Citation Nr: 1126404 Decision Date: 07/13/11 Archive Date: 07/19/11 DOCKET NO. 08-21 626 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD M. Tenner, Counsel INTRODUCTION The Veteran served on active duty from November 1964 to May 1965, from April 1966 to October 1971, and from December 1990 to September 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 decision rendered by the St. Louis, Missouri Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2010, the Board issued a decision denying the petition to reopen the claim of service connection for PTSD. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims ("Court"). In February 2011, the parties to the appeal filed a Joint Motion for Vacatur and Remand. That same month the Court granted the motion and remanded the matter for compliance with the instructions in the joint motion. FINDINGS OF FACT 1. In a July 2003 decision, the Board denied a claim for service connection for PTSD. 2. Evidence received since the July 2003 decision is new and material, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. The Veteran served in Southwest Asia from February to August 1991. 4. The Veteran has PTSD based on an in-service stressor that is related to the Veteran's fear of hostile military activity. A VA psychiatrist has confirmed that the claimed stressor is adequate to support a diagnosis of PTSD and that his symptoms are related to the claimed stressor. The stressor is consistent with the places, types, and circumstances of his service. CONCLUSIONS OF LAW 1. Evidence received since the July 2003 Board decision that denied service connection for PTSD is new and material; thus, the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). 2. The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 4.125 (2009); Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3)), corrected by 75 Fed. Reg. 41,092 (July 15, 2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veteran's Claims Assistance Act (VCAA), and its implementing regulations, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim, including obtaining medical examinations or opinions if necessary. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, and 5126 (West 2002); 38 C.F.R. § 3.102, 3.156, 3.159, and 3.326 (2010). VA is not required to provide assistance to a claimant, however, if there is no reasonable possibility that such assistance would aid in substantiating the claim. See Id. The United States Court of Appeals for Veterans Claims (Court) has concluded that the VCAA was not applicable where further assistance would not aid the appellant in substantiating his or her claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). In this matter, in view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the appellant in substantiating his claim. II. Petition to Reopen In a July 2003 decision, the Board denied a claim for service connection for PTSD. The appellant was notified of the July 2003 Board decision but did not initiate an appeal, seek reconsideration, or revision of the decision on the basis of clear and unmistakable error. As such, the July 2003 Board decision is final. See 38 U.S.C.A. §§ 7103, 7104(b); 38 C.F.R. § 20.1100. Evidence before the Board in July 2003 included the Veteran's service treatment and personnel records, unit histories from the 71st Transportation Battalion, VA treatment records, and various statements submitted by the Veteran in support of his claim. The VA treatment records included a diagnosis of PTSD. In particular, a March 2001 VA examination report noted a diagnosis of PTSD and included the Veteran's reports of PTSD stressors, including a rocket attack to a guard tower while serving in Vietnam, and witnessing a rocket attack when serving in the Persian Gulf. In an October 2001 statement, the Veteran reported that the rocket attack in Vietnam occurred in February or March 1968 when stationed with the 561st Transportation Company. He stated that two soldiers, John Roy and David Eldridge were killed in the attack. An investigation conducted by the Center for Unit Records Research (CURR) focused solely on the PTSD stressors associated with the Veteran's Vietnam service. It concluded that 561st Transportation Company was subject to sporadic mortar and small arms fire in late January and early February 1968. The U.S. Army Casualty Database did not list a "John Roy" or "David Eldridge" as being killed in action. In the July 2003 decision, the Board noted that the Veteran carried a current diagnosis of PTSD. It concluded, however, that while the Veteran served in the Republic of Vietnam during the Vietnam era, he did not serve in combat. It noted that the service personnel records documented his primary duties as Seaman, Cargo Handler, Metal Working Foreman, Winch Operator, and Small Arms Repairman. Moreover. It concluded that there was not credible supporting evidence of a PTSD stressor. It noted, in this respect, that while CURR confirmed mortar and sniper attacks in January and February 1968, the Veteran's service personnel records indicated that he was not in Vietnam during that period. Rather, the personnel records documented that he was in Vietnam from November 1966 to April 1967, and from July 1969 to July 1970. Accordingly, the Board denied the claim. In January 2007, the Veteran requested that his claim for service connection for PTSD be reopened. He submitted an April 2006 VA treatment record that includes a diagnosis of PTSD. In describing his military service responsibilities, the Veteran reported that he unloaded ships, served as a door gunner on a helicopter crew, was a truck driver on convoys in dangerous territories, was a "tunnel rat," and participated in guard duty and perimeter patrols. With respect to his service in Southwest Asia, he stated that he had a couple close calls with Scud missile attacks within a few hundred feet of his base. The examiner noted that the Veteran presented a full range of symptoms consistent with a diagnosis of PTSD. In addition to rendering a diagnosis of PTSD, the examiner stated that PTSD was "probably related to the onset of the war in Iraq." The Veteran also submitted two VA Forms 21-0781. In the first, he reported that while assigned to the 551st Transportation Company from 1968 to 1969, "Charlie hit us with everything he had plus the kitchen sink." He stated that they were hit while traveling as part of a convoy on Highway One and that several service comrades were either shot or blown to pieces. On the second form, he stated that in 1991 or 1992 while stationed with the 304th Maintenance Company, a Scud missile hit a warehouse where some of the Veteran's friends were housed. He stated that many men were hurt or killed. The RO denied reopening the Veteran's claim in May 2007. Following the receipt of the Veteran's Notice of Disagreement in April 2008, the RO advised the Veteran to submit additional information about each of the claimed stressors. No additional information or evidence was received. As noted, the July 2003 Board decision is final. Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. 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. "New" evidence means existing evidence not previously submitted to VA. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an un-established fact necessary to substantiate the claim. See 38 C.F.R. § 3.156(a). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after VA has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, among the unestablished facts necessary to substantiate the claim was evidence that a PTSD stressor occurred. Previously, the Board's focus in the July 2003 decision was on the PTSD stressors related to the Veteran's service in Vietnam. Since that decision the Veteran has presented information regarding in-service stressors during his service in Southwest Asia. This evidence is new. Moreover, the April 2006 VA treatment record, which links PTSD to service in Southwest Asia, is also new. Furthermore, it is material, as it raises a reasonable possibility of substantiating the claim. While the evidence does not definitively prove that the PTSD stressor actually occurred, the Court has emphasized that the law does not require new and material evidence as to each unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, after presuming the credibility of the newly submitted evidence, the Board finds that the criteria to reopen the finally denied claim have been met. III. Merits Determination Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. § 4.125(a). 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). Recent regulatory amendments changed the evidentiary standards regarding stressors based on a veteran's fear of hostile military or terrorist activity. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3)), corrected by 75 Fed. Reg. 41,092 (July 15, 2010). These amendments are applicable to the Veteran's appeal. See 75 Fed. Reg. 39,843 (stating that the amendments are applicable to appeals currently before the Board that have not yet been decided). Under the recent amendments, lay evidence may establish an alleged stressor where: 1) the stressor is related to the Veteran's fear of hostile military or terrorist activity; 2) a VA psychiatrist, VA psychologist, or VA-contracted psychiatrist or psychologist, 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; 3) the stressor is consistent with the places, types, and circumstances of the Veteran's service; and 4) there is no clear and convincing evidence to the contrary. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852. Fear of hostile military or terrorist activity occurs where a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. Here, the Veteran has presented lay testimony of a PTSD stressor based on his fear of hostile military activity when serving in Southwest Asia. In addition, he has presented the VA treatment note dated in April 2006 which confirms that the stressor is sufficient to support the diagnosis of PTSD. The note is unsigned; so it appears unclear as to whether it was authored by a VA psychiatrist, VA psychologist, or VA-contracted psychiatrist as is required under the revised PTSD regulation. A May 2006 VA treatment note, however, indicates that the Veteran was referred to a VA psychiatrist following an initial April 2006 PTSD consultation by Dr. W. Thus, it is reasonable to conclude that the April 2006 treatment note was authored by a VA psychologist. The Veteran's service personnel records document his service in Saudi Arabia from February to August 1991. The Board takes judicial notice that Iraq began launching Scud missiles soon after the Coalition's Gulf War air campaign began in January 17, 1991. Iraq Scud attacks involved 88 missiles, of which 46 reached Coalition countries in the Kuwait theater of operations. See http://www.gulflink.osd.mil/scud_info/ (last visited July 5, 2011.) Thus, the stressor described by the Veteran; being in fear of or in close proximity to Scud missile attacks, is certainly consistent with the places, types, and circumstances of his service. As regards the Veteran's statements concerning his service in Vietnam, the weight of the evidence does not show the Veteran's participation in combat as alleged. The official service department records do not document the Veteran's participation in duties involving likely exposure to combat, nor does the evidence tend to verify that the Veteran was exposed to stressors sufficient to produce PTSD as alleged. Instead, the Board finds that the Veteran's statements concerning service as door gunner, a tunnel rat, or serving on guard duty are not deemed credible. Even though his statements regarding service in Vietnam are not deemed credible, it does not necessarily follow that his statements concerning service in Southwest Asia are also not credible. Rather, his service in Southwest Asia has been verified by official service department records. In addition, he served in Southwest Asia during a time period and in a location that involved exposure to Iraqi Scud missile attacks. Moreover, the April 2006 VA examiner considered the Veteran's statements regarding stressors in Southwest Asia and made a medical conclusion that his symptoms warranted a diagnosis of PTSD that was based on his service in the Persian Gulf. Given such, there is not clear and convincing evidence to rebut the finding that the PTSD stressors actually occurred. Accordingly, while all of the reported PTSD stressors have not been verified, the Veteran's lay testimony as to experiencing fear from Scud missile attacks, in conjunction with the April 2006 VA examiner's conclusion that such exposure was sufficient to produce PTSD, and in the absence of clear and convincing evidence to the contrary, is sufficient evidence to verify the stressors. Given the foregoing, the Board finds that the criteria for service connection for PTSD have been met. Accordingly, the claim is granted. ORDER New and material evidence having been received; the claim for service connection for PTSD is reopened. Service connection for PTSD is granted. ______________________________________________ STEVEN L. COHN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs