Citation Nr: 0330906 Decision Date: 11/07/03 Archive Date: 11/17/03 DOCKET NO. 02-17 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas 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: Texas Veterans Commission ATTORNEY FOR THE BOARD Van Stewart, Associate Counsel INTRODUCTION The veteran had active military service from December 1967 to May 1969. Service in Vietnam is indicated by the evidence of record. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In an August 2003 statement, the veteran's accredited representative raised the issue of whether new and material evidence has been submitted to reopen a claim for service connection for psychiatric disability other than PTSD. The RO has not had an opportunity to address this claim. This matter is therefore referred to the RO for appropriate action. FINDINGS OF FACT 1. Service connection for PTSD was denied in an unappealed September 1994 rating decision. 2. Subsequent unappealed rating decisions of February 1998, December 1998 and December 1999 continued the denial of service connection for PTSD. 3. The evidence added to the record since the December 1999 rating decision is new, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the underlying claim. CONCLUSION OF LAW New and material evidence has been received to reopen the veteran's claim for service connection for PTSD. 38 U.S.C.A. §§ 1110, 5108 (West 2002); 38 C.F.R. §§ 3.304(f), 3.156(a) (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran maintains that he is entitled to service connection for PTSD. Service connection for PTSD was denied in an unappealed September 1994 rating decision. Subsequent rating decisions of February 1998, December 1998 and December 1999 continued the denial of service connection for PTSD; the veteran was advised of the referenced decisions and of his appellate rights with respect thereto, but did not perfect an appeal with respect to any of those decisions. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2003). As a result, service connection for PTSD may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2003); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). The Board must first consider the question of whether new and material evidence has been received, as this question goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384. See also Butler v. Brown, 9 Vet. App. 167, 171 (1996). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not of record at the time of the last final disallowance of the claim. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Finally, new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board notes that effective August 29, 2001, 38 C.F.R. § 3.156(a) (relating to the definition of "new and material evidence") was amended. See 66 Fed. Reg. 45,620 (Aug. 29, 2001). As the veteran's claim to reopen the issue of service connection for PTSD was filed after August 2001, only the amended version of 38 C.F.R. § 3.156(a) is applicable to the instant claim. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2003). 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. 38 C.F.R. § 3.304(f) (2003). Where it is determined that the veteran was engaged in combat with the enemy and the claimed stressor is related to such combat, the veteran's lay testimony regarding the claimed stressor is accepted as conclusive as to its actual existence, absent clear and convincing evidence to the contrary. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f) (2003). Where, however, VA determines that the veteran did not engage in combat with the enemy, or that the veteran did engage in combat with the enemy but the claimed stressor is not related to such combat, the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates the veteran's account as to the occurrence of the claimed stressor. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f) (2003); Cohen v. Brown, 10 Vet. App. 128 (1997). The evidence of record at the time of the December 1999 rating decision consisted of, inter alia, the veteran's service medical records (SMRs), service personnel records, and VA treatment reports for December 1979 to June 1999. The SMRs document treatment of the veteran for symptoms including nervousness which he reported began prior to his service in Vietnam, but are negative for any findings or diagnosis of PTSD. The service personnel records show that the veteran served as a water transportation specialist in service. The VA treatment reports document treatment for psychiatric disorders, including schizophrenia, but are negative for any finding or diagnosis of PTSD. Pertinent evidence added to the record since the December 1999 rating decision includes VA treatment reports for the period from March 2001 through May 2003 showing that the veteran was diagnosed by a staff psychiatrist in March 2001 and March 2003 with PTSD, apparently based on certain experiences reported by the veteran as having occurred in service. Inasmuch as the evidence of record at the time of the December 1999 rating decision did not include medical evidence demonstrating a diagnosis of PTSD, the Board concludes that the newly submitted VA treatment records showing diagnoses of PTSD are new and material. The opinions contained in the medical records bear directly and substantially upon a specific matter under consideration. They tend to establish a fact not previously established that is necessary to substantiate the claim, namely that the veteran now has PTSD. Additionally, because this evidence suggests a relationship to military service, the newly received evidence raises a reasonable possibility of substantiating the underlying claim of service connection. The veteran's claim of entitlement to service connection for PTSD is reopened. ORDER New and material evidence has been received to reopen a claim of service connection for PTSD; to this extent, the appeal is granted. REMAND The veteran contends that he has PTSD as the result of several incidents experienced by him in service. Specifically, he contends that he was assaulted by a drill sergeant named Carter during basic training, that he experienced mortar attacks while serving in Vietnam, and that he witnessed the death of several friends from rocket fire in Vietnam. Service personnel records show that the veteran served in Vietnam as a water transportation specialist at DaNang. There are no entries indicating that he engaged in combat while in service, and the awards he received for his service in Vietnam are not indicative of combat. The Board notes that there is no indication that the RO has attempted to verify any of the veteran's claimed combat stressors through the United States Armed Services Center for Research of Unit Records (USASCRUR). The Board also notes that it does not appear that the RO has complied with the special provisions promulgated in the VA Adjudication Procedure Manual M21-1 (Manual M21-1), Part III, relating to personal assault claims. See Patton v. West, 12 Vet. App. 272 (1999); 38 C.F.R. § 3.304(f)(3) (2003). The Board is of the opinion that further development regarding these claimed stressors is required. The Board also notes that it is unclear whether the veteran in fact has PTSD. In this regard, the Board points out that while the veteran's treating psychiatrist diagnosed PTSD on two occasions, the veteran was psychologically examined in connection with the instant claim in May 2003, at which time the examiner concluded the veteran did not meet the criteria for assignment of a diagnosis of PTSD. Under the circumstances, the Board is of the opinion that further VA examination of the veteran is warranted. The Board lastly notes that the veteran was informed in a June 2002 correspondence of the information and evidence necessary to substantiate his claim, and advised as to which evidence VA would obtain for him and of which evidence he was responsible for submitting. The June 2002 correspondence essentially informed the veteran that he needed to submit the requested information and evidence within 30 days of the date of the correspondence. The Board points out that in Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit invalidated the 30-day response period contained in 38 C.F.R. § 3.159(b)(1) as being inconsistent with 38 U.S.C. § 5103(b)(1), finding that the 30-day period provided in § 3.159(b)(1) to respond to VA's notification (pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000)) of the information and evidence necessary to substantiate a claim is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. On remand, the RO should inform the veteran that notwithstanding the information previously provided in the June 2002 correspondence, a full year is allowed to respond to a 38 U.S.C.A. § 5103 notice. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should review the claims file and ensure that all notice obligations required by the VCAA have been satisfied in accordance with the decision in Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003), as well as 38 U.S.C.A. §§ 5102, 5103, and 5103A, (West 2002), and any other applicable legal precedent. 2. The RO should provide the veteran with a personal assault letter and questionnaire to be filled out and returned, in accordance with M21-1, Part III, § 5.14(d). After the veteran has responded to the above inquiry, the RO should follow all other pertinent guidelines in M21-1, § 5.14(c) for development of the claim. 3. The RO should also attempt to obtain additional information from the veteran concerning the specific circumstances of his alleged service stressors, including both service in Vietnam and the alleged mistreatment by his drill instructor in boot camp. This inquiry should include information such as the dates, locations, units involved, names of casualties, and identifying information concerning any other individuals involved in the events, including their names, ranks, and units of assignment. With this information, the RO should review the file and prepare a summary of the veteran's alleged service stressors. This summary must be prepared whether or not the veteran provides an additional statement as requested above. This summary and a copy of the veteran's service personnel records should be sent to the United States Armed Services Center for Research of Unit Records (USASCRUR). The USASCRUR should be requested to provide any additional information that might corroborate the veteran's alleged stressors. The RO should also initiate a search for the unit history and operational reports for each unit to which the veteran was assigned in Vietnam for the period during which he served with such unit. 4. After completing the above actions, the veteran should be afforded a VA psychiatric examination by a physician with appropriate expertise to determine the nature and etiology of any PTSD present. All indicated studies, tests and evaluations deemed necessary should be performed, including psychological testing designed to ascertain whether the veteran has PTSD. A diagnosis of PTSD under DSM-IV criteria should be made or ruled out. If PTSD is diagnosed, the examiner should identify the specific stressor(s) supporting the diagnosis. If PTSD is not diagnosed, the examiner should explain why the diagnosis was not made. The claims folder, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report is to reflect whether such a review of the claims file was made. 5. Thereafter, the RO should review the record and ensure that all development actions have been conducted and completed in full. The RO should then undertake any other action required to comply with the notice and duty-to-assist requirements of the VCAA, and the implementing regulations, see 66 Fed. Reg. 45,620 (Aug. 29, 2001). Then, the RO should re- adjudicate the issue of entitlement to service connection for PTSD on a de novo basis. If the benefit sought on appeal is not granted, the RO should issue a supplemental statement of the case and provide the veteran and his representative with an appropriate opportunity to respond. After the veteran has been given an opportunity to respond to the supplemental statement of the case and the period for submission of additional information or evidence set forth in 38 U.S.C.A. § 5103(b) (West 2002) has expired, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. 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 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 ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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 decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2003).