Citation Nr: 1126458 Decision Date: 07/14/11 Archive Date: 07/21/11 DOCKET NO. 08-02 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant & Spouse ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1952 to February 1954. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Lincoln, Nebraska Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file is now in the jurisdiction of the Cheyenne, Wyoming RO. In May 2011, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the Veteran's claims file. Although the RO implicitly reopened the Veteran's claim by deciding the issue on the merits in the July 2008 supplemental statement of the case (SSOC), the question of whether new and material evidence has been received to reopen the claim must be addressed in the first instance by the Board because that issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The matter of service connection for PTSD based on de novo review is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. An August 2007 rating decision denied the Veteran's claim of service connection for PTSD based essentially on findings that there was no credible corroborating evidence of a stressor event in service, and no diagnosis of PTSD related to such event. 2. Evidence received since the August 2007 rating decision includes a VA psychiatric assessment report diagnosing the Veteran with PTSD related to his service; it relates to an unestablished fact necessary to substantiate the claim of service connection for PTSD, and raises a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for PTSD may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Inasmuch as this decision grants the portion of the Veteran's claim that is being addressed, there is no reason to belabor the impact of the VCAA on this matter; any error in notice timing or content is harmless. B. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it 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 its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be reopened. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). An August 2007 rating decision denied the Veteran's claim of service connection for PTSD essentially on the bases that there was no credible corroborating evidence of a stressor event in service, and no diagnosis of PTSD based on such event. The Veteran perfected the appeal by filing a substantive appeal in response to the SOC issued in January 2008. However, before the appeal was transferred to the Board, the Veteran's representative withdrew the appeal in the matter on January 31, 2008 (see VA Form 119 stating, "The Veteran is not diagnosed with P.T.S.D. and unable to verify his stressors, and at this time - withdraws his appeal pertaining to - [service connection] for PTSD."); the August 2007 rating decision therefore became final. 38 C.F.R. § 20.204. Evidence of record at the time of the August 2007 rating decision included: the Veteran's service treatment records (STRs) and his DD Form-214, which show he served in the Army in Korea and received the Korean Service Medal (with three bronze service stars), and that he was assigned to the "89th Ord Fld Maint Co" while in Korea. The evidence at the time of the August 2007 rating decision also included: a December 2002 VA treatment record wherein it was noted the Veteran was "all smiles"; a September 2006 VA treatment record that revealed a negative PTSD screening test; and a May 2007 VA treatment record that notes a depression screening test was negative. Pertinent evidence received since the August 2007 rating decision includes: a February 2008 VA psychiatric assessment report noting the Veteran's various alleged stressors during service, including while he was assigned to guard duty in Korea, a young soldier being hung up in a large storage facility, and providing a diagnosis of PTSD, secondary to wartime events; and a February 2008 VA treatment record that notes PTSD and depression screening tests were negative. As the claim was previously denied, at least in part, on a finding that there was no diagnosis of PTSD, for evidence received since to be new and material in the matter, it must relate to this unestablished fact (i.e., it must show a diagnosis of PTSD that is related to the Veteran's active service). Considering the evidence since the prior denial of the claim in August 2007, the Board finds that it is new and material as it was not previously of record and that it is material as it tends to suggest that the Veteran has PTSD and it is related to service. Significantly, VA treatment records include a February 2008 psychiatric assessment report assigning the Veteran a diagnosis of PTSD secondary to wartime experiences. Therefore, the new evidence pertains to the unestablished facts necessary to substantiate the claim of service connection for PTSD, raises a reasonable possibility of substantiating the claim, and is material. Accordingly, the claim may be reopened. ORDER The appeal to reopen a claim of service connection for PTSD is allowed. REMAND At the outset, the Board notes that the Veteran filed his claim to reopen the matter of entitlement to service connection for PTSD in March 2008 (by submission of a February 2008 VA psychiatric assessment report). He then submitted his notice of disagreement (NOD) to the April 2008 rating decision on appeal in May 2008. Notably, he was issued a SSOC in July 2008, instead of a SOC, and was subsequently issued SSOCs in March 2009 (which appears to treat the Veteran's claim as if it were still on appeal from the August 2007 rating decision based on the listed "adjudicative actions") and March 2010. See 38 C.F.R. §§ 19.26, 19.29 (instructing that a claimant is to be provided a SOC when he/she timely notifies the Agency of Original Jurisdiction with his/her disagreement with its decision, which must contain, inter alia, a summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination). The Board finds such error harmless as the Veteran's July 2008 VA Form 9 is considered to have perfected his appeal, and this decision reopens his claim of service connection for PTSD. [The Board notes however that the chronological order of the documents in the Veteran's claims file appear to have been misfiled, as the January 2008 SOC and VA Form 9 (pertaining to the Veteran's appeal to the August 2007 rating decision, and the withdrawal of the appeal), do not immediately follow his October 2007 NOD, thereby rendering comprehension of the procedural and adjudicatory history of the Veteran's appeal to be unduly complicated, and possibly the cause for the VCAA deficiencies discussed below.] In addition, the Board notes that VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Furthermore, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. The Veteran was not provided adequate VCAA notice, including the criteria for establishing a disability rating or effective date of award. Since this matter is being remanded anyway, there is an opportunity to correct such notice defect. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., a diagnosis under DSM-IV]; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link, or causal nexus, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). Where the veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, then the veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997). The Veteran claims service connection for PTSD as a result of traumatic experiences during his period of active duty service in Korea. He alleges that although he never went to the front line, he always feared the danger of North Korean infiltrators into his compound. Specifically, he alleges (inconsistently, that he did observe, and that he did not observe) that while in Pusan (now Busan), South Korea, a young American soldier whom he was supposed to relieve on guard duty was killed, and left hanging from the rafters of the building [the Veteran] was guarding. See, e.g., February 2007 claim seeking service connection for PTSD (wherein the Veteran stated he saw the soldier hanging from the rafters), and February 2010 decision review officer (DRO) hearing testimony and May 2011 videoconference hearing testimony (wherein the Veteran stated he was told about the event prior to relieving the soldier). The Veteran has not provided specific information sufficient to allow for corroboration of his alleged stressor events and there is no evidence he served in combat. On July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. 75 Fed. Reg. 39,843 (July 13, 2010); see also 75 Fed. Reg. 41,092 (July 15, 2010) (correcting effective date and applicability dates). The revised rule provides: 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 [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 the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that 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. 38 C.F.R. § 3.304(f)(3). The Board notes that at the May 2011 videoconference hearing, the Veteran provided additional evidence to corroborate his alleged stressor, indicating the young American soldier he was supposed to relieve from guard duty that was killed was named Herb Faulkner. As explained above, the Veteran's DD Form 214 reflects that he was assigned to the "89th Ord Fld Maint Co", and he alleges that he was stationed at Pusan, South Korea. [April 2007 correspondence from the National Personnel Records Center (NPRC) indicated that the Veteran's service personnel records were unavailable.] He has indicated the alleged stressor event occurred at various times, from fall 1952 to spring 1953. See, e.g., February 2007 claim for service connection for PTSD, listing the date of the event as spring 1953; March 2007 VA Form 21-0781 (Statement in Support of Claim for Service Connection for PTSD), listing the date of the event as fall 1952 or spring 1953. An August 2008 response from the United States Armed Services Center for Research of Unit Records (CURR) indicated that there was no documentation retired by the 89th Ordnance Field Maintenance Company or the 32nd Ordnance Battalion; it was instructed that a search for morning reports submitted by the 89th Field Maintenance Company from September 1, 1952 to November 31, 1952 be performed to see if any personnel were killed. A December 2008 response from the NPRC indicated that there was no mention of anyone being killed in the morning reports for the 89th Ordnance Field Maintenance Company for the period from September 1, 1952 to November 30, 1952. Notably, there is no indication any evidentiary development was accomplished to corroborate the alleged stressor for the period from November 1952 to December 1953. As the Veteran has provided additional information regarding the alleged stressor, and the evidentiary development was incomplete, further verification development is necessary. Finally, in McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court addressed the provisions of 38 C.F.R. § 3.159(c)(4). This regulation provides that an examination or medical opinion is necessary if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4). The Court held that the third prong of 38 C.F.R. § 3.159(c)(4) is a "low threshold" standard. As a VA care-provider (in February 2008) has diagnosed the Veteran with PTSD and related it to his active duty service, the "low threshold" standard endorsed by the Court is met. An examination to secure a medical nexus opinion is necessary. Such an examination must encompass consideration of the revised 38 C.F.R. § 3.304(f) criteria identified above. 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) (2010). Expedited handling is requested.) 1. The RO should send the Veteran a letter providing him the notice required under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The letter should include appropriate notice regarding effective dates of awards and the criteria for rating PTSD in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran and his representative should have the opportunity to respond. The letter should also ask the Veteran to identify any providers of evaluation and/or treatment he has received for PTSD (those not already of record), and to provide releases necessary to obtain records of any such private treatment or evaluation. The RO should obtain complete records of all such treatment and evaluation from all sources identified by the Veteran. If any provider does not respond, the Veteran should be so advised, and reminded that ultimately it is his responsibility to ensure that any private records are secured. Regardless, the RO should secure for association with the claims file updated (to the present) copies of the complete clinical records of all VA treatment and evaluations the Veteran has received for PTSD since May 2008. 2. The RO should then arrange for any further evidentiary development necessary (e.g., ascertain whether the Veteran's specific unit, the 89th Ordnance Field Maintenance Company, served in an area where hostilities were taking place during his assignment at the locations, specifically Pusan, South Korea), then make an adjudicatory determination whether any allegation of fear of hostile military activity is consistent with the circumstances of the Veteran's service. 3. After the development requested above is completed, the RO should arrange for the Veteran to be examined by an appropriate VA psychologist or psychiatrist to determine whether he has PTSD related to his experiences in service. The Veteran's claims file (to include this remand) must be reviewed by the examiner in conjunction with the examination. Regarding stressor events in service, the RO should advise the examiner that the Veteran did not serve in combat; that he does not have any corroborated stressor event in service; and of their determination regarding whether any report of fear of hostile military activity is consistent with the circumstances of his service. Based on examination of the Veteran and review of the record, the examiner should provide an opinion as to whether the Veteran has PTSD based on the stressor of a fear of hostile activity while serving in Korea? The examiner must explain the rationale for all opinions. 4. The RO should then readjudicate the claim. If it remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs