Citation Nr: 1009552 Decision Date: 03/15/10 Archive Date: 03/24/10 DOCKET NO. 06-34 099 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a skin disability. 2. Entitlement to service connection for a left foot disability. 3. Entitlement to service connection for a right foot disability. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Arkansas Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew W. Blackwelder, Associate Counsel INTRODUCTION The Veteran had active military service from May 1965 to June 1967. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2005 rating decision. In June and August 2007, the Veteran filed claims of entitlement to service connection for peripheral neuropathy (all extremities), for fibromyalgia, and for a heart condition all as secondary to his diabetes mellitus, as these claims have not yet been adjudicated, they are referred to the RO for appropriate action. The Veteran testified at a personal hearing before the undersigned in June 2008. Herein, the Board reopens the service connection claim for PTSD. The reopened issue 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. (CONTINUED ON NEXT PAGE) FINDINGS OF FACT 1. In June 2008, the Veteran indicated that he wanted to withdraw his appeal seeking entitlement to service connection for a skin disability, a right foot disability, and a left foot disability, and the Board received such request prior to the promulgation of a decision. 2. In June 1998, the RO declined to reopen the Veteran's service connection claim for PTSD; the Veteran did not file a timely appeal following appropriate notice, and that decision became final. 3. The evidence submitted since the June 1998 rating decision raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for PTSD. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the Veteran of a substantive appeal pertinent to the issue of entitlement to service connection for a skin disability are met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2009). 2. The criteria for withdrawal by the Veteran of a substantive appeal pertinent to the issue of entitlement to service connection for a right foot disability are met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2009). 3. The criteria for withdrawal by the Veteran of a substantive appeal pertinent to the issue of entitlement to service connection for a left foot disability are met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2009). 4. The June 1998 rating decision that declined to reopen the Veteran's service connection claim for PTSD is final. 38 U.S.C. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1998); currently, 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009). 5. Evidence received since the June 1998 rating decision is new and material, and the Veteran's service connection claim for PTSD is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Dismissals The Veteran perfected an appeal from a rating decision which, in pertinent part, denied service connection for a skin disability, a right foot disability, and a left foot disability. During a pre-hearing conference, the Veteran indicated that he was withdrawing the issues of entitlement to service connection for a skin disability, a right foot disability, and a left foot disability. An appeal may be withdrawn in writing at any time before a decision is rendered by the Board. 38 C.F.R. § 20.204(b) (2009). The Veteran's statements at the pre- hearing conference have been transcribed and reduced to writing, therefore his withdrawal of these issues is valid. Once the Veteran withdrew this issue, there remained no allegations of error of fact or law for appellate consideration. The Board does not have jurisdiction to review the issues of entitlement to service connection for a skin disability, a right foot disability, and a left foot disability and therefore, those claims are dismissed. 38 U.S.C.A. § 7105(d)(5) (West 2002). II. New and Material Evidence Claim The Veteran is seeking to reopen a previously denied service connection claim for PTSD. The Board concludes that the VCAA does not preclude the Board from adjudicating this portion of the Veteran's claim. This is so because the Board is taking action favorable to the Veteran by reopening his service connection claim for PTSD. See Bernard v. Brown, 4 Vet. App. 384 (1993). Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302. The Veteran's claim of entitlement to service connection for PTSD was initially denied by a March 1991 rating decision, on the basis that the Veteran had not provided specific stressor information. The Veteran was notified of that decision the next month, but did not file a timely appeal and that decision became final. 38 U.S.C. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1991); currently, 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009). The Veteran attempted to reopen his PTSD claim, but his claim was once again denied by the RO in a June 1998 rating decision. Such claim was denied on the basis that the Veteran had provided insufficient evidence of his reported stressors to allow for any third-party verification to be accomplished. The Veteran was notified of that decision in the same month, but did not file a timely appeal and that decision became final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1998); currently, 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009). However, to reopen a claim, new and material evidence must be presented or secured. 38 U.S.C.A. § 5108 (West 2002). "The Board does not have jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The Board is neither required nor permitted to analyze the merits of a previously-disallowed claim if new and material evidence is not presented or secured. Butler v. Brown, 9 Vet. App. 167, 171 (1996). When determining whether a claim should be reopened, the credibility of the newly- submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). In this case, based on the procedural history outlined above, the last final decision was issued by the RO in June 1998. Since the June 1998 rating decision is final, the Veteran's service connection claim for PTSD may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. See 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2009); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). "New" evidence is defined as 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) (2009). The Board points out that 38 C.F.R. § 3.156(a), which defines new and material evidence, was amended in 2001 and is applicable to claims to reopen filed on or after August 29, 2001. See 66 Fed. Reg. 45,620 (2001). The amended version of 38 C.F.R. § 3.156 applies in the instant case as the Veteran's claim to reopen was received after August 2001. At the time of the June 1998 rating decision, the evidence of record included service treatment records, and service personnel records which confirmed that the Veteran served in the Republic of Vietnam as a combat construction specialist from June 1966 to June 1967, but which failed to show that he received any medals that were specifically indicative of combat. Also of record was the report from an October 1990 VA psychiatric examination in which the Veteran was diagnosed with PTSD based on reported stressors that included carrying the "guts" of a wounded soldier. The Veteran was again diagnosed with PTSD at a VA examination in November 1997 after he described bringing back a dead pilot and helping to transport a badly wounded soldier to a treatment tent. In December 1997, the Veteran completed a stressor statement, indicating that he was stationed with the "C" company of the 19th Engineering Battalion. The Veteran described five stressful events which allegedly occurred while he was in Vietnam. These included: 1) helping to carry a Vietnamese soldier with his guts hanging out to a medical unit, while in Cam Duc during the summer of 1966; 2) going out on patrol and retrieving the body of a dead pilot whose Air Force "bird dog" plane was shot down around Cam Duc between July-September 1966 while the Veteran was TDY to a Special Forces unit; 3) having to load a soldier in his unit into an ambulance in approximately November 1966 who was reportedly killed when a flat tire blew off the truck and broke his neck; 4) being in tents in the Long Mi Valley in May or June 1967 when his unit came under rocket and mortar fire; and 5) having his convoy come under attack on Route 9 between An Khe and Pleiku while TDY with the First Air Cavalry Division in June or July 1966. The RO sought the morning reports from June through December 1966 for Company "C" of the 19th Engineering Battalion, but the National Archives reported in May 1998 that it was unable to locate any such records. As noted above, the Veteran's claim was then denied by a June 1998 rating decision which concluded that the Veteran had provided insufficient evidence of his reported stressors to allow for any third- party verification to be accomplished. The RO also noted that rocket and mortar attacks were common in Vietnam and were not sufficient to serve as a stressor upon which a diagnosis of PTSD could be based. Since June 1998, additional evidence has been added to the record. In March 2002, the Veteran reported that he was hit by a 5-ton dump truck while in Vietnam at some point between 1966 and 1967 and was treated at an Army Hospital in Qui Nhon. At a VA examination in April 2002, the Veteran reported having nightmares about a man he shot in Vietnam and about helping to hold a wounded soldier's "insides." The Veteran also had nightmares about being in fights, and he reported experiencing combat during his time in Vietnam. The Veteran was diagnosed with PTSD. The Veteran also added some detail to his reported stressors at an evaluation by a VA PTSD clinical team in May 2005. Specifically, the Veteran reported being stationed outside of Qui Nhon from June 1966 to June 1967. He indicated that he participated in a variety of assignments including a four month attachment to a Special Forces unit in a base camp. The Veteran reported helping to retrieve the body of a downed pilot; he recalled a Vietnamese soldier being shot and assisting a medic carry the wounded soldier, helping to pick up the soldier's abdominal organs; he recalled coming under frequent artillery and mortar fire while at An Khe; he recalled a soldier being killed while repairing a tire in the motor pool at Qui Nhon; he recalled an incident when the fuel storage are came under sniper fire, during which he sustained a cut to his right hand that required medical attention; and he recalled being in a number of fire fights and mortar attacks while completing his job. The Veteran was again diagnosed with PTSD. In August 2005, the Veteran completed another stressor statement reporting 11 possible stressors: 1) helping transport the wounded Vietnamese soldier in August or September 1966 at Cam Duc; 2) retrieving a dead pilot in August or September 1966 at Cam Duc; 3) witnessing a soldier killed while inflating a flat tire in the 19th Engineering Battalion Motor Pool in Qui Nhon in December 1966; 4) coming under sniper fire while hauling gravel from An Khe to Pleiku in June or July 1966; 5) coming under sniper fire, hearing bullets whizzing close to his head and diving behind a pipe cutting machine and slicing his right hand leading to blood poisoning and hospitalization in Early 1967 at An Khe; 6) watching a woman douse herself with gasoline and burn herself to death on television while stationed at Qui Nhon in April 1967; 7) being hit by a 5-ton dump truck at the motor pool in at Qui Nhon in late 1966, resulting in x-rays being taken and back pain; 8) contracting an infection from leech bites on his left legs preventing him from being able to wear boots for 2-3 weeks at Qui Nhon in mid 1966; 9) being hospitalized to check for asthma at Qui Nhon in mid 1966; 10) coming under mortar attacks while moving to the Long Mi Valley with the 19th engineering battalion in May 1967; and 11) being involved in a serious firefight in Da Nang in which a lieutenant, a captain, a first sergeant and a sergeant were all wounded. In October 2005, the RO again attempted to corroborate the Veteran's reported stressors including retrieving the body of the dead pilot on August 1, 1966; the cutting of his right hand in June 1966 during a sniper attack; and witnessing a woman burn herself to death in April 1967. Unfortunately, the Center for Unit Records Research (CURR) (now known as the U.S. Army and Joint Services Records Research Center (JSRRC)) was unable to verify any of the stressors. In September 2006, CURR replied that it needed to know what company the Veteran was assigned to. It confirmed that the Veteran's battalion was stationed in Qui Nhon during his time there, but was unable to find any documentation of an aircraft being shot down in the sight of the 19th engineering battalion, it was requested that the unit for the aircraft, the names of the personnel injured or the tail number of the aircraft would be helpful. No mention of any unit receiving sniper fire in either An Khe or Pleiku or of any woman burning herself to death was located. The Veteran replied in October 2006 that he could not remember any of the details sought by CURR other than he recalled a Lt. White being killed. He also clarified that the sniper attack had been on the road between Pleiku and An Khe, not in either place as was suggested by the CURR response. Buddy statements were also received from friends and family of the Veteran in October 2006, but none of the documents addressed any specific in-service incidents. In June 2008, the Veteran reiterated many of the stressors described above at a hearing before the Board, although he provided little additional detail. In June 2008, a VA psychologist confirmed that the Veteran currently had PTSD as a result of events he described having occurred during his tour of duty in Vietnam. Since his claim was last finally denied in 1998, the Veteran has added significant detail to his reported stressors, and he has reported several additional stressors. This evidence had not been previously submitted in this detail, and it is therefore considered to be new. Additionally, given that his claim was previously because no stressor had been verified, this new information is considered material. The Board also observed that, in the rating decision that previously denied the Veteran's claim, the RO noted that mortar and rocket attacks did not provide a stressor sufficient enough to support a diagnosis of PTSD. However, in the years since that decision, the Court of Appeals for Veterans Claims has specifically recognized that such attacks may in fact support a diagnosis of PTSD. See Pentecost v. Principi, 16 Vet. App. 124, 128 (2002); see also Suozzi v. Brown, 10 Vet. App. 307 (1997). Additionally, given that testimony is presumed credible for the purpose of reopening a claim, the detail regarding his stressors that was supplied by the Veteran is presumed credible and it therefore is considered to provide a reasonable possibility of substantiating his claim. As such, the criteria to reopen the Veteran's PTSD claim have been met; and the Veteran's claim is therefore reopened. ORDER Entitlement to service connection for a skin disability is dismissed. Entitlement to service connection for a left foot disability is dismissed. Entitlement to service connection for a right foot disability is dismissed. New and material evidence having been received, the Veteran's service connection claim for PTSD is reopened; and, to that extent, the Veteran's claim is granted. REMAND Although the additionally received evidence is sufficient to reopen the Veteran's service-connection claim for PTSD, additional development is required before the Board can adjudicate this claim on the merits. As described above, the Veteran is clearly diagnosed with PTSD based on his Vietnam experiences. However, there is no direct indication that the Veteran served in combat; and, as such, each reported in-service stressor must be corroborated and then only those corroborated stressors may be used to substantiate the diagnosis of PTSD. In this case, while several examination reports appear to link the Veteran's PTSD to specific events in service (namely the carrying the wounded soldier's "guts" and retrieving the pilot), these events have not been corroborated and therefore cannot, without additional corroboration, satisfy the stressor requirement for a claim of service connection for PTSD. Nevertheless, the Veteran has reported a number of additional stressors that he believes have also caused PTSD (citing 11 in August 2005); and more recent examinations reference the majority of the Veteran's stressors as described below. Unfortunately, as many of the Veteran's reported stressors have not been corroborated as of this date, an examination which more closely addresses the combination of corroborated stressors is necessary. However, it is first important to determine which reported stressors can be corroborated. The Veteran has reported a number of possible stressors and given approximate dates and locations. Specifically, he has reported 11 possible stressors: 1) helping transport a wounded Vietnamese soldier in August or September 1966 at Cam Duc; 2) retrieving a dead pilot from a plane crash in August or September 1966 at Cam Duc; 3) witnessing a soldier killed when a tire he was inflating flew off and struck him in the head in the 19th Engineering Battalion Motor Pool in Qui Nhon in December 1966; 4) coming under sniper fire while hauling gravel from An Khe to Pleiku in June or July 1966; 5) coming under sniper fire, hearing bullets whizzing close to his head, and diving behind a pipe cutting machine thereby slicing his right hand which led to blood poisoning and hospitalization in Early 1967 at An Khe; 6) watching a woman douse herself with gasoline and burn herself to death on television while stationed at Qui Nhon in April 1967; 7) being hit by a 5-ton dump truck at the motor pool in at Qui Nhon in late 1966 resulting in x-rays being taken and back pain; 8) getting an infection from leech bites on his left legs preventing him from being able to wear boots for 2-3 weeks at Qui Nhon in mid 1966; 9) being hospitalized to check for asthma at Qui Nhon in mid-1966; 10) coming under mortar attacks while moving to the Long Mi Valley in May 1967 with the 19th engineering battalion; 11) being involved in a serious firefight in Da Nang in which a lieutenant, a captain, a first sergeant and a sergeant were all wounded. Of these stressors, several, namely the leech bites and the asthma check, are clearly shown by the service treatment records, but it is unclear whether either would be considered sufficiently traumatic to cause PTSD. The Veteran also indicated that he watched a Buddhist woman immolate herself on television, and an internet search confirmed that such an incident occurred in the timeframe provided by the Veteran. However, it also is unclear whether witnessing an image such as this on television would be considered sufficiently traumatic to cause the Veteran's PTSD. The Veteran also reported that he came under sniper fire and had to dive for cover behind a pipe cutter, cutting his hand in the process. The Veteran added that as a result of the wound in his hand he eventually developed blood poisoning. Service treatment records show that on August 1, 1966, the Veteran was admitted with a diagnosis of cellulitis in his right hand. While no hospitalization records are contained in the Veteran's claims file, service treatment records declare on August 16, 1966 that the cellulitis in the Veteran's right hand had been cleaned out and he was returned to duty; and according to his separation physical examination report, he was noted to have a scar on his right hand that had not been noted on his enlistment physical report. The regulations require that credible supporting evidence that a claimed in-service stressor occurred be presented. While this medical evidence does not specifically reference a sniper attack, it is consistent with the Veteran's report of injury, and it will be therefore taken as sufficient to corroborate this specific stressor. It does not appear that any effort has been made to corroborate the Veteran's account of witnessing a soldier killed when a tire he was inflating flew off and struck him in the head in the 19th Engineering Battalion Motor Pool in Qui Nhon in December 1966. Given the specificities of this report, efforts should be made to corroborate it. It is also noted that the response from CURR indicated that the Veteran's company within the 19th Engineering Battalion was needed. Service personnel records show that the Veteran was assigned to Company C. Additionally, the research conducted by CURR only concluded that the Veteran's unit did not come under fire at either Pleiku or An Khe; however, the Veteran reported that his convoy came under fire on the road between An Khe and Pleiku. As such, the Board concludes that insufficient research was performed with regard to this reported stressor. With regard to the Veteran's contention that he was involved in a serious firefight in Da Nang in which a lieutenant, a captain, a first sergeant and a sergeant were all wounded, he has supplied insufficient detail to attempt to verify the occurrence of this event. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate records management agency and request that efforts be undertaken to corroborate each of the following reported stressors for the Veteran who was part of "C" Company of the 19th Engineering Battalion: A) evidence of a Vietnamese soldier being shot by a Viet Cong soldier who had infiltrated the camp in August or September 1966 at Cam Duc; B) evidence of a retrieving of a dead pilot from a plane crash in August or September 1966 near Cam Duc; C) evidence that a soldier was killed when a tire he was inflating flew off and struck him in the head in the 19th Engineering Battalion Motor Pool in Qui Nhon in December 1966; D) evidence of either sniper fire or mortar attacks engaging a convoy from An Khe to Pleiku that involved the 19th Engineering Battalion in June or July 1966; and E) evidence of the 19th engineering battalion coming under mortar attacks while moving to the Long Mi Valley in May 1967. 2. Once all the directed research is completed, the RO should determine which of the above-requested stressors, if any, have been corroborated by the development. In reaching this determination, the RO/ AMC should address any credibility questions raised by the record. 3. The Veteran should then be scheduled for a VA psychiatric examination. The examiner should be instructed which stressors have been corroborated (including the leech bites, being treated to asthma, coming under sniper fire leading to a hand injury, watching a Buddhist woman burn to death on television, and any additional stressor(s) that may be corroborated). The examiner should then opine whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's PTSD is a consequence of any, or all, of the Veteran's corroborated stressors from his military service. In doing so, the examiner should specify (1) whether each alleged stressor found to be established by the record by the RO was sufficient to produce PTSD; (2) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (3) whether there is a link between the current symptomatology and one or more of the in-service stressors found to be established by the record by the RO and found to be sufficient to produce PTSD by the examiner. Any opinion rendered must be supported by a complete rationale and reconciled with the evidence of record. 4. Thereafter, readjudicate the Veteran's service connection claim for PTSD. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. 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 (CONTINUED ON NEXT PAGE) other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ S. B. MAYS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs