Citation Nr: 1120865 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 07-31 528 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for posttraumatic stress disorder (PTSD), and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, which determined that new and material evidence was not submitted to reopen the claim for service connection for PTSD. The issue of entitlement to service connection for PTSD on the merits 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. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The June 2004 rating decision that denied service connection for PTSD was not timely perfected and is final. 2. Evidence received since June 2004 includes evidence that is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for PTSD. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance 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 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Given the Board's favorable determination to reopen the claim of entitlement to service connection for PTSD, as well as the need to remand that claim for further development on the merits, the Board finds that no discussion of compliance with the requirements for notice and assistance is necessary at this time. Analysis A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision and the appeal is perfected following issuance of a statement of the case. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.302, 20.1103 (2010). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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) (2010). Furthermore, the Court of Appeals for the Federal Circuit has indicated that evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium) (holding that the "presumption of credibility" doctrine continues to be precedent). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection for PTSD was previously denied by a June 2004 rating decision because the Veteran's diagnosis of PTSD was not shown to be based, at least in part, on the confirmed stressor of an incoming rocket attack upon the base where he was stationed during Vietnam. The evidence of record at the time of that decision included the Veteran's service treatment and personnel records, VA treatment records and examination reports, U.S. Army and Joint Services Records Research Center (JSRRC) correspondence, private treatment records, a stressor statement, a buddy statement from W.H., and lay evidence. The Veteran's service treatment records indicate that on the February 1968 induction examination report up medical history, the Veteran gave conflicting responses when answering whether or not he has ever attempted suicide. The Veteran was never treated for or diagnosed with any psychiatric disorders during military service. Post service private treatment records indicate that in September 1995, the Veteran began to experience anxiety and depression due to issues such as work, family, and his own personal health. In February 1998, the Veteran presented for an intake evaluation with a private psychiatrist due to an inability to effectively handle stress. He stated that his brother and sister both attempted suicide within the past two weeks. He stated that he has fears of abandonment, episodes of rage, and he self diagnosed himself with "borderline bipolar disorder." The Veteran recounted a traumatic childhood and family history. He stated that his biological parents left his siblings in the care of others. He reported that he himself was left with what he referred to as his "adoptive parents." He stated that his mother agreed to accept cash in return for him. He stated that his "adoptive parents" used drugs and his adoptive father was gay and committed suicide, forcing him to move in with his biological parents at the age of 15. The Veteran stated that he was a Vietnam Veteran, a Green Beret, and he served two tours of duty. He falsely stated that he received bronze star medals and the Purple Heart medal. The Veteran's symptoms included dreams of his wife leaving him, abandonment-related issues, anxiety attacks, blowing things out of proportion, episodes of euphoria, being a hyper person, and periods of low sleep in Vietnam after a helicopter was shot down. The Veteran was diagnosed with PTSD and anxiety not otherwise specified. Post service VA treatment records indicate that in August 1998, the Veteran presented to his local Vet Center for an intake psychological examination with a licensed clinical social worker. The Veteran reported that he was in Special Forces and he was not open to discussing operations in specific detail, however, he did admit feelings of fear and horror. He stated that he saw his share of carnage and inflicted a lot of bloodshed, too. Specifically, he reported killing a Vietnamese boy who attacked him in the Saigon Airport, and he witnessed a monk set himself on fire in front of the U.S. Embassy. The Veteran reported that upon returning from Vietnam, he was upset by civilian protestors and authoritarian brass at the stateside duty station. A mental status evaluation indicated that he was articulate, verbally aggressive at times, and an opinionated and forceful presenter. His symptoms included sleep disturbances, a low energy level, a sense of invincibility, suicidal thoughts in relation to whether or not he could go on if severely disabled by his cardiac condition, homicidal thoughts of a revenge fantasy in a work setting, hypervigilance, major road rage, intrusive thoughts of killing a boy in the Saigon Airport, a workaholic lifestyle with detachment from others, and a strong history of avoidance of Vietnam reminders. The social worker diagnosed the Veteran with PTSD as reflected in his exposure to recurrent death and injury and feelings of fear and horror. In February 2000, the Veteran underwent a mental health and psychiatric evaluation. It was noted that he was diagnosed with "PTSD (Vietnam)," but was asymptomatic and functional until he underwent coronary artery bypass grafting three years prior. Following a nicotine treatment program, the Veteran reportedly became psychotic. It was noted that the Veteran served in Vietnam doing military intelligence and he carried a diagnosis of PTSD supported by symptoms of daytime intrusive thoughts, difficulties maintaining employment, difficulties with interpersonal relationships, and chronic anger and irritability. It was noted that the Veteran was receiving treatment at the Vet Center, and had been doing so for the past three years. The Veteran was diagnosed with "PTSD, Vietnam," and depressive disorder. In July 2002, the Veteran presented for a VA stress disorders examination. The examiner noted that the claims file was not available for review. It was noted that the Veteran presented with his DD Form 214 and other military records that supported his assertions that he was with the Army intelligence arm of the 82nd Airborne, stationed at Qui Non and Lam Son, among other places. It was noted that the Veteran described numerous traumatic experiences in highly specific and credible detail, to include: shooting and killing a Vietnamese boy; assisting patrols in which they "peeled people off trees;" being seated next to another soldier at the base in Lam Son who was hit and killed by an incoming round, splattering blood and brains; witnessing ARVNS being decapitated and killed by a grenade they were playing "catch" with; being caught in crossfire and being shot at while on patrol; and witnessing a monk set himself on fire. The Veteran's traumatic childhood and family history was noted. The Veteran reported experiencing the following symptoms: re-experiencing symptoms in the form of intrusive thoughts and memories; triggers such as the smell of cilantro and the mixture of ketchup and mayonnaise; hypervigilance; legal complications caused by road rage; irritability and anger; mistrustfulness; being chronically cynical; problems sleeping without the use of medications; avoidance; an obsessive compulsive personality style; depression; and a burning desire to see justice done. At the July 2002 VA examination, the Veteran was diagnosed with PTSD with obsessive compulsive traits. Following an examination of the Veteran, the examiner noted that it is likely that the Veteran's pre-military history has contributed to his overall mistrustful and obsessive-compulsive personality style. The examiner further opined that the multiple traumatic experiences in Vietnam served to reinforce and cement those personality characteristics. The examiner noted that his opinion was based solely on the Veteran's self-report. In March 2003, the Veteran submitted a stressor statement describing nine traumatic incidents that allegedly occurred during military service. The Veteran's first stressor occurred on the day that he was deployed to Vietnam when suddenly military personnel asked the families to leave and military police armed with huge machine guns guarded all of the doors. The Veteran stated that while he knew he was headed to a place where people would try to kill him, he was concerned that his fellow soldiers were holding weapons against him; it was a complete shock to his system. The second stressor occurred when his flight to Vietnam arrived in Ben Hoa around 11pm at night while the airstrip was being bombed. He stated that he was scared out of his mind. The following night, he stated that a rocket hit the barracks next to his building, leaving bodies scattered around like ragdolls. The third stressor occurred within the first two months of the Veteran's arrival to Vietnam. The Veteran stated that he was on guard duty at a front gate when he noticed that four ARVN soldiers were playing catch with a live grenade. He stated that he tried to stop them but they did not understand English. He stated that he tried to call for help, but the grenade exploded, decapitating some of them. The Veteran reported that the fourth stressor occurred when he was stabbed in the wrist with an ice pick upon purchasing a beverage from a young Vietnamese boy at the Saigon Airport. The Veteran stated that this caused him to react by shooting the boy in the face. The Veteran stated that he sees this boy's face everyday and he has felt guilt for more than 30 years due to the incident. The Veteran reported that the fifth stressor occurred when a Major allegedly decided that the Veteran, along with other intelligence personnel, should go on a search and destroy mission. The Veteran stated that he came under fire during the mission. He stated that when he returned fire, he was told that he did not have permission to fire. The Major began pulling back with the Veteran's squad leaving him to cover for their withdrawal. The sixth stressor occurred when the Veteran was allegedly instructed to go into Qui Nhon City with military troops to search an area that intelligence revealed the Viet Cong were encamped. Before the area was searched, the U.S.S New Jersey "softened up" the area by firing rounds at the area to be searched. The stated that the following day, he accompanied search patrols to the area that the U.S.S. New Jersey fired at the previous day. The Veteran stated that they came upon the remains of trees covered in human flesh and fragments of body parts were scattered throughout the area. The Veteran stated that the seventh stressor occurred in March or April 1969. He stated that upon returning to base after a celebration with his cousin who was scheduled to return stateside the following day, W.H., a Staff Sergeant in the Air Force, a pack of "Vietnamese cowboys" on motor bikes began firing in all directions. This occurred approximately 20 yards from the base they were walking to. The Veteran stated that W.H. pushed him down sheltered him. The Veteran stated that W.H. did not have a weapon; however, the military police at the base returned fire. He stated that he was unsure if there were any injuries. The Veteran reported that the eighth stressor occurred in June of 1968 on a corner outside of the American Embassy. The Veteran stated that he witnessed a monk being lit on fire. The Veteran stated that the monk never made a sound. The Veteran stated that he took a picture and was in shock. He stated that following this incident, he was convinced that the war could not be won against people who were so determined. The Veteran stated that the ninth stressor occurred during TET 1969 outside of a noodle shop where he was eating lunch. The Veteran stated that a bus was "sapped," and many civilians and soldiers were killed or injured. The Veteran stated that he and others with whom he was eating lunch with made their way back to Ton Sun Ute Air Base in attempts to avoid becoming a target themselves. In October 2003, W.H., submitted a statement concerning the Veteran's stressor statement involving the Vietnamese cowboys. W.H. stated that upon their return to Tan Son Nuht Air Base, the "cowboys" struck near the main gate of the base, shooting up everyone and everything in sight. W.H. stated that he pushed the Veteran into a ditch to protect him while he returned fire. W.H. stated that because he was a NCO, he carried a sidearm at all times. W.H. stated that following the incident, the Vietnamese guards took a few pot shots at them thinking they were Viet Cong. After proving that they were American, they were let into the base. W.H. stated that immediately thereafter, a Vietnamese woman jumped out of a car and ran toward the guards. When she did not halt upon the guard's command, they shot her and her body exploded. He stated that they later found out that her body was stuffed with explosives causing her to explode as she did. W.H. was confirmed to have service in Vietnam. In December 2003, the Veteran underwent a second VA stress disorders examination by the previous July 2002 examiner. On this occasion, the claims file was reviewed. It was noted that the Veteran continued to receive treatment for PTSD through VA medication management and therapy at the Vet Center. The Veteran reported being constantly depressed and a significant decreased in interest in former activities was noted. The Veteran continued to describe symptoms such as nightmares, distress at reminders, severe arousal symptoms, poor sleep, avoidance, and significant anger and rage reactions that have caused legal difficulties with road rage. The Veteran was diagnosed with PTSD and depressive disorder not otherwise specified. The examiner did not discuss the Veteran's stressors. The examiner opined that it was at least as likely as not that the Veteran's anger, rage, and difficulties with authority and tolerating others are related in part to his Vietnam service. In June 2004, correspondence received from United States Armed Services Center for Research of Unit Records (USASCRUR) indicated that an operational report confirmed that Bien Hoa received four rocket attacks between August 22, 1968 and September 8, 1968. However, it was noted that there were no reports of casualties or damage. The evidence received subsequent to the June 2004 rating decision includes updated VA treatment records and the Veteran's own statements. In addition, during the pendency of this appeal, effective July 13, 2010, 38 C.F.R. 3.304(f), was amended as follows. If a stressor claimed by a veteran is related to that veteran's fear of hostile military or terrorist activity, and a VA psychiatrist or psychologist (or a psychiatrist or psychologist with whom VA has contracted) confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of that veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor." See 75 Fed. Reg. 39843 (July 13, 2010); 75 Fed. Reg. 41092 (July 15, 2010). The Board notes that to reopen a claim under 38 C.F.R. § 3.304(f)(3) as amended, VA will accept a Veteran's lay statement regarding an in-service stressor - "fear of hostile military or terrorist activity" - as sufficient to constitute new and material evidence for the purpose of reopening a previously denied claim, if the Veteran's record otherwise shows service in a location involving exposure to "hostile military or terrorist activity." If review of the record discloses a previously submitted lay statement demonstrating "fear of hostile military or terrorist activity," such statement will be sufficient for reopening a claim if the Veterans' record otherwise demonstrates service in a location involving exposure to "hostile military or terrorist activity." The Veteran's November 2003 stressor statement demonstrates a fear of hostile military or terrorist activity. Further, USASCRUR's confirmation that the Veteran's base received rocket fire shortly after the Veteran's arrival, demonstrates that the Veteran served in a location involving exposure to "hostile military or terrorist activity." Presuming the credibility of the evidence for the sole purpose of determining whether new and material evidence has been received, the Board finds that the Veteran's November 2003 stressor statement and the July 2002 VA examiner's diagnosis of PTSD and opinion that the multiple traumatic experiences in Vietnam served to reinforce and cement the Veteran's mistrustful and obsessive-compulsive personality characteristics, relate to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. Specifically, given the July 2002 PTSD diagnosis and opinion, a link has now been provided between the Veteran's PTSD diagnosis and his military stressors, which was in part, the basis of the June 2004 denial of service connection for this condition. Thus, the Board finds that such evidence is new and material, and the claim for service connection for PTSD is reopened. ORDER New and material evidence having been received, the claim of entitlement to service connection for PTSD is reopened. REMAND Reopening the claim does not end the inquiry. A determination on the merits is still required. However, additional development is needed. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); a link, established by medical evaluation, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2010). In addition, as noted previously, effective July 13, 2010, 38 C.F.R. § 3.304(f) was amended in regards to claimed stressors and stressor verification. In this case, the contended stressors are based in part on the nature, timing, and circumstances of the Veteran's service and that of an Air Force Staff Sergeant W. H. Although an electronic record of W.H.'s service including his identifying information is in the claims file, the record verifies only two of his contended seventeen years of service and those years are not coincident with the Veteran's service. Therefore, a request for the service personnel records for the Veteran and for Staff Sergeant W.H. is necessary to decide the claim. The Board notes that the July 2002 VA stress disorders examination, the examiner stated that chronic symptoms of PTSD included re-experiencing of Vietnam traumas. He further stated that it is likely that the Veteran's pre-military history contributed to his overall mistrustful and obsessive compulsive personality style, however, it was clear that the multiple traumatic experiences in Vietnam served to reinforce and cement those personality characteristics. The examiner stated that this opinion was based solely on the Veteran's self-reports. Upon the July 2002 VA examiner's re-examination of the Veteran in a December 2003 examination, and following a review of the claims file, the examiner did not discuss the Veteran's claimed military stressors, pre-military stressors, or verified stressor of incoming rocket attacks during military service. Further, the examiner did not mention the Veteran's report of military history upon induction to military service that gave an inconclusive response as to whether or not the Veteran had ever attempted suicide. Consequently, it is unable to be determined whether the Veteran's PTSD is related to military service. In light of the facts as stated above, as well as the July 13, 2010 amendment to 38 C.F.R. § 3.304(f), the Veteran should now be afforded a VA psychiatric examination by a psychiatrist or psychologist to determine whether he suffers from PTSD as a result of military service. Accordingly, the case is REMANDED for the following action: 1. Request from the Veteran the names, addresses, and approximate dates of treatment of all health care providers who have treated him for PTSD. After securing any necessary release, the AMC/RO should obtain any records which are not duplicates of those contained in the claims file, including medical records from the Vet Center in Hartford, Connecticut since April 2002, and any mental health records from the Newington, Connecticut VA Medical Center dating since June 2007. If any requested records are unavailable, then the file should be annotated as such and the Veteran and his representative should be so notified. 2. Request from the National Personnel Records Research Center the service personnel records for the Veteran and for Air Force Staff Sergeant W. H. using the identifying information in the VA BIRLS report in the claims file. Associate any records received with the claims file. 3. Schedule the Veteran for a VA psychiatric examination by a psychiatrist or psychologist to determine whether the Veteran suffers from PTSD in accordance with the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and if so, whether such disorder is related to his corroborated stressor of sustaining rocket attacks, or other reported military stressor(s) deemed credible. The RO/AMC should specify the stressor(s) deemed corroborated or credible. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. A complete rationale for all opinions expressed should be provided. Specifically, the examiner should determine whether the Veteran's corroborated or credible military stressor(s) are adequate to support a diagnosis of PTSD and whether his current symptoms are related to those stressors or other stressors such as the pre-military stressors as described in the July 2002 VA examination report, and health-related stressors. 4. After the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed, to include consideration of the amended version of 38 C.F.R. § 3.304(f) (see 75 Fed. Reg. 39843 (July 13, 2010) and 75 Fed. Reg. 41092 (July 15, 2010)) for the claim of entitlement to service connection for PTSD. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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. 2010). ______________________________________________ J.W. FRANCIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs