Citation Nr: 0813276 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 04-15 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Lindio, Associate Counsel INTRODUCTION The veteran had active service from December 1970 until November 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2002 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In October 2000, the RO denied the claim of service connection for PTSD. The veteran was provided with notice of the adverse determination, as well as notice of his appellate rights. The veteran did not file an appeal. Thus, the October 2000 rating decision became final. As such, the issue is as reflected on the cover page of this decision. The veteran also submitted a claim, in a February 2006 statement, for TDIU. However, this matter is not before the Board because it has not been prepared for appellate review and is REFERRED to the RO for appropriate action. The veteran's reopened claim is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An October 2000 rating decision denied service connection for PTSD; the veteran did not appeal the decision and it became final. 2. The evidence associated with the claims file since the October 2000 denial relates to an unestablished fact necessary to substantiate the claim for PTSD. CONCLUSIONS OF LAW 1. The October 2000 rating decision is final. 38 U.S.C.A. § 7105(b) (West 2002); 38 C.F.R. § 3.104, 20.302, 20.1103 (2007). 2. Evidence received since the October 2000 rating decision is new and material; the claim of entitlement to service connection for PTSD is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is reopening the claim of service connection for PTSD. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Merits of the Claim The appellant seeks to reopen a claim for service connection for PTSD. The appellant's original claim for this disorder was denied in an October 2000 rating decision, which found the appellant to not have a confirmed diagnosis of PTSD or a verified stressor. The appellant did not file a timely notice of disagreement with the decision; therefore, the October 2000 decision represents a final decision. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A disallowed claim shall be reopened and reviewed, if new and material evidence is presented or secured with respect to the final claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. 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). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to the merits of the claim on the basis of all of the evidence of record. In his current attempt to reopen the claim, the appellant has proffered new evidence including a diagnosis of PTSD, as indicated in a May 2003 letter from North Bay Vet Center treater T.P.M., indicating treatment for PTSD, and an August 2004 letter from Dr. T.C.M. indicating that the veteran took part in a PTSD study. This evidence bears directly and substantially upon the specific matter of whether the veteran has a current diagnosis of PTSD. The May 2003 letter from T.P.M. further reported that the veteran has PTSD related to in-service fire fighting and sexual traumas. This evidence is neither cumulative nor redundant, and by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the veteran's claim of service connection. Having determined that new and material evidence has been added to the record, the veteran's claim of service connection for PTSD is reopened. ORDER As new and material evidence has been presented, the veteran's claim of service connection for PTSD is reopened. REMAND The veteran has essentially reported that he has PTSD due to service, due to in-service stressors that included a fire related exercise and repeated sexual assaults. With respect to the assaults, the veteran has claimed that they occurred multiple times while he was seeking treatment for his asthma at the hospital. The law provides that VA will not deny a post-traumatic stress disorder claim that is based on in-service personal assault without first advising the veteran that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 38 C.F.R. § 3.304(f)(3). No such notice was provided to the veteran. The Board notes that the veteran's claims file contains contradictory reports as to whether or not the veteran has PTSD. Although there is evidence that the veteran has been treated for PTSD, such as the May 2003 letter from the North Bay Vet Center, there is also evidence, including a June 2003 VA outpatient treatment record, that the veteran does not have PTSD. The Board concludes that on remand the veteran must be afforded an examination for the purpose of determining whether the veteran currently has PTSD due to any event associated with his service. Additionally, an October 2003 inquiry to the Social Security Administration (SSA) indicated that the veteran has been considered disabled since January 2002. A June 2006 private medical report from S.R.B. also indicates that she had reviewed the veteran's Social Security records when making her report. Given the veteran's current claim, the records associated with any Social Security claim appear to be especially relevant. As such, VA is obliged to attempt to obtain and consider those SSA records. 38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2006). Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should advise the veteran of alternative sources of competent evidence that would substantiate the claim of service connection for PTSD based upon in- service personal assault, with specific reference to 38 C.F.R. § 3.304(f)(3). The RO should specifically advise the veteran that evidence of behavior changes may constitute credible supporting evidence of the stressor. Any evidence of the alleged sexual assaults should be requested. The RO may submit any evidence received to an appropriate medical or mental health professional for an opinion as to whether it indicates that a sexual assault occurred. 2. The RO/AMC should request, directly from the SSA, complete copies of any disability determination(s) it has made concerning the veteran, as well as copies of the medical records that served as the basis for any such decision(s). All attempts to fulfill this development must be documented in the claims file. If the search for any such records yields negative results, that fact should be clearly noted and the veteran must be informed in writing. 3. Schedule the veteran for a VA psychiatric examination to determine whether the veteran has PTSD due to any events or incidents of service. Provide the examiner with a list of stressors which has been deemed to have been verified. The claims folder should be reviewed by the examiner. In determining whether the veteran currently has a diagnosis of PTSD, the examiner should specifically acknowledge and comment on the veteran's report of continuity of symptoms since service and discuss the conflicting opinions of whether the veteran currently has PTSD (See the May 2003 letter from the North Bay Vet Center and the June 2003 VA outpatient treatment record). The examiner should clearly indicate whether there were behavior changes in service which were indicative of the veteran suffering a personal assault in service. If so, the examiner should give an opinion as to whether it is as likely as not that the veteran currently has PTSD as a result of an inservice personal assault stressor. The examiner should also comment on whether any verified service stressor has resulted in PTSD. The rationale for all opinions expressed should be provided. 4. 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. 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). ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs