Citation Nr: 1005437 Decision Date: 02/05/10 Archive Date: 02/25/10 DOCKET NO. 05-41 572 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for tremors. 2. Whether new and material evidence has been received to reopen the claim of service connection for posttraumatic stress disorder (PTSD). 3. Whether new and material evidence has been received to reopen the claim of service connection for migraine headaches. 4. Whether new and material evidence has been received to reopen the claim of service connection for a nervous condition with depression and memory loss, claimed as anxiety and nerves. REPRESENTATION Appellant represented by: Arkansas Department of Veterans Affairs WITNESSES AT HEARINGS ON APPEAL The Veteran, his spouse and his brother ATTORNEY FOR THE BOARD S. Bush, Counsel INTRODUCTION The Veteran had active military service from August 1970 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 RO decision that denied the Veteran's petition to reopen previously denied claims of service connection for tremors, migraine headaches, and nervous condition with depression and memory loss. Although the rating decision on appeal adjudicated the claim of service connection for PTSD on the merits, a review of the file shows that the claim was previously denied by an unappealed rating decision in March 2001. The Board is neither required nor permitted to analyze the merits of a previously denied claim if new and material evidence has not been submitted. Butler v. Brown, 9 Vet. App. 167, 171 (1996). Therefore, even though the RO has reopened the claim and adjudicated on the merits, the Board must first determine if the claim was properly reopened (i.e., if new and material evidence was received), and only thereafter review the merits. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 26 5 F.3d 1366 (Fed. Cir. 2001). The claim has accordingly been characterized as a "new and material evidence" issue as reflected on the title page. The Veteran and his brother testified before the undersigned Veterans Law Judge in a hearing at the RO in January 2007. The Veteran and his spouse testified before a Hearing Officer at the RO in October 2004. Transcripts of both hearings are of record. In December 2007, the Board remanded the claims to the RO for additional development. The now reopened claim of service connection for PTSD is addressed in the REMAND portion of this document and is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. Stayed issue-new and material evidence to reopen service connection for tremors On October 13, 2009, in accordance with authority provided in 38 U.S.C. § 1116, the Secretary of Veterans Affairs announced his decision to establish presumptions of service connection, based upon exposure to herbicides within the Republic of Vietnam during the Vietnam era, for three new conditions: ischemic heart disease, Parkinson's disease, and B cell leukemias. As required by 38 U.S.C. 1116, the Department of Veterans Affairs (VA) will issue regulations through notice and comment rule-making procedures to establish the new presumptions of service connection for those diseases. Those regulations will take effect on that date that a final rule is published in the Federal Register. Until that time, VA does not have authority to establish service connection and award benefits based upon the planned new presumptions. On November 20, 2009, the Secretary of Veterans Affairs directed the Board to stay action on all claims for service connection that cannot be granted under current law but that potentially may be granted based on the planned new presumptions of service connection for ischemic heart disease, Parkinson's disease, and B cell leukemias based upon exposure to herbicides used in the Republic of Vietnam during the Vietnam era. As this appeal contains at least one claim that may be affected by these new presumptions, whether new and material evidence has been submitted to reopen the claim of service connection for tremors, the Board must stay action on that matter in accordance with the Secretary's stay. Once the planned final regulations are published, the adjudication of any case or claim that has been stayed will be resumed. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issues herein decided has been accomplished. 2. The RO denied the Veteran's original claims of service connection for PTSD, migraine headaches, and a nervous condition with depression and memory loss in a March 2001 rating decision; the Veteran was notified of this decision and of his appellate rights, but did not timely appeal from this determination. 3. The evidence received since the March 2001 rating decision is neither cumulative nor redundant of evidence of record at the time of the prior denial of service connection for PTSD, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 4. The RO denied the Veteran's petition to reopen his claims of service connection for migraine headaches and a nervous condition with depression and memory loss in a January 2002 rating decision; the Veteran was notified of this decision and of his appellate rights, but did not timely appeal from this determination. 5. The evidence received since the January 2002 rating decision is cumulative and redundant of that previously on file and does not, when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claims or otherwise raise a reasonable possibility of substantiating the claims for migraine headaches and a nervous condition with depression and memory loss. CONCLUSIONS OF LAW 1. Subsequent to the final March 2001 RO decision, new and material evidence has been received to reopen the claim of service connection for PTSD. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2009). 2. Subsequent to the final January 2002 RO decision, new and material evidence has not been received to reopen the claims of service connection for migraine headaches and a nervous condition with depression and memory loss. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7104, 7105 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.156 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Under VCAA, VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. 38 U.S.C.A. § 5102; 38 C.F.R. § 3.159(b)(2). Second, VA has a duty to notify a claimant of the information and evidence needed to substantiate and complete a claim, notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The VCAA notice should also include information about the basis for a prior final decision, what is necessary to reopen a claim, and about what is necessary to establish the underlying claim for the benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). Letters dated in February 2005, May 2005 and April 2008 (issued pursuant to the Board's January 2008 remand instructions) satisfied these criteria. In the April 2008 letter the AMC looked at the bases for the denials in the prior decisions, and, in so doing, informed the Veteran of the bases for the prior March 2001 and January 2002 denial of his claims. In any event, since the Board's action hereinbelow reopens the claim for PTSD for adjudication on the merits, there is no prejudice to the Veteran under Kent as to that claim. In the April 2008 VCAA letter, the Veteran was advised of the type of evidence needed to reopen service connection for his claimed disorders. The February 2005 and May 2005 VCAA letters advised the Veteran of what evidence was needed to substantiate a claim for service connection, what part of that evidence is to be provided by the Veteran, and what part VA will attempt to obtain for him. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to the VA notice. In addition, the Veteran was notified how disability ratings and effective dates were assigned in the April 2008 VCAA letter plus an additional letter from the RO dated in March 2006 and a letter from the AMC dated in March 2008. Following the foregoing development, the AMC readjudicated the Veteran's claims. Therefore, there is no prejudice to the Veteran due to any defect in the timing of the notice. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). VA has a duty to assist a claimant in obtaining evidence needed to substantiate a claim. This assistance includes obtaining all relevant evidence adequately identified in the record, and in some cases, affording VA examinations. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VCAA does not require VA to assist with a VA examination in claims to reopen except when new and material evidence is presented or secured. 38 U.S.C.A. § 5103A(f). There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claims. The Board is satisfied that VA has sufficiently discharged its duty in this matter. II. New and Material Evidence Generally, a claim that has been denied in a Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 511(a), 7103(c), 7104(a), 7105(c) (West 2002); 38 C.F.R. §§ 20.1100 (2009); see also Hayslip v. Principi, 364 F.3d 1321 (Fed. Cir. 2004). An exception to this rule is 38 U.S.C.A. § 5108, 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. 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 C.F.R. § 3.156(a), effective on and after August 29, 2001. In addition, for the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person making them. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A. PTSD Previously, the RO denied service connection on the merits in a March 2001 rating decision based on the RO's determination that the evidence showed no diagnosis of PTSD or a verified in-service stressor. The Veteran was advised of the denial but did not appeal. In this case, the evidence submitted after March 2001 consists of letters authored by the Veteran during his Vietnam service, medical treatment records, statements submitted by the Veteran and others in support of the claim, and the Veteran's testimony at the RO in October 2004 and January 2007. Of particular significance are the letters, which document various rocket and mortar attacks during the Veteran's service in Vietnam. Additionally, outpatient records from the North Little Rock VA Medical Center (VAMC) reflect a current diagnosis of PTSD. The Board finds that this new evidence, when considered by itself or in conjunction with the evidence previously of record, relates to an unestablished fact necessary to substantiate the Veteran's claim. This evidence is neither cumulative nor redundant of the evidence of record at the time of the March 2001 RO decision and, when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the Veteran's claim and raises a reasonable possibility of substantiating the claim. Having determined that new and material evidence has been added to the record, the Veteran's application to reopen the claim of service connection for PTSD is granted. B. Migraine Headaches and a Nervous Condition with Depression and Memory Loss In a January 2002 rating decision, the RO denied the reopening of the claims for migraine headaches and a nervous condition with depression and memory loss, as the Veteran failed to submit evidence of a chronic disability since discharge from service or, alternatively, medical evidence of a nexus between the claimed disabilities and military service. In this case, the evidence submitted after the January 2002 RO decision consists of medical treatment records (including those submitted in conjunction with his claim for benefits from the Social Security Administration), a statement from W.D.M. dated in September 2003, service personnel records, copies of service medical records, statements submitted by the Veteran and other laypersons in support of the claims, an undated statement from registered nurse C.W., and the testimony of the Veteran, his brother and his spouse at the RO in October 2004 and January 2007. Some of the medical treatment records are duplicative of evidence of record at the time of the January 2002 rating decision and are accordingly not new. The remainder of the medical treatment records document current treatment for migraine headaches and a nervous condition with depression and memory loss. Additionally, the September 2003 statement from Dr. W.D.M. notes the presence of current headaches. Crucially, these recent treatment records do not indicate a medical nexus between any of these disabilities and military service. As such, these medical records are not new and material. See also Cornele v. Brown, 6 Vet. App. 59, 62 (1993); Mintz v. Brown, 6 Vet. App. 277, 280 (1994) (medical evidence that merely documents continued diagnosis and treatment of disease, without addressing the crucial matter of medical nexus, does not constitute new and material evidence). The service personnel records include information on the Veteran's duty assignments, campaigns, awards and decorations, military occupational specialty, and specialized training. These records do not reflect the presence of a chronic disability since discharge from service or provide medical evidence of a nexus between the claimed disabilities and military service and are therefore not material. The copies of service medical records submitted by the Veteran are duplicative of evidence already considered by the RO in January 2002 and are accordingly not new. With respect to the Veteran's own statements and statements of other laypersons such as his brother and spouse, to include the testimony of the Veteran, his brother and his spouse to the effect that his current headaches and nervous condition with depression and memory loss are related to his military service, such evidence is cumulative and redundant of statements made prior to the January 2002 decision and accordingly is not new. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). Moreover, lay persons without medical training, such as the Veteran, his brother and his spouse, are not competent to opine on medical matters such as nexus opinions. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). See also, Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). Indeed, in Moray v. Brown, 5 Vet. App. 211 (1993), the Court noted that laypersons are not competent to offer medical opinions and that such evidence does not provide a basis on which to reopen a claim for service connection. In Routen v. Brown, 10 Vet. App. 183, 186, (1997), the Court noted "[l]ay assertions of medical causation . . . cannot suffice to reopen a claim under 38 U.S.C.A. 5108." The Board acknowledges the undated statement submitted by the Veteran's sister-in-law C.W., who is a registered nurse and is therefore competent to opine on medical matters. However, C.W. merely notes that the Veteran is currently treated for severe depression and currently suffers from physical pain. Crucially, C.W. did not offer a nexus opinion relating the Veteran's nervous condition with depression and memory loss or migraines to his military service (though she ascribed his current PTSD symptoms to life-threatening experiences in Vietnam). In short, the additional evidence does not serve to establish, or even suggest, that the Veteran's headaches and nervous condition with depression and memory loss are related to his military service. The evidence submitted subsequent to the January 2002 denial of the Veteran's claims is therefore cumulative and redundant of the evidence of record at that time, and it therefore does not raise a reasonable possibility of substantiating the claims. See 38 C.F.R. § 3.156(a) (2008). Accordingly, new and material evidence has not been submitted, and the claims for entitlement to service connection for headaches and a nervous condition with depression and memory loss are not reopened. The benefits sought on appeal remain denied. ORDER As new and material evidence has been received to reopen the claim of service connection for PTSD, the appeal to this extent is allowed subject to further action as discussed hereinbelow. As new and material evidence has not been submitted to reopen the previously denied claim of service connection for migraine headaches, the appeal to this extent is denied. As new and material evidence has not been submitted to reopen the previously denied claim of service connection for a nervous condition with depression and memory loss, the appeal to this extent is denied. REMAND After a careful review of the claims folder, the Board finds that the Veteran's claim of service connection for PTSD must be remanded for further action. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). In a December 2004 PTSD stressor statement, the Veteran describes the following stressful events during his service in Vietnam: exposure to hostile fire and rocket/mortar attacks; seeing piles of dead bodies; losing family members back home; witnessing infants and teens lose their limbs or lives; and hearing crying and screaming babies and children. Additionally, the Veteran has recently submitted copies of letters written to his family members while he was serving in Vietnam describing various mortar and rocket attacks. The service personnel record shows that he was present in the Republic of Vietnam from May 10, 1971 to March 5, 1972. During that time he served as a member of the 557th Engineer Company, 31st Engineer Battalion and the 501st Engineer Battalion, 3rd Brigade, 1st Calvary Division. See the Veteran's service personnel records. Given that the Veteran has provided a description of his in- service stressors, it is the responsibility of the RO to contact the United States Joint Services Records Research Center (JSRRC) (previously the U.S. Armed Services Center for Research of Unit Records) so as to obtain the his unit records and to conduct further unit research, if possible. The Veteran should be afforded a VA medical examination, to determine whether the diagnosed PTSD is attributable to the in-service stressor(s). Accordingly, the remaining issue is REMANDED for the following actions: 1. The RO should review the Veteran's completed PTSD questionnaire received in December 2004 and the copies of letters authored by the Veteran during his Vietnam service received in April 2008 and make a list of the in-service PTSD stressors described therein. This list should be provided to the JSRRC, which should be requested to research these stressors and to provide records of the 557th Engineer Company, 31st Engineer Battalion and the 501st Engineer Battalion, 3rd Brigade, 1st Calvary Division. Upon receipt of a response from JSRRC, the RO should determine whether the received materials corroborate a claimed in-service stressor or stressors. 2. Then, the RO should arrange for the Veteran to undergo appropriate VA psychiatric examination, by a physician, at an appropriate VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the psychiatrist designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented psychosocial history and assertions. All tests and studies, to including psychological testing, if deemed warranted, should be accomplished, and all clinical findings should be reported in detail. The examiner should render an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran has PTSD as a result of the stressor(s) verified by the RO. The examiner should explain how the diagnostic criteria are met, to include comment upon the link between any of the verified stressor(s) and the Veteran's symptoms. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 3. To help avoid any future remand, the RO must ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is undertaken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing the requested action, and any other development deemed appropriate, the RO should readjudicate the claim for service connection for PTSD. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative a Supplemental Statement of the Case (SSOC) that includes citation to and discussion of any additional legal authority considered, as well as clear reasons and bases for all determinations, and afford them the appropriate time for response thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs