Citation Nr: 0814066 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 06-33 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for post- traumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The veteran had active service from July 1969 to August 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of December 2005 by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO). The veteran requested a video-conference hearing in connection with the current claim. The hearing was subsequently scheduled and held in March 2008. The veteran testified before the undersigned Veterans Law Judge (VLJ) and the hearing transcript is of record. 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. The RO denied service connection for PTSD due to the lack of a diagnosis in June 1990. The veteran did not appeal this decision and, therefore, this decision is final. 2. The RO denied the veteran's claim to reopen his claim for service connection for PTSD in a rating decision of February 1993 and a confirmed rating decision of May 1993. The veteran did not appeal these decisions and, therefore, they are final. 3. The evidence received subsequent to the May 1993 RO decision includes a private medical opinion and hearing testimony; this evidence does raise a reasonable possibility of substantiating the claim for service connection. CONCLUSIONS OF LAW 1. The RO's June 1990 decision is final. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. §§ 20.200, 20.300, 20.1103 (2007). 2. The RO's February 1993 and May 1993 decisions are final. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. §§ 20.200, 20.300, 20.1103 (2007). 3. New and material evidence has been presented since the May 1993 decision denying the veteran's service connection claim for PTSD; thus, this claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The RO denied the veteran's initial claim of service connection for PTSD in a rating decision dated June 1990 on the basis that the veteran did not have a current diagnosis of PTSD. The veteran was notified of this decision in a letter dated August 8, 1990 and did not appeal. Thus, the decision became final. The RO denied the veteran's attempt to reopen his claim of service connection for PTSD in a rating decision dated February 1993 on the basis that the veteran failed to submit new and material evidence showing that he had a current diagnosis of PTSD. The veteran was notified of this decision in a letter dated April 5, 1993 and did not appeal. Following the receipt of additional evidence, the RO issued a confirmed rating decision in May 1993 and provided notice to the veteran on May 17, 1993. The veteran did not appeal and the decisions became final. The veteran sought to reopen his claim of entitlement to service connection for PTSD in a statement to the RO dated April 2005. The RO reopened the veteran's claim based on the receipt of evidence showing a current diagnosis of PTSD but denied the claim on its merits in a rating decision dated December 2005 due to the lack of a confirmed in-service stressor. The veteran timely perfected his appeal. With claims to reopen filed on or after August 29, 2001, such as this one, "new" evidence is defined as evidence not previously submitted to agency decision-makers and "material" evidence as evidence, that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (2007). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial and must raise a reasonable probability of substantiating the claim. Id. The evidence received subsequent to the February 1993 decision is presumed credible for the purposes of reopening a claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the RO's actions, the Board must still determine de novo whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board concludes that new and material evidence has been submitted in this case. The evidence of record at the time of the February and May 1993 decisions consisted of the veteran's service medical records (SMRs), service personnel records (SPRs), post- service VA treatment records, and a private medical opinion. The evidence since added to the record includes VA treatment records, a private medical opinion, and hearing testimony provided by the veteran in support of his claim. The first pertinent medical evidence of record following the May 1993 denial is a November 2004 statement to the RO authored by R. Rivas, Ph.D. in which Dr. Rivas linked the veteran's PTSD to his service in Vietnam. In particular, Dr. Rivas reviewed the veteran's "military discharge papers," and obtained a verbal history from the veteran concerning his claimed combat exposure. Dr. Rivas stated that "[h]is verbal history is consistent with combat exposure and subsequent post-trauma difficulties. All in all it is my professional opinion that [the veteran] has post trauma stress disorder chronic type and that his current GAF [Global Assessment of Functioning] rating is 60." Accordingly, the Board finds that the private medical opinion from Dr. Rivas constitutes new and material evidence sufficient to reopen the veteran's claim of entitlement to service connection for PTSD. The Board notes that this evidence was not of record at the time of the February and 1993 denials. ORDER New and material evidence to reopen a claim of entitlement to service connection for PTSD has been presented; to this extent, the appeal is granted. REMAND As noted above, the Board reopened the veteran's claim of service connection for PTSD on the basis that the evidence of record, including the private medical opinion dated November 2004 from Dr. Rivas, suggested that the veteran's PTSD was the result of his combat exposure in service. Establishing service connection for PTSD requires that there be (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2007); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; (3) and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f) (2007); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The diagnosis of a mental disorder must conform to the DSM-IV and be supported by the findings of a medical examiner. See 38 C.F.R. § 4.125(a). In adjudicating a claim for service connection for PTSD, VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a); 38 C.F.R. §§ 3.303(a), 3.304. The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy." If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(d) (2007); see also 38 U.S.C.A. § 1154(b) (West 2002); VAOPGCPREC 12-99. VA General Counsel has held that "[t]he ordinary meaning of the phrase 'engaged in combat with the enemy,' as used in 38 U.S.C.A. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." The determination whether evidence establishes that a veteran engaged in combat with the enemy is resolved on a case-by- case basis with evaluation of all pertinent evidence and assessment of the credibility, probative value, and relative weight of the evidence. VAOGCPREC 12-99; 65 Fed. Reg. 6,256- 58 (February 8, 2000). If VA determines that the veteran did not engage in combat, lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Instead, there must be credible supporting evidence. The credible supporting evidence is not limited to service department records, but can be from any source. See YR v. West, 11 Vet. App. 393, 397 (1998); see also Moreau v. Brown, 9 Vet. App. 389, 395 (1996). Further, credible supporting evidence of the actual occurrence of an in-service stressor cannot consist solely of after-the-fact medical nexus evidence. See Moreau, 9 Vet. App. at 396. In this case, the veteran contends that his PTSD is related to service, and particularly to various events he experienced while serving in the Army in the Republic of Vietnam. Service personnel records (SPRs) reflect that the veteran had active service from July 1969 to August 1971, with service in the Republic of Vietnam from December 1970 to August 1971. The veteran was attached to "Btry D, 1BN 82d Arty, USARPAC," and his military occupational specialty (MOS) was listed as either "13B" (cannon crewmember) or "13A" (field artillery officer). The veteran's DD-214 Form shows that he was awarded the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with "60" Device, Overseas Service Bars (2), and an Expert Marksman (M- 16) Badge. Service medical records (SMRs) associated with the veteran's claims file show that he was afforded a clinical evaluation and physical examination in August 1968 prior to entrance into service. The clinical evaluation was essentially normal, and no psychiatric abnormalities were noted. The veteran described his health as "good," and provided a medical history in which he specifically denied ever having depression or excessive worry, nervous trouble of any sort, or frequent or terrifying nightmares. The veteran reported to sick call in March 1971 with emotional tension. The veteran related a complicated history of family and severe financial problems. These problems, according to the veteran, were exacerbated by his grandmother's death, his father's hospitalization for a chronic blood clotting condition, and his mother and sister each giving birth to a new child, the latter out of wedlock. The veteran was also stressed by the fact that he had not received mail in over one month. His parents also refused to call the Red Cross because they did not want to worry him. Upon mental status examination, the examiner found no evidence of psychosis or thought disorder. The impression was acute situational reaction. The examiner recommended arranging an emergency leave or component assignment. The veteran was also afforded a clinical evaluation and physical examination in August 1971 prior to discharge from service. The clinical evaluation was normal, and no psychiatric abnormalities were noted at that time. Also of record is a private medical opinion dated April 1993 from D. Hayes, R.N. She indicated that she had known the veteran for approximately three and one-half years in both a personal and professional capacity. D. Hayes indicated that she spoke with the veteran on several occasions regarding his increasing and ongoing depression, flashbacks, and nightmares. D. Hayes noted that the veteran had recently been diagnosed as having PTSD, and she noted that the veteran's problems "appear to have occurred following his Army stint in Vietnam." In January 2005, the veteran submitted a statement to the RO authored by R. Rivas, Ph.D. in which Dr. Rivas linked the veteran's PTSD to his service in Vietnam. In particular, Dr. Rivas reviewed the veteran's "military discharge papers," and obtained a verbal history from the veteran concerning his claimed combat exposure. Dr. Rivas stated that "[h]is verbal history is consistent with combat exposure and subsequent post-traumatic difficulties. All in all it is my professional opinion that [the veteran] has post traumatic stress disorder chronic type and that his current GAF [Global Assessment of Functioning] rating is 60." Associated with the veteran's claims file is a VA PTSD Questionnaire dated May 2005. The veteran described the following stressors: "I eyewitnessed children, soldiers, and civilians being killed by enemy including friendly fire. All of these transcurred during my active duty service in South Vietnam." The veteran listed the approximate dates of these events as happening between September 1970 and April 1971 while he was assigned to the "D Co.196th Infantry Bn." The Board notes that there is no evidence of record to show that the veteran was in Vietnam in September 1970 or that he was attached to the 196th Infantry Battalion. The RO received a statement from the veteran dated December 2005 in which he stated that he had no additional evidence to submit in support of his claim of service connection for PTSD. The veteran further stated that he witnessed several comrades, women, children, and elderly individuals being killed between September 1970 and April 1971 at Landing Zone Rawhide and Landing Zone Dottie. The veteran indicated that he was stationed at Landing Zone Dottie around Christmas 1970. As the evidence of record does not currently confirm that the veteran was engaged in combat, the veteran's complete service personnel records should be requested on remand. The RO should also request information concerning the activities of the veteran's unit for a portion of the time that the veteran was in Vietnam. The RO denied the veteran's claim to reopen entitlement to service connection for PTSD in December 2005 on the basis that the veteran failed to provide sufficient evidence of a confirmed in-service stressor. The veteran timely perfected his appeal. In his substantive appeal dated October 2006, the veteran indicated that his PTSD was related to active duty in South Vietnam. The veteran stated that he was assigned to "Battery D 1st Bn. 82nd Artillery between December 29 1970 thru August 3 1971 (LZ Raw Hide) forty five miles Northwest of Da Nang, South Vietnam." The veteran also testified before the undersigned VLJ in May 2008. The veteran testified at that time about his claimed in-service stressful events. The veteran indicated that he arrived in Vietnam around December 14 or 15, 1970. The veteran stated that he contracted pneumonia shortly after arriving, and on the way to his "LD" or landing zone, he witnessed an infant sitting on top of a land mine. The infant purportedly fell off of the land mine, causing the land mine to explode. The veteran was required to continue driving over blood and body parts. The veteran also recounted numerous instances in which he treated wounded civilians, including children, at aid stations in "LD Dottie" and "LD Rawhide." The veteran testified that he was stationed at LD Dottie for approximately five months. The veteran recalled treating children with missing limbs, and seeing children with amputated legs who used tree branches for crutches. He stated that he lost both friends and family members in Vietnam. In addition, the veteran indicated that he took a tour of the morgue at Da Nang Air Base where he saw body parts, body bags, and aluminum caskets. The veteran indicated that he was also attached to a self-contained artillery unit that fired "artillery rounds on life." The veteran testified that while on active duty, he experienced "problems" at home. The veteran reported continuous problems following discharge from service, including nightmares and flashbacks of children "blowing up." Under certain circumstances, VA has a duty to assist veterans to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 § C.F.R. § 3.159. This duty to assist includes providing a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Additionally, the veteran receives medical care through VA. VA is required to make reasonable efforts to help a veteran obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2007). In Bell v. Derwinski, 2 Vet. App. 611 (1992), the United States Court of Appeals for Veterans Claims (Court) held that VA has constructive notice of VA-generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Therefore, the RO should request all VA medical records pertaining to the veteran that are dated from September 7, 2007 to the present. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA medical facilities and attempt to obtain medical treatment records that are dated from September 7, 2007 to the present. The RO should also attempt to obtain any other evidence identified as relevant by the veteran during the course of the remand, provided that the veteran completes the required authorization forms. 2. Attempt to obtain a complete copy of the veteran's service personnel records through the appropriate channels. 3. Prepare a letter asking the United States Army and Joint Services Records Research Center (JSRRC) to provide any information, including unit histories, operations reports, and morning reports for the "Btry D, 1BN 82d Arty, USARPAC" from December 14, 1970 to February 14, 1970, that might corroborate the veteran's participation in combat or the occurrence of non-combat related stressors that he has reported. If indicated by the JSRRC, the RO should contact the National Personnel Records Center (NPRC) and/or the National Archives and Records Administration (NARA). 4. In the event that the veteran is determined to have engaged in combat or the veteran has one or more verified in-service stressor(s), the veteran should be scheduled for a psychiatric examination. The claims file must be made available to and reviewed by the examiner. If it is determined by the RO that the veteran did not engage in combat, the examiner should be informed that only the verified stressors detailed by the RO may be relied upon in providing a diagnosis of PTSD. If the examiner believes that PTSD is an appropriate diagnosis and was caused by an in-service stressor, the examiner must identify which verified stressor(s) is/are responsible for the conclusion. Any and all opinions expressed must be accompanied by a complete rationale. If another psychiatric condition is diagnosed, the examiner is requested to provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) related to the veteran's active military service. 5. Thereafter, the RO should readjudicate the veteran's claim. If the benefit sought on appeal remains denied, the veteran and his representative should be provided a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable laws and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The veteran 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). ______________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs