Citation Nr: 0619429 Decision Date: 07/03/06 Archive Date: 07/13/06 DOCKET NO. 04-30 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert C. Scharnberger, Counsel INTRODUCTION The veteran served on active duty from August 1968 to August 1970. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO). In this decision, the Board grants the veteran's application to reopen the previously denied claim of entitlement to service connection for a low back disability. This reopened claim requires additional development and 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. Despite the best attempts of the RO, the veteran's reported in-service stressors could not be verified. 2. There is no medical evidence linking the veteran's currently diagnosed PTSD to any verified in-service stressors. 3. The veteran's claim for service connection for a low back disability was previously denied by the RO in a rating decision dated in September 1970. 4. Relevant evidence submitted since the September 1970 rating decision is new in that it has not been previously considered, and it is material in that it relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. PTSD was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 4.125 (2005). 2. The September 1970 Rating Decision denying service connection for low back disability is final. 38 U.S.C. § 4005(c) (1970); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1970); currently 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 3.104, 20.302, 20.1103 (2005). 3. New and material evidence has been submitted to reopen the veteran's claim of entitlement to service connection for a low back disability, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). The VCAA imposes obligations on VA in terms of its duties to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (b) (2005); Quartuccio v. Principi. 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Court also held that VA must request that the claimant provide any evidence in his possession that pertains to the claim. Id. This "fourth element" comes from the language of 38 C.F.R. § 3.159(b)(1). The Board finds that the VCAA notice requirements have been satisfied. With regard to element (1), above, the Board notes that the RO sent the appellant VCAA notice letters in April 2003, August 2003, and December 2003 that told him what was necessary for his claim to be granted. With regard to elements (2) and (3), the Board notes that the RO's letters notified the appellant of his and VA's respective responsibilities for obtaining information and evidence under the VCAA. More specifically, the letters explained that VA would help him get such things as medical records, or records from other Federal agencies, but that he was responsible for providing any necessary releases and enough information about the records so that VA could request them from the person or agency that had them. Finally, with respect to element (4), the Board notes that the RO's letters asked the appellant to inform VA of any evidence that is relevant. The Board finds that the requirements of the fourth notice element have been met. The Board is mindful that, in concluding that the VCAA notice requirements have been satisfied, the Board believes that at its core, what the VCAA seeks to achieve is to give the appellant notice of the elements outlined above. Once that has been done irrespective of whether it has been done by way of a single notice letter, or via more than one communication, the essential purposes of the VCAA have been satisfied. Here, the Board finds that, because each of the four content requirements of a VCAA notice has been met, any error in not providing a single notice to the appellant covering all content requirements was harmless. See, 38 C.F.R. § 20.1102 (2005) Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2005). The RO obtained service medical records, service personnel records, VA treatment records, and private treatment records. The veteran has not indicated that there is additional evidence available that is obtainable. Thus, on appellate review, the Board sees no areas in which further development is needed. The RO has met the requirements of the VCAA, and there would be no benefit in developing this case further. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). Under these circumstances, adjudication of this appeal, without referral to the RO for further consideration of the claim under the VCAA, poses no prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. at 394; VAOPGCPREC 16-92. II. Entitlement to service connection In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2005). If a condition noted during service is not determined to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2005). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2005). To grant service connection, it is required that the evidence shows the existence of a current disability, an inservice disease or injury, and a link between the disability and the inservice disease or injury. Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the United States Court of Appeals for the Federal Circuit, which recently stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability". Boyer v. West, 210 F.3d 1351, 1353 (Fed.Cir. 2000). Eligibility for a PTSD service connection award requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed inservice stressor actually occurred; and (3) a link, established by medical evidence, between the current symptoms and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (2005). Section 3.304(f) provides that 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. See also 38 U.S.C.A. § 1154(b) (West 2002). In Zarycki v. Brown, 6 Vet. App. 91 (1993), the Court set forth the analytical framework for establishing a veteran's exposure to a recognizable stressor during service, a critical element of the determination of whether a veteran has PTSD, which is related to service. The Court in Zarycki noted that, under 38 U.S.C.A. § 1154(b) (West 1992); 38 C.F.R. § 3.304, and the applicable VA Manual 21-1 provisions, the evidence necessary to establish the incurrence of a recognizable stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the veteran "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). Whether or not the veteran "engaged in combat with the enemy" must be determined through recognized military citations or other supportive evidence. If the determination with respect to this step is affirmative, then (and only then), a second step requires that the veteran's lay testimony regarding the claimed stressors must be accepted as conclusive as to their actual occurrence and no further development or corroborative evidence will be required, provided that the veteran's testimony is found to be "satisfactory," e.g., credible, and "consistent with the circumstances, conditions, or hardships of such service." Zarycki, 6 Vet. App. at 98. In West v. Brown, 7 Vet. App. 70 (1994) the Court elaborated on the analysis in Zarycki. In Zarycki, the Court held that in addition to demonstrating the existence of a stressor, the facts must also establish that the alleged stressful event was sufficient to give rise to PTSD. Id. at 98-99. In West, the Court held that the sufficiency of the stressor is a medical determination, and therefore adjudicators may not render a determination on this point in the absence of independent medical evidence. The Court also held in West that a psychiatric examination for the purpose of establishing the existence of PTSD was inadequate for rating purposes because the examiners relied, in part, on events whose existence the Board had rejected. Under Zarycki and West, in approaching a claim for service connection for PTSD, adjudicatory personnel must resolve the question of the existence of an event claimed as a recognizable stressor. If the adjudicators conclude that the record establishes the existence of such a stressor or stressors, then and only then, the case should be referred for a medical examination to determine the sufficiency of the stressor and as to whether the remaining elements required to support the diagnosis of post-traumatic stress disorder have been met. The Board notes that to verify a stressor it is not necessary that the veteran establish his personal engagement in combat. In Suozzi v. Brown, 10 Vet. App. 307 (1997), the Court held that by requiring corroboration of every detail, including the veteran's personal participation, VA defined "corroboration" too narrowly. Id., at 311. In Suozzi, the Court found that a radio log, which showed the veteran's company had come under attack, was new and material evidence to warrant reopening a claim of service connection for PTSD, despite the fact that the radio log did not identify the veteran's participation. The Court further stressed that the evidence favorably corroborated the veteran's alleged in- service stressor. Moreover, in Pentecost v. Principi, 16 Vet. App. 124 (2002), the Court recently reaffirmed its holding in Suozzi. In that case, the Court stated that the veteran's unit records constituted independent descriptions of rocket attacks that were experienced by the veteran's unit when he was stationed in Vietnam, which, when viewed in the light most favorable to the veteran, objectively corroborated his claim of having experienced rocket attacks. The Court reiterated that although the unit records did not specifically identify the veteran as being present during the rocket attacks, the fact that he was stationed with a unit that was present while such attacks occurred suggested that he was in fact exposed to the attacks. In doing so, the Court underscored that it had made clear in Suozzi that corroboration of every detail of a claimed stressor is not required, and that his presence with his unit at the time the attacks occurred corroborated his statement that he experienced such attacks personally, and thus his unit records were clearly credible evidence that the rocket attacks that he alleges occurred did, in fact, occur. Id, at 128-129. In this case the veteran has not alleged any combat stressors. He has alleged two specific stressors. He stated that, (1) he was assaulted by a fellow soldier in service and struck on the head with a shovel, and (2) that he was subject to harassment and intimidation by his drill instructor. For PTSD cases involving personal assault there is an additional duty to assist the veteran with the development of his claim for service connection for PTSD. Specifically, the RO must consider all of the special provisions of VA Adjudication Procedure Manual M21-1 (M21-1), Part III, regarding personal assault. M21-1 notes that "personal assault is an event of human design that threatens or inflicts harm. Examples of this are rape, physical assault, domestic battering, robbery, mugging, and stalking." M21-1, Part III, 5.14c. M21-1 identifies alternative sources for developing evidence of personal assault including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals. M21-1, Part III, 5.14c(4)(a). Where there is no indication in the military record that a personal assault occurred, alternative evidence, such as behavior changes that occurred at the time of the incident, might still establish that an in-service stressor incident occurred. Examples of behavior changes that might indicate a stressor include: visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; sudden requests that the veteran's military occupational series or duty assignment be changes without other justification; lay statements indicating increased use or abuse of leave without apparent reason; changes in performance or performance evaluations; lay statements describing episodes of depression, panic attacks, or anxiety with no identifiable reasons for the episodes; increased or decreased use or prescription medication; evidence of substance abuse; obsessive behavior such as overeating or under eating; pregnancy tests around the time of the incident; increased interest in tests for HIV or sexually transmitted diseases; unexplained economic or social behavior changes; treatment for physical injuries around the time of the claimed trauma but not reported as a result of the trauma; breakup of a primary relationship. M21-1, Part III, 5.14c(7)(a)-(o). See also, 38 C.F.R. § 3.304(f)(3) (2005); Patton v. West, 12 Vet. App. 272 (1999) (holding that certain special M21-1 manual evidentiary procedures apply in PTSD personal assault cases). The RO was unable to verify either of these two stressors. The veteran's service medical records are negative for any indication that he was struck on the head with a shovel or treated for any such injury. His separation examination was normal. The veteran's personnel records do reflect that he was involved in an incident with a fellow soldier, but it was the veteran who struck the fellow solder with a shovel and he was disciplined with an Article 15 non-judicial punishment. At the time the veteran offered no statement in mitigation, although in the course of his PTSD claim he has stated that it was self-defense. There is no other indication in the personnel records that corroborate the veteran's reported stressors. The service medical records and service personnel records do not establish that the veteran's stressors occurred. There is no mention in the medical records, and no evidence of an alternative type that would be corroborative of a personal assault such as counseling records, incident reports, clergy records, buddy statements, or evidence of significantly changed behavior. In fact, the veteran's personnel file shows that he was promoted with regularity after basic training and left service in two years as an E-4. There is no independent corroboration of either of the veteran's claimed stressors. Based on the law and the facts as stated above, the Board finds that the appellant's claimed stressors have not, and cannot, be verified. There is no indication of any such incidents in the records available, other than the incident in which the veteran was found to be guilty of assault. The RO asked the veteran several times for all details of the incidents, but the details provided were not sufficient to allow the stressors to be verified. The record does not establish that the veteran engaged in combat with the enemy, and therefore there is no presumption that the incidents happened as described. There is no indication that incident similar to the ones described by the veteran occurred to the veteran's unit, therefore there is also no basis to find that the stressors have been verified under Pentecost. Therefore, the veteran has failed to meet the criteria for service connection for PTSD. There is no verification of the claimed in-service stressors. In the absence of verified stressors, referral for a medical evaluation is unnecessary. See, West v. Brown, 7Vet. App. 70 (1994). In any event, there is no competent medical evidence establishing a link between the appellant's symptomatology attributed to his diagnosed PTSD and any verified in-service stressors, since no in-service stressor has been verified. As discussed above, it is clear that the preponderance of the credible evidence is against the veteran's claim; therefore, there is no reasonable doubt to be resolved in his favor and the claim must be denied. III. New and Material Evidence Entitlement to service connection for a low back disability was previously denied by the RO in a rating decision dated in September 1970. Service connection was denied because the evidence did not establish that the veteran's low back disability was related to service. Decisions of the RO are final, if not appealed. 38 U.S.C. § 4005(c) (1970); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1970); currently 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 3.104, 20.302, 20.1103 (2005), and may be reopened only by the submission of new and material evidence. 38 U.S.C.A § 5108 (West 2002); 38 C.F.R. § 3.156 (2005). Prior, unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C.A § 5108 (West 2002); 38 C.F.R. § 3.156 (2005). "New" evidence means evidence "not previously submitted to agency decisionmakers" 38 C.F.R. § 3.156(a) (2005). "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim". Id. In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim." Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). The Court has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim as in this case dealing with a claim for service connection. Evans v. Brown, 9 Vet. App. 273 (1996). However, it is the specified bases for the final disallowance that must be considered in determining whether the newly submitted evidence is probative. Id. Such evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for that last final disallowance of the claim. Id. If new and material evidence is submitted, the claim will be reopened and adjudicated on the merits. 38 U.S.C.A. § 5108 (West 2002). "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 has not been submitted. 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). Evidence offered since the claim was denied in September 1970, which consists of private and VA treatment records, is new, in that it has not been previously considered. It is also material. Specifically, the letter from Dr. Clinton Young, dated in April 2004 that indicates his opinion that the veteran's back disability is related to service. For the purpose of reopening the veteran's claim, this testimony is presumed to be credible and therefore, there is sufficient evidence to reopen the claim.. The new evidence directly addresses the specified reasons for the earlier denial of service connection and directly addresses unestablished facts that are necessary for the claims to be substantiated. Accordingly, the Board concludes that the appellant has submitted new and material evidence to reopen the claim of service connection for a low back disability. To this extent, the claim is granted. Since the claim of service connection for a low back disability is reopened, the merits of that issue must be addressed. Before proceeding to the merits, further development is necessary, which will be addressed in the Remand portion of this decision. ORDER Entitlement to service connection for PTSD is denied. New and material evidence having been submitted, the previously denied claim of service connection for a low back disability is reopened. REMAND The RO should schedule an examination to determine the diagnosis and etiology of the veteran's low back disability. If a low back disability is diagnosed, the examiner should offer an opinion as to whether it is related to service, or if congenital, whether it was aggravated by service. The United States Court of Appeals for Veterans Claims (Court) has held that "fulfillment of the statutory duty to assist ... includes the conduct of a thorough and contemporaneous medical examination...so that the evaluation of the claimed disability will be a fully informed one." Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (citing Suttman v. Brown, 5 Vet. App. 127, 138 (1993) (duty to assist includes providing the veteran a thorough and contemporaneous medical examination when needed)). Because additional evidence is required, and an examination is needed, a remand in this case is required for compliance with the notice and duty to assist provisions contained in the VCAA. Accordingly, this case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington DC for the following action: 1. The RO should schedule the veteran for an examination to determine the diagnosis of any low back disability, and to determine the etiology of the disability. All necessary tests should be conducted. The examiner is instructed to specifically review service medical records showing complaints of low back pain. The examiner should also review the VA treatment records, and Dr. Clinton Young's treatment records and medical opinion indicating a relationship to service for the veteran's low back disability. If a low back disability is diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the low back disability was initially manifested in service, or is otherwise related to service. A complete rationale for any opinion offered should be included. 2. The RO should then readjudicate the veteran's claim, including reviewing all newly obtained evidence. If any benefit sought on appeal remains denied, the veteran should be provided an SSOC that contains a summary of the evidence and applicable laws and regulations considered pertinent to the issue currently on appeal. 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). 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ C.W. SYMANSKI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs