Citation Nr: 0815210 Decision Date: 05/08/08 Archive Date: 05/14/08 DOCKET NO. 06-13 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE 1. Whether new and material evidence has been submitted to reopen the claim of service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from March 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2008, the veteran presented personal testimony during a videoconference hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is of record. The issue of 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, D.C. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issue on appeal was obtained. 2. In a December 2001 rating decision the RO denied entitlement to service connection for PTSD; that determination has become final. 3. Evidence received since the December 2001 rating decision is neither cumulative nor redundant of the evidence of record and relates to an unestablished fact necessary to substantiate the claim of service connection for PTSD. CONCLUSION OF LAW As new and material evidence has been received, the claim for service connection for PTSD is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (hereinafter "the Court") have been fulfilled by information provided to the veteran by correspondence dated in February 2005. Because of the favorable outcome in this appeal of this issue, any deficiency in the initial notice to the veteran of the duty to notify and duty to assist in claims involving new and material evidence is harmless error. Law and Regulations VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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. 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 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). The Court has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). The Board, in the first instance, must rule on the matter of reopening a claim. The Board has a responsibility to consider whether it is proper for a claim to be reopened, because reopening is jurisdictional. Jackson v. Principi, 265 F.3d 1366 at 1369 (Fed. Cir. 2001) and Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Factual Background and Analysis In a December 2001 rating decision the RO denied entitlement to service connection for PTSD. It was noted, in essence, that the veteran did not have a confirmed diagnosis of PTSD, and there was no evidence to show a stressful event that could be verified by the U.S. Armed Forces Center for Research of Unit Records. The veteran did not appeal the RO's decision and it became final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007); 38 C.F.R. § 3.104 (2007). The evidence received since the December 2001 rating decision includes additional statements from the veteran, a transcript of a videoconference hearing before the undersigned acting Veterans Law Judge which provides evidence concerning possible stressors, private treatment records, and VA medical records. The medical records contain several diagnoses of PTSD, including March 2003 VA treatment records, May 2004 private treatment records, and March 2006 VA treatment records. The Board finds that the diagnoses of PTSD are new and material evidence. It is new in that these diagnoses were not considered in the December 2001 rating decision. It is also material because it relates to an unestablished fact necessary to substantiate the veteran's claim. The December 2001 rating decision denied entitlement to service connection in part because there was not a current diagnosis of PTSD. The evidence submitted since that time contains several PTSD diagnoses. This evidence is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim. Therefore, the claim must be reopened and re-adjudicated on the merits. ORDER New and material evidence having been submitted, the claim for entitlement to service connection for PTSD is reopened. REMAND When a claim which has previously been denied by the RO is reopened by the Board, the Board must not take any action which would prejudice the rights of the veteran. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). The RO has not considered the veteran's claim on the basis of all the evidence, both new and old, in order to determine whether the prior disposition of the claim should be altered. Therefore, in order to protect the rights of the veteran, the Board believes that the RO should be afforded an opportunity to review the veteran's claim for entitlement to service connection on a de novo basis. The revised VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159. A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4). In Pentecost v. Principi, 16 Vet. App. 124 (2002), the Court held that a veteran need not corroborate his actual physical proximity to (or firsthand experience with) and personal participation in rocket attacks while stationed in Vietnam. See also Suozzi v. Brown, 10 Vet. App. 307 (1997) (holding that "corroboration of every detail [of a claimed stressor] including the appellant's personal participation" is not required; rather an appellant only needs to offer independent evidence of a stressful event that is sufficient to imply his or her personal exposure). In this case, service records show the veteran served as a cannoneer/artilleryman in Vietnam and participated in the TET counteroffensive. The veteran alleges that he was exposed to in-service combat stressors. Records indicate that he served with the G Battery (Machine Gun), 55th Artillery, 23rd Infantry Division, from January 1968 to January 1969, but that he did not receive any awards or medals which would independently verify his exposure to combat. A CURR request resulted in verification that Battery G, 55th Artillery was located at Bien Hoa when it was subjected to mortar and rocket attacks on February 28, 1968, and March 4, 13, and 22 1968. Additional documents showed that on April 5, 1968, the base at Bien Hoa received a mortar attack, and on April 5, 1968, seven rockets were expended against the base. Therefore, it must be assumed that the veteran was exposed to this rocket and mortar fire. Pentecost v. Principi, 16 Vet. App. 124 (2002). The veteran was afforded a VA psychological examination in March 2007, and this examination was completed in April 2007. The diagnoses of these examinations did not include PTSD, and malingering was suspected. However, there is no indication that the examiner was aware that the veteran was exposed to rocket and mortar fire during service. Furthermore, there was no comment regarding the previous diagnoses of PTSD. Regardless of whether the veteran's other claimed stressors can be verified, a medical examination is required to determine if the veteran currently has PTSD as a result of being exposed to a rocket attack while serving with G Battery, 55th Artillery in Vietnam in early 1968. Accordingly, the case is REMANDED for the following action: 1. The veteran must be provided notification (1) of the information and evidence not of record necessary to substantiate his claim, (2) of the information and evidence that VA will seek to provide, (3) of the information and evidence that he is expected to provide, and (4) to request or tell him to provide any evidence in his possession that pertains to the claim. These notice requirements are to be applied to all elements of the claim. 2. Schedule the veteran for examination by a psychiatrist for an opinion as to whether there is at least a 50 percent probability or greater that he has a present psychiatric disorder (under DSM- IV criteria) related to a verified event in service. The examining psychiatrist should be informed that the verified events include the rocket and mortar attacks in February, March, and April 1968. If the examiner does not reach a diagnosis of PTSD, an attempt should be made to distinguish his findings from the diagnoses of PTSD contained in the VA treatment records. Prior to the examination, the claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for the opinions expressed, should be set forth in the examination report. 3. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 4. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the veteran should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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. 2005). ______________________________________________ JOHN L. PRICHARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs