Citation Nr: 1018564 Decision Date: 05/19/10 Archive Date: 06/04/10 DOCKET NO. 09-22 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J.C. Schingle, Associate Counsel INTRODUCTION The Veteran had active military service from May 1953 to April 1955. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for an acquired psychiatric disorder, to include 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 unappealed September 2003 rating decision, the RO denied entitlement to service connection for PTSD. 2. The additional evidence received since the September 2003 RO decision is new and material and does raise a reasonable possibility of substantiating the claim for service connection for PTSD. CONCLUSIONS OF LAW 1. The September 2003 RO decision, which denied the claim for service connection for PTSD, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2009). 2. 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). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Prior to the adjudication of the Veteran's claim, a letter was sent in August 2008 in accordance with the duty to notify provisions. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006) (holding that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish entitlement to the underlying claim). The Veteran was notified of the basis for the prior denial of his claim and of evidence that was needed to reopen his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The letter also notified the Veteran that evidence sufficient to reopen the previously denied claims must be "new and material," closely mirroring the regulatory language of 38 C.F.R. § 3.156(a). As to the duty to assist, the Veteran's service, VA, and private treatment records have been obtained and associated with the claims file. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. The Board notes that although the Veteran's service treatment records were obtained, his personnel records are not available for review. The Veteran's service personnel records were requested from the National Personnel Records Center (NPRC) and the NPRC provided a response in May 2003, indicating that the records were destroyed in a fire at the NPRC in 1973 and were not available. When, as here, a Veteran's complete service personnel records are unavailable through no fault of his, the VA's duty to assist, duty to provide reasons and bases for its findings and conclusions, and duty to consider carefully the benefit- of-the-doubt rule, are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). However, the threshold for allowance of a claim is not lowered and the need for probative medical nexus evidence causally relating the current disability at issue to service is not eliminated; rather, the Board's obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). VA's statutory duty to assist a claimant in the development of a previous finally denied claim does not attach until the claim has been reopened based on the submission of new and material evidence. Once a claim is reopened, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for a benefit under a law administered by VA, unless no reasonable possibility exists that such assistance would aid in substantiating the claim such as in a case where the claimant lacks legal eligibility for the benefit sought. 38 C.F.R. § 3.159(c)(4), (d) (2009). In this case, the Veteran has not been afforded a VA examination. However, with respect to the claim to reopen the previously disallowed claim for service connection for PTSD, the Board has granted the petition to reopen. The underlying claim for service connection is being remanded to the RO to ensure compliance with the duty to assist provisions of the VCAA. Therefore, in light of the favorable decision to reopen the Veteran's claim, herein, the Board finds that any deficiency in complying with VCAA concerning a reopened claim is harmless error and that no useful purpose would be served by remanding the appeal to the RO in this regard. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); see also Dingess/Hartman, supra. New and Material Evidence Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2009). Service connection for PTSD requires the following three elements: [1] a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor), [2] credible supporting evidence that the claimed in-service stressor(s) actually occurred, and [3] medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304(f) (2009). In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the Veteran's military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.304(f) (2009). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran actually "engaged in combat with the enemy." Id. If VA determines that the veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the veteran's lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f). No further development or corroborative evidence is required, provided that the claimed stressor is "consistent with the circumstances, conditions, or hardships of the veteran's service." Id. If, however, VA determines that the veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the veteran's lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the veteran's testimony or statements. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). Corroboration of every detail, including the veteran's personal participation is not required; rather the veteran only needs to offer independent evidence of a stressful event that is sufficient to imply his or her personal exposure. Suozzi v. Brown, 10 Vet. App. 307 (1997). See also Pentecost v. Principi, 16 Vet. App. 124 (2002). The Veteran's original claim for service connection for PTSD was denied by a September 2003 rating decision. The Veteran did not appeal and the decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2009). Subsequently, the Veteran requested to reopen his claim. In a September 2008 rating decision, the RO denied the request to reopen and the Veteran's claim was denied. Thereafter, the Veteran filed a timely appeal. Therefore, the laws and regulations governing finality and reopening of a previously disallowed claim are pertinent in the consideration of the current claim on appeal. Although the RO has denied reopening the previously denied claim for service connection, the Board is required to address this particular issue (e.g., the new and material claim) in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claim. In this regard, the Board notes that regardless of the RO's determination on the matter of reopening the Veteran's claim for service connection, that decision is not binding on the Board, and the Board must decide whether new and material evidence has been received to reopen the claim. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993) (holding that Board reopening is unlawful when new and material evidence has not been submitted). Thus, before reaching the merits, the Board must first rule on the matter of reopening of the Veteran's claim. A claimant may seek to reopen a finally adjudicated claim by submitting new and material evidence. 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). A decision by the RO shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification of the decision. A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except where there is clear and unmistakable error in the decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2009). Because the September 2003 RO decision is the last final disallowance, the Board must review all of the evidence submitted since that action to determine whether the Veteran's claim for service connection should be reopened and readjudicated. Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). If new and material evidence is presented with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. In determining whether new and material evidence has been submitted, "the Board must presume that the newly submitted evidence is credible." Justus v. Principi at 510. However, the Board is not required "to consider the patently incredible to be credible." Duran v. Brown, 7 Vet. App. 216 (1994); see also King v. Brown, 5 Vet. App. 19, 21 (1993) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992)) (noting that Board must not assume credibility of evidence "when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion"). At the time of the September 2003 rating decision, the evidence of record included the Veteran's service treatment records, lay statements from the Veteran and his spouse, a May 2003 psychological examination report, private treatment records from 1980 to 2003, and an August 2003 VA examination. Service treatment records were devoid of any evidence of treatment for or a diagnosis of a PTSD, or any related symptoms. The service records show no evidence of service in Korea; however, as noted above, the personnel records are unavailable for review. The Veteran's lay statements indicated his in-service stressors. Specifically, the Veteran reported that while driving a truck in Korea, his convoy was hit by sniper fire. He reported that although he never actually engaged in combat with the enemy, he was in close proximity to mortar fire and experienced distressing incidents such as seeing dead bodies and witnessing children killed when struck by a vehicle. He also reported nightmares and intrusive thoughts about war. The Veteran's spouse reported observable symptoms of the Veteran's post-service behavior such as restlessness, difficulty sleeping, anger, paranoia, difficulty conversing with others, and avoidance. Both the Veteran and his spouse noted that many of these symptoms coincided with the media coverage of the Iraq War in 2003. In a private May 2003 psychosocial evaluation, the examiner noted the Veteran's military history, including the above mentioned stressors. In addition, the Veteran reported that he helped carry several wounded comrades to an ambulance where he witnessed graphic wounds, blood and death. He reported seeing dead and wounded civilians near the DMZ in Korea as well as wounded enemy soldiers in a U.S. POW compound. He also reported seeing dead and wounded women and recounted that he had helped carry the bodies of American soldiers, not covered by body bags. He reported that he developed a nervous twitch and had problems with alcohol while in service. Based on examination findings, the examiner diagnosed PTSD based on the Veteran's reported in- service stressors. Private treatment records show the Veteran was treated for depression in May 2003. In an August 2003 VA examination, the Veteran reiterated the previously reported in-service stressors. The examiner diagnosed chronic PTSD and noted that psychosocial stressors were moderate including undertreated PTSD and anxiety. The September 2003 rating decision denied service connection for PTSD, in essence, because the Veteran's stressors were unable to be verified. The evidence of record since the September 2003 rating decision includes the Veteran's lay statements, VA treatment records from 2003 to 2009, and a May 2009 letter from a JSRRC Coordinator at the St. Paul, Minnesota RO. The Veteran provided more detailed information regarding his in service stressors. Specifically, he reported that he was assigned to the 42 Transportation Truck Company while in Korea from December 1953 to March 1955, located in the "Chun Chon" and "Inchon" areas. He reported that the sniper fire incident occurred in December 1953 or January 1954. The Veteran also provided additional details regarding the stressors relating to sniper fire and seeing dead bodies. Specifically, he stated that he saw the dead civilian Koreans in approximately January 1954. He reported a December 1954 conversation with his Captain regarding his mental state and the impact that the in-service stressors were having on him. Additionally, the Veteran reported witnessing the suicide of a fellow soldier while on the firing range in October 1953 in Fort Ord, CA. The Veteran could not recall the soldier's name. See January 2009 lay statement. The Veteran stated that he could not provide supporting lay statements because he did not keep in touch with his Army buddies and many of them had passed away. The Veteran stated that he was unable to provide any further information regarding his stressors. In a May 2009 memorandum, a RO coordinator determined, in essence, that the Veteran's stressors were unable to be verified. Notably, the letter stated that at the time of the alleged sniper fire in Chuncheon, Korea (January 1954), a cease-fire was in place. With regard to the additional evidence of record, the Board finds it both "new" and "material." The evidence of record prior to the September 2003 final rating decision showed treatment for PTSD and a medical nexus relating PTSD to service, but the Veteran was able to provide only very general, unverifiable information regarding his in-service stressors. By contrast, since the September 2003 decision, the Veteran has provided additional details regarding his in- service stressors that are specific and verifiable in nature. In this regard, the Veteran's lay statements are both new because they were not previously of record and material because they are likely verifiable and raise a reasonable probability of substantiating the claim. See 38 C.F.R. § 3.156. The Board acknowledges the 2003 RO memorandum finding the Veteran's in-service stressors to be unverifiable in nature; however, the Board points out that the RO did not take actual steps to verify the stressors, such as contacting U. S. Army and Joint Services Records Research Center (JSRRC). As the Veteran provided specific dates and locations for many of the claimed stressors, the Board finds them potentially verifiable in nature and material to his service connection claim for PTSD. Accordingly, the Board finds that new and material evidence has been submitted and the claim is reopened. ORDER To the extent that new and material evidence has been received to reopen the claim for service connection for PTSD, the appeal is granted. REMAND A review of the record discloses a need for further development prior to final appellate review. As noted above, the Veteran relates his PTSD to various in- service stressors including exposure to sniper fire, seeing dead bodies, and witnessing the suicide of a fellow soldier while on the firing range during basic training. Service records currently associated with the claims folder are not indicative of combat. However, as noted above, the service personnel records are unavailable as they were destroyed by fire at the NPRC in 1973. Initially, the Board notes that the Veteran has not been informed that his service records are fire-related and unable to be reconstructed. Further, the Veteran has not been afforded an opportunity to provide alternative sources, such as lay or medical evidence in his possession, that may be useful to his claim. Thus, a letter should be sent in this regard. Additionally, the RO does not appear to have made an attempt to verify the Veteran's stressors. Thus, the Veteran's purported stressors are not confirmed by any objective evidence in the record as currently constituted. The Board acknowledges that the evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether a veteran engaged in "combat with the enemy." See Gaines v. West, 11 Vet. App. 353, 359 (1998). If VA determines that a veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required-provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with circumstances, conditions or hardships of service." See 38 U.S.C.A. 1154(b) (West 2002); 38 C.F.R. 3.304(f)(1); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If, however, the alleged stressor is not combat-related, then the veteran's lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates his testimony or statements. See Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). See also Zarycki, 6 Vet. App. at 98; Doran v. Brown, 6 Vet. App. 283, 289-290 (1994). The Board recognizes that some of the Veteran's alleged stressors are anecdotal in nature and are unlikely to be objectively verified. See Cohen v. Brown, 10 Vet. App. 128, 134 (1997) ("Anecdotal incidents, although they may be true, are not researchable. In order to be researched, incidents must be reported and documented."). However, the stressors involving exposure to sniper fire while assigned to the 42nd Transportation Truck Company in Korea and witnessing the suicide of a soldier during basic training in October 1953 are potentially verifiable and should be investigated further. Thus, an attempt to verify the Veteran's claimed stressors through the appropriate channels, to include the U. S. Army and Joint Services Records Research Center (JSRRC), should be made. JSRRC should be provided with all pertinent information. If the alleged stressors cannot be verified, that should be stated. During the pendency of this appeal, the Court issued a decision in the appeal of Clemons v. Shinseki, 23 Vet. App. 1 (2009), which held that a claim for benefits based on PTSD encompassed benefits based on another acquired psychiatric disorder because the evidence developed during the processing of the claim indicated that the symptoms for which the claimant was seeking VA benefits may have been caused by another acquired psychiatric disorder. The RO has only addressed the claim for benefits due to PTSD, not another acquired psychiatric disorder. The evidence of record shows treatment for depression and anxiety in addition to PTSD. Thus, in readjudicating the claim, the possibility of service connection for another acquired psychiatric disorder must be addressed. Based on the foregoing, the Board notes that a VA examination has not yet been provided in this case and the etiology of the Veteran's current PTSD or other acquired psychiatric disorder is unknown at this time. Thus, a VA medical examination is necessary in accordance with VA's duty to assist. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. The AMC/RO should inform the Veteran that his service records were destroyed by fire at the NPRC in 1973 and cannot be reconstructed. The AMC/RO should allow the Veteran an opportunity to provide any alternative sources such as medical or lay evidence, to include service records in his possession, that may be useful to his claim. 2. Thereafter, the AMC/RO should review the file and prepare a summary of all claimed and verifiable stressors as set forth in information of record from the Veteran. This summary, and all associated documents, must be sent to the JSRRC. The AMC/RO must request that the JSRRC provide information which might corroborate the alleged stressors. The AMC/RO must associate any response and/or additional records with the claims file. 3. Thereafter, the Veteran should be afforded a VA psychiatric examination. The purpose of the evaluation is to determine the etiology of any psychiatric disability diagnosed, to include PTSD. All necessary testing should be completed. The claims folder should be made available to the examiner in conjunction with the examination. The examination report should include a detailed account of all psychiatric pathology found to be present. If there are different psychiatric disorders, the examiner should attempt to reconcile the diagnoses and should specify which symptoms are associated with each of the disorder(s). If certain symptomatology cannot be disassociated from one disorder or another, it should be specified. If a diagnosis of PTSD is appropriate, the examiner should specify the stressors that caused this disorder. The examiner should be informed of the specific stressor(s) that have been verified and of the fact that only such corroborated stressor(s) may be considered to be a basis for a valid diagnosis of PTSD. With respect to each currently diagnosed psychiatric disorder, the examiner should express an opinion as to whether it is at least as likely as not (50% probability or greater) that any such current psychiatric disorder is etiologically related to the Veteran's military service. The report of examination should include a complete rationale for all opinions expressed. The entire claims folder and a copy of this remand must be made available to and reviewed by the examiner prior to the examination. 4. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC/RO must implement corrective procedures. 5. Following the above, the AMC/RO should readjudicate the Veteran's claim for service connection for an acquired psychiatric disorder to include PTSD. If any benefit on appeal remains denied, a Supplemental Statement of the Case should be issued, and the Veteran and his representative should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant 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. 2009). ______________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs