Citation Nr: 0810653 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 04-26 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. 3. Entitlement to service connection for coronary artery disease secondary to exposure to ionizing radiation. 4. Entitlement to service connection for prostate cancer secondary to exposure to ionizing radiation. 5. Entitlement to service connection for peripheral neuropathy of the right lower extremity secondary to exposure to ionizing radiation. 6. Entitlement to service connection for peripheral neuropathy of the left lower extremity secondary to exposure to ionizing radiation. 7. Entitlement to service connection for hypothyroidism secondary to exposure to ionizing radiation. REPRESENTATION Appellant represented by: Theodore C. Jarvi, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Simone C. Krembs, Associate Counsel INTRODUCTION The veteran served on active duty from November 1954 to October 1957 and from April 1961 to April 1964. This matter comes before the Board of Veterans' Appeals (Board) from January 2000 and February 2003 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) that reopened the veteran's previously denied claim of entitlement to service connection for PTSD and denied the underlying claim for service connection, and denied his claims of entitlement to service connection for coronary artery disease, prostate cancer, peripheral neuropathy of the right and left lower extremities, and hypothyroidism, each claimed as secondary to exposure to ionizing radiation. In August 2006, the veteran testified before the Board at a hearing that was held at the RO. The issues of entitlement to service connection for PTSD and for coronary artery disease, prostate cancer, peripheral neuropathy of the right and left lower extremities, and hypothyroidism, each claim as secondary to exposure to ionizing radiation, are REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. The claim for service connection for PTSD was previously denied in a January 2000 rating decision. The veteran did perfect an appeal of that decision. 2. Evidence received since the January 2000 decision includes some evidence which is not cumulative or redundant, and which is so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The January 2000 rating decision that denied the claim for service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2007). 2. New and material evidence has been received to reopen a claim for service connection for PTSD. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION New and Material Evidence Service connection for PTSD was previously denied in a January 2000 rating decision. Although the RO determined that new and material evidence sufficient to reopen the claim had not been submitted, 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. 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. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In a January 2000 rating decision, the RO denied the veteran's claim for service connection for PTSD. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2007). Thus, the January 2000 decision became final because the veteran did not file a timely appeal. The claim for entitlement to service connection for PTSD may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). The veteran filed this application to reopen his claim in April 2001. Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means evidence that bears directly and substantially upon the specific matter under consideration, 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. 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. 38 C.F.R. § 3.156(a) (2000). The definition of new and material evidence has been changed, but the latest definition only applies to applications to reopen a finally decided claim received by VA on or after August 29, 2001. Thus, the change does not apply to this case because the claim to reopen was received before that date. 66 Fed. Reg. 45,620 (Aug. 29, 2001); 38 C.F.R. § 3.156(a) (2007). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence before VA at the time of the prior final decision consisted of the veteran's service medical records, post-service treatment records, and the veteran's own statements. The RO found that there was no evidence of a confirmed diagnosis of PTSD, and the claim was denied. The Board finds that the evidence received since the last final decision 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. Newly received evidence includes treatment records dated from January 1999 to September 1999 which show that the veteran was officially diagnosed with and treated for PTSD that the veteran related to harassment he experienced in service. That evidence is both new and material, as it demonstrates a current, confirmed diagnosis of PTSD which was not shown at the time of the previous denial. At the time of the January 2000 denial, there was only a provisional diagnosis of PTSD of record. This evidence was not previously considered by agency decision makers, is not cumulative or redundant, 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. 38 C.F.R. § 3.156(a). New evidence is sufficient to reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin of a veteran's disability, even where it may not convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Thus, the claim for service connection is reopened because the Board finds that the new evidence is material. With respect to the claim to reopen, the Board finds that VA has substantially satisfied the duties to notify and assist as required under 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). 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 reopening the claim. ORDER The claim for service connection for PTSD is reopened. To that extent only, the appeal is allowed. REMAND Additional development is needed prior to further disposition of the claims. First, with respect to the veteran's claim for service connection for PTSD, the Board finds that there are VA treatment records that are outstanding. At his August 2006 hearing before the Board, the veteran stated that he had continued to receive VA treatment for PTSD. As the most recent VA treatment records of record are dated in March 2000, it appears that there are additional treatment records that have not yet been obtained. Because these may include records that are pertinent to the veteran's claim, they are relevant and should be obtained. 38 C.F.R. § 3.159(c)(2) (2007); Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, it does not appear that the veteran's complete service personnel records are of record. Because the veteran claims entitlement to service connection for PTSD based upon personal assault rather than combat, his service personnel records must be obtained in order to fairly address the merits of his claim. With respect to the claims for service connection secondary to exposure to ionizing radiation, it appears that VA has not taken into consideration the February 2001 dose estimate prepared by Jan Beyea, Ph.D. Specifically, in an internal memo dated in September 2002, the Director of the Compensation and Pension Service instructed the Under Secretary for Health not to consider the dose estimate prepared by Dr. Beyea because Dr. Beyea's estimate considered exposure based upon an unverified accident reported by the veteran. As Dr. Beyea is a trained nuclear physicist who is an expert in historical radiation dose reconstruction, the dose estimate is determined to be from a credible source. Pursuant to 38 C.F.R. § 3.311(a)(3)(ii), all estimates from credible sources that are based upon the facts and circumstances of a particular case must be considered in adjudicating the claim of entitlement to VA benefits. 38 C.F.R. § 3.311(a)(3)(ii) (2007). Because there is credible evidence indicating the occurrence of the accident reported by the veteran (namely, the corroboration of the accident by a fellow serviceman and service medical records post-dating the alleged accident demonstrating that the veteran experienced hair loss that was felt to be related to exposure to radiation) and this dose estimate has not yet been considered by the Under Secretary for Health, a remand is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file records from the VA outpatient facility in Phoenix, Arizona dated from March 2000 to the present. 2. Obtain the veteran's service personnel records from the National Personnel Records Center (NPRC) or other sources if they cannot be obtained from the NPRC. 3. Forward the record to the Under Secretary for Health for consideration of the February 2001 dose estimate prepared by Jan Beyea, Ph.D. in preparation of a dose estimate and determining whether the veteran's in- service exposure to ionizing radiation is as likely as not (50 percent probability or greater) the causative factor for his development of coronary artery disease, prostate cancer, peripheral neuropathy of the lower extremities, and hypothyroidism. The Under Secretary for Health should also determine whether the veteran's estimated exposure to ionizing radiation aggravated any of the aforementioned disabilities. The Under Secretary should fully explain the reasons for any discrepancies between his findings and those made by Dr. Beyea. The rationale for all opinions must be provided. 4. Then, readjudicate the veteran's claims for service connection for PTSD and for coronary artery disease, prostate cancer, peripheral neuropathy of the right and left lower extremities, and hypothyroidism, each claimed as secondary to exposure to ionizing radiation. If the decisions remain adverse to the veteran, issue a supplemental statement of the case. Allow the appropriate time for response, then return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board is remanding. 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 or 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 Supp. 2007). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs