Citation Nr: 0515838 Decision Date: 06/13/05 Archive Date: 06/21/05 DOCKET NO. 02-06 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for post- traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mark J. Swiatek, Counsel INTRODUCTION The veteran served on active duty from November 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) from a March 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. After the rating decision was issued, the veteran moved, and the case is now under the jurisdiction of the St. Louis Missouri, RO. In a March 1996 rating decision, the RO denied the veteran's original claim for service connection for PTSD. In an August 1996 rating decision, the RO confirmed and continued its denial of the claim. The veteran did not appeal these rating decisions to the Board, and they are final. 38 U.S.C.A. § 7105(c) (West 2002). In December 1999, the veteran sought to reopen his claim for service connection for PTSD. In a January 2000 letter, the RO informed him that he must submit new and material evidence to reopen the claim. In a July 2000 rating decision, the RO denied the claim for service connection for PTSD. Since the RO did not phrase the issue as "Whether new and material evidence has been submitted to reopen a claim for service connection for PTSD" and did not mention whether new and material evidence had been submitted, it appears that the RO considered this claim on the merits in the July 2000 rating decision. In September 2000, the RO received a statement from the veteran and some evidence that it construed as another claim for service connection for PTSD. It adjudicated this claim in a March 2002 rating decision which is the subject of this appeal to the Board. In the March 2002 rating decision, the RO, either on its own motion or based on the September 2000 claim from the veteran, appeared to be conducting a review of its July 2000 decision based on a change in the law, namely, the enactment of the Veterans Claims Assistance Act of 2000 (VCAA) in November 2000. This law required review under certain circumstances of decisions issued between July 1999 and November 2000; however, this requirement only applied to decisions in which a claim was denied on the basis that it was not "well grounded", a requirement eliminated by the VCAA. The denial of the claim for service connection for PTSD by the RO in the July 2000 rating decision did not appear to be based on the claim's having not been "well grounded." Nevertheless, the Board notes that, regardless of what the RO has done in cases such as this, "the Board does not have jurisdiction to consider a claim which it previously adjudicated 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); 38 U.S.C.A. §§ 5108, 7104(b) (West 1991). Although this claim does not involve a prior final denial by the Board but rather by the RO, the same statutory reopening requirements apply to prior final RO decisions. Suttmann v. Brown, 5 Vet. App. 127, 135 (1993). Therefore, the Board is required by statute to review whether new and material evidence has been submitted to reopen the claim and has done so in the decision below. The issue of entitlement to service connection for PTSD on the merits, i.e., on a de novo basis, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. Service connection for PTSD was denied in unappealed rating decisions in March 1996 and August 1996. 2. Evidence submitted since the March and August 1996 rating decisions, was not previously before agency decisionmakers and, when considered in connection with evidence previously assembled, is not cumulative or redundant of evidence previously considered, bears directly and substantially upon the specific matter under consideration, and is so significant that it must be considered in order to fairly decide the merits of the claim for service connection for PTSD. CONCLUSION OF LAW 1. The March and August 1996 rating decisions denying service connection for PTSD are final. 38 U.S.C.A. § 7105(c) (West 2002). 2. Evidence received since the March and August 1996 rating decisions denying service connection for PTSD is new and material, and the veteran's claim for service connection for PTSD has been reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The VCAA emphasized VA's obligation to notify claimants what information or evidence is needed in order for a claim to be substantiated, and it affirmed VA's duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002). In this case, the RO had a duty to notify the veteran what information or evidence was needed in order reopen a claim for service connection for PTSD. VCAA specifically provided that nothing in amended section 5103A, pertaining to the duty to assist claimants, shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured. 38 U.S.C.A. § 5103A(f). In the decision below, the Board has reopened the veteran's claim for service connection for PTSD, and therefore, regardless of whether the requirements of the VCAA have been met in this case, no harm or prejudice to the appellant has resulted. See Mayfield v. Nicholson, No. 02- 1077, slip op. at 15 (U.S. Vet. App. April 14, 2005); Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Reopening A Claim For Service Connection For PTSD Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 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). With regard to the third PTSD criterion, evidence of in-service stressors, the evidence necessary to establish that the claimed stressor occurred varies depending on whether it can be determined that the veteran "engaged in combat with the enemy." 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(1). Section 1154 requires that the veteran have actually participated in combat with the enemy, meaning participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and does not apply to veterans who served in a general "combat area" or "combat zone" but did not themselves engage in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999), published at 65 Fed. Reg. 6,256, 6,258 (2000). Where a determination is made that the veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet. App. 128, 142 (1997). In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. For applications filed before August 29, 2001, as was the application to reopen the claim in this case, new and material evidence means 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. 66 Fed. Reg. 45,620, 45,630 (August 29, 2001); 38 C.F.R. § 3.156(a) (2001). The claimant does not have to demonstrate that the new evidence would probably change the outcome of the prior denial. Rather, it is important that there be a complete record upon which the claim can be evaluated, and some new evidence may contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). Analysis In this case, the RO denied the claim for service connection for PTSD in 1996 because the evidence which was of record at that time consisted of VA medical records that did not show a diagnosis of PTSD, service records which were negative for any medal or award showing combat service, and any evidence to confirm that the alleged stressful experience or stressor in service actually occurred. With regard to the alleged stressor, the veteran noted that he was stationed in a remote area of Thailand where he was attacked several times and that on leaving Thailand his aircraft, a C-130, experienced loss of two engines but the pilot managed to land the aircraft. The veteran sought to reopen the claim in 1999, and the record at that time showed several outpatient diagnoses of PTSD. In addition, on two VA Compensation and Pension examinations conducted in May 2000 and April 2001, examiners recorded the veteran's descriptions of stressful events during service and rendered the diagnosis of PTSD. The veteran also recalled events during service at an RO hearing. This additional evidence is new and material because for the first time there is evidence of diagnosis of PTSD which was associated with descriptions of inservice stressors. Thus, the Board notes that this evidence was not previously before agency decisionmakers, is not cumulative or redundant of evidence previously considered, bears directly and substantially upon the specific matter under consideration, and is so significant that it must be considered in order to fairly decide the merits of the claim for service connection for PTSD. In addition, presuming the credibility of this evidence, the Board notes that, at a minimum, it contributes to a more complete picture of origin of the claimant's disability. Hodge, 155 F.3d at 1363. Accordingly, the Board concludes that this evidence constitutes new and material evidence to reopen the claim. 38 C.F.R. § 3.156(a). ORDER New and material evidence having been submitted, the claim for service connection for PTSD is reopened; the appeal is granted to this extent only. REMAND Reason for Remand: To attempt to verify stressors because some of the veteran's descriptions of stressful events in service appear detailed enough to attempt verification of their occurrence. In this case, the veteran's service personnel records show that he served in Thailand during the Vietnam war and there are no decorations or awards that would serve as evidence that he engaged in combat with the enemy and therefore "credible supporting evidence that the claimed in[-]service event actually occurred" is needed and cannot be provided by medical opinion based on post-service examination. Moreau, 9 Vet. App. at 394-96. His military occupational specialty (MOS) was radio repairman. The Board notes that some of the veteran's descriptions of stressful events, which are recorded in examination reports, are not expressed with sufficient detail to be likely to be verified by the United States Armed Services Center for Unit Records Research (CURR) or are in and of themselves otherwise not verifiable. However, at the October 2002 hearing, the veteran was provided with a map of Thailand and identified his location in relation to his main unit for a two month period in late 1968 (Transcript (T) at 1-4) and he recalled the plane trip when engine failure occurred was on October 27, 1968. There was some discussion of verification through the Military Airlift Command (T 9-10). The Board concludes that this description seems to contain enough detail of the occurrence within a limited period of time that such an event might be subject to verification. See Veterans Benefits Administration Manual M21-1, Part III, Change 131, para. 5.14c(2)(a) (Feb. 25, 2005) (noting that requests to CURR must include such information as a description of the claimed stressor(s); month and year during which the stressful event occurred; the veteran's unit of assignment at the time of the stressful event; the geographic location where the stressful event took place). Specifically, with regard to the claim that the veteran was in a plane in which two engines failed, he has stated that the plane was a C-130 which took off from Bangkok on October 27, 1968, and had to make an emergency landing in Osaka, Japan. This description contains all the information required by the M21-1 standard for making requests from CURR. It includes the type of plane involved, the geographic location of take off and emergency landing, and an exact date; the veteran's personnel records have his unit of assignment on that date. Thus the Board concludes it was premature to decide the claim without first having the CURR determine whether it could conduct research on this information in an attempt to corroborate the incident. Concerning this, a December 2002 Report of Contact reflects that an RO person identified as a "military records specialist" (but not as the "CURR coordinator", the title used in the M21-1 to signify a person whose job it is to "make a formal finding regarding the lack of sufficient information in the claims file to request verification of the stressful event(s) and document the efforts made to secure the evidence" (M21-1, Part III, Change 131, para. 5.14c(5)(3)) was of the opinion that information on stressors could not be verified through CURR. This individual also referred to having researched "web based" resources for military information but did not identify them or provide any of the material reviewed for the record. Moreover, the Report of Contact characterized previous attempts to verify flight information through the Air Force as "unproductive". This report appears not to comply with the M21-1 guidance since it is not clear that the military records specialist is the CURR coordinator but even more importantly because it appears to circumvent CURR development by reporting experience with collateral sources of information as support for not initiating research through the CURR. In view of the standard for development with CURR, the duties and responsibilities of the CURR coordinator set forth in the M21-1, para. 5.14c(3)-(5) (as reflected in Change 131 dated February 25, 2005), and the specific information given by the veteran in this case, the Board concludes that an attempt to locate additional information to corroborate the claimed stressors is warranted. It is provided by regulation that the Board is not bound by VA manuals in consideration of appeals, but the Board's obligation to provide an adequate statement of reasons and bases supporting its findings and conclusions would require the Board to find that any evidentiary development undertaken or any decision not to proceed with CURR development substantially complied with applicable development guidelines. 38 U.S.C.A. § 7104(d); 38 C.F.R. §§ 3.159, 19.5, 19.7. For these reasons, the Board finds nothing in this record, including in the military records specialist's explanation in the Report of Contact, for the RO's decision not to undertake CURR development in this case given the standard articulated for proceeding with a CURR request given in the M21-1. The Board observes that additional due process requirements under the VCAA may be applicable given that this claim has now been reopened. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002) and 66 Fed. Reg. 45,620 (Aug. 29, 2001) (38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). Therefore, on remand, VA must ensure that the veteran is notified of the information and evidence needed to substantiate a claim for service connection for PTSD. Accordingly, the case is remanded to the VBA AMC for further action as follows: 1. The VBA AMC should contact the veteran and request that he identify all healthcare providers, VA and non-VA, inpatient and outpatient, who have treated him for PTSD since February 2001. He should be requested to complete and return the appropriate release forms so that VA can obtain any identified evidence. All identified private treatment records for which a release form is provided should be requested directly from the healthcare providers. Regardless of the veteran's response, the VBA AMC should obtain all outstanding VA treatment reports. 2. If the VBA AMC is unable to obtain any of the relevant records sought, it shall notify the veteran that it has been unable to obtain such records by identifying the specific records not obtained, explaining the efforts used to obtain those records, and describing any further action to be taken with respect to the claim. VCAA, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (codified at 38 U.S.C. § 5103A(b)(2)). 3. The veteran should once again be asked to provide a comprehensive statement containing as much detail as possible regarding the stressors to which he alleges he was exposed in service. He should be asked to provide to the best of his ability any additional information about the stressful events he experienced in service, including all dates, places, and identifying information concerning any other individuals involved in the stressful events, including their names, ranks, and units of assignment, the veteran's unit of assignment at the time of each incident, and any other identifying detail. The veteran is hereby advised that this information is needed to search for verifying information. 4. Thereafter, the VBA AMC should review the claims file and prepare a summary of the claimed stressor(s) based on review of all pertinent documents and statements of record. Then the VBA AMC should complete any additional development as provided in M21-1, part III, para. 5.14 to corroborate claimed stressors. 5. The VBA AMC should forward the pertinent information along with any additional personnel records to the CURR, 7798 Cissna Road, Suite 101, Springfield, Virginia 22150-3197, to attempt to confirm any of the stressors claimed by the veteran. 6. If and only if the occurrence of a stressor is confirmed by CURR, then the VBA AMC should schedule the veteran for a VA psychiatric examination. The claims file must be reviewed by the examiner in connection with the examination, and the examiner should note that he/she reviewed it in the examination report. In determining whether or not the veteran has PTSD due to an in-service stressor, the examiner must be notified by VBA AMC that only the verified stressor may be considered in rendering a diagnosis. If the examiner believes that PTSD is the appropriate diagnosis he/she must specifically identify which stressor(s) verified as having actually occurred by CURR is/are responsible for that conclusion. In making this determination, the examiner should consider the veteran's entire in-service and post-service medical history as documented in the record. Any opinions expressed by the examiner must be accompanied by a complete rationale. 7. Thereafter, the VBA AMC should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the VBA AMC should review the requested examination report to ensure that they are responsive to and in complete compliance with this remand and if they are not, the VBA AMC should implement corrective procedures. The Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall v. West, 11 Vet. App. 268 (1998). 8. After undertaking any development deemed essential in addition to that specified above, the VBA AMC should readjudicate the claim of entitlement to service connection for PTSD on a de novo basis. If the benefit requested on appeal is not granted to the veteran's satisfaction, the VBA AMC should issue 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 applicable law and regulations pertinent to the claim currently on appeal. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if 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 VBA AMC; however, the veteran is hereby notified that failure to report for any scheduled VA examination without good cause shown may adversely affect the outcome of his claim of entitlement to service connection for PTSD and may result in its denial. 38 C.F.R. § 3.655 (2004). 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). 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). ______________________________________________ KATHLEEN K. GALLAGHER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs