Citation Nr: 1002883 Decision Date: 01/20/10 Archive Date: 02/01/10 DOCKET NO. 07-21 049 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen a previously denied claim for service connection an acquired psychiatric disorder, to include anxiety and posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, to include depression, anxiety, and PTSD. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his niece ATTORNEY FOR THE BOARD Katie Molter, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to August 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision in which the RO continued the previous denial of service connection for active psychosis (drug and alcohol psychosis) (also claimed as depression and anxiety). The Veteran perfected a timely appeal with respect to that decision. Broadly construing the Veteran's contentions of having depression, anxiety, and PTSD, the Board has recharacterized the Veteran's anxiety and PTSD claims as stated on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). As the Board must first decide whether new and material evidence has been received to reopen the claim for service connection before it can address the matter on the merits-and in light of the Board's favorable action on the Veteran's petition to reopen the claim-the Board has characterized the appeal as encompassing the two issues listed on the title page. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); see also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran testified in front of the undersigned Veterans Law Judge at a Board hearing in November 2009. A copy of the transcript from that hearing has been reviewed and associated with the claims file. The issue of entitlement to an acquired psychiatric disorder, to include depression, anxiety, and 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. In an October 1973 rating decision, the RO denied service connection for a nervous condition, to include anxiety reaction; and in an August 2004 rating decision, the RO denied service connection for PTSD. The Veteran was properly notified and did not file an appeal, and the decisions became final. 2. The evidence added to the record since the October 1973 and August 2004 rating decisions was not previously submitted to agency decision makers, is not cumulative or redundant and, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disorder. CONCLUSION OF LAW Subsequent to the final October 1973 and August 2004 rating decisions, new and material evidence has been presented to reopen the claim of service connection for an acquired psychiatric disorder. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In light of the Board's favorable decision on the Veteran's petition to reopen claim, the Board finds that all notification and development action needed to fairly adjudicate this appeal has been accomplished. II. Pertinent Laws and Regulations Petition to Reopen the Previously Denied Claim In general, a claim, which has been finally adjudicated in a RO decision or Board decision, may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b) 7105(c) (West 2002); 38 C.F.R. § 3.160(d) (2009). The exception to this rule is 38 U.S.C.A. § 5108 (West 2002), which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The Board notes that there has been a regulatory change with respect to the definition of what constitutes new and material evidence, which applies prospectively to all claims made on or after August 29, 2001. See 66 Fed. Reg. 45,620-30 (Aug. 29, 2001) [codified at 38 C.F.R. § 3.156(a)]. In the current case, evidence construed as a claim to reopen was received in November 2009, subsequent to that date. Therefore, the current version of the law, which is set forth in the following paragraph, is applicable in this case. New evidence means existing 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) (2009). A VA adjudicator must follow a two-step process in evaluating previously denied claims. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, then the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all of the evidence, both new and old, after ensuring that VA's statutory duty to assist the claimant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas- Gonzalez v. West, 12 Vet. App. 321, 328 (1999). For the limited purpose of determining whether new and material evidence has been submitted, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). III. Analysis In rating decisions dated in October 1973 and August 2004, the RO denied service connection for an acquired psychiatric disorder to include anxiety reaction and PTSD, respectively. These decisions were predicated on the finding (in October 1973) that the neuropsychiatric manifestations noted in service were acute and transitory and resolved without permanent residuals, and the finding (in August 2004) that the record failed to show a confirmed diagnosis of PTSD or verification of a stressor. The evidence of record at that time consisted of various VA treatment records, service treatment records, and statements from the Veteran. Those records showed that the Veteran was hospitalized from approximately December 1972 to January 1973 for acute drug and alcohol psychosis. Service treatment records dated in July 1967 show that the Veteran was diagnosed with anxiety with hysterical reaction. January 1968 service treatment records showed that the Veteran requested to see a psychiatrist and complained of shaking and rapidly changing moods for several months. The evidence added to the record since the October 1973 and August 2004 rating decisions consist of additional VA treatment records and military transfer orders. The newly submitted evidence, VA treatment records dated from June 2008 to November 2009 show that the Veteran has been diagnosed with an acquired psychiatric disorder, namely PTSD. The evidence that has been submitted since the October 1973 and August 2004 rating decisions is both new and material. 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) (2009). The evidence submitted shows that the Veteran has been diagnosed with PTSD. Thus, the evidence tends to establish a previously unestablished fact that was necessary to substantiate the claim. After reviewing the record, the Board finds that new and material evidence has been submitted to reopen the Veteran's service connection claim for an acquired psychiatric disorder, to include anxiety and PTSD. ORDER New and material evidence having been received, service connection for an acquired psychiatric disorder, to include anxiety and PTSD, is reopened, and is granted to this extent only. REMAND With respect to the Veteran's claim for service connection for an acquired psychiatric disorder, to include depression, anxiety, and PTSD, the Board has determined that further development is warranted. According to 38 C.F.R. § 3.304(f) (2009), service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with § 4.125(a) (i.e., DSM-IV); (2) a link, established by medical evidence, between current PTSD symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. With regard to the third PTSD criterion, evidence of an in- service stressor, the evidence necessary to establish that the claimed stressor actually occurred varies depending on whether it can be determined that the veteran "engaged in combat with the enemy." 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d). 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, then the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). Where a determination is made that the veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In these situations, the record must contain service records or other corroborative evidence that substantiates or verifies his testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Moreover, a medical opinion diagnosing PTSD after the fact does not suffice to verify the occurrence of the claimed in- service stressor. See Moreau, 9 Vet. App. at 395- 396; Cohen v. Brown, 10 Vet. App. 128, 142 (1997). Competent medical evidence shows that the Veteran has been diagnosed with PTSD. Specifically, a June 2009 VA treatment record showed an Axis I diagnosis of PTSD. The claims file does not contain the Veteran's DD Form 214. Therefore, the Board cannot determine whether the Veteran was engaged in combat. The Veteran testified at the November 2009 hearing that while he was stationed at Long Binh, he came under mortar and rocket fire attacks. He stated that the USO building was hit. Transfer letters show that the Veteran was transferred to temporary duty through Saigon and through Tan Son Nhut Aire Force Base, over by Long Binh. Transfer orders also show that the Veteran was aboard the USS Harnett but it is unclear from the claims file when the Veteran was aboard the ship. The evidence of record does not include any evidence of a verified in-service stressor which is related to his diagnosis of PTSD. The Veteran has identified several stressors. As stated above the Veteran has indicated that while he was stationed at Long Binh, he came under mortar and rocket fire attacks. He stated that the USO building was hit. Additionally the Veteran stated that when he was aboard the USS Harnett, wires were observed going from the shoreline to the ship and a bomb type mechanism was found to be attached to the bottom of the ship. It does not appear that these stressors have been attempted to be verified. The Veteran submitted a log book from the USS Harnett. The log book contains a December 27, 1968, entry which states: "observed loud explosion port side amidships. Report on large objects floating in the water port side. 0039 addressed the crew and informed them that two suspected mines were attached to the ship port side. Intentions were to load mines in captured VC sampan moored port side and train sampan down river off stern. Wires found on screw guards appeared to indicate further sabotage. Explosives disarmed and reported to be approximately 60 pound charge of Chinese TNT and U.S. C4 attached to electrical wire to shore. Original explosion was detonation charge of insufficient magnitude to detonate the high explosive charge." This entry seems to corroborate the Veteran's testimony regarding his stressor while aboard the USS Harnett, however, it is not clear from the claims file whether the Veteran was aboard the ship at the time of this incident. Thus, upon remand the Veteran's personnel file and DD Form 214 should be obtained in order to determine whether the Veteran was engaged in combat and to determine the dates the Veteran was aboard the USS Harnett. Additionally, the Veteran's stressors should be attempted to be verified. Finally, the Veteran should be afforded a VA examination. Service treatment records show that the Veteran diagnosed with anxiety while on active duty. Subsequently, the Veteran has been diagnosed with PTSD. A June 2004 VA treatment record showed that the Veteran had had a psychiatric admission and mood swings since service. A veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. Here, a VA treatment record seems to indicate that the Veteran has had continued psychological symptomatology since service and as such, under McLendon, a VA examination and opinion should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding personnel records for the Veteran's active duty. Specifically, the Veteran's DD Form 214 which covers the service dates October 1965 to August 1968 should be obtained. If such records are unavailable it should be clearly noted in the claims file. 2. Ask the Veteran to provide more specific information regarding his reported stressful events during service. This includes supporting details such as the specific locations, first and last names of any individuals involved, and time frames during which the claimed incidents occurred (preferably, within no more than a 60-day time period for each claimed incident). Advise the Veteran that he can also submit "buddy statements" containing verifiable information regarding the events claimed as "stressors" during his military service. Advise the Veteran that this information is vitally necessary in order to obtain supportive evidence of the claimed stressful events he experienced; without which, his claim may be denied. 3. With this information, the RO should review the file and prepare a summary of all of the Veteran's claimed in-service stressors that might be verifiable. This summary, as well as any additional information obtained from the Veteran concerning his alleged stressors and any relevant information from his service personnel records, should be sent to JSRRC requesting that an attempt be made to independently verify the claimed stressors. The JSRRC should be requested to provide any additional information that might corroborate the Veteran's alleged stressors. A search of unit and organizational histories should be conducted in an effort to verify attacks and casualties if deemed necessary. Specifically, the JSRRC should supply a unit history operation report/lessons learned document describing the activities of the Veteran's unit to establish whether the unit was subjected to mortar or rocket attacks, whether the USO was hit, and whether the USS Harnett experienced a bomb incident during the period in question. A copy of the request for these documents and any responses should be included in the claims file. If such records are unavailable it should be clearly noted in the claims file. 4. After receiving a response from JSRRC, the RO should make a determination as to which (if any) stressors are corroborated, to include consideration as to whether the Veteran was involved in combat. If the RO determines that the Veteran was involved in combat, then corroborative evidence is not required regarding any combat-related stressors nor is a VA examination required. However, if it is determined that the Veteran was not in combat and if, and only if, a stressor is verified, then the RO is to inform the examiner of the stressor(s) designated as verified, and that only the verified stressor(s) may be used as a basis for a diagnosis of PTSD. 5. Schedule the Veteran for an examination by a VA examiner with the appropriate expertise in order to determine the nature and etiology of any psychiatric disorder, to include depressive disorder and anxiety disorder, found to be present; and to determined if the Veteran meets the diagnostic criteria for PTSD and, if so, whether such is linked to an in-service verified stressor. The claims folder and a copy of this Remand must be provided to the examiner for review. The examiner should note in the examination report that he or she has reviewed the claims file. The psychiatric examination is to include a review of the Veteran's history (in- service and post-service) and current complaints, as well as a comprehensive mental status evaluation and any tests deemed as necessary. The examiner must offer an opinion addressing the following questions: (1) Does the Veteran meet the diagnostic criteria for PTSD as defined by the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders? If so, is it at least as likely as not (50 percent or greater probability) that the Veteran's PTSD is causally linked to a verified in-service stressor, event, or incident? (2) Has the Veteran developed an acquired psychiatric disorder other than PTSD and; if so, please specify the diagnosis (or diagnoses). Is it at least as likely as not (50 percent or greater probability) that any current diagnosis of a psychiatric disorder, other than PTSD, had its onset during service; or, was such a disorder caused by any event or incident that occurred during service? The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against a causal relationship. The examiner is requested to answer the question posed with the use of the "as likely," "more likely," or "less likely" language. A complete rationale must be given for any opinion expressed, and the foundation for all conclusions should be set forth. The report of the examination should be associated with the claims file. 6. After undertaking any additional notice or development deemed appropriate, the RO/AMC should readjudicate the issue of entitlement to service connection for an acquired psychiatric disorder, to include depression, anxiety and PTSD, on the basis of all evidence on file and all governing legal authority, inclusive of 38 C.F.R. § 3.304(f) (2009). If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. The requisite period of time for a response should be afforded. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. The Veteran 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. 2009). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs