Citation Nr: 0934502	
Decision Date: 09/15/09    Archive Date: 09/23/09

DOCKET NO.  07-38 004A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, 
Alabama


THE ISSUE

Whether new and material evidence has been presented to 
reopen a claim of entitlement to service connection for an 
acquired psychiatric disability, to include posttraumatic 
stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

N. L. Northcutt, Associate Counsel 

INTRODUCTION

The Veteran served on active duty from January 1970 to 
December 1971.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a November 2006 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
St. Petersburg, Florida.  Jurisdiction has since been 
returned to the RO in Montgomery, Alabama.  

The Veteran presented testimony at a hearing before the 
undersigned Veterans Law Judge in March 2009.  A transcript 
of those proceedings has been associated with the Veteran's 
claims file.
 
The Board has determined that new and material evidence 
sufficient to reopen the Veteran's psychiatric disability 
claim has been received.  Accordingly, this issue is being 
REMANDED to the RO via the Appeals Management Center (AMC), 
in Washington, DC for further development before 
readjudicating the claim on the underlying merits.  VA will 
notify the Veteran if further action is required.


FINDINGS OF FACT

1.  In a May 2004 decision, the RO denied service connection 
for an acquired psychiatric disability, then referred to as 
PTSD, because of the absence of a diagnosis of PTSD in the 
medical record, and following receipt of notification of that 
determination, the Veteran did not perfect an appeal of the 
denial, and the decision became final.

2.  The evidence received since the RO's May 2004 denial of 
service connection for an acquired psychiatric disability, 
then referred to as PTSD, includes a diagnosis of PTSD.


CONCLUSION OF LAW

New and material evidence has been submitted, and the 
Veteran's claim of entitlement to service connection for a 
psychiatric disability, to include PTSD, is reopened.  38 
U.S.C.A. § 5108 (West 2002 & Supp. 2008); 38 C.F.R. § 3.156 
(2008).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

Under applicable criteria, VA has certain notice and 
assistance obligations to claimants.  See 38 U.S.C.A. 
§§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 
3.159, 3.326(a).  As to reopening the Veteran's claim for 
entitlement to service connection for an acquired psychiatric 
disability, to include PTSD, the Board is granting the 
benefit sought on appeal.  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 considered.

II.  New and Material Evidence

The Veteran's claim of entitlement to service connection for 
an acquired psychiatric disability, referred to as PTSD, was 
denied by a May 2004 rating decision.  See Clemons v. 
Shinseki, No. 07-558 (Vet. App. Feb. 17, 2009) (holding that 
although a Veteran may only identify PTSD, the Veteran's 
claim "cannot be limited only to that diagnosis, but must 
rather be considered a claim for any mental disability that 
may be reasonably encompassed").  The Veteran failed to 
appeal, and his claim became final.  38 C.F.R. § 20.1103.  
However, a previously denied claim may be reopened by the 
submission of new and material evidence.  38 U.S.C.A. § 5108; 
38 C.F.R. § 3.156.

New evidence is defined as evidence not previously submitted 
to agency decision-makers.  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 
C.F.R. § 3.156(a).

The RO denied the Veteran's earlier claim on the basis that 
the Veteran was not affirmatively diagnosed with PTSD.  That 
has since occurred, and as this relates to the reason that 
his claim was originally denied, it is new and material, as 
contemplated by the pertinent law and regulations, and serves 
as a basis to reopen the Veteran's claim.  See 38 U.S.C.A. § 
5108; 38 C.F.R. § 3.156(a) (2008).


ORDER

New and material evidence having been presented, the 
Veteran's claim is reopened, and to this extent the appeal is 
granted.  


REMAND

As referenced above, the Veteran's medical records reflect a 
diagnosis of PTSD.  He now emphasizes that the stressful 
event that caused this disorder was his discovery of the body 
of a fellow member of his unit, who had committed suicide by 
hanging, in May 1971.  The Board notes that the date provided 
by the Veteran at his Board hearing, May 1971, is consistent 
with the dates of the Veteran's Vietnam service, as reflected 
in his service personnel records, and previous attempts to 
corroborate this event used a May 1970 date, (prior to the 
Veteran's Vietnam service, although the date he initially 
provided)  In any event, research should be conducted in an 
attempt to corroborate this reported service-related PTSD 
stressor.

Additionally, the Board notes that the Veteran has also been 
diagnosed with major depressive disorder and a provisional 
delusional disorder, somatic type.  Pursuant to Clemons v. 
Shinseki, referenced supra, the Veteran's PTSD claim 
encompasses claims for service connection for other acquired 
psychiatric disabilities.  However, the Veteran's service 
treatment records are not currently associated with his 
claims file, and a review of the record does not reflect that 
the RO has previously attempted to obtain them.  Accordingly, 
attempts to obtain these records should be made and 
documented in the Veteran's claims file.

Finally, after completion of this development, the Veteran 
should be scheduled for an appropriate VA examination to 
determine the nature and etiology of any acquired psychiatric 
disabilities, including their relationship to service.

Accordingly, the case is REMANDED for the following action:

1.  The AMC should obtain the Veteran's VA 
treatment records from June 2006 to the 
present.

2.  The AMC should attempt to obtain the 
Veteran's service treatment records and 
document such attempts in the Veteran's 
claims file.

3.  The AMC should contact the appropriate 
entity and attempt to obtain any records 
(operational reports-lessons learned or 
similar document) that narrates the 
activities of HHC US Army Support Command, 
Saigon, between December 1970 and December 
1971, and in particular whether it was in 
the vicinity of incoming hostile fire 
during the Veteran's service during that 
period, and whether a member of it (Robert 
Washington) committed suicide by hanging 
between April and June 1971.

4.  Thereafter, the Veteran should be 
scheduled for a VA psychiatric examination 
to determine the nature, extent and 
etiology of any current psychiatric 
disability.  

The claims file, including the Veteran's 
service treatment records, should be made 
available to the examiner in conjunction 
with the examination.  

The examiner is asked to express an 
opinion as to whether it is at least as 
likely as not, i.e., a 50 percent 
probability or greater, that any diagnosed 
psychiatric disorder had its onset in 
service, and if a diagnosis of PTSD is 
considered appropriate, the specific 
stressor(s) on which that diagnosis is 
based should be identified.  

A complete rationale should be provided 
for all opinions expressed.  If the 
examiner determines that a medically-sound 
opinion cannot be reached, it is requested 
that an explanation as to why that is so 
be included.   
 
5.  Following completion of the above, the 
RO should again review the record.  If the 
benefit sought on appeal remains denied, 
the Veteran and his representative should 
be furnished a supplemental statement of 
the case and given the opportunity to 
respond thereto.  Thereafter, the case 
should be returned to the Board for 
further appellate consideration if 
appropriate. 

The Veteran has the right to submit additional evidence and 
argument on the 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. 2008).




______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs