Citation Nr: 0814166 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 05-00 142A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David Gratz, Associate Counsel INTRODUCTION The veteran served on active duty from March 1969 to December 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which reopened and denied the veteran's claim for service connection for PTSD. The Board has a legal duty to address the "new and material evidence" requirement regardless of the actions of the RO. If the Board finds that no new and material evidence has been submitted, it is bound by a statutory mandate not to consider the merits of the case. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996); see also McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The veteran's claim for service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a September 1995 rating decision, the RO denied the appellant's claim for entitlement to service connection for PTSD. The veteran was notified of the decision and of his appellate rights. However, the veteran failed to file a notice of disagreement (NOD) within one year of the rating decision. 2. Evidence added to the record since the September 1995 rating decision is new evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the appellant's claim for service connection for PTSD. CONCLUSIONS OF LAW 1. The September 1995 rating decision, denying service connection for PTSD, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2007). 2. New and material evidence has been received since the September 1995 rating decision sufficient to reopen the veteran's claim for service connection for PTSD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). In the present case, the Board concludes that it is not precluded from adjudicating whether to reopen the appellant's service connection claim for PTSD, without first deciding whether the VA's notice and assist requirements have been satisfied with respect to the issue of new and material evidence. This is so because the Board is taking action favorable to the appellant in reopening his service connection claim for PTSD, and the decision at this point poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). The first issue before the Board is whether the appellant has submitted new and material evidence to reopen his previously denied claim of entitlement to service connection for PTSD. Whether new and material evidence has been presented is a material legal issue that the Board is required to address on appeal. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); see also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In this regard, the RO denied service connection for PTSD in September 1995, noting that there was no confirmed diagnosis of PTSD, and inadequate evidence to establish that a stressful experience sufficient to cause PTSD occurred during service. The veteran did not submit a NOD. Therefore, the September 1995 rating decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.1103. In July 2003, the veteran asked to reopen his claim for service connection. The RO, in a December 2003 rating decision, the subject of this appeal, reopened the claim based on its finding that evidence showing that the veteran was diagnosed with PTSD was new and material. The RO then continued the denial of the veteran's claim for service connection for PTSD because the veteran had failed to show verifiable evidence of a stressor during service. When a claim to reopen is presented, a two-step analysis is performed. The first step is a determination of whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing 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(a). 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. Id. Second, once the definition of new and material evidence is satisfied and the claim is reopened, the Board may then determine whether the duty to assist is fulfilled and proceed to evaluate the merits of that claim. 38 U.S.C.A. §§ 5108, 5103A(f) (West 2002). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The United States Court of Appeals for Veterans Claims (Court) has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim as in this case dealing with a claim for service connection. Evans v. Brown, 9 Vet. App. 273 (1996). However, it is the specified basis for the final disallowance that must be considered in determining whether the newly submitted evidence is probative. Id. Such evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for that last final disallowance of the claim. Id. In the September 1995 rating decision, the RO determined that there was no confirmed diagnosis of PTSD, and inadequate evidence to establish that a stressful experience sufficient to cause PTSD occurred during service. In July 2003, the veteran submitted as evidence the written opinion of his private physician, Arvell Luttrell, M.D., that the veteran's symptoms are strongly suggestive of or consistent with a DSM- IV diagnosis of PTSD. This evidence is clearly new, in that it is not redundant of other evidence considered in the September 1995 rating decision. Moreover, the evidence is material to the issue under consideration, as the new evidence goes to whether the veteran has a current diagnosis of PTSD. Therefore, in light of the submission of new and material evidence, the veteran's service-connection claim for PTSD is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). ORDER New and material evidence sufficient to reopen the appellant's claim for service connection for PTSD has been received, and the claim is reopened. To this extent, the appeal is granted. REMAND The veteran seeks service connection for his PTSD, which he contends stems from stressors that he experienced while serving in the Republic of Vietnam. In his NOD of February 2004, the veteran states that he experienced stressors in Vietnam including being subjected to nightly bombings, as well as witnessing American soldiers step on land mines, men killed by mortar attacks, and a little girl with a severe injury to her face. In his substantive appeal of December 2004, the veteran also recounts having been subjected to rocket fire, because of which he would have to run to the bunkers. He reports receiving incoming rounds of fire at bases near Marble Mountain, Red Beach, Dolot, and Nha Trang. Finally, he reports that he was in constant fear of hitting a land mine while riding on the highway in Vietnam. The veteran states that the only name of a person whom he can recall seeing being killed was either Huddlestew or Hays. The veteran did not provide an approximate date for that incident. VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (a) (West 2002); 38 C.F.R. § 3.159(c), (d). If the veteran's presence in areas of documented combat can be verified, this would be sufficient to find that he was exposed to combat stressors, even without the explicit documentation of his participation in specific historic events. See Pentacost v. Principi, 16 Vet. App. 124 (2002). If the required stressor is substantiated by sufficient evidence, then the veteran should be provided with a VA examination to determine whether he has PTSD. Additionally, during the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. In the present appeal, the appellant was not provided with notice of the type of evidence necessary to establish an effective date or a disability rating, if service connection is granted on appeal. Accordingly, the case is REMANDED for the following action: 1. The AOJ must review the entire file and ensure that all notice obligations have been satisfied in accordance with 38 U.S.C.A. § 5103(a) and 38 U.S.C.A. § 5103A (West 2002 & Supp. 2007) and 38 C.F.R. § 3.159 (2007). In particular, the AOJ must send the appellant a corrective notice that explains (1) the information and evidence not of record needed to establish an initial disability rating and an effective date, if service connection is granted on appeal, as outlined by the Court in Dingess, supra. 2. Obtain from the U.S. Army & Joint Services Records Research Center (JSRRC), 7701 Telegraph Road, Alexandria, VA 22315- 3802, any records showing that the veteran, or his unit, were present in any areas of documented combat. Also, obtain the records of the death of an American serviceman named Huddlestew or Hays, and determine whether the veteran or his unit were in a position to have witnessed his death in combat. 3. If the required stressor is substantiated by sufficient evidence, then provide the veteran with a VA examination, by a psychiatrist, to determine whether he has PTSD. The examiner should take a complete history from the veteran and review the entire claims file and must indicate in the examination report that such was performed. All special studies or tests including psychological testing and evaluations, deemed necessary by the examiner are to be accomplished. The psychiatric examination report should include a detailed account of all pathology found to be present. A complete rationale should be provided for any opinions expressed. If a diagnosis of PTSD is appropriate, the examiner should specify the credible stressor(s) that caused the disorder and the evidence upon which that opinion was based to establish the existence of the stressor. The examiner should comment explicitly upon whether the veteran's alleged stressor(s) was one of the stressors verified by JSRRC. If so, the examiner should also comment explicitly upon whether there is a link between such a stressor and the current symptoms, if any. 4. When the development requested has been completed, the claim of service connection for PTSD should be readjudicated. If the claim remains denied, provide the veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The purposes of this remand are to comply with due process of law and to further develop the veteran's claims. No action by the veteran is required until he receives further notice; however, the veteran is advised that failure to cooperate by reporting for examination may result in the denial of the claim. 38 C.F.R. § 3.655 (2007). The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the above. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs