Citation Nr: 0810867 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 06-08 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim of service connection for post- traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Kenneth Carpenter, Attorney At Law ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The veteran had active service from September 1967 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which determined that new and material evidence had not been received sufficient to reopen the veteran's previously denied claim of service connection for PTSD. The veteran disagreed with this decision in January 2006. He perfected a timely appeal in February 2006. The Board observes that, in a March 1992 rating decision, the RO determined that new and material evidence had not been received sufficient to reopen the veteran's previously denied claim of service connection for PTSD. The veteran did not appeal this decision, and it became final. See 38 U.S.C.A. § 7104 (West 2002). The Board does not have jurisdiction to consider a claim that has been previously adjudicated unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, although it appears that the RO essentially reopened the veteran's previously denied service connection claim for PTSD in a May 2006 Supplemental Statement of the Case (SSOC) and denied this claim on the merits, this issue is as stated on the title page. Regardless of the RO's reopening of the claim for service connection for PTSD, the Board must make its own determination as to whether new and material evidence has been received to reopen this claim. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened, regardless of the RO's finding. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's application to reopen a previously denied claim of service connection for PTSD has been obtained. 2. In March 1992, the RO denied the veteran's claim of service connection for PTSD; this decision was not appealed. 3. The veteran served in the Republic of Vietnam but was not awarded any combat medals or citations for such service or for any alleged wounds suffered during such service. 4. The veteran has not provided sufficient information concerning his claimed in-service stressors such that they could be corroborated by the Joint Services Records Research Center (JSRRC). 5. The veteran's statements regarding his claimed in-service stressors are inherently incredible. 6. New and material evidence has not been received since the March 1992 RO decision in support of the veteran's claim of service connection for PTSD. CONCLUSION OF LAW 1. The March 1992 RO decision, which denied the veteran's claim of service connection for PTSD, is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 3.104 (2007). 2. Evidence received since the March 1992 RO decision in support of the claim of service connection for PTSD is not new and material; accordingly, this claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In a February 2005 letter, VA notified the veteran of the information and evidence needed to substantiate and complete his claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter informed the veteran to submit medical evidence and noted other types of evidence the veteran could submit in support of his claims. In addition, the veteran was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has substantially satisfied the requirement that the veteran be advised to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The February 2005 letter also defined new and material evidence, advised the veteran of the reasons for the prior denial of the claim of service connection for PTSD, and noted the evidence needed to substantiate the underlying claim of service connection. Specifically, the veteran was advised that his service connection claim for PTSD had been denied previously because there was no objective evidence which showed that his claimed in-service stressor had, in fact, occurred such that the PTSD diagnosis that was of record could be considered a valid diagnosis. That correspondence satisfied the notice requirements as defined in Kent v. Nicholson, 20 Vet. App. 1 (2006). Additional notice of the five elements of a service- connection claim was provided in a May 2006 SSOC, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, the Board finds that VA met its duty to notify the veteran of his rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the Veterans Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the February 2005 letter was issued before the April 2005 rating decision which denied the benefits sought on appeal; thus, the notice was timely. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. In the February 2005 VCAA notice letter, the veteran was advised to submit credible supporting evidence concerning his claimed in-service stressors. The veteran has submitted multiple statements concerning his claimed in- service stressors. It appears that all known and available records relevant to the issue here on appeal have been obtained and are associated with the veteran's claims file; the veteran does not contend otherwise. VA need not conduct an examination or obtain a medical opinion with respect to the issue of whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection because the duty under 38 C.F.R. § 3.159(c)(4) applies to a claim to reopen only if new and material evidence is presented or secured. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the RO provided the veteran with a VA examination in April 2006. Thus, the Board finds that VA has done everything reasonably possible to notify and to assist the veteran and no further action is necessary to meet the requirements of the VCAA. In a rating decision dated in February 1992 and issued to the veteran and his service representative in March 1992, the RO denied the veteran's claim of 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). The veteran did not disagree with the March 1992 rating decision. Thus, it became final. The claim of 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 previously denied service connection claim for PTSD in January 2005. Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510 (1992); compare King v. Brown, 5 Vet. App. 19, 21 (1993) (holding that exceptions to the presumption of credibility "occur when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion.") The evidence before VA at the time of the prior final rating decision in March 1992 consisted of the veteran's service medical records, a response from the National Personnel Records Center (NPRC) concerning a search for relevant in- service hospitalization records, and post-service VA clinical records. In the narrative for this rating decision, the RO stated that the veteran was in Vietnam from March 9, 1968, to November 18, 1968, with a military occupational specialty (MOS) of heavy vehicle driver. The veteran was awarded the Vietnam Service Medal and the Vietnam Campaign Medal. The veteran's service medical records showed no combat wounds during Vietnam service or elsewhere. The veteran's service personnel records confirmed his dates of service in Vietnam, duty assignments, participation in campaigns, and receipt of the Vietnam Service Medal and the Vietnam Campaign Medal. The RO also stated that, following a search for records pertinent to the veteran's claimed in-service hospitalization, NPRC had been unable to verify the veteran's allegations. The RO stated further that the veteran had been diagnosed as having PTSD in May 1990 based on an in-service history "which included outlandish and unverifiable information" including that he served 3 tours in Vietnam, was a sergeant with 12 soldiers serving under him, and that he "stepped on something which blew up his leg and caused him to pass out." The RO concluded that there was no information in the veteran's service medical records or service personnel records to support this reported history. Thus, service connection for PTSD was denied. The newly submitted evidence includes multiple statements from the veteran concerning his claimed in-service stressors and additional VA clinical records. The veteran has provided several new statements concerning his claimed in-service stressors. In January 2005, he stated that, while waiting to travel with a convoy to Da Nang, Vietnam, on October 4, 1968, he was run over by a jeep being driven by someone who was calling out his name on a bullhorn. He also stated that he did not know why he was never awarded combat medals or citations for his work as a heavy vehicle driver. He stated further that he had not responded to the denial of his service connection claim for PTSD in 1992 because he had been on a lot of medication at that time. In February 2005, the veteran stated that he had participated in Operation Bastogne and Operation Birmingham while in Vietnam "driving through jungle, over mountains and valley[s] on roads that weren't even a cow trail the day before and in a lot of places there was no road and a bulldozer had to put you up [the] hill [for] 45 to 50 miles of this." He contended that he had injured his left wrist in Vietnam when another soldier accidentally discharged a weapon and had received treatment at two different military hospitals located in Vietnam. He reported he experienced daily stressors for 71/2 months while in Vietnam. The veteran described a typical day after he volunteered for temporary duty (TDY) in Hue, Vietnam, with "I" Corps. Every day we take our fuel tanker down to Hue to a place on the river where a barge would be pushed up river by the Navy every morning. After loading we would pick up our [military police] escort jeep and head out. It was to[o] dangerous to drive a fuel tanker in a convoy. We would drive as hard and fast as possible. He stated that his small unit "worked 7 days a week" hauling fuel to FARPs (Forward Arming and Refueling Points) which he described as "a place close to the fight where helicopters were refuel[ed] and rearmed. These FARPs were in the middle of nowhere." In March 2005, the veteran contended that he had driven a fuel truck while in Vietnam. "When you're full, you worry about land mines and fire." He stated that driving a fuel truck was like driving "a rolling bomb." He reported he drove in a regular convoy in Saigon while assigned to the 64th Quartermasters Company out of Long Binh, Vietnam. His job, he stated, was to provide fuel for resupplying the 1st Infantry and 9th Infantry divisions in the Saigon area. He also stated he volunteered for assignment with a unit that spent 90 days on TDY setting set up FARPs for the 101st Airborne Division. The newly submitted VA clinical records show that, following outpatient treatment in June 1998, the assessment was recurrent major depression. On VA examination in April 2006, the veteran complained of a history of dreams and nightmares. The VA examiner reviewed the veteran's claims file, including his service medical records and electronic medical records. When asked by the VA examiner to describe his claimed in-service stressors, the veteran provided no specific location and stated, "On a map I was north of Hue in the mountains." The VA examiner noted that, when the veteran was asked to describe a single stressful in-service incident, "he will not describe ONE INCIDENT." Although the veteran reported that his distressing dreams started after service separation, the VA examiner judged the veteran to be an unreliable source and concluded that the veteran did not report symptoms which met the diagnosis of PTSD. The veteran reported that his combat experiences were in Phu Bai with "I" Corps from March to October 1968. He denied any combat wounds. He also described combat stressors such as bullet holes in a fuel trailer with leaking fuel. The VA examiner stated, "He tells the story of his work, but he does not identify stressors. He says that no one wants to hear the story." The veteran reported that he was run over by a jeep on October 4, 1968, and this was how his leg was broken. The VA examiner noted that the veteran had reported to other examiners in the past that he had received a broken leg from an exploding land mine. Mental status examination of the veteran showed unremarkable psychomotor activity, spontaneous coherent speech, intact attention, rambling and evasive thought process, and he was preoccupied with PTSD. The VA examiner stated that the veteran "seems to fabricate a great deal OR he has delusions." The veteran reported sleep disturbance. He had no inappropriate behavior, obsessive/ritualistic behavior, panic attacks, suicidal or homicidal thoughts, or problems with his activities of daily living. The veteran's memory was not impaired, although he reported that it was "badly impaired." The VA examiner stated that the veteran was "an unreliable source" and, although the veteran thought he had PTSD, he did not meet the criteria. "His stories change from one examination to another (see his C file). His changing stories appear to an examiner to be malingering or deception or delusion. He does not perceive that others see him as unreliable." The VA examiner concluded that the veteran did not meet the DSM-IV criterion for stressors or the DSM-IV criteria for a diagnosis of PTSD. The VA examiner noted that the veteran's symptoms of malingering included a marked discrepancy between his claimed stress or disability and the objective findings and a lack of cooperation during the diagnostic evaluation. The VA examiner also stated that the veteran "is not grounded in reality and he fabricates." The diagnosis was generalized anxiety disorder with symptoms of malingering. The veteran and his attorney rely heavily on the newly submitted lay statements as support for their argument that the veteran's previously denied service connection claim for PTSD should be reopened and, once reopened, PTSD is related to active service. As noted, the RO concluded in March 1992 that there was no competent diagnosis of PTSD based on a corroborated in-service stressor; instead, the diagnosis of PTSD that was provided in May 1990 was based on the veteran's reported in-service history "which included outlandish and unverifiable information." The newly submitted lay statements are not duplicative of prior statements concerning the veteran's alleged in-service stressors and are presumed credible for the purposes of adjudicating the veteran's application to reopen his previously denied service connection claim for PTSD. See Justus, 3 Vet. App. at 513. The veteran's newly submitted statements, however, directly contradict his earlier reported stressors. The Board finds that the statements are inherently incredible. See King, 5 Vet. App. at 21. The newly submitted and inherently incredible statements submitted by the veteran do not raise a reasonable possibility of substantiating his service connection claim for PTSD. 38 C.F.R. § 3.156(a). The veteran contended in January 2005 that he had been run over by a jeep in October 1968 while in Vietnam; a review of the veteran's service medical records shows only that the veteran was placed on a physical profile for limited duty in June 1969 for a fracture of the right femur while at Fort Dix, New Jersey. There is no evidence in the veteran's service medical records that he was injured after being run over by a jeep while in Vietnam. In February 2005, the veteran asserted that he participated in Operation Bastogne and Operation Birmingham while in Vietnam; a review of his service personnel records shows only that he participated in the Seventh Vietnam Counteroffensive, Phase IV, and the Eighth Vietnam Counteroffensive, Phase V. The veteran also alleged in February 2005 that he volunteered for TDY in Hue, Vietnam, with "I" Corps and was exposed to significant daily stress while driving fuel trucks in that area and setting up FARPs; as the VA examiner noted in her April 2006 examination report, however, the veteran could not identify one in-service stressor and was "an unreliable source." The VA examiner also concluded in April 2006 that the veteran was "not grounded in reality" and was fabricating or malingering. In March 2005, the veteran alleged that he drove in a regular convoy in Saigon while assigned to the 64th Quartermasters Company out of Long Binh, Vietnam; his service personnel records show no assignment to this unit. He also contended in March 2005 that his in-service duties were to provide fuel for resupplying the 1st Infantry and 9th Infantry divisions in the Saigon area. He alleged that he had volunteered for assignment with a unit that spent 90 days on TDY setting set up FARPs for the 101st Airborne Division. Finally, in April 2006, the veteran reported that his combat experience was with "I" Corps in Phu Bai from March to October 1968; again, there is no support for any of these assertions regarding the veteran's in-service duties in his service personnel records. The veteran is not clear in his newly submitted lay statements on whether he volunteered for a TDY assignment setting up FARPs for "I" Corps or for the 101st Airborne Division while on active service in Vietnam. Accordingly, the Board finds that all of the veteran's newly submitted statements concerning active combat service in Vietnam, including his assertions of participation in Operation Bastogne and Operation Birmingham, volunteering for TDY, and hauling fuel to FARPs are inherently incredible. The veteran specifically stated in his prior claim that he broke his leg when he stepped on something that blew up. He also previously had stated that he had served three tours of duty in Vietnam. The veteran simply is not credible. Indeed, the April 2006 VA examiner also found the veteran seemed to fabricate a great deal. Further, the VA examiner found in April 2006 that the veteran did not meet the criteria found in the DSM-IV for his claimed stressors or for a diagnosis of PTSD. Finally, the veteran's representative has contended that revisions to the rating criteria for evaluating psychiatric disabilities, including PTSD, created a new basis of entitlement for the veteran's claim and, as a result, the RO should have treated the veteran's January 2005 application to reopen a previously denied claim of service connection for PTSD as a new claim of service connection for PTSD. See 61 Fed. Reg. 52700 (Oct. 8, 1996); see also Spencer v. Brown, 4 Vet. App. 283 (1993), aff'd 17 F.3d 368 (Fed. Cir. 1994) (holding that, where there is an intervening change in law or regulation that creates a new basis of entitlement to the benefit, the claim may be reviewed on a de novo basis). The Board acknowledges that the rating criteria for evaluating psychiatric disabilities, including PTSD, were revised effective November 7, 1996. The requirement, however, that a diagnosis of PTSD must be based on a corroborated in-service stressor in order to establish service connection for PTSD did not change when the rating criteria for evaluating psychiatric disabilities were revised. Thus, the Board finds that the RO correctly determined that the veteran's January 2005 claim was an application to reopen his previously denied service connection claim for PTSD and was not, in fact, a new claim. In summary, the Board observes that some of this evidence is new, in that the evidence that was of record at the time of the March 1992 rating decision (service medical records and VA clinical records) did not contain the new statements that the veteran provided concerning his claimed in-service stressors or the report of VA examination in April 2006. The veteran still has not provided the necessary additional details (such as the names of persons involved, the units of assignment, the dates of alleged in-service incidents) required for JSRRC to attempt corroboration of his claimed in-service stressors. And, as discussed above and as the VA examiner noted in April 2006, the veteran's new statements concerning his alleged in-service stressors are inherently incredible because they directly contradict earlier statements. Thus, the Board finds that the evidence that has been presented or secured since March 1992 is not new and material and the veteran's application to reopen a previously denied service connection claim for PTSD is denied. ORDER As new and material evidence has not been received, the claim of service connection for PTSD is not reopened. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs