Citation Nr: 0710242 Decision Date: 04/10/07 Archive Date: 04/16/07 DOCKET NO. 03-29 306 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been presented to reopen a previously denied claim for entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD D. Raffaelli, Associate Counsel INTRODUCTION The veteran served on active duty from May 1967 until July 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2002 rating decision by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2007, the undersigned Veterans Law Judge conducted a hearing regarding the issues on appeal. Although the RO has adjudicated the issue of entitlement to service connection on the merits, the Board must consider the question of whether new and material evidence has been received because it 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). The issue of service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. FINDINGS OF FACT 1. In July 2001, the Board reopened the claim of entitlement to service connection for PTSD and denied the claim on the merits for lack of a verifiable stressor and a diagnosis of PTSD based on a verifiable stressor. 2. Evidence submitted subsequent to the July 2001 decision is new and bears directly and substantially upon the specific matter under consideration. CONCLUSION OF LAW New and material evidence has been received to reopen a final disallowed claim that denied service connection for PTSD. 38 U.S.C.A. §§ 5108, 7104 (West 2002 & Supp. 2006); 38 C.F.R. § 3.156(a) (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a general rule, once a claim has been disallowed that claim shall not thereafter be reopened and allowed based solely upon the same factual basis. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Decisions of the Board of Veterans' Appeals are final. 38 U.S.C.A. § 7104. However, if the claimant can thereafter present new and material evidence, the claim shall be reopened, and the former disposition of the claim shall be reviewed. 38 U.S.C.A. § 5108. The veteran filed his claim to reopen in July 2001. The applicable law at the time of the veteran's filing defined new and material evidence as evidence not previously submitted to agency decision makers 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. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); 38 C.F.R. § 3.156 (2000). Service connection for PTSD requires (1) medical evidence indicating a current diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. See 38 C.F.R. 3.304(f). Evidence before the Board in 2001 included the veteran's service medical records which noted that, on Monday, May 29, 1967, the veteran was seen in the emergency room hyperventilating and uncontrollable. He was diagnosed with panic anxiety. Also of record were VA and private treatment records which noted a diagnosis of PTSD and discussed the reported stressor but did not provide a specific statement linking the two. Since the July 2001 decision, private records have been associated with the claim's file which link the claimed stressor to PTSD. In determining whether new and material evidence has been submitted, the Board must review all of the evidence submitted since the last, final denial of the merits of a claim. See Glynn v. Brown, 5 Vet. App. 523, 528-29 (1994). In this case, the last, final decision on the merits of the veteran's service connection claim for PTSD was the Board's July 2001 decision. That decision denied entitlement to service connection because the evidence did not show a verifiable stressor and a diagnosis of PTSD based on a verifiable stressor. The Board concludes that new and material evidence has been submitted to reopen the claim. Specifically, the above mentioned medical records are new evidence because they were not previously considered by the Board in July 2001. The evidence is material because it relates to the reason for denial by providing medical evidence of a current diagnosis linked to the reported stressor, thus it must be considered in order to fairly decide the merits of the claim. Finally, the Board has met the notice and duty to assist requirements of 38 U.S.C.A. §§ 5103, 5107; 38 C.F.R. § 3.159. To the extent there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with this issue given the favorable nature of the Board's decision with regard to the claim to reopen. ORDER New and material evidence having been submitted, the claim for service connection for PTSD is reopened, and the appeal is granted to this extent only. REMAND As previously stated, service connection for PTSD requires (1) medical evidence indicating a current diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. 3.304(f). The veteran contends that he has PTSD as a result of being raped by fellow service members. The veteran's service personnel records and service medical records do not contain any evidence of this incident, but there is also nothing in the service records to contradict it. The veteran has consistently alleged that, in May 1967, he was raped. 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 changed 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 of 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; and breakup of a primary relationship. M21-1, Part III, 5.14c(7)(a)-(o); See also 38 C.F.R. § 3.304(f)(3); Patton v. West, 12 Vet. App. 272 (1999) (holding that certain special M21-1 manual evidentiary procedures apply in PTSD personal assault cases). The veteran has stated he was raped by two service members while coming home from church one Sunday in May 1967. He noted, during the January 2007 hearing, that after the rape, he went home, took a shower, and went to bed. He stated that he later told his sergeant what had happened and was taken to the hospital. The veteran's service medical records contain an entry dated Monday, May 29, 1967 noting that the veteran was seen in the emergency room hyperventilating and uncontrollable and was diagnosed with panic anxiety. The veteran's personnel records contain a statement from his sergeant which noted that the veteran was unsuitable for service and cited that since May 22, 1967, he had witnessed at least one crying spell. Also of record is a February 1997 VA examination which noted that following the incident, the veteran suffered from crying spells. The veteran was discharged from military service in July 1967 because he was found to be unsuitable for service. Additionally, at the January 2007 hearing, the veteran indicated that he was receiving Social Security Disability for his mental problems and that he was receiving treatment at the Tampa, Florida VAMC. The RO should obtain those records and associate them with the claim's file. Accordingly, the case is hereby REMANDED to the RO via the Appeals Management Center in Washington, DC for the following actions: 1. The RO should request the veteran's records from the Social Security Administration. 2. Obtain the veteran's medical records from the VAMC in Tampa, Florida. 3. The veteran should be scheduled for a VA psychiatric examination. The claim's folder should be provided to and reviewed by the examiner. The examiner should thoroughly review the veteran's service records and then make a determination as to whether it is at least as likely as not (fifty percent probability or more) that the sexual assault as alleged by the veteran occurred and, if so, whether the veteran now has PTSD as a result of the sexual assault. 4. After completing the requested development, the RO should again review the record and readjudicate the claim. If any benefit sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case (SSOC). An appropriate time should be given for them to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until otherwise notified, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). The purpose of this REMAND is to obtain additional information and to ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. 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. 38 U.S.C.A. §§ 5109B, 7112 (West 2002). ______________________________________________ C.W. Symanski Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs