Citation Nr: 0812240 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 05-09 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether new and material evidence has been received to reopen a final disallowed claim for service connection for post- traumatic stress disorder and if so whether service connection is warranted. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD John Francis, Associate Counsel INTRODUCTION The veteran served on active duty from March 1968 to November 1969. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted a petition to reopen a final disallowed claim for service connection for post-traumatic stress disorder but denied service connection on the merits. The issue of service connection for post-traumatic stress disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. FINDINGS OF FACT 1. In June 2002, the RO denied a petition to reopen a final disallowed claim for service connection for post-traumatic stress disorder because new and material evidence had not been received. The veteran did not express timely disagreement, and the decision became final. 2. Since June 2002, new and material evidence has been received that was not previously considered by adjudicators, is not cumulative, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen a final disallowed claim for service connection for post traumatic stress disorder. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156(a), 3.304, 20.302 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim 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). In this case, the Board is granting the veteran's petition to reopen a final disallowed claim for service connection for post- traumatic stress disorder. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Service personnel records showed that the veteran served as a field communications specialist in the U.S. Army. The veteran attended basic combat training and was a qualified rifleman. However, there is no record of advanced infantry or light weapons training. From approximately April 30, 1969 to November 19, 1969, the veteran was assigned to Battery A, 1st Battalion, 40th Artillery located in the Republic of Vietnam. There is no record of temporary assignments to other units. There is no record of any personal combat awards or badges. However, the file contains a May 1969 letter of commendation to the veteran's unit from an infantry brigade commander citing the excellent artillery support his unit received in and south of the Demilitarized Zone. Service medical records are silent for any symptoms, examination, or treatment for any mental health disorders or for any traumatic injuries. In September 1989, the RO denied service connection for post- traumatic stress disorder (PTSD) because there was no competent medical evidence of a diagnosed mental disorder. The veteran did not express disagreement within one year, and the decision became final. 38 U.S.C.A. § 7105 (b) (1). . In June 2002, the RO denied a petition to reopen a claim for service connection for PTSD. The RO determined that new evidence showed some examination and treatment for symptoms of a mental disorder. However, the evidence was not material because it did not show diagnosis of PTSD or identify traumatic events in service related to the disorders. The veteran did not express disagreement within one year, and the decision became final. Id. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is existing evidence not previously submitted to agency decision makers. Material evidence is 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In evaluating an application to reopen a claim for service connection, the Board examines the evidence submitted since the last final disallowance of the claim. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of the new and material evidence analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Since June 2002, the RO received records of VA outpatient mental health treatment that showed examination and treatment for symptoms of nightmares, panic attacks, and depression. Examiners diagnosed panic disorder and probable bipolar disorder. In February 2004, the RO reopened the claim for service connection for PTSD but denied the claim on the merits. Additional medical evidence has been received including VA outpatient mental health treatment records through February 2006 and a January 2006 examination in which a VA physician diagnosed chronic PTSD and severe major depression with psychotic symptoms. The physician stated that the psychiatric illnesses were related to the veteran's reported experiences in Vietnam. The veteran also submitted statements in July 2004, December 2005, and December 2006 that reported traumatic experiences in combat. The Board concludes that evidence received since June 2002 is new because it had not been previously considered by VA adjudicators. The evidence is material because it relates to a diagnosis of PTSD, the occurrence of traumatic events in service, and a relationship between the diagnosed disability and contended events in service. For the purposes of the new and material evidence analysis, the evidence is presumed credible. The evidence is related to previously unestablished facts necessary to substantiate the claim and raise a reasonable possibility of substantiating the claim. Therefore, as new and material evidence has been received, and to this extent only, the Board grants the petition to reopen a final disallowed claim for service connection for post-traumatic stress disorder. ORDER The petition to reopen a final disallowed claim for service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder is granted. REMAND In the opinion of the Board, additional development is necessary. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., the diagnosis must comply with the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders, 1994 (DSM-IV)); credible supporting evidence that the claimed in-service stressor occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. See 38 C.F.R. §§ 3.304(f), 4.125; see also Cohen v. Brown, 10 Vet. App. 128, 140 (1997). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy," as established by recognized military combat citations or other official records. If, however, VA determines either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor is not combat related, the veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other probative evidence supporting his allegations. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); see Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The occurrence of an event alleged as the "stressor" upon which a PTSD diagnosis is based (as opposed to the sufficiency of the alleged event to cause PTSD) is an adjudicative determination, not a medical determination. Id. In several statements, the veteran reported that he engaged in nightly combat in defense of his unit's artillery position during or immediately after a major infantry battle in May 1969 in a northern mountain region of the Republic of Vietnam. In July 2004, the veteran stated that he had combat medals. Service personnel records showed that the veteran was attached to an artillery unit at that time and that the unit provided artillery support to infantry operations in that general region. However, the records do not substantiate that his battery's position was subject to repeated enemy attacks that required defense with small arms by all personnel including communications specialists. No personal combat awards or badges are of record. The RO has obtained historical information from the internet that did not mention participation by the veteran's unit in the specific offensive operation cited by the veteran. However, no requests for operations logs or after-action reports from his specific unit have been made. The unit records, if available, are necessary to determine if the veteran engaged in combat with the enemy and that the contended traumatic events actually occurred. A summary of VA treatment printed in January 2002 showed that the veteran was first diagnosed by a VA clinician with depression and anxiety in March 1999 and with prolonged PTSD in June 1999. Records of these examinations and possible treatment prior to June 2000 have not been obtained and are relevant to the etiology of the disorder and associated traumatic events. The VA examination of January 2006 was conducted without a review of the relevant records developed prior to 2000. More importantly, however, the diagnosis of PTSD was based on in- service stressors not yet verified. Although his assessment is competent medical evidence, his diagnosis and assessment of severity was markedly different from that provided by the veteran's regular mental health care providers who rarely mentioned PTSD and did discuss other post-service factors. The regular outpatient providers prescribed renewal of anti- anxiety medication but did not conduct regular individual or group therapy. An additional mental health examination is necessary to permit review of the entire service and medical history and to obtain clarification of the nature and etiology of the veteran's mental health disorders, to include whether the veteran has PTSD related to a verified in-service stressor. Accordingly, the case is REMANDED for the following action: 1. Request from the veteran any evidence in his possession related to combat awards that he stated he received in service. Associate any records obtained with the claims file. 2. Request from the Joint Services Record Research Center (JSRRC) records of unit operations, after-action reports, or unit commendations for the 1st Battalion, 40th Artillery in the Republic of Vietnam from May through June 1969. Associate any records obtained with the claims file. 3. Schedule the veteran for an examination of his mental disorders by an appropriately qualified VA examiner. Request that the examiner review the claims file and note review of the claims file in the examination report. Request that the examiner provide an evaluation of the veteran's mental health disorders including PTSD and an opinion whether any disability found is at least as likely as not (50 percent or greater possibility) related to verified combat experiences in Vietnam. Request that the examiner also comment on the impact of any post-service experiences and on the history of diagnosis and treatment since 1999. 4. Then, readjudicate the claim for service connection for PTSD. If the decision remains adverse to the veteran, provide the veteran and his representative with a supplemental statement of the case and an opportunity to respond. Thereafter, return the case to the Board as appropriate. 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). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs