Citation Nr: 0813129 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 04-11 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence has been submitted to establish service connection for post traumatic stress disorder (PTSD). 2. Whether new and material evidence has been submitted to establish service connection for headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD LouElla Kuta, Associate Counsel INTRODUCTION The veteran served on active duty from October 1951 to September 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2003 and August 2003 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied the benefits sought on appeal. In February 2007, this matter was remanded by the Board for further development in accordance with Kent v. Nicholson, 20 Vet. App. 1 (2006). The record indicates that during an August 2004 RO hearing, the veteran through his representative raised the issue of reopening of a claim of service connection for an anxiety disorder, last denied by Board decision dated in May 1960. In June 2005, the RO denied reopening of the claim. Because the veteran did not file a notice of disagreement pertaining to this rating determination, it is not before the Board for appellate review. See 38 U.S.C.A. § 7105(a); see Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995) [pursuant to 38 U.S.C. § 7105, a Notice of Disagreement initiates appellate review in the VA administrative adjudication process; and the request for appellate review is completed by the claimant's filing of a substantive appeal (VA Form 1-9 Appeal) after an SOC is issued by VA]. The Board presently reopens the claim of entitlement to service connection for PTSD, and the reopened claim is addressed in the REMAND portion of the decision below, as REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The September 2001 rating decision denying the claim for entitlement to service connection for post traumatic stress disorder is final. 2. The evidence associated with the claims file subsequent to the September 2001 rating decision relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of entitlement to service connection for post traumatic stress disorder. 3. The May 1960 Board decision denying the claim for entitlement to service connection for headaches is final. 4. The evidence associated with the claims file subsequent to the May 1960 Board decision does not relate to an unestablished fact necessary to substantiate the claim for headaches and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. Evidence received since the final September 2001 RO decision denying the veteran's claim for service connection for post traumatic stress disorder is new and material, and the veteran's claim for that benefit is reopened. 38 U.S.C.A. §§ 5103, 5103A, 5104, 5107, 5108, 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.104(a), 3.156, 3.159, 20.1103 (2007). 2. Evidence received since the final May 1960 determination denying the veteran's claim of entitlement to service connection for headaches is not new and material, and the veteran's claim for that benefit is not reopened. 38 U.S.C.A. §§ 5103, 5103A, 5104, 5107, 5108, 7104, 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.104(a), 3.156, 3.159, 20.1100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Before addressing the merits of the claims, the Board is required to address the duty to notify and duty to assist imposed by 38 U.S.C.A. §§ 5103, 5103(A) and 38 C.F.R. § 3.159. VA has a duty to notify a claimant and his representative, if any, of the information and evidence needed to substantiate a claim. This notification obligation was accomplished by way of letters from the RO to the veteran dated in November 2002, and May 2003. These letters effectively satisfied the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate the claim; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting the veteran provide any evidence in his possession that pertains to his claims. Additionally, a March 2007 letter informed the veteran of how the RO assigns disability ratings and effective dates if a claim for service connection or an increased rating is granted and complies with the holding of Dingess v. Nicholson, 19 Vet. App. 473 (2006). Second, VA has a duty to assist a veteran in obtaining evidence necessary to substantiate a claim. The service treatment records, VA medical treatment records, and lay statements are associated with the claims file. The veteran was not afforded a VA examination. Because the application to reopen his claims is presently denied, VA's duty to assist has not attached and there is no basis upon which to direct a medical examination. 38 U.S.C.A § 5103A(d),(g); Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed.Cir. 2003) (Holding that VA need not provide a medical examination or medical opinion until a claim is reopened); Anderson v. Brown, 9 Vet.App. 542 (1996) (Holding that unless new and material evidence has been submitted, the duty to assist does not attach); see also Woehlaert v. Nicholson, 21 Vet.App. 456 (Holding that adequacy of VA medical examination mooted upon Board's determination that claimant not entitled to reopening of claim, and conduct of VA medical examination, when claimant had not presented new and material evidence.) The Board also notes that in Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims held that when a veteran seeks to reopen a previously denied claim, VA must examine the bases for the denial in the prior decision and advise the veteran what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. This notification obligation was accomplished by way of a letter from the RO to the veteran dated in March 2007. The veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide his claims. As such, all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and the case is ready for appellate review. The Merits of the Claims Whether new and material evidence has been submitted to establish service connection for headaches. The veteran seeks to reopen his claim for entitlement to service connection for headaches. A claim for service connection for headaches was previously considered and denied by the RO in January 1960 and subsequently by the Board in May 1960, and it is final. 38 U.S.C.A. §§ 7104; 38 C.F.R. § 20.1100. The veteran sought to reopen his claim of entitlement to service connection for headaches in April 2003. In an August 2003 rating decision, the RO denied the veteran's claim to reopen for entitlement to service connection for headaches. The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The Board may not then proceed to review the issue of whether the duty to assist has been fulfilled, or undertake an examination of the merits of the claim. The Board will therefore undertake a de novo review of the new and material evidence issue. As general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a veteran seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means 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). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Furthermore, "material evidence" could be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to the merits of the claim on the basis of all of the evidence of record. At the time of the January 1960 rating decision that denied service connection for headaches, the evidence of record consisted of service treatment records, VA medical records, and statements by the veteran. Subsequently, additional lay statements from the veteran, RO hearing testimony, and additional VA treatment records have been associated with the claims file. The evidence submitted subsequent to the January 1960 rating decision is new, in that it was not previously of record. However, the newly submitted evidence is not material. Initially, the claim for headaches was denied in the January 1960 rating decision as there was no evidence of any headache disorder or condition in service. The evidence submitted since the final January 1960 decision has demonstrated no treatment or diagnosis of a headache disorder. Although the veteran maintains that his claimed headache condition was incurred in service, his theory regarding this linkage is not competent evidence, and therefore not material. It is well-established that laypersons, such as the veteran, are not qualified to render medical opinions regarding the etiology of disorders and disabilities, and his opinion is entitled to no weight. Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Apart from not being material, the veteran's testimony is repetitive of statements made which were previously considered by VA, and is therefore not new. Thus, the additional evidence received since the January 1960 rating decision does not relate to an unestablished fact necessary to substantiate the claim, nor does it raise a reasonable possibility of substantiating the claim. Accordingly, the Board finds that the claim for service connection for headaches is not reopened. Whether new and material evidence has been submitted to establish service connection for post traumatic stress disorder (PTSD). The veteran seeks to reopen his claim for entitlement to service connection for PTSD. A claim for service connection for PTSD was previously considered and denied by the RO in September 2001. The veteran failed to timely appeal this decision, and as such, the September 2001 rating decision is final. 38 U.S.C.A. §§ 7103(a); 38 C.F.R. § 20.1103. The veteran sought to reopen his claim of entitlement to service connection for PTSD in November 2002. While the RO reopened and denied the claim in an August 2003 rating decision, (although in a September 2007 Supplemental Statement of the Case, the RO notified the veteran that he had not submitted new and material evidence), the Board must undertake de novo review of the RO's findings, as the submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The Board may not then proceed to review the issue of whether the duty to assist has been fulfilled, or undertake an examination of the merits of the claim. The Board will therefore undertake a de novo review of the new and material evidence issue. Having reviewed the evidence of record in light of the applicable law, the Board will reopen the claim and remand the issue on the merits for further development. At the time of the September 2001 rating decision, the evidence of record consisted of service treatment records, VA outpatient treatment records, and lay statements by the veteran. In June 2002, a VA mental health care provider noted that the veteran had "prolonged PTSD." RO hearing testimony of August 2004, additional VA treatment records, and VA medical records which indicate a positive screen for PTSD dated in May 2005 and a VA primary care note dated in February 2006, which indicates PTSD as one of the veteran's "problems," have been associated with the claims file. The evidence submitted subsequent to the September 2001 rating decision is new, in that it was not previously of record, and is also material. In September 2001, the claim was denied as the RO determined there was no confirmed diagnosis of PTSD. The additional evidence is "material" because it raises a possibility of a diagnosis of PTSD. As the RO stated in its September 2001 rating decision, the veteran has a confirmed combat stressor, and the records therefore relate to the unestablished elements of a current disability and a nexus to service. Since the inception of his attempt to secure service connection for PTSD, the claim has been continuously denied on the basis that the veteran had no "clear" diagnosis of the disorder. This rationale was most recently restated in the RO's April 2006 Supplemental Statement of the Case. However, requisite for a grant of service connection is medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressors actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors. 38 C.F.R. § 3.304(f) (2002). The former language as to a "clear" diagnosis has been removed from applicable regulation. The additional evidence received since the September 2001 Board decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim of service connection for PTSD is reopened. ORDER New and material evidence has not been submitted and the application to reopen the claim of entitlement to service connection for headaches is denied. New and material evidence has been submitted and the application to reopen the claim of entitlement to service connection for PTSD is granted. To this extent only, the appeal is allowed. REMAND In light of a review of the claims file and the reopening of the veteran's claim for entitlement to service connection for PTSD, the Board finds that further RO action on this matter is warranted. A remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As the claim of service connection for PTSD has been reopened, VA's duty to assist the veteran in the development of the claim is triggered. See DAV, supra. As noted, several mental health care providers have noted diagnoses of PTSD since the last final denial of the claim. Although the RO found that the medical care notes were not probative due to the absence of clinical testing, it is well- settled that in its decisions, VA may not rely upon its own unsubstantiated medical opinion, a VA PTSD examination will be conducted. Allday v. Brown, 7 Vet. App. 517 (1995); Colvin v. Derwinski, 1 Vet. App. 171 (1991). For example, in June 2002, a VA diagnostic summary indicated a diagnosis of prolonged PTSD. In a December 2002 VA compensation and pension examination, the veteran was diagnosed with generalized anxiety disorder. In May 2005, VA medical records indicated the veteran had a positive PTSD screen. In February 2006, a VA primary care note indicated PTSD as one of the veteran's "problems." Accordingly, the case is REMANDED for the following action: 1. The RO/AMC will ascertain if the veteran has received any VA, non-VA, or other medical treatment for the disorder(s) at issue that is not evidenced by the current record. The veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file. The RO/AMC should then obtain these records and associate them with the claims folder. The veteran may also submit any evidence or further argument relative to the claim at issue. 2. The veteran should be afforded a psychiatric examination to ascertain whether he has PTSD, related to service. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished, and the examiner is requested to report complaints and clinical findings in detail. The examiner is also requested to review all pertinent records in the veteran's claims file, along with a copy of this remand. Following this review, the examiner should state whether the veteran has PTSD, and state the bases for any opinion, with specific reference to the criteria for the establishment of a diagnosis of PTSD in accordance with the DSM-IV. The claims file must be made available to the examiner for review in connection with the examination. The examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. The RO/AMC should ensure that any clinical studies deemed necessary by the examiner or otherwise required are conducted. 3. The RO/AMC should take such additional development action as it deems proper with respect to the claim and follow any applicable regulations and directives implementing the provisions of the VCAA as to its notice and development. When the development requested has been completed, the case should again be reviewed by the RO/AMC on the basis of the additional evidence. If the benefits sought are not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. Although the Board has not reviewed the claim with a view towards its merits, it reiterates that now-applicable law provides that requisite for a grant of service connection is medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressors actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors. 38 C.F.R. § 3.304(f) (2002). The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence and/or argument he desires to have considered in connection with his current appeal. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran unless he is notified. The Board takes this opportunity to advise the veteran that the conduct of the efforts as directed in this remand, as well as any other development directed by the RO, is necessary for a comprehensive and correct adjudication of his claim(s). 38 C.F.R. § 3.655(b). The veteran's cooperation in the RO's efforts is both critical and appreciated. However, the veteran is further advised that his failure to report for any scheduled examinations without good cause may result in the claim being considered on the evidence now of record or denied. 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). ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs