Citation Nr: 0813118 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 01-01 248 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines THE ISSUE Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Department of the Army has certified that the veteran had recognized guerilla service from January 1945 to September 1945. In a Memorandum Decision by the United States Court of Appeals for Veterans Claims (Court) dated in April 2007, a June 2005 decision by the Board denying a reopening of a previously denied claim for service connection for residuals of a left leg gunshot wound based on new and material evidence was affirmed. Also, the Board's decision denying claims for service connection for malaria, arthritis, gout, tuberculosis, malnutrition, an eating disorder, and an eye disorder was affirmed. However, the portion of the decision denying the veteran's claim to reopen a previously disallowed claim for service connection for PTSD was vacated and remanded for readjudication consistent with the Memorandum Decision. With regard to the claim, based on the discussion below, the case is being remanded to the RO by way of the Appeals Management Center in Washington, D.C. VA will notify the veteran should further action be required. FINDINGS OF FACT 1. By rating decision dated in December 1983, service connection for PTSD was denied. A timely appeal did not ensue. 2. In September 1991, the RO received the veteran's application to reopen his claim of entitlement to service connection for PTSD. 3. Evidence received since the December 1983 rating decision bears directly and substantially on the specific matter under consideration, is neither cumulative nor redundant, and is so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The December 1983 rating decision denying service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). 2. The evidence added to the record since the December 1983 rating decision is new and material, and the claim for entitlement to service connection for PTSD is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In general, rating decisions that are not timely appealed are final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to the claim. Under applicable regulation, "new and material evidence" is defined as evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in conjunction with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156 (2000); See also Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). [An amended version of 38 C.F.R. § 3.156 applies only to petitions to reopen filed since August 29, 2001, and hence does not apply in the instant case, where the veteran's claim to reopen was filed in 1999.] In Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence would be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability, even though it might not be enough to convince the Board to grant the claim. To warrant reopening of a previously and finally disallowed claim, newly presented or secured evidence must not be cumulative of the evidence of record at the time of the last prior final disallowance, and must prove the merits of the claim as to each essential element that was a specified basis for the last final disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273 (1996). An adjudicator must follow a two-step process in evaluating previously denied claims. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim may be reopened and decided upon the merits. Once it is determined that the claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old. See 38 U.S.C.A. § 5108; Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzales v. West, 12 Vet. App. 321, 328 (1999). The pertinent evidence of record at the time of the 1983 denial action included the May 1946 service separation examination, the report of a VA examination, lay statements, various documents purporting to show that the veteran was a prisoner of war (POW), and responses from the United States military indicating that the veteran had not served as a POW during a time when he had military service with the United States Armed Forces The evidence added to the claims file since the December 1983 decision consists primarily of medical records reflecting a principal diagnosis of PTSD. The evidence also included statements submitted by the veteran in an effort to establish his status as a POW. The evidence includes a report of a November 2002 VA examination. At that time the veteran indicated that his PTSD stressors were related to his six months captivity as a POW. The Board notes that the additional evidence includes a copy of the veteran's processing affidavit for Philippine Army personnel signed in May 1946. At that time, he made no reference to having served as a POW at any time during his military service. The evidence also includes a July 2004 statement from a psychiatrist at the VA Medical Center in San Diego, California. The individual stated that he had been treating the veteran since 2000 for "PTSD, major depression and dementia..." He indicated that he agreed with the assessment done by another physician in 2002 that stated "the major depression and PTSD are clearly service-connected." The Board finds that this additional evidence is new, in that it was not part of the record before the RO issued its final 1983 rating decision. After careful consideration of the evidence, the Board finds that it is new and material, and therefore sufficient to reopen the claim of entitlement to service connection for PTSD. The new evidence is material in establishing an element necessary for the granting of service connection, namely, a present disability. See 38 C.F.R. § 3.303; Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). As such, this new evidence alters the previous evidentiary picture and, indeed, raises a possibility of substantiating the claim. See 38 C.F.R. § 3.156, 3.303; Hodge, supra. It is thus new and material within the meaning of applicable law and regulations. New and material evidence having been received, the claim of service connection for PTSD is reopened. ORDER Having submitted new and material evidence, the claim for service connection for PTSD is reopened. The appeal is granted to this extent only. REMAND In Kent, v. Nicholson, 20 Vet. App. 1 (2006), the Court clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. That has not been accomplished in this case. Accordingly, the case is REMANDED for the following: 1. The veteran should be given the opportunity to describe his experiences with the recognized guerilla service from January to September 1945. He should be asked to indicate whether he was exposed to any combat activity while serving with the offshore patrol regiment during that time frame. Based on any information obtained, if deemed advisable, a VA psychiatric examination is authorized for the purpose of determining whether or not the veteran has a chronic acquired psychiatric disorder, to include PTSD, that is as least as likely as not whether it too was active service with the recognized guerrillas in 1945. The examiner is requested to provide the rationale for any opinion expressed. The clinician is advised that if a conclusion cannot be reached without resort to speculation, he or she should so indicate in the examination report. 2. Then, after completion of any other notice or development indicated by this action, with consideration of all evidence added to the record subsequent to the last supplemental statement of the case, the AMC/RO must readjudicate the claim. If the benefit sought is not granted, the veteran and his representative should be provided with a supplemental statement of the case and be given an opportunity for response. By this REMAND, the Board intimates no opinion as to any final outcome warranted. 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs