Citation Nr: 1123224 Decision Date: 06/17/11 Archive Date: 06/28/11 DOCKET NO. 09-24 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Wishard, Associate Counsel INTRODUCTION The Veteran had active military service from December 1966 to December 1969, and unverified periods of National Guard service. This matter comes before the Board of Veterans' Appeals (Board) from an April 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Wichita, Kansas. The Board notes that the Veteran was scheduled for Travel Board hearing in June 2010. A May 2010 statement from his accredited representative reflects that the Veteran wished to withdraw his hearing request. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (e) (2010). FINDINGS OF FACT 1. In an unappealed July 1998 rating decision, the RO denied the Veteran's claim of entitlement to service connection for PTSD. 2. Some of the evidence submitted subsequent to the July 1998 rating decision is not cumulative or redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for entitlement to service connection for PTSD. 3. The evidence of record shows that the Veteran has a diagnosis of PTSD. 4. The Veteran has provided competent lay testimony regarding a claimed in-service stressor. 5. In giving the benefit of doubt to the Veteran, the Board finds that the competent clinical evidence of record reflects that the Veteran has PTSD causally related to active service. CONCLUSIONS OF LAW 1. Evidence received since the July 1998 RO decision that denied service connection for PTSD, which was the last final denial with respect to this issue, is new and material; the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156, 20.302, 20.1103 (2010) 2. PTSD was incurred in active service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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) (2010). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court issued a decision that established new requirements with respect to the content of the VCAA notice for reopening claims. In the context of a claim to reopen, the Secretary must look at the bases for the denial in the prior decision and to respond by providing the appellant with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. In VA correspondence, dated in August 2007, VA informed the appellant of what evidence was required to substantiate the claim, of his and VA's respective duties for obtaining evidence, of the reasons for the prior denial, and of the criteria for assignment of an effective date and disability rating in the event of award of service connection. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable agency of original jurisdiction decision. Because the VCAA notice was completed prior to the initial AOJ adjudication denying the claim, the timing of the notice does comply with the express requirements of the law as found by the Court in Pelegrini. All the VCAA requires is that the duty to notify is satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). Duty to Assist With regard to the duty to assist, the claims file contains service treatment and personnel records, statements from the Veteran's family members, photographs, the journal of the Veteran's spouse, and private and VA treatment and examination records. Additionally, the claims file contains the Veteran's own statements in support of his claim. The Board has carefully reviewed the statements and concludes that the Veteran has not identified further evidence not already of record for which VA has a duty to attempt to obtain prior to reopening the claim. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain prior to reopening the claim. The Board notes that VA is not required to provide a medical examination to a claimant seeking to reopen a previously and finally disallowed claim prior to a determination that new and material evidence has been received. See Paralyzed Veteran's of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334 (Fed. Circ. 2003). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained which are necessary prior to adjudicating whether new and material evidence has been received. Legal criteria New and material evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). 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. The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material is neither required nor permitted. Id. at 1384. See also Butler v. Brown, 9 Vet. App. 167, 171 (1996). "New" evidence is existing evidence not previously submitted to agency decision makers. "Material" evidence is 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 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). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the appellant in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (West 2002) (eliminating the concept of a well-grounded claim). Service connection - in general Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In Robinson v. Shinseki, 312 Fed. Appx. 336 (2009), the Court held that, in some cases, lay evidence will be competent and credible evidence of etiology. Whether lay evidence is competent in a particular case is a question of fact to be decided by the Board in the first instance. The Court set forth a two-step analysis to evaluate the competency of lay evidence. First, Board must first determine whether the disability is the type of injury for which lay evidence is competent evidence. If so, the Board must weigh that evidence against the other evidence of record-including, if the Board so chooses, the fact that the Veteran has not provided any in-service record documenting his claimed injury -to determine whether to grant service connection. The Board observes that this Federal Circuit decision is nonprecedential. However, see Bethea v. Derwinski, 252, 254 (1992) [a non-precedential Court decision may be cited "for any persuasiveness or reasoning it contains"]. The Board believes that if Bethea applies to the utility of Court decisions, it surely applies to the utility of decisions of a superior tribunal, the Federal Circuit. Service Connection for PTSD Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and an in-service stressor. If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). If a stressor claimed by a Veteran is related to the 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 posttraumatic stress disorder 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 the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. Otherwise, the law requires verification of a claimed stressor. VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). The law provides that when, after consideration of all evidence and material of record, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of a Veteran's clam, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102 (2010). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Court has held that the Board is obliged to determine in the first instance whether there is new and material evidence to reopen the claim, regardless of the RO's action. Barnett v. Brown, 8 Vet. App. 1 (1995). See also Wakeford v. Brown, 8 Vet. App. 237 (1996). Evidence of record at time of last final denial Historically, the appellant's claim was denied in July 1998 because the evidence did not reflect that that the Veteran had a confirmed stressor or a diagnosis of PTSD. (The Board notes that the record did contain evidence of PTSD, but there was no evidence of record of a diagnosis relating it to service or a diagnosis in accordance with Diagnostic and Statistical Manual, Fourth Edition (DSM-IV)). The evidence of record at the time of the last final denial included the Veteran's STRs and personnel records. The Veteran's DD 214 reflects that he received the Vietnam campaign medal and the Vietnam service medal. His military occupational specialty (MOS) was as a wheeled vehicle mechanic. There was no evidence that he was a combatant. Private medical records reflect that he was seen in March 1995 for an anxiety reaction and was prescribed Xanax. Records from 1997 reflect that the Veteran had stress from work, a GAF score of 50-55, chronic fatigue syndrome from history, and sleep apnea from history. A 1997 record also reflects diagnoses of sleep apnea and idiopathic hypersomnolence. An unsigned and undated handwritten note purportedly from Dr. M.F. lists numerous conditions and symptoms to include PTSD, but fails to provide any rationale, evidence of examination, or evidence that the Veteran's diagnosis was in accordance with the DSM-IV. Records dated in 1997 record also reflect that the Veteran was being followed by the neurology clinic at the Topeka VAMC for sleep apnea and should not work around heights or moving machinery. The records reflect complaints of fatigue, memory loss, chest pain, weakness, hypertension, shoulder pain, and back pain. A November 1997 VA record reflect that the "results of neuropsychological evaluation indicate most cognitive abilities falling in the borderline impaired range and consistent with estimated premorbid functioning based on academic and employment histories. However, there [sic] more severe deficits present in the areas of concentration, visual memory, mental processing speed, and sequencing/organizational functions. These deficits may be the result of declines in cerebral oxygenation due to the patient's chronic sleep apnea or possible multifocal changes resulting from prolonged hypertension. However, they may also represent more specific development deficits that often accompany patients with borderline intellectual functioning. A November 1997 record reflects a diagnosis of "unspecified nonpsychotic mental disorder following organic B." A December 1997 VA record reflects that the Veteran had probable chronic fatigue syndrome with exacerbation of fatigue and memory problem symptoms over the past year. The record reflects that "apparently [the Veteran] has recently completed a full battery of neuropsychological tests at the Topeka VAMC, and has been diagnosed with PTSD by Dr. F. The record reflects that it is possible that a combination of factors contribute to the Veteran's fatigue symptoms and probable cognitive impairment, to include a past head injury, sleep apnea, hypertension, and PTSD ("to which he had only recently been diagnosed"). Another December 1997 record reflects "Dr. [F] has indicated that [the Veteran's] PTSD does not preclude work." The Veteran averred that his stressors were "saw people getting killed, [seeing] people hanging out windows after they killed. Did not know I was going to get killed or if some one was behind me. I could not sleep and to this day I have problems sleeping.) He avers that he was in Vietnam from 1967 to 1968. (See statement received by VA in January 1998). A "Questionnaire about Military Service" form, dated in May 1997, reflects that the Veteran reported that he served with the 304th Motor Pool, S &S Company in Vietnam from January 1968 to January 1969. Evidence received since the last final denial The newly received evidence includes private correspondence from Dr. J.H. which states that the Veteran suffers from chronic anxiety and depression and occasional panic attacks. Medical records from 1988 reflect that the Veteran was seen for complaints of sleep apnea, fatigue, and anxiety. A June 1998 VA medical record reflects the "continued education of [patient] and his wife in symptoms of PTSD" and diagnoses of PTSD, psychosis, and depression. The record fails to provide any rationale, evidence of examination, or a evidence of a diagnosis in accordance with DSM-IV. The evidence also includes a December 1999 written statement from the Veteran's spouse regarding how she assists the Veteran; a January 2000 VA examination for special monthly compensation which notes diagnoses of diabetes, hypertension, dementia with memory declining, hyperlipidemia, and vitamin deficiency; January 2002 VA records which show a diagnosis of PTSD but do not note the alleged in-service stressor(s); and a February 2002 VA medical record which reflects that the Veteran had a history of PTSD and has been followed up on an outpatient basis at the mental health clinic by Dr. M. for years. VA medical records dated in 2007 reflect that the Veteran's PTSD anger symptoms have become more problematic, his memory is poor, he resides in a nursing home, and has numerous physical and mental problems. VA medical records dated in 2008 reflect that the Veteran is not competent for VA purposes, had confusion, and had had heart surgery. A May 2009 VA record reflects a problem of PTSD. A nursing home record from 2006 reflects diagnoses of "Dementia / PTSD/Depression/ Normal pressure hydrocephalus with v/p shunt." The newly received evidence also includes photographs and statements of the Veteran's family members regarding the Veteran. A VA Form 21-0781, dated in August 2007, indicates that the Veteran reported that he was assigned to the 304th, 3d Battalion, 11th Artillery, 24th Infantry Division in Vietnam from 1968 to 1969. (The Veteran gives dates of having been in Vietnam from 1968 to 1969, as opposed to his earlier statement that he was Vietnam from 1967 to 1968.) He states that he was subject to constant mortar and rocket attacks, under direct gunfire, and that people would lay in the streets and road to try to stop the trucks under attack. A VA Form 21-0781, dated in April 2008, indicates that the Veteran was assigned to HHB, 3d Battalion, 11th Artillery, 24th Infantry Division from January 1968 to January 1968, and feared for his life on a daily basis due to rocket attacks, mortar rounds, and sniper fire. A March 2010 statement by the Veteran detailed his alleged stressors. He stated the following: 1. He was stationed in Qui Nhon, Vietnam, which was rocketed, mortared, and shelled almost nightly. 2. He saw a turret gunner shot. 3. He saw dead people hanging out of windows and dead bodies in the street. 4. A landmine blew up a vehicle in a convoy in which he was in. An April 2008 VA memorandum reflects that the Veteran's alleged unit (with the 24th Infantry Division) was not in Vietnam. Old and new evidence of record considered as a whole The Board finds that the additional evidence raises a possibility of substantiating the claim. The non-combatant Veteran's claim was previously denied, in part, because his alleged stressors were not independently verified. The newly received evidence includes additional stressors, which under 38 C.F.R. § 3.304(f)(3), need not be independently verified if they are consistent with places, types, and circumstances of service. The Board finds that the evidence added to the record since the last final denial, when considered in conjunction with the record as a whole, does raise a reasonable possibility of substantiating the claim, and as such, is new and material to reopen the claim. De Novo analysis of reopened PTSD claim Having reopened the Veteran's claim, the Board must now determine whether the reopened claim of entitlement to service connection for PTSD may be granted on the merits, de novo. The first element of a claim for service connection is that there must be evidence of a current disability. A January 2002 VA medical record reflects a diagnosis of PTSD; therefore, the Board finds that the first element has been met. The second element of a claim for service connection is medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease. As noted above, the Veteran has alleged numerous stressors. The Board acknowledges that the record reflects that the Veteran's alleged unit with the 24th Infantry Division was not in Vietnam; nevertheless, the Veteran's DD 214 does indicate that the Veteran received the Vietnam Service Medal and the Vietnam Campaign Medal. (In addition, the Veteran also averred that he served with the 304th Motor Pool Company, 101st Airborne Division in Vietnam.) The Board finds that the Veteran's averment with regard to his specific unit assignment in Vietnam may be incorrect due to the passage of time and the Veteran's diagnosed mental problems. Thus, the Board gives the benefit of doubt to the Veteran and finds that some of his claimed stressors are consistent with the places, types, and circumstances of the Veteran's service. Therefore, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. The third element for service connection is a medical nexus between an in-service injury and disease and the current disability. The Board notes that the diagnoses of PTSD do not specifically note that the Veteran's PTSD is related to his claimed stressors in Vietnam. However, the June 1998 diagnosis by a staff psychiatrist notes that the Veteran was encouraged to appeal his disability claim and no none- military stressors are identified in the record. Therefore, giving the benefit of the doubt to the Veteran, and after consideration of all of the evidence, the Board finds it is at least as likely as not that the Veteran's PTSD is causally related to active military service. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra, at 57-58. ORDER 1. New and material evidence having been received to reopen the claim of entitlement to service connection for PTSD, the claim is reopened. 2. Entitlement to service connection for PTSD is granted. ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs