Citation Nr: 0812382 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 03-34 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington 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: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The veteran had active service from December 1964 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which essentially reopened a previously denied claim of service connection for post- traumatic stress disorder (PTSD) and denied this claim on the merits. The veteran disagreed with this decision in January 2003. He perfected a timely appeal in November 2003 and requested a Travel Board hearing. In March 2005, the veteran withdrew his Travel Board hearing request and instead requested an RO hearing which was held in March 2006. In December 2007, the veteran requested a videoconference Board hearing which was held before the undersigned in February 2008. The Board observes that, in an April 2000 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 received. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, although the RO has reviewed this claim on a de novo basis, the 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). The reopened claim of service connection for PTSD is addressed further in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. 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 an April 2000 rating decision, the RO determined that new and material evidence had not been received sufficient to reopen a previously denied claim of service connection for PTSD; this decision was not appealed. 2. Evidence received since the April 2000 RO decision, when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim for service connection for PTSD and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The April 2000 RO decision, which denied the veteran's application to reopen a previously denied claim of service connection for PTSD, is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 3.104 (2007). 2. New and material evidence has been received to reopen the claim for service connection for PTSD. 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 letters issued in January 2002 and in February 2006, VA notified the veteran of the information and evidence needed to substantiate and complete his claim, 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). This letter informed the veteran to submit evidence of an in-service stressor, linking evidence between the claimed PTSD and the in-service stressor, and noted other types of evidence the veteran could submit in support of his claim. 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). Although the notification did not define new and material evidence or advise the veteran of the reasons for the prior denial of the claim of service connection or of the laws regarding degrees of disability or effective dates for any grant of service connection, the Board finds that failure to satisfy the duty to notify in that regard is not prejudicial. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Because the Board has determined in this decision that evidence submitted since the last final denial warrants reopening of the claim for service connection for PTSD and is remanding the claim for further development, any failure to notify and/or develop this claim under the VCAA cannot be considered prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). VA has obtained service medical records, service personnel records, assisted the veteran in obtaining evidence, and afforded the veteran the opportunity to give testimony before the RO and the Board. VA need not conduct an examination with respect to the claim 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). All known and available records relevant to the issue on appeal have been obtained and associated with the veteran's claims file; the veteran has not contended otherwise. Thus, VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. In an April 2000 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. 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 April 2000 rating decision was issued to the veteran and his service representative in May 2000. Because the veteran did not appeal the April 2000 rating decision, it became final. The claim for 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 claim for service connection for PTSD in October 2001. 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. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence before VA at the time of the prior final rating decision in April 2000 consisted of the veteran's service medical records, post-service VA treatment records, and two PTSD Questionnaires completed by the veteran. The RO determined that, although a November 1999 PTSD Questionnaire completed by the veteran included an account of his claimed in-service stressors, there was no evidence of recent treatment for or a diagnosis of PTSD. The RO concluded that, as the evidence did not show a current diagnosis of PTSD linked to active service, the evidence was not new and material and the service connection claim for PTSD was not reopened. In October 2002, the veteran applied to reopen his previously denied claim for service connection for PTSD. With respect to the veteran's application to reopen his previously denied service connection claim for PTSD, the Board finds that the veteran has submitted evidence that is not cumulative of other evidence of record, relates to an unestablished fact, and raises a reasonable possibility of substantiating this claim. The newly submitted evidence includes the veteran's statements concerning his claimed in-service stressors, additional VA and private treatment records, and responses from the Joint Services Records Research Center (JSRRC) (formerly the Center for Unit Records Research) concerning corroboration of the veteran's claimed in-service stressors. A review of the veteran's newly submitted VA treatment records shows that he was hospitalized from October to December 2001 for treatment of PTSD. At that time, the veteran reported that his in-service duties included "stowing body bags" and he "was under fire" while on active service in Vietnam. While hospitalized, an initial mental health consult revealed the following claimed in- service stressors: experiencing events which involved threatened death to himself and the deaths of others and shooting at others. In an August 2003 letter, M.L.T., M.D. (Dr. M.L.T.), stated that the veteran suffered from "multiple medical conditions all intermingled with his [PTSD] from his combat experience in Vietnam." In an August 2003 statement, the veteran described several additional in-service stressors from his Vietnam service. The veteran stated that he first experienced "fear for my life" while "on a ship called the Gordon" which sailed from the United States to Vietnam at the beginning of his tour of duty there. The veteran described his in-service duties while assigned to the 74th Ordnance Supply Division from August 1965 to August 1966, including at Cam Ranh Bay where he helped build a supply depot and drove supply trucks. He also described witnessing a mortar attack in Saigon when he was waiting for a flight home at the end of his tour of duty. The veteran received regular private outpatient treatment for PTSD in 2004 and 2005. For example, in February 2005, the veteran complained of worsening PTSD and depression. He was having nightmares twice a week where he saw people getting shot. The private examiner stated "even though [the veteran] was in supply, he was near the front lines at times, experiencing bombing, having to take cover in bumpers, [and he] saw people die." This examiner opined that the veteran's current PTSD was related to active service. Following VA outpatient treatment in April 2005, the assessment included PTSD. The veteran testified at his March 2006 RO hearing that, while waiting for his flight to leave Vietnam on August 18, 1966, the airport came under enemy mortar fire and he was "locked down" and not permitted to leave Vietnam for several days following this attack. He also testified that he experienced combat while assigned to the 74th Ordnance Company in Vietnam, including at Cam Ranh Bay in August 1965. In response to a request for corroboration of the veteran's claimed in-service stressors, JSRRC notified VA in February 2007 that "there was no mention of enemy engagement" in the unit history for the 74th Ordnance Company for August 1965. There also was no record of any enemy attack on Cam Ranh Bay at the time that this company arrived in Cam Ranh Bay, Vietnam, in August 1965. Nor were there any records of an enemy attack while the 74th Supply Company was assigned to the Cam Ranh Bay supply depot during 1966. Finally, there were no records of any attack on Tan Son Nhut Air Base, Vietnam, which was the airport for Saigon, during September 1966. In April and June 2007, the National Archives notified VA that there was no evidence of a U.S. Navy ship called "Gordon." In July 2007, the National Archives notified VA that there were no deck logs available for U.S.S. General W.H. Gordon (AP-17) for the month of September 1965. In November 2007, JSRRC stated that it was unable to find documentation of an attack on Tan Son Nhut or Tan Son Nhut Air Base, which was the airport for Saigon, during the month of August 1966. JSRRC was unable to find any attacks on this location between April 13, 1966, and October 18, 1966. JSRRC was able to verify, however, that there was an attack on Saigon on August 17, 1966, and Tan Son Nhut was on the northwest edge of the city of Saigon. The veteran testified at his February 2008 videoconference Board hearing that he came under fire while waiting at Tan Son Nhut Air Base to leave Vietnam in August 1966. The evidence that was of record at the time of the April 2000 rating decision did not contain a diagnosis of PTSD or sufficient evidence which could be used by JSRRC to corroborate the veteran's claimed in-service stressors. The veteran has now submitted evidence of a diagnosis of PTSD and his claimed in-service stressor of coming under enemy mortar fire while waiting to leave Vietnam on August 17, 1966, has been corroborated by JSRRC. All of this newly submitted evidence raises a reasonable possibility that the veteran's PTSD is related to active service. At the time of the April 2000 rating decision, the evidence did not show any current PTSD that could be related to active service and did not contain corroboration of the veteran's claimed in-service stressors. The new evidence was not previously considered by agency decision makers, is not cumulative or redundant, relates to an unestablished fact necessary to substantiate the claim for service connection for PTSD, and raises a reasonable possibility of substantiating this claim. 38 C.F.R. § 3.303. New evidence is sufficient to reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin of a veteran's disability, even where it may not convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Accordingly, the claim for service connection for PTSD is reopened. ORDER The claim for service connection for PTSD is reopened. To that extent only, the appeal is allowed. REMAND As noted above, new and material evidence has been received to reopen the claim for service connection for PTSD. In this regard, the Board notes that the veteran has not yet been provided with notice of the Dingess requirements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). After ensuring compliance with the VCAA, the RO must readjudicate the claim on a de novo basis. The RO should obtain another examination that includes an opinion addressing the contended causal relationship between active combat service and the veteran's PTSD. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). In this regard, the Board notes that the veteran testified at hearings before the RO and the Board that his in-service stressor was a mortar attack which occurred on August 17, 1966, while he was in Saigon waiting to leave Vietnam. JSRRC corroborated this claimed in-service stressor. Service connection for PTSD requires a diagnosis of PTSD based on a claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2007). Although the veteran has been diagnosed with PTSD, and although his in-service stressor has been corroborated, there is no PTSD diagnosis based on the claimed in-service stressor. The Veterans Court has held that a veteran with a noncombatant military occupational specialty who was stationed with a unit that was present while enemy attacks occurred would strongly suggest that he was, in fact, exposed to such attacks. See Pentecost v. Principi, 16 Vet. App. 124 (2002) (base subjected to rocket attacks during time that veteran was stationed at the base). The Board finds the veteran's testimony to be credible regarding the claimed in- service stressor regarding the August 1966 attack. A VA examination should be conducted to determine if the veteran has PTSD related to this particular attack. The RO also should obtain the veteran's up-to-date VA and private treatment records. Accordingly, the case is REMANDED for the following action: 1. Ask the veteran to identify all VA and non-VA clinicians who have evaluated or treated him for PTSD since his separation from service. Obtain outstanding VA treatment records that have not already been associated with the claims file. Once signed releases are received from the veteran, obtain outstanding private treatment records that have not already been associated with the claims file. A copy of any negative response(s) should be included in the claims file. 2. Thereafter, the veteran should be afforded an appropriate VA examination to determine the current nature and likely etiology of his PTSD. The claims folder should be made available to the examiner(s) for review. Based on the examination and review of the record, the examiner should express an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed PTSD is causally linked to any incident during service, including as a result of coming under mortar fire on August 17, 1966. 3. Thereafter, readjudicate the claim for service connection for PTSD on a de novo basis. If the benefit sought on appeal remains denied, the veteran and his representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs