Citation Nr: 0810864 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 06-13 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for major depressive disorder (previously claimed as a nervous condition). REPRESENTATION Appellant represented by: American Ex-Prisoners of War, Inc. ATTORNEY FOR THE BOARD S. Finn, Associate Counsel INTRODUCTION The veteran served on active duty from September 1946 to June 1947 and from September 1950 to December 1951. This matter has come before the Board of Veterans' Appeals (Board) on appeal from January 2004 and May 2005 rating decisions of the New York, New York Department of Veterans Affairs (VA) Regional Office (RO). The claim of entitlement to service connection for PTSD and the reopened claim for service connection for major depressive disorder (previously claimed as a nervous condition) are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the veteran if further action is required. FINDINGS OF FACT 1. The veteran's claim of service connection for a major depressive disorder (previously claimed as a nervous condition) was initially denied in an unappealed March 1952 rating decision. 2. Evidence received since the March 1952 rating decision is new and raises a reasonable possibility of substantiating whether the veteran's major depressive disorder (previously claimed as a nervous condition) was incurred as a result of service. CONCLUSION OF LAW New and material evidence having been received, the claim of entitlement to compensation for major depressive disorder (previously claimed as a nervous condition) is reopened. 38 U.S.C.A. §§ 5103, 5108, 7104, 7105 (West 2002 Supp. 2006); 38 C.F.R. §§ 3.104, 3.156, 3.159 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), which has since been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. The Board has considered this legislation with regard to the issue of whether new and material evidence has been submitted. Although the veteran was not notified of what constitutes both "new" and "material" evidence to reopen the previously denied claim in compliance with Kent v. Nicholson, 20 Vet. App. 1 (2006); the Board finds, given the favorable action taken hereinbelow, that no further assistance in developing the facts pertinent to this limited issue is required at this time. II. New and Material Evidence Generally, a final rating decision may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. § 3.104. Under 38 U.S.C.A. § 5108, however, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." The Board notes that there has been a regulatory change with respect to the definition of what constitutes new and material evidence, which applies prospectively to all claims made on or after August 29, 2001. See 66 Fed. Reg. 45,620-30 (Aug. 29, 2001) [codified at 38 C.F.R. § 3.156(a)]. In the current case, evidence construed as a claim to reopen was received in January 2004, subsequent to that date. Therefore, the current version of the law, which is set forth in the following paragraph, is applicable in this case. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). A VA adjudicator must follow a two-step process in evaluating previously denied claims. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the claimant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108; Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). For the limited purpose of determining whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the RO denied the veteran's claim of service connection for a major depressive disorder (previously diagnosed as a nervous condition) in a March 1952 rating decision on the basis that the disability was not shown to be etiologically related to his service. The veteran was notified of this decision in March 1952 but did not timely file an appeal. Therefore, the March 1952 rating decision is final under 38 U.S.C.A. § 7105(c). The issue before the Board is whether new and material evidence has been submitted to reopen the claims of entitlement to service connection for a major depressive disorder (previously diagnosed as a nervous condition). In a March 1996 treatment report from Cleveland Clinic Florida, the veteran was diagnosed with "recurrent major depressive disorder." The physician's rationale was primarily premised on the fact that the veteran reported three episodes of depression with similar symptomatology in the past, namely in 1951, 1977, and 1996. The Board also observes that in an undated type written letter (with a handwritten date of November 21, 2007), which was received from C. Stenger, Ph.D; Dr. Stenger, in essence, opined that the veteran's current PTSD is associated with the events in IRAQ and reflects his preexisting anxiety from his own combat experience. This evidence was not included in the claims file at the time of the March 1952 rating decision and raises a reasonable possibility of substantiating whether the veteran's recurrent major depressive disorder (previously diagnosed as a nervous condition) was incurred in or had its onset in service. Accordingly, the claim of service connection for this disorder is reopened. For reasons described in further detail below, however, a final decision will not be made on these claims until additional development is accomplished upon remand. ORDER New and material evidence has been submitted to reopen the claim of service connection for a major depressive disorder (previously diagnosed as a nervous condition); to that extent only, the appeal is granted. REMAND After a careful review of the claims folder, the Board finds that both of the veteran's claims must be remanded for further action. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that, upon receipt of an application for a service connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. Additionally, this notice must state that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. In the present appeal, the veteran received VCAA notice letters in February 2005, September 2006, and March 2007. These letters failed to provide notice of the type of evidence necessary to establish a disability rating and an effective date for the claims on appeal. Thus, the notice requirement of Dingess has not been satisfied. With regard to the major depressive disorder (previously diagnosed as a nervous condition); the veteran was diagnosed with "recurrent major depressive disorder" in a March 1996 treatment report from Cleveland Clinic Florida. The physician's rationale was primarily premised on the fact that the veteran reported three episodes of depression with similar symptomatology in the past, namely in 1951, 1977, and 1996. The veteran experienced the following symptoms: insomnia, anger, irritability, decreased appetite, distrust, and sensitivity. The examination revealed anxiety and depression with decreased concentration. His range of effect was also restricted. He was assigned a GAF score of 70 and placed on medication. The veteran's service records indicate that he sought treatment from the neuropsychiatric service in February 1951 through July1951 for "nervous stomach, vomiting, and insomnia." He went on sick call several times and was given medication, as indicated by the February 1951 treatment report and was placed on a medical hold. The veteran reported that he was "unhappy and unable to function" and was tearful. The veteran also told the examiner that "he could not explain how he feels but cannot eat or sleep and feels worse in the morning." The neuropsychiatrist opined: This man [was] sent to the Outpatient Clinic from Camp Drake. He complain[ed] of a nervous stomach, cramps, vomiting and inability to sleep. All of these symptoms [were] due to his unwillingness to adjust to his present situation and as we can do nothing to change his present situation, his difficulties lie outside the area wherein psychiatric help would be of benefit. He shows much immaturity and passive aggressiveness and our only recommendation [was] that he receive a definite assignment. Report of Physical Examination and Induction dated September 1946 reported "no nervous trouble of any sort." The psychiatric diagnosis and neurological diagnosis were "normal" with no symptoms. Report of Physical Separation Examination dated June 1947 revealed "normal" psychiatric diagnosis and neurological diagnosis. Report of Medical Examination dated September 1950 showed no significant abnormality with neurological and psychological testing. However, the Separation Examination dated in December 1951 revealed that the veteran suffered from "jumpy nerves," but that the physical examination was negative. The Board finds that an examination addressing the question of etiology of the major depressive disorder is "necessary" given the veteran's current diagnosis of recurrent major depressive disorder and the medical opinion letter, which raises the question of an etiological relationship between the veteran's claimed disorder and service. 38 U.S.C.A. § 5103A(d). The veteran has also mentioned that he had received treatment for depression from Montrose VA Clinic, Castle Point VA Clinic, Carmel Valley VA Clinic, and Oakland Park VA Clinic, as indicated in an October 2003 stressor statement on page 3. The file contains Hudson Valley, Oakland Park, Carmel Valley, and Montrose VA treatment records. However, treatment records from Castle Point are absent from the claims file. With regard to the veteran's PTSD claim, service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with § 4.125(a) (i.e., DSM-IV); (2) a link, established by medical evidence, between current PTSD symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2007). The evidence necessary to establish that the claimed stressor actually 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) (2007). 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, then the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2007). 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). 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 these situations, the record must contain service records or other corroborative evidence that substantiates or verifies his 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 after the fact does not suffice to verify the occurrence of the claimed in- service stressor. See Moreau v. Brown, 9 Vet. App. 389, 395- 396 (1996); Cohen v. Brown, 10 Vet. App. 128, 142 (1997). Competent medical evidence shows that the veteran has been diagnosed with PTSD. Specifically, a May 2003 VA examination report confirms an Axis I diagnosis of PTSD for the veteran. The Board notes that, in the May 2003 VA examination report, the examiner referred to some of the veteran's stressors as being combat related. The veteran's DD Form 214 confirms that he served in Korea, but it does not show that he was awarded any medals indicative of combat, as none of his awards were issued with a V device. The veteran's military occupational specialty in Korea was to provide communications to the infantry. As there is no objective evidence showing his actual participation in combat, the Board cannot conclude that the veteran engaged in combat with the enemy for purposes of corroborating his claimed in-service stressors. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2007). Therefore, the law requires that his claimed stressors be independently corroborated by evidence other than his lay testimony or the diagnosis of PTSD. The record indicates that, in September 2003, an attempt was made to corroborate some of the veteran's alleged stressors by contacting the U. S. Army and Joint Services Records Research Center (JSRRC). In September 2003, JSRRC replied and indicated that they were unable to verify the veteran's alleged stressors because the veteran's service records for the time period of September 1946 to June 1947 were unavailable and were presumed either lost or destroyed as a result of a fire at the National Personnel Records Center (NPRC) in 1973. However, JSRRC had been supplied with the wrong dates for the veteran's service in Korea. The veteran served in Korea during his second period of active service from September 1950 to December 1951. Thus, the veteran's claimed stressors must be submitted once again for verification before further action is taken. The veteran has alleged the following stressors: he witnessed bodies of dead soldiers being shipped back to the United States from headquarters in the spring of 1951; his unit was attacked by the Chinese in the late spring or summer of 1951, and he witnessed the destruction of villages. He also mentioned that while he was on guard duty near enemy lines he tried to kill the enemy, but failed. He noted that he received a Bronze Service Star and earned the Merit Unit Commendation as a result of the Chinese attack. The veteran noted that he was in 4th Signal Bn., attached to 10th Corps and provided communications to the infantry units. The time period of all his stressors appears to have occurred between March through October of 1951. The Board notes that, in April 2007, the veteran submitted additional evidence to the Board for consideration. This evidence consists of a personal statements, dated in April 2007 and October 2007, and a November 2007 medical statement pertaining to the veteran's PTSD and major depressive disorder. No waiver of initial RO review accompanied the submission of this new evidence. See 38 C.F.R. § 20.1304 (2007). VA regulations state that any pertinent evidence submitted by the veteran without a waiver of initial RO consideration must be referred to the RO for review and preparation of a Supplemental Statement of the Case (SSOC). See id. Accordingly, the case is REMANDED for the following action: 1. The RO should send the veteran and his representative a letter that complies with the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Specifically, the letter should contain an explanation as to the information or evidence needed to establish a disability rating and effective date for the claims on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2007). 2. After securing any necessary release forms, with full address information, all records of medical treatment which are not currently associated with the veteran's claims file (i.e. Castle Point VA Clinic) should be requested. All records obtained pursuant to this request must be included in the veteran's claims file. If the search for such records has negative results, documentation to that effect should be included in the claims file. 3. Then, the veteran should be afforded a VA examination, with an appropriate examiner, to determine the nature and etiology of his major depressive disorder (previously diagnosed as a nervous condition). The veteran's claims file should be made available to the examiner prior to the examination, and the examiner is requested to review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims file and the clinical findings of the examination, the examiner is requested to provide a diagnosis. The examiner is also requested to offer an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) that recurrent major depressive disorder (previously diagnosed as a nervous condition), if present, had its onset or is related to the veteran's period of active service. A complete rationale should be given for all opinions and conclusions expressed in a typewritten report. 4. The RO, after taking into account the additional evidence provided by the veteran in his April 2007 and October 2007 personal statements and a November 2007 medical statement, should ask the veteran to provide more specific information regarding his reported stressful events during service in Korea. This includes supporting details such as the specific locations, names of any individuals involved, and time frames during which the claimed incidents occurred (preferably, within no more than a 60-day time period for each claimed incident). 5. Advise the veteran that he can also submit "buddy statements" containing verifiable information regarding the events claimed as "stressors" during his military service. Advise the veteran that this information is vitally necessary in order to obtain supportive evidence of the claimed stressful events he experienced; without which, his claim may be denied. 6. With this information, the RO should review the file and prepare a summary of all of the veteran's claimed in-service stressors. This summary, as well as any additional information obtained from the veteran concerning his alleged stressors and any relevant information from his service personnel records, should be sent to the U. S. Army and Joint Services Records Research Center (JSRRC), requesting that an attempt be made to independently verify the claimed stressors. The JSRRC should be requested to provide any additional information that might corroborate the veteran's alleged stressors. A search of unit and organizational histories should be conducted in an effort to verify attacks and casualties if deemed necessary. 7. After receiving a response from JSRRC, the RO should make a determination as to which (if any) stressors are corroborated, to include consideration as to whether the veteran was involved in combat. If the RO determines that the veteran was involved in combat, then corroborative evidence is not required regarding any combat-related stressors. 8. If, and only if, a stressor is verified, then the veteran should be afforded a VA psychiatric examination to determine the nature and etiology of any psychiatric disability found to be present. The RO is to inform the examiner of the stressor(s) designated as verified, and that only the verified stressor(s) may be used as a basis for a diagnosis of PTSD. The claims folder and a separate copy of this remand should be made available to and reviewed by the examiner prior to the examination, and the examiner should acknowledge such review in the examination report. All necessary tests should be conducted, and the examiner must rule in favor of or exclude a diagnosis of PTSD. The examination report should contain a detailed account of all manifestations of any psychiatric disability found to be present. The examiner should provide a complete rationale for any opinions provided. If the examiner diagnoses the veteran as having PTSD, then the examiner should indicate the verified stressor(s) underlying that diagnosis. The report of the psychiatric examination should be associated with the veteran's claims folder. The veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may result in the denial of the original claim for service connection. 9. Thereafter, the RO should readjudicate the claims for service connection in light of the additional evidence obtained. If these claims are not granted to the veteran's satisfaction, then send him and his representative a Supplemental Statement of the Case and give them an opportunity to respond to it. 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. 2007). _________________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007). Department of Veterans Affairs