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