Citation Nr: 0812978 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 04-41 796 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for post- traumatic stress disorder (PTSD), and if so, whether service connection is warranted. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The veteran served on active duty from July 1969 to July 1972 in the United States Army and from February 1974 to September 1975 in the United States Navy. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The veteran testified at personal hearings before a Decision Review Officer (DRO), sitting at the RO in March 1995, February 1996, and May 2005. Transcripts of these hearings are associated with the claims file. After the issuance of the June 2005 supplemental statement of the case, the veteran submitted additional evidence consisting of service personnel records, a letter from a Vet Center, VA treatment records, and a personal statement. See 38 C.F.R. § 20.1304 (2007). The Board notes that the veteran waived agency of original jurisdiction (AOJ) consideration of such evidence. Id. Therefore, the Board may properly consider such evidence. The Board notes that in the March 2004 rating decision, the RO reopened the veteran's claim and then denied entitlement to service connection for PTSD on the merits. As reflected in the characterization of the issue on the first page of this decision, the Board is required to consider the issue of finality prior to any consideration on the merits. 38 U.S.C.A. §§ 7104(b), 5108; see Barnett v. Brown, 8 Vet. App. 1 (1995). As the determination made as to finality herein is consistent with the RO's decision and favorable to the veteran, he is not prejudiced by the Board's actions herein. See Barnett at 4; Bernard v. Brown, 4 Vet. App. 384, 390-92 (1993). In June 2007, the Board remanded the case to the agency of original jurisdiction (AOJ) to allow for scheduling of a travel board hearing, requested by the veteran in his November 2004 substantive appeal. Thereafter, in July 2007, the veteran indicated that he no longer desired a hearing before a Veterans Law Judge. Accordingly, no hearing was scheduled, and the claim has now returned to the Board for appellate review. The issue of entitlement to service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. VA notified the veteran of the evidence needed to substantiate the claim decided herein, explained to him who was responsible for submitting such evidence, and developed all available evidence necessary for an equitable disposition of the claim. 2. The August 1999 Board decision denying service connection for PTSD was not appealed by the veteran and is, therefore, final. 3. The evidence submitted since the final August 1999 Board decision is neither cumulative nor redundant of the evidence of record at the time of that decision and stands a reasonable possibility of substantiating the veteran's claim. CONCLUSION OF LAW The August 1999 Board decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision herein to reopen the veteran's claim for service connection for PTSD is a full grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007)) and the implementing regulations. The veteran's original claim for service connection for PTSD was denied by the RO in July 1995, and the veteran appealed this decision to the Board. In an August 1999 decision, the Board also denied service connection for PTSD. In reaching this decision, the Board considered the veteran's service medical records, DRO hearing testimony, VA treatment records, and a March 1995 private psychiatric evaluation. At this evaluation, the veteran was diagnosed with PTSD symptomology with depression and anxiety, which was related to a claimed stressor of combat experience in Vietnam. Finding that there was no evidence that the veteran had served in Vietnam, the Board determined that the veteran did not have PTSD as a result of a verified in-service stressor and denied the claim. In August 1999, the veteran was advised of this decision and his appellate rights. Although he submitted a statement to the RO in February 2000 disagreeing with the Board's decision, he did not file a timely appeal with the Court of Appeals for Veteran's Claims or request reconsideration by the Board. The next communication received by VA from the veteran with regard to a claim for service connection for PTSD was dated in August 2000. Thus, the August 1999 Board decision is final. 38 U.S.C.A § 7105 (West 1991) [(West 2002)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1999) [2007]. Generally, a claim which has been denied in an unappealed or final RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. The definition of new and material evidence, applicable to claims to reopen received on or after August 29, 2001, is as follows: 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)(2007); see also 66 Fed. Reg. 45,620 (August 29, 2001). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In an August 1999 decision, the Board determined that the veteran did not have a current diagnosis of PTSD as a result of a verified in-service stressor. Since that decision, VA treatment records, copies of service personnel records, and lay statements from the veteran's father and brother have been received. The service personnel records are neither new nor material in that they provide no information related to a diagnosis of PTSD or that either verifies or could lead to verification of the veteran's claimed stressors. However, the VA treatment records reflect a current diagnosis of PTSD, as opposed to just PTSD symptomology, and the lay statements both indicate that, while in service, the veteran confided that he was experiencing racial discrimination and threats of physical harm while on the U.S.S. Coronado. This evidence is new when compared with the record as it stood in August 1999 and material in that it stands a reasonable possibility of substantiating the veteran's claim by demonstrating a current diagnosis of PTSD and potential to verify or lead to verification of one or more alleged stressors. Accordingly, the Board finds that new and material evidence has been submitted to reopen the claim of service connection for PTSD. ORDER New and material evidence having been received, the veteran's claim for service connection for PTSD is considered reopened. REMAND The veteran currently cites several stressors from his tour of duty with the Navy on the U.S.S. Coronado that he contends led to his PTSD. The Board notes that, initially, the veteran claimed a stressor of combat experience in Vietnam. However, the record fails to show any military service in Vietnam, and the veteran has since stated that he served only during the Vietnam era, but was not claiming service in the Vietnam War. The veteran's claimed stressors presently include the picking up from the water and transportation of decomposing bodies of people killed during the Turkish invasion of Cypress, participation in the evacuation of Americans from Cypress, conflicts with his NCO, racial discrimination, and death threats from fellow seamen. The Board determines that a remand is required for further development of the record. In this regard, the Board first notes that, when the claimed stressor is personal assault, evidence from sources other than the veteran's service records may corroborate an account of a stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(3). As discussed above, the veteran has submitted statements from his father and brother that suggest that he was experiencing racial discrimination and death threats aboard ship and, again, in cases involving claimed stressors of personal assault, such lay evidence may be probative of the occurrence of the stressor. Additionally, two performance evaluations from the veteran's Naval service are of record, one for the period from March 1974 to September 1974 and one for the period from March 1975 to July 1975, and the Board observes that the veteran's performance appears to have diminished in the time between the two evaluations; however, the reason for this change in performance quality is not addressed by the records. Accordingly, the Board determines that the veteran's entire personnel file should be obtained and reviewed for evidence indicating that the veteran experienced personal assault or other personal trauma that could be a stressor that led to his PTSD. Furthermore, the Board finds that efforts should be made to verify the veteran's claimed stressors of retrieving decomposing bodies from the water and assisting in the evacuation of Americans from Cypress. Although the veteran has not provided any details, such as dates, for these alleged stressors, the Board takes notice that the Turkish invasion of Cypress took place between July 1974 and August 1974. This time frame is of sufficiently short duration to allow for a search of Deck Logs and other reports from the U.S.S. Coronado for evidence of these claimed stressors. Finally, the Board notes that there are outstanding treatment records and records from the Social Security Administration (SSA) that need to be obtained. In this regard, the Board observes that the veteran submitted authorizations for release of records from Life Health Region VI Mental Health Center and Life Help Program in Grenada, Mississippi, and Region VI Health Mental Retardation Center in Greenwood, Mississippi for treatment between 1999 and 2001. Whether each of these authorizations relates to the same treatment facility or whether they are for different facilities is unclear; nevertheless, VA's duty to assist requires that efforts be made to obtain whatever records may exist from these locations with regard to the veteran's PTSD treatment. Further, the veteran has received Social Security disability and Supplemental Security Income benefits. Although notice from the SSA to the veteran that he was awarded these benefits is in the claims file, other records with regard to the veteran's applications for SSA benefits are not. When VA has notice prior to the issuance of a final decision of the possible existence of certain records and their relevance, the Board must seek to obtain those records before proceeding with the appeal. Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992); see also Quartuccio v. Principi, 16 Vet. App. 183, 187-188 (2002); Baker v. West, 11 Vet. App. 163, 169 (1998). Accordingly, a remand is required so that VA may obtain these outstanding, relevant personnel, Naval, and SSA records. Therefore, this case is remanded for the following actions: 1. Obtain all records related to the veteran's application for SSA benefits. All requests and responses, positive and negative, should be associated with the claims file. 2. Obtain the veteran's entire personnel file for his service in the Navy from February 1974 to September 1975. Requests should be made to appropriate sources, to include the National Personnel Records Center and any alternate sources, or via reconstruction. All requests and responses, positive and negative, should be documented in the claims file. Requests must continue until it is determined that the records sought do not exist or that further efforts to obtain the records would be futile. All attempts to obtain or reconstruct the veteran's service personnel records should be documented. 3. Contact the National Archives and Records Administration or other appropriate entity and request that it provide copies of the ship's or deck logs for the U.S.S. Coronado for the period from July 1974 to August 1974 for incorporation into the record. 4. If, and only if, a claimed stressor is deemed verified by the RO/AMC, the veteran should be afforded a VA examination to determine the nature and etiology of any currently manifested PTSD. The claims file should be made available to the examiner for review, and the report should reflect that such review occurred. The examiner should perform all tests and evaluations deemed necessary. The report should address the following question: Is it at least as likely as not (50% or greater probability) that any currently manifested PTSD is a result of his verified in-service stressor? The term "as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation or aggravation as it is to find against it. 5. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the veteran's service connection claim should be readjudicated, to include all evidence received since the June 2005 supplemental statement of the case. The veteran and his representative should then be issued another 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). ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs