Citation Nr: 0811221 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 06-32 236 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Ishizawar, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from September 1963 to September 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the San Diego, California RO. FINDINGS OF FACT 1. An unappealed July 1995 rating decision, in pertinent part, denied service connection for PTSD essentially because the evidence did not show that the veteran served in combat, and there was no credible supporting evidence of a claimed stressor event in service. 2. Evidence received since the July 1995 rating decision does not constitute credible supporting evidence of an alleged stressor event in service; does not relate to the unestablished fact necessary to substantiate the claim of service connection for PTSD; and does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has not been received, and the claim of entitlement to service connection for PTSD may not be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (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 his possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The veteran was advised of VA's duties to notify and assist in the development of his claim prior to the June 2005 rating decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). An October 2004 letter instructed him that new and material evidence was required to reopen the claim; explained what new and material evidence meant; outlined what evidence was needed to substantiate the claim; and specifically advised him that for evidence to be considered new and material, it would have to be objective, credible supporting evidence that an alleged stressor event occurred. This notice complied substantially with the notice requirements for claims to reopen in Kent v. Nicholson, 20 Vet. App. 1 (2006). The letter also advised the veteran of his and VA's responsibilities in development of evidence to substantiate his claim, and told him to submit any pertinent evidence in his possession. He has had ample opportunity to respond/ supplement the record, and is not prejudiced by any technical notice deficiency that may have occurred during the process. In compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), a March 2006 letter informed the veteran of disability rating and effective date criteria. It is not alleged that notice in this case was less than adequate. The veteran's service medical records (SMRs) were previously associated with his claims file; pertinent treatment records have been secured. The RO had arranged for a VA examination in February 1995. The RO did not arrange for an updated VA examination because it was not warranted. Absent credible supporting evidence of the claimed in-service stressor events, a medical nexus opinion is not warranted. See 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512, 516 (2004). Furthermore, in a claim to reopen the duty to assist by arranging for a VA examination is not triggered unless new and material evidence is presented or received. See 38 C.F.R. § 3.159(c)(4)(C)(iii). The veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. B. Legal Criteria, Factual Background, Analysis A July 1995 rating decision denied the veteran's claim of service connection for PTSD essentially because there was no credible corroborating evidence of a stressor event in service, and the veteran had not engaged in combat. PTSD had been diagnosed based on an uncorroborated stressor event. See Analysis July 13, 1995 rating decision. The veteran did not appeal this decision. Accordingly, it is final. 38 U.S.C.A. § 7105. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. Id. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. 38 C.F.R. § 3.156(a), which defines "new and material evidence," was revised, effective for all claims to reopen filed on or after August 29, 2001. The instant claim to reopen was filed after that date and the new definition applies. "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. Id. 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. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179- 80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link, or causal nexus, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). Where the veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, then the veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). Evidence of record in July 1995 consisted of: service personnel records showing that the veteran served in Vietnam from August 1965 to August 1966, and that his military occupation specialty was motor vehicle operator; SMRs, including a September 1967 service separation physical examination report, that are silent for complaints, findings, treatment, or diagnosis of PTSD or other psychiatric disability; a January 1995 statement from the veteran wherein he described seeing a truck in his convoy getting blown up and killing the driver only a few days after he landed in Vietnam, finding a hand grenade in his truck, and loading and unloading body bags; a January 1995 letter from G.M., a social worker at the Vista Vet Center, stating that the veteran has PTSD; and a February 1995 VA examination, when PTSD was diagnosed based on an uncorroborated stressor. Evidence received since the July 1995 rating decision includes an Internet article printed on August 2004 concerning Marine Aircraft Group 11; a letter from V.C.T., a retired U.S. Marine Corps Sergeant, received September 2004, to the effect that he remembers seeing the veteran in Vietnam; an October 2004 PTSD Questionnaire wherein the veteran states he served in truck convoys in Da Nang and, six days into his service in Vietnam, he witnessed the truck in front of his blown-up, killing the driver; two statements from the veteran (one a copy of one received in January 1995), received in April 2005, describing his service in Vietnam; an April 2005 statement from the veteran's spouse; and an undated newspaper article, received September 2005, concerning Iraq war veterans who are showing signs of increased stress-related and mental health problems. Vista Vet Center treatment records from October 1994 to February 1995 and from June 2004 to April 2006 show that the veteran receives both individual and group therapy for PTSD. A letter from A.N., a nurse, dated in August 2005, recounts the veteran's Vietnam experiences and postservice difficulties, and provides a diagnosis of PTSD. In November 2005, the letter was resubmitted with the additional signature of N.K., a physician. VA outpatient treatment records from November 2005 to April 2006 show that PTSD and depression (not otherwise specified) were diagnosed, and that the veteran was started on oral medications for his symptoms. A February 2008 notice letter from the Social Security Administration National Records Center states that after an exhaustive and comprehensive search, medical records for the veteran could not be found and further efforts would be futile. The evidence received since July 1995 is new, as much of it was not previously of record; however, it is not material as none of it is credible evidence that the veteran engaged in combat, or corroborating that an alleged stressor event in service actually occurred. See Cohen, supra. The letter from V.C.T. only confirms that the veteran's served in Vietnam, a fact that is not in dispute; it does not corroborate an alleged in-service stressor event. The Internet article the veteran submitted concerning Marine Aircraft Group 11 provides information regarding their service in Vietnam during March 1965, prior to the veteran's service in Vietnam. The newspaper article stating that truck drivers and convoy guards develop mental health problems in greater numbers than other troops concerned Iraq war veterans, not Vietnam veterans. [Notably, the RO did attempt stressor development based upon the veteran's testimony. The RO was able to obtain the August 1966 command chronology for H&MS-11, but records from August 1965 to July 1966 for this unit were not available. The Marine Corps University Archive also responded that they did not have this information.] In summary, the veteran's statements could not be verified and he has not offered any credible supporting evidence for his alleged in-service stressors. While certain examiners and treatment providers appear to acknowledge or concede that a stressor event occurred, credible supporting evidence of an in-service stressor cannot consist solely of after the fact medical nexus evidence. See Moreau v. Brown, 9 Vet. App. 389 (1996). Consequently, the Board finds that a stressor event in service is not shown. While the new evidence received also included medical evidence suggestive of diagnoses of PTSD, these are not only cumulative of prior evidence in the record documenting that the veteran has PTSD, but also are based on the veteran's unsupported reports of being exposed to combat fire and witnessing the death of his fellow serviceman. Without evidence that the veteran engaged in combat or credible supporting evidence of an in-service stressor, even unequivocal medical evidence that a claimant has a diagnosis of PTSD is insufficient to establish that the PTSD is service-related, so as to warrant service connection. The veteran's own expressed belief that he has PTSD due to events in service is not competent evidence, as he is a layperson, untrained in determining a diagnosis or medical etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). None of the additional evidence received since the July 1995 rating decision addresses the unestablished fact necessary to substantiate the claim of service connection for PTSD that was previously found lacking, i.e., that there is credible supporting evidence that the claimed in-service stressor events actually occurred. Hence, the additional evidence received does not raise a reasonable possibility of substantiating the claim, and is not material; and consequently, the claim may not be reopened. ORDER The appeal to reopen a claim of service connection for PTSD is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs