Citation Nr: 0422791 Decision Date: 08/19/04 Archive Date: 08/24/04 DOCKET NO. 00-16 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD) to include the question of whether new and material evidence has been presented to reopen the claim. 3. Entitlement to service connection for schizophrenia to include the question of whether new and material evidence has been presented to reopen the claim. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Carr, Associate Counsel INTRODUCTION The veteran had active service from November 1979 to February 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In May 2004, a hearing was held before the undersigned Veterans Law Judge sitting at Philadelphia, Pennsylvania. FINDINGS OF FACT 1. In an unappealed decision dated in November 1999, the RO denied the veteran's claim to reopen the issues of entitlement to service connection for a psychiatric condition. 2. The evidence received since the RO's November 1999 decision regarding the issue of entitlement to service connection for a psychiatric condition, which was not previously of record, and which is not cumulative of other evidence of record, bears directly and substantially upon the specific matters under consideration, and is so significant that it must be considered in order to fairly decide the merits of the claims. CONCLUSIONS OF LAW 1. New and material evidence has been presented since the November 1999 final rating decision, and the claim for service connection for PTSD is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156 (as in effect prior to August 29, 2001), 3.160(d), 20.200, 20.302(a), 20.1103 (2003). 2. New and material evidence has been presented since the November 1999 final rating decision, and the claim for service connection for schizophrenia is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156 (as in effect prior to August 29, 2001), 3.160(d), 20.200, 20.302(a), 20.1103 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence To reopen a claim, new and material evidence must be presented or secured. 38 U.S.C.A. § 5108. "The Board does not have jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The Board is neither required nor permitted to analyze the merits of a previously disallowed claim if new and material evidence is not presented or secured. Butler v. Brown, 9 Vet. App. 167, 171 (1996). No other standard than that articulated in the regulation applies to the determination whether evidence is new and material. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The veteran's claim to reopen was already pending on the effective date of the most recent amendment of 38 C.F.R. § 3.156(a), which expressly applies only to claims filed on or after August 29, 2001. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001). Consequently, the Board is deciding this appeal under the older version of the regulations. Under the older version of section 3.156 of the Code of Federal Regulations, new and material evidence is defined as follows: [E]vidence 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. 38 C.F.R. § 3.156(a) (2000). Evidence received subsequent to a final rating decision is presumed credible for the purposes of reopening a claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995). Service connection for a nervous condition was denied in June 1983. In September 1997, service connection was denied for PTSD. The Board notes that although the veteran filed a notice of disagreement with this decision in September 1997, she submitted a letter, received in July 1999, in which she withdrew this claim. Therefore, that decision became final. Finally, in November 1999, the RO determined that new and material evidence had not been presented to reopen a claim of entitlement to service connection for a psychiatric disorder. This was the last final decision. However, applicable law provides that a claim which is the subject of a prior final decision may nevertheless be reopened upon presentation of new and material evidence. See 38 U.S.C.A. § 5108. Here, the veteran filed to reopen her claim for entitlement to service connection (characterized in the rating decision separately as service connection for PTSD and service connection for schizophrenia) and, in February 2000, the RO denied the claims. The veteran was notified of this decision in February 2000. The Board must consider the threshold question of whether new and material evidence has been submitted to reopen the claims. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The evidence obtained in connection with the attempt to reopen includes a July 2000 letter from Dr. James R. Harris from the Coatesville VA outpatient clinic in which he states that the veteran's history and recent condition would seem to indicate that her psychotic reaction and personality disorder were exacerbated by the service, and that her PTSD was caused by her service experience. This evidence had not been considered previously and obviously is so significant that it must be reviewed in connection with the current claim. The veteran has therefore presented new and material evidence regarding the previously denied claims. Accordingly, the claim to reopen the issues of entitlement to service connection for PTSD and schizophrenia is granted and consideration may be given to the entire evidence of record without regard to any prior denial. II. Veterans Claims Assistance Act of 2000 (VCAA) On November 9, 2000, the President signed into law the VCAA, which redefined VA's duty to assist, enhanced its duty to notify a claimant as to the information and evidence necessary to substantiate a claim, and eliminated the well- grounded-claim requirement. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159, and 3.326 (2002). Because the Board has granted the veteran's claim to reopen the issues of entitlement to service connection for a back condition and a right shoulder condition, a detailed discussion of whether VA has complied with the VCAA is unnecessary at this time. The Board is directing that further evidentiary development be conducted and a thorough discussion of the application of the VCAA in this case will be included in a subsequent decision. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for PTSD is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for schizophrenia is reopened. REMAND The Board reiterates that legislative changes have been enacted which eliminate the concept of a well-grounded claim and redefine the obligations of VA with respect to the duty to provide notice and assistance. See Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107). The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. Pub. L. No. 106-475, § 7(a), 114 Stat. 2096, 2099 (2000); 38 U.S.C.A. § 5107 note (Effective and Applicability Provisions) (West 2002). Regulations implementing the VCAA were adopted recently. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). First, VA has a duty to notify the appellant and his representative of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102 and 5103 (West 2002); 38 C.F.R. § 3.159(b). Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate the claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159. In this case, the RO has failed to apply the changes instituted by the VCAA's enactment to the appellant's claims of entitlement to service connection for PTSD, schizophrenia, and asthma. In this regard, the Board notes that the veteran's claim of entitlement to service connection for asthma is based on a claim of aggravation of a preexisting condition. Under the circumstances, the Board has determined that it cannot issue a decision on the appellant's claims without prejudicing his right to due process under law. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board therefore concludes that due process considerations mandate that the RO must consider the appellant's claim under the recent legislative changes contained in the Veterans Claims Assistance Act and insure compliance with that legislation with respect to both the duty to assist and the duty to notify. The Board notes that the veteran has described numerous events of sexual abuse, some of which predate and postdate her period of active service. The Board further notes that the December 2002 VA PTSD examination report lists a diagnosis of PTSD. However, there has been no verification of the alleged in-service stressors which the veteran argues has caused her PTSD. Specifically, the veteran has stated she was taken advantage of sexually by her recruiter and that a male officer at Fort McClellan entered the women's barracks whilst she was clad only in a towel. She alleged a similar incident while in advanced training at Fort Sam Houston. She also stated that her sergeant at Fort Sam Houston dropped his trousers in front of her. She has also alleged incidents of verbal and physical abuse involving a female sergeant. Therefore, the RO is directed to schedule the veteran for a VA psychiatric examination to determine whether she has PTSD under the criteria as set forth in DSM-IV. The examiner is instructed to report whether it is at least as likely as not (50 percent probability or greater) that the veteran had PTSD as a result of sexual trauma, or other trauma, during service. If the veteran's symptoms meet the DSM-IV criteria for a diagnosis of PTSD, the examiner is to review the claims folder, to specifically include the service medical and personnel records and render an opinion as to whether there was evidence of changed behavior in service which would be consistent with a sexual assault. The Board notes that the decision by the United States Court of Appeals for Veterans Claims (Court) in Patton v. West, 12 Vet. App. 272 (1999), clearly alters the landscape in the adjudication of claims of service connection for PTSD based upon personal assault. In Patton, the Court emphasized that statements contained in prior decisions indicating that "something more than medical nexus evidence is required to fulfill the requirement for 'credible supporting evidence'" of a claimed stressor and that "[a]n opinion by a mental health professional based on a post-service examination of the veteran cannot be used to establish the occurrence of the stressor," were made in the context of discussing PTSD diagnoses other than those arising from personal assault. Id. at 280; see also Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996). With regard to personal assault cases, the Court pointed out that "VA has provided special evidentiary development procedures, including the interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis." Id. (citing VA Adjudication Procedure Manual M21-1 (M21-1), Part III, 5.14c (8), (9)). The Court has also held that these provisions of M21-1, which provide special evidentiary procedures for PTSD claims based on personal assault, are substantive rules that are the equivalent of VA regulations. See YR v. West, 11 Vet. App. 393 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997). Specifically, M21-1, Part III, 5.14c subparagraph (8) (redesignated PartVI, paragraph 11.38b(2)), provides that "[i]f the military record contains no documentation that a personal assault occurred, alternative evidence might still establish an in-service stressful incident. Behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor. Examples of behavior changes that might indicate a stressor are (but not limited to): visits to a medical or counseling clinic or dispensary without specific diagnosis or specific ailment; changes in performance and performance evaluations; increased disregard for military or civilian authority; increased interest in tests for Human Immunodeficiency Virus (HIV) or sexually transmitted diseases; and breakup of a primary relationship. Subparagraph (9) provides that "[r]ating boards may rely on the preponderance of evidence to support their conclusions even if the record does not contain direct contemporary evidence. In personal assault claims, secondary evidence which documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician." The Court in Patton went on to note that the manual improperly appeared to require that the existence of the in- service stressor be shown by a preponderance of evidence. Any such requirement would be inconsistent with the so-called equipoise doctrine, where the benefit of the doubt is given to the claimant unless the evidence preponderates against the claim. Under the circumstances, the Board has determined that a remand is also required for the veteran to be given the opportunity to submit a full and detailed list of: 1) any evidence of behavioral changes which may support her claim; and 2) a list of fellow soldiers and/or civilians who may be able to provide lay statements as to either the occurrence of the claimed stressor(s), or changes in the veteran's observed behavior. The Board stresses that under M21-1, Part VI, 11.38b(2) the changes in the veteran's observed behavior must have been witnessed "at the time of the claimed stressors." Finally, it is noted that although M21-1 provided that evidence of changes of behavior that occurred at the time of the incident may indicate the occurrence of an in-service stressor, such evidence may need interpretation by a clinician. See M21-1, Part VI, 11.38b(2). The Board further notes that the medical evidence in the veteran's claims folder contains numerous psychiatric diagnoses. Therefore, as requested above, following the requested development, an opinion should be obtained from a VA psychiatrist, as outlined below. Accordingly, the Board has no alternative but to defer further appellate consideration and this case is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC for the following actions: 1. The RO should review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully complied with and satisfied. See also 66 Fed. Reg. 45620- 32 (August 29, 2001) (codified at 38 C.F.R. § 3.159). This is to include informing the veteran of the evidence and information necessary in order to establish entitlement to service connection, including entitlement to service connection for asthma based on aggravation of a preexisting condition. The RO should also request that the veteran submit to VA any evidence in her possession pertaining to the claims on appeal. Finally, the RO should ensure compliance with VA's obligations under the VCAA as interpreted by Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. The RO should request that the veteran identify independently verifiable evidence of behavioral changes which occurred at the time of the alleged sexual traumas, and to provide a list of any fellow soldiers and/or civilians, and their addresses, who may be able to provide lay statements as to the occurrence of the claimed stressor(s), and/or changes which they observed in her behavior at the time of the claimed stressor(s). 3. The RO should ensure that its efforts conform to all relevant provisions of Manual 21-1 regarding development in PTSD claims based on personal assault, to include undertaking all reasonable efforts to locate any witnesses identified, and, if located, to obtain statements from them regarding their knowledge of the veteran's alleged stressors. 4. The RO should schedule the veteran for a VA psychiatric examination to determine whether she has a current psychiatric condition, to include PTSD under the criteria as set forth in DSM- IV. If the veteran has PTSD, the examiner should report whether it is at least as likely as not (50 percent probability or more) that the veteran has PTSD as a result of a sexual assault during service. If the veteran's symptoms meet the DSM-IV criteria for a diagnosis of PTSD, the examiner must review the claims folder, to specifically include the service medical and personnel records and render an opinion as to whether there is evidence of changed behavior in service which would be consistent with the alleged sexual assault. If any other psychiatric condition is diagnosed, to include schizophrenia, the examiner is to render an opinion as to whether it is at least as likely as not (50 percent probability or more) that the psychiatric condition is related to the veteran's active service. The claims folder and a copy of this Remand should be provided to the examiner in connection with the examination. The examination report should reflect that such a review was conducted. 5. The RO should then readjudicate the claims on appeal. Thereafter, if the claims on appeal remain denied, the veteran and her representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and discussion of all pertinent regulations. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until she receives further notice. This claim must be afforded expeditious treatment. 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 Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ C.W. SYMANSKI 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