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