Citation Nr: 0811174 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 05-27 848 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Schechner, Associate Counsel INTRODUCTION The veteran served on active duty from October 1968 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 determination by the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico. FINDINGS OF FACT 1. An unappealed RO decision in May 1986 denied a claim of entitlement to service connection for PTSD. 2. Evidence of record received since the May 1986 decision that pertains to the veteran's claim for PTSD is new and material. 3. A valid diagnosis of PTSD based upon verified stressors is not of record. CONCLUSIONS OF LAW 1. New and material evidence to reopen a claim for service connection for PTSD has been submitted and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 2. Service connection for PTSD is not established. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The RO denied the veteran's claim for entitlement to service connection for PTSD in a May 1986 rating decision. An RO letter dated the following month gave the veteran notice of this denial and his appellate rights, but he did not initiate an appeal. Therefore, that rating decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). The veteran filed his petition to reopen in June 2004. For claims filed on or after August 29, 2001, "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). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board must assess the new and material evidence in the context of the other evidence of record and make new factual determinations. See Masors v. Derwinski, 2 Vet. App. 181, 185 (1992) (quoting Godwin v. Derwinski, 1 Vet. App. 419, 425 (1991), and Jones v. Derwinski, 1 Vet. App. 210, 215 (1991)). A finding of "new and material" evidence does not mean that the case will be allowed, just that the case will be reopened and new evidence considered in the context of all other evidence for a new determination of the issues. Smith v. Derwinski, 1 Vet. App. 178, 179-80 (1991). Evidence of record since the RO's May 1986 decision includes VA treatment records and stressor statements submitted by the veteran. Under the requirements stated above for reopening claims, the veteran's treatment records, which indicate diagnosis of and treatment for PTSD, is considered new and material evidence. The claim for service connection for PTSD is therefore reopened. The Board has considered whether adjudicating this claim on a de novo basis at this time would prejudice the appellant. This issue was addressed by the Court in Sutton v. Brown, 9 Vet. App. 553 (1996). In Sutton, the Court stated, in pertinent part: Although the veteran may have argued the merits of his claim before the Board, reviewed the [independent medical opinion], submitted additional evidence in rebuttal, and stated that he had nothing further to present, the Board was nevertheless required under Bernard, to ask the veteran if he objected to Board adjudication in the first instance. [citations omitted]. Alternatively, failing to make that inquiry of the veteran, the [Board] decision should, under Bernard, have explained, as part of its statement of reasons or bases, why there was no prejudice to the veteran from its adjudication of the claim on the merits without first remanding the matter to the RO. Id. at 565. Under Bernard v. Brown, 4 Vet. App. 384, 393 (1993), the Board must determine if the appellant has been given both adequate notice of the need to submit evidence or argument and to address that question at a hearing, and whether, if such notice has not been provided, the appellant has been prejudiced thereby. In this case, over the years of this claim and others, the appellant has been provided with pertinent laws and regulations regarding service connection. He has been given the opportunity to review the evidence of record and submit arguments in support of his claim. The appellant's arguments have focused squarely on the issue of service connection, not whether new and material evidence has been submitted. Therefore, the Board can proceed with this claim without prejudice to the veteran. Establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). A "clear" diagnosis of PTSD is no longer required. Rather, a diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). See 38 C.F.R. § 3.304(f). The Court has taken judicial notice of the mental health profession's adoption of the DSM-IV as well as its more liberalizing standards to establish a diagnosis of PTSD. The Court acknowledged the change from an objective "would evoke . . . in almost anyone" standard in assessing whether a stressor is sufficient to trigger PTSD to a subjective standard (e.g., whether a person's exposure to a traumatic event and response involved intense fear, helplessness, or horror). Thus, as noted by the Court, a more susceptible person could have PTSD under the DSM-IV criteria given his or her exposure to a traumatic event that would not necessarily have the same effect on "almost everyone." Cohen, 10 Vet. App. 128, 140-141 (1997). 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. 38 C.F.R. § 3.304(f)(1). See also 38 U.S.C.A. § 1154(b). The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. The issue of whether any particular set of circumstances constitutes engagement in combat with the enemy for purposes of section 1154(b) must be resolved on a case-by-case basis. See VAOPGCPREC 12-99 (October 18, 1999). If there is no combat experience, or if there is a determination that the veteran engaged in combat but the claimed stressor is not related to such combat, there must be independent evidence to corroborate the veteran's statement as to the occurrence of the claimed stressor. Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). The veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). "Just because a physician or other health professional accepted appellant's description of his Vietnam experiences as credible and diagnosed appellant as suffering from PTSD does not mean the [Board is] required to grant service connection for PTSD." Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) and Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). However, the fact that a veteran, who had a noncombatant military occupational specialty, was stationed with a unit that was present while enemy attacks occurred would strongly suggest that he was, in fact, exposed to such attacks. Pentecost v. Principi, 16 Vet. App. 124 (2002) (base subjected to rocket attacks during time that veteran was stationed at the base). In other words, the veteran's presence with the unit at the time such attacks occurred corroborates his statement that he experienced such attacks personally. A stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). Evidence submitted in support of this PTSD claim includes VA outpatient records from January 1986 through September 2004 and stressor statements from the veteran. The records reflect ongoing treatment for PTSD, including psychiatric medication management and group counseling, as well as residency in a psychosocial residential rehabilitation treatment program (PRRTP) from July to September 2004. The record indicates that the veteran has been diagnosed as having chronic PTSD. The veteran has also been diagnosed with recurrent severe major depressive disorder, as well as a history of alcohol abuse. The veteran served in Vietnam from October 1970 to October 1971. The evidence, including the medals and commendations awarded to the veteran, does not demonstrate that the veteran was engaged in combat with the enemy. In such cases, the record must contain service records or other corroborative evidence that substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1991); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Due to the veteran's lack of combat indicated in the service records, his testimony alone is insufficient proof of a claimed in-service stressor. 38 C.F.R. § 3.304(f). Based on the above, independent evidence is needed to verify any claimed in-service stressors. The veteran has submitted statements containing information regarding one incident he allegedly participated in or witnessed in Vietnam. The RO has attempted to verify the claimed incident with the U.S. Army Joint Services and Research Center (JSRRC), with no result. The veteran has been diagnosed with PTSD due to in-service stressors that have not been verified. His personnel records document that he served on active duty with the United States Army as a commissioned general operations officer stationed in Vietnam from October 1970 to October 1971. He alleges exposure to combat and non-combat stressors while in Vietnam. In order to verify an alleged stressor, a claimant must provide a stressor that can be documented, the location where the incident took place, the approximate date (within a two month period) of the incident, and the unit of assignment at the time the stressful event occurred. M21- 1MR.IV.ii.1.D.14.C. The veteran alleges that, in approximately October or November of 1970, at Tuey Hoa U.S. Air Base, in Vietnam, while serving as OIC of a CSEMA Team, two Air Force 2nd Lieutenants were "fragged", or killed by one or more hand grenades thrown into their sleeping area by unknown American service personnel, near where the veteran was sleeping although he did not witness their deaths. Simply stated, this event cannot be verified by JSRRC. The information given is not sufficient, namely, there were no names of casualties or unit designations to the company level and other units involved. Without names for the soldiers who were allegedly "fragged", this stressor cannot be verified. The veteran has stated that in November or December of 1970, while en route from Long Binh to Vung Thau, while serving as OIC of a CSEMA Team, mortar shells exploded to the front and side of the convoy. The veteran stated that no Americans were wounded or killed though several Vietnamese children were "blown apart". However, this event has not been verified by JSRRC, as it cannot verify explosions on unnamed routes and there would be no record of such civilian deaths. The veteran stated in January or February of 1971, while traveling from Long Binh to Saigon, he witnessed an elderly woman being pushed into the path of his Army truck. The veteran stated that the woman was struck by the truck, which did not stop. Again, this event cannot be verified by JSRRC, as it cannot verify incidents on unnamed routes and there would be no record of such an incident. The veteran has also stated that from October 1970 through April 1971, while serving as OIC of the CSEMA Team, traveling frequently by helicopter throughout Vietnam. The veteran stated that he saw many examples of combat-related deaths that he cannot specifically remember. He cited, as one example, that he became acquainted with many Warrant Officer pilots who were later wounded or killed while flying in an offensive operation in Laos. Unfortunately, this stressor is lacking in specific information such as names, dates, locations, full names of casualties, and unit designations, and cannot be verified by JSRRC. The veteran's statements, overall, do not provide a basis for the VA to confirm any of his stressors, beyond the fact that several examinations fail to indicate that the veteran has PTSD related to his service. The PTSD claim is therefore denied on several grounds. Most importantly, the VA can not verify the veteran's claimed in- service stressors from Vietnam. Additionally, although the veteran alleges combat-related stressors, his SPRs and DD Form 214 and other submitted evidence do not reflect combat with the enemy. In sum, the stressor events cited by the veteran could not be verified by the JSRRC or the VA. The VA has no basis to confirm these stressors. The Board, therefore, must find that there is insufficient evidence to demonstrate that the veteran engaged in combat with the enemy or to confirm a stressor in service that caused PTSD. Duty to assist and notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate the claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claims in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on claims by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. As the Board reopened the claim, this is not an issue. Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the AOJ. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of letters sent to the appellant in June 2004 and August 2005 that fully addressed all four notice elements. The letters informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in her or his possession to the AOJ. A post-adjudicatory RO letter in March 2006 also notified him of the criteria for establishing an initial rating and effective date of award. Although the August 2005 and March 2006 notice letters were not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of a supplemental statement of the case issued in June 2007 after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, there is no evidence that the claimed disability is associated with the veteran's service. Indeed, there is insufficient evidence to establish that a verified stressor event occurred in service upon which a PTSD diagnosis can be based. Simply stated, a examination would not provide a basis to grant this claim. Therefore, the low threshold set forth in McLendon has not been met and no medical examination was provided. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA records of treatment for PTSD. The veteran was provided an opportunity to set forth his contentions during a hearing before a Veterans Law Judge in December 2007, although he did not appear for the hearing. Significantly, the veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist the veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER The appeal to reopen a claim of service connection for PTSD is granted. Service connection for PTSD is denied. ____________________________________________ JOHN J. CROWLEY, Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs