Citation Nr: 0328903 Decision Date: 10/24/03 Archive Date: 11/04/03 DOCKET NO. 02-19 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for post-traumatic stress disorder (PTSD). 2. Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for the residuals of gonorrhea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.J. Bakke, Counsel INTRODUCTION The veteran served on active duty from September 1972 to April 1975. This appeal arises before the Board of Veterans' Appeals (Board) from letter declining to reopen the previously denied claims for service connection for PTSD and the residuals of gonorrhea, rendered in May 2001 by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The veteran testified before the undersigned Veterans' Law Judge, in May 2003, who was designated by the Chairman to conduct the hearings pursuant to 38 U.S.C.A. § 7102(b) (West 2002) and who participated in this decision. For reasons explained below, the Board has determined that new and material evidence to reopen the previously denied claim for service connection for PTSD has been submitted. The issue of entitlement to service connection for PTSD is the subject of a remand immediately following this decision. The issue of whether new and material evidence has been submitted to reopen the previously denied claim for entitlement to service connection for the residuals of gonorrhea is the also subject of the remand immediately following this decision. FINDINGS OF FACT 1. The RO denied entitlement to service connection for PTSD in a February 1999 decision. The veteran was notified of that decision, and of his appellate rights and procedures in a letter dated in March 1999. The veteran appealed this decision to the Board, but withdrew his appeal as to this issue in writing in January 2001. 2. The additional evidence received since the February 1999 decision bears directly and substantially upon the specific matter under consideration and is so significant that it must be considered in order to decide fairly the merits of the claim for entitlement to service connection for PTSD. CONCLUSIONS OF LAW 1. The February 1999 RO decision denying the reopening of the previously denied claim for entitlement to service connection for PTSD is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.160(d), 20.302(a) (2003). 2. Evidence submitted to reopen the claim of entitlement to service connection for PTSD is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5100 et. seq., 5108 (West 2002); 38 C.F.R. § 3.156(a) (effective prior to August 29, 2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION There was a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This law redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. The final regulations implementing the VCAA were published on August 29, 2001, and they apply to most claims for benefits received by VA on or after November 9, 2000, as well as any claim not decided as of that date, such as the one in the present case. 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board observes that the VCAA appears to have left intact the requirement that a claimant must first present new and material evidence in order to reopen a previously and finally denied claim under 38 U.S.C.A. § 5108 before the Board may determine whether the duty to assist is fulfilled and proceeding to evaluate the merits of that claim. It is specifically noted that nothing in the Act shall be construed to require the Secretary to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108. 38 U.S.C.A. § 5103A(f) (West 2002). The Board also acknowledges that the implementing regulations modify the definition of new and material evidence and provide for assistance to a claimant on claims to reopen. 38 C.F.R. §§ 3.156(a), 3.159(c). However, the regulatory provisions affecting the adjudication of claims to reopen a finally decided claim are applicable only to claims received on or after August 29, 2001. Because the veteran's request to reopen the previously denied claim of service connection for PTSD was received prior to that date (in an April 2001 VA form 21-4138 (Statement in Support of Claim)), those regulatory provisions do not apply. The Board is granting the veteran's claim to reopen the previously denied claim for service connection for PTSD. No additional evidence is required to make a determination in this case and, hence, any failure to comply with VCAA requirements as to this issue would not be prejudicial to the veteran. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Bernard v. Brown, 4 Vet. App. 384 (1993). In a February 1999 rating decision, the RO denied the veteran's claim seeking entitlement to service connection for PTSD. In arriving at this decision, the RO noted that although a March 1998 VA examination report reflected that the veteran was diagnosed with PTSD, the stressor which caused the PTSD was the post-service shooting of the veteran's brother. Hence, as the stressor causing the veteran's PTSD, while verified, occurred after the veteran's discharge from active service, the veteran's PTSD could not be the result of his service. The veteran was notified of the February 1999 RO decision and his procedural and appellate rights by a March 1999 letter. He appealed this decision, but in a January 2001 statement, withdrew his appeal. The February 1999 decision thus became final. Prior unappealed decisions of the RO are final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.160(d), 20.302(a) (2003). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App 145 (1991). When determining whether the evidence is new and material, VA must determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a) (effective prior to August 29, 2001) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108 (West 2002); and if the claim is reopened, the VA must determine whether VA's duty to assist has been fulfilled. See Elkins v. West, 12 Vet. App. 209 (1999). Specifically, under 38 C.F.R. § 3.156(a) (effective prior to August 29, 2001), new and material evidence is defined as evidence 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. The Board notes that the regulations have been amended to define "new" as not previously submitted and "material" as related to an unestablished fact necessary to substantiate the claim. Under the amended regulations, if the evidence is new and material, the question is whether the evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). However, as previously pointed out, these regulations are effective prospectively for claims filed on or after August 29, 2001, and are therefore not applicable in this case as the veteran filed his claim to reopen the previously denied decision in April 2001. In the instant case, the Board finds that the veteran's testimony before the undersigned Veterans' Law Judge provides a sufficient basis to reopen the previously denied claim. In particular, the veteran testified that the individuals who had shot his brother in 1976, one year after his discharge from active service, were in fact stationed with him during his tour of active duty and that he had been subjected to harassment by these individuals during his active service. The Board notes that the VA examiner, in the March 1998 report stated that the veteran's neuropsychiatric symptomatology had its onset during his period of active service: It is as likely as not that the onset of [the veteran's] schizophrenia resulted from the severe stressor that he endured in 1976. Given a biological vulnerability to schizophrenia, it is not uncommon for a severe stressor to initiate or exacerbate psychotic symptoms ... Additionally, the depression that this veteran experience (sic) is as likely as not a result of the trauma experienced and the helplessness that [the veteran] feels in controlling his PTSD symptoms. It is ascertainable that the premorbid and early aspects of his mixed clinical picture did appear during his military tenure, has worsened through time ... (emphasis added). At the time of the February 1999 decision, the veteran had not explained the relationship he had with the individuals that shot his brother in 1976 other than to note he knew them from active duty. In May 2003, the veteran testified under oath that his conflict with these individuals began while he was on active duty and stationed on board the same ship with them. He stated that they harassed him and described several incidents. He further noted that he reported his fear that they would harm him to a shipmate. The record now contains the veteran's sworn testimony as to harassment he experienced during active service by individuals who, merely a year later, sought him out and shot at him and his brother, striking his brother. The medical evidence of record contains an opinion that the veteran's neuropsychiatric symptomatology had its onset during his active service. Hence, as the evidence now provides a stressor which, if verified, occurred during the veteran's active service, this evidence is significant enough that it must be considered in order to fairly decide the merits of the claim. Thus, the Board finds that evidence submitted since the February 1999 decision provides a basis to reopen this claim. However, the evidentiary record lacks verification of the averred inservice stressor. In addition, the Board notes that the veteran has submitted some of his service personnel records on his own initiative. Yet the totality of these records have not been obtained. Finally, the veteran's claim must be developed as one involving PTSD as secondary to personal assault (see M21-1, Part III, 5.14(c)(5)). Hence, the Board finds that further development is required to fairly adjudicate this claim. Accordingly, the claim is reopened and the issue for adjudication now before the Board is entitlement to service connection for PTSD. However, as indicated above, the Board finds that remand to the agency of original jurisdiction for additional development is required as to this issue. The issue of entitlement to service connection for PTSD will be the subject of a later decision. ORDER The previously denied claim for entitlement to service connection for PTSD is reopened. To that extent only, the claim is granted. REMAND As noted above, the Board has reopened the previously denied claim for service connection for PTSD. In addition, the veteran also seeks to reopen his previously denied claim for service connection for the residuals of gonorrhea. The Board has reviewed the records and finds that additional development is necessary before appellate action may be completed. First, the veteran has submitted additional details about the stressors he avers he experienced during active service, particularly harassment by the same individuals who later attempted to shoot him and were successful in shooting his brother. The RO has not had an opportunity to verify these additional inservice details, nor has it had an opportunity to fully develop this claim in accordance with M21-1, Part III, 5.14(c)(5). This must be done. Second, the veteran has reported receiving disability benefits from Social Security Administration (SSA). These records must be obtained. Concerning the claim to reopen the previously denied claim for service connection for gonorrhea, the veteran has testified that he underwent treatment for gonorrhea during his active service. The RO made attempts to obtain records from the facilities the veteran identified and received negative results. In addition, the National Personnel Records Center (NPRC), in June 1999, indicated that it had made extensive searches for these records, to no avail. Nonetheless, the Board requests that the RO and NPRC make an additional attempt to find these records, using additional information the veteran gave in his May 2003 testimony. The Board notes that the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Disabled Veterans of America v. Secretary of Veterans Affairs (DAV v. Sec'y of VA), 327 F.3d 1339 (Fed. Cir. 2003) invalidated the Board's ability to cure VCAA deficiencies. Therefore a remand is required in this appeal so that additional development may be undertaken in order to fulfill the Department's duty to assist the veteran with his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2003). In addition, in a decision promulgated on September 22, 2003, Paralyzed Veterans of America v. Secretary of Veterans Affairs (PVA v. Sec'y of VA), No. 02-7007, -7008, -7009, - 7010 (Fed. Cir. Sept. 22, 2003), the Federal Circuit invalidated the 30-day response period contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C.§ 5103(b)(1). The Court made a conclusion similar to the one reached in DAV v. Sec'y of VA. The Federal Circuit found that the 30-day period provided in § 3.159(b)(1) to respond to a VCCA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. Therefore, since this case is being remanded for additional development or to cure a procedural defect, the RO must take this opportunity to inform the appellant that notwithstanding the information previously provided, a full year is allowed to respond to a VCAA notice. To ensure that the VA has met its duty to assist and to ensure full compliance with due process requirements, this case is REMANDED to the RO for the following actions: 1. The RO must review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with the recent decision in Paralyzed Veterans of America v. Secretary of Veterans Affairs, as well as 38 U.S.C.A. §§ 5102, 5103, and 5103A, (West 2002), and any other applicable legal precedent (including all provisions under 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002); 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)); as well as the holdings in Quartuccio v. Principi, 16 Vet. App. 183 (2002) and Charles v. Principi, 16 Vet. App. 370 (2002)). The claims file must include documentation that there has been compliance with the VA's redefined duties to notify and assist a claimant as set forth in the VCAA and as specifically affecting the issues on appeal. 2. The RO should make an additional attempt to obtain any additional service medical records, including any and all mental hygiene records. In addition, the RO should make specific attempts to obtain the veteran's service personnel records, including any and all evaluation reports and proceedings of any disciplinary actions. The RO is further requested to make a specific attempt to obtain any and all hospital records- including any and all mental hygiene records-of treatment accorded the veteran while stationed on board the USS Hancock (VCA-19) and USS Tulare (LKA 112), at the Alameda Naval Air Station, the base or naval hospital associated with Oakland, California, the Oak Knoll Naval Hospital in Oakland, California, the base or naval hospital associated with Naval Station Subic Bay, Philippines, and naval or base hospital associated with Naval Station, San Francisco, California. 3. If the service medical or personnel records, mental hygiene records, or hospital records are unavailable, the RO should use alternative sources to obtain such records, using the information of record and any additional information the veteran may provide. The RO should consider special follow-up by its military records specialist and/or referral of the case for a formal finding on the unavailability of the service medical or service personnel records. See VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part III, chapter 4, paras. 4.28 and 4.29. If necessary, the RO should request that the veteran augment the information that he has already provided. 4. The RO should request the records pertinent to the veteran's claim for SSA disability benefits, including the decision, and the medical records relied upon concerning his claim. 5. The RO should send the veteran a development letter asking him to give a comprehensive statement regarding the harassment he experienced during his active duty service. Please remind the veteran that it is necessary to give as specific and detailed information about the persons, places, and events involved as possible, including as accurate dates as possible, so as to enable verification of the identified stressors. 6. Offer the veteran an opportunity to procure "buddy statements" from service members who may have witnessed the events he identifies as his stressors-in particular the individual to whom he said he reported his fear while on active duty. In addition, please explain that he may also obtain statements from individuals including friends or family members to whom he may have written letters describing the events or friends, family members, or service members with whom he may have described these events during his active service or immediately after his return from active service onboard the ship. 7. Whether or not the veteran responds to the request to identify his stressors, the RO should make every attempt to verify the veteran's averred inservice stressors. See VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part III, 5.14(c)(5). In addition, the RO should complete any and all follow-up actions necessary, including requesting Morning Reports and other such reports which could be used to verify daily personnel actions from NPRC. 8. After receipt of any and all newly acquired evidence, the RO should again review the veteran's claims for service connection for PTSD, and to reopen his previously denied claim for service connection for the residuals of gonorrhea. If the RO finds that additional VA examinations are necessary in order to decide the claims, such examinations should be scheduled and conducted. 9. If the decision remains in any way adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case, and with a reasonable period of time within which to respond. The case should thereafter be returned to the Board for further review, as appropriate. The veteran need take no action until he is so informed. 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). The Board intimates no opinion as to the ultimate outcome of this case. 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. ______________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2