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