.F.R. § 20.1304, it allows the Board to consider additional evidence without having to remand the case to the AOJ for initial consideration and without having to obtain the appellant's waiver. The Federal Circuit explained that this is contrary to the requirement of 38 U.S.C.A. § 7104(a) that "[a]ll questions in a matter which . . . is subject to decision by the Secretary shall be subject to one review on appeal by the Secretary," and that, under such a procedure, "the veteran is not effectively able to object to any of the additional evidence obtained by the Board until after the Board weighs the evidence and decides the appeal." The Federal Circuit further held that 38 C.F.R. § 19.9(a)(2)(ii) is invalid because, in providing only 30 days for an appellant to respond to a notice from the Board that information or evidence is needed from the appellant, it violates the provision, contained in 38 U.S.C.A. § 5103, of a one-year period in which to respond to such a request Subsequently, the VA General Counsel issued a precedent opinion on May 21, 2003, interpreting the Federal Circuit decision in DAV v. Secretary, supra. The General Counsel held, in essence, that (1) the DAV decision does not prohibit evidentiary development by the Board, and the Secretary may expressly delegate such authority to the Board by new regulations; (2) the DAV decision does prohibit the Board from rendering a final decision based upon newly obtained evidence without the appellant's first waiving initial consideration of any such evidence by the RO; (3) the DAV decision does not prohibit the Board from issuing the duty- to-assist notice required by the VCAA in 38 U.S.C.A. § 5103(a), and the Secretary may expressly delegate such authority to the Board by new regulations; and (4) the Board is not required to identify and readjudicate any claims decided by the Board under the now invalidated regulations before the DAV decision, although VA must review the claim if requested information or evidence is submitted within one year after the date of the request. VAOPGCPREC 1-2003. In light of the Federal Circuit decision and the General Counsel precedent opinion, and because no further guidance or regulatory direction has been issued to implement them, the Board believes that the most appropriate action is to remand this claim to the RO so that the veteran can be provided with the notification necessary under 38 U.S.C.A. § 5103(a) and an appropriate period of time in which to submit evidence or argument in response to that notice. In addition, because the record reflects that the VARO has not yet considered whether any additional notification or development action is required under the Veterans Claims Assistance Act of 2000 regarding this matter, it would be potentially prejudicial to the appellant if the Board were to proceed to issue a decision at this time, particularly in view of the Federal Circuit's decision in DAV v. Secretary, supra. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92 (July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)). Thus, due process, as mandated by the recent decision of the Federal Circuit, demands that this case be REMANDED to the RO for the following action: 1. The RO should send a letter to the veteran that specifically addresses the new VCAA and its potential effect on his claim as to whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for PTSD. The veteran should be invited to submit any additional evidence he may have in support of his claim. 2. The RO should contact the Social Security Administration and request copies of all medical records and the administrative decision(s) considered in any claim for disability benefits by the veteran, and any subsequent disability determinations. 3. The veteran should be requested to provide the names and addresses of all VA and non-VA medical providers who have treated him for the disorder at issue since December 1999. The RO should then request all pertinent medical records from these medical providers. 4. The RO should consult M21-1, Part III, Change 49 (February 1996) par. 5.14c, "PTSD Claims Based on Personal Assault", regarding the need for additional development to corroborate the veteran's claim. The RO should make all reasonable attempts to obtain other records that may be needed, to include any reports from the military police, shore patrol, provost marshal's office or other military law enforcement. It may be necessary to call the unit at the military installation where the records may be located: a. The RO should attempt to locate PFC [redacted] [redacted] through VA records, if possible, and ask whether he recalls the veteran's alleged physical assault in service. b. The RO should also consider development of alternative sources of information if the appellant identifies such sources. c. Regarding any development letter for PTSD claims based upon personal assault, the RO should consider M21- 1, Part III, Change 55 (April 1996), Exhibit A.4, "Suggested Attachment To Letter To Veteran Requesting PTSD Information Concerning An In-Service Personal Assault", or an attachment developed locally. 5. Then, the RO should review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-175 (2000) (now codified at 38 U.S.C. §§ 5100-5103A, 5106-7 (West 2002)) is completed, including VA psychiatric examination, if warranted. 6. Thereafter, the RO should readjudicate the veteran's claim of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for PTSD. If the benefits sought on appeal remain denied, the appellant and his representative should be provided with a supplemental statement of the case (SSOC). The SSOC should contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal since the July 2001 statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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. 8.43 and 38.02. ____________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2003).