Citation Nr: 1127018 Decision Date: 07/20/11 Archive Date: 07/29/11 DOCKET NO. 09-15 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral foot disorder, claimed as residuals of an in-service bilateral toe injury. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. M. Clark, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1967. These matters come before the Board of Veterans' Appeals (BVA or Board) from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified before the undersigned Veterans Law Judge in March 2011. A transcript of the hearing is of record. The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral foot disorder, claimed as residuals of an in-service bilateral toe injury is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a decision dated in November 1998, the RO denied a claim for service connection for PTSD based on the finding that a current diagnosis of PTSD had not been established; the Veteran did not appeal the November 1998 decision within one year of being notified. 2. The evidence received since the November 1998 RO decision is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 3. The Veteran indicated that he was exposed to the actual death or threatened death of himself and others from hostile military activity, including sampans that were floated in to try and blow up the ship; and, while not specifically verified, the claimed in-service stressor is consistent with the places, types, and circumstances of service. 4. Having diagnosed the Veteran as having PTSD, a VA staff psychiatrist has determined that the claimed in-service stressor (being fearful of death due to the ship possibly blowing up) is adequate to support a diagnosis of PTSD, and that the Veteran's symptoms are related to the claimed stressor. CONCLUSIONS OF LAW 1. The November 1998 rating decision that denied the Veteran's claim of entitlement to service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002), 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103 (2010). 2. New and material evidence has been presented since the November 1998 RO decision denying service connection for PTSD; thus, the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 3. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.304(f) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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, 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay 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). This notice must be provided prior to an initial unfavorable decision issued by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. With respect to claims to reopen, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Id. The Veteran's claim for service connection for PTSD is being reopened. Moreover, his claim for service connection for PTSD is being granted. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. II. New and Material Evidence Unappealed rating decisions are final with the exception that a claim may be reopened by submission of new and material evidence. When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of the Veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). When making determinations as to whether new and material evidence has been presented, the RO must presume the credibility of the evidence. Justus v. Principi, 3 Vet. App. 510 (1992). VA regulation defines "new" as evidence not previously submitted and "material" as evidence related to an unestablished fact necessary to substantiate the claim. If the evidence is new and material, the question is whether the evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Historically, the Veteran initially filed a claim of entitlement to service connection for PTSD in May 1998. The RO, in October 1998 denied the Veteran's claim for PTSD, in pertinent part, based on a finding that there was no evidence showing that the Veteran had been diagnosed with PTSD. No service treatment records were available for review. The RO was subsequently able to obtain the Veteran's service treatment records. Moreover, administrative records were additionally received. In a November 1998 rating decision, the RO once again denied the Veteran's claim for PTSD on the basis that the medical evidence did not demonstrate the claimed disorder was incurred in or caused by military service and, that a current diagnosis of PTSD had not been established. The Veteran did not appeal that decision within a year, and it became final. 38 C.F.R. § 20.1103. The Veteran filed a claim of entitlement to service connection for PTSD in January 2007. Although the RO reopened his claim in a July 2007 rating decision, they denied it on the merits. He appealed. Because the Board has the jurisdictional responsibility to consider whether it was proper to reopen the claim, regardless of the RO's determination on the question of reopening, the Board will determine whether new and material evidence has been received and, if so, consider entitlement to service connection on the merits. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The evidence added to the record since the November 1998 rating decision includes VA treatment records. The Board finds that the pertinent evidence, received subsequent to the November 1998 RO decision, includes various VA treatment records reflecting a diagnosis of PTSD. As the evidence now demonstrates a diagnosis of PTSD, a reasonable possibility of substantiating his claim for PTSD is raised. The Board finds that the evidence submitted since the November 1998 RO decision is new in that it was not associated with the claims folder prior to the November 1998 RO decision and material because it relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. Therefore, his acquired psychiatric disorder claim will be reopened. III. Service Connection Having reopened the Veteran's PTSD claim, the Board will now consider the claim on the merits. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); (2) medical evidence establishing a link between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2010). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's claim of service connection for PTSD is based on numerous stressors, which include being threatened by sampans floating in to try and blow up the ship he was on. See February 2011 statement, March 2007 and January 2008 VA treatment records. He has also alleged stressors including: fire cleanup where he saw dead bodies, seeing another sailor being killed by a hatch on the ship, seeing body bags, and being harassed by Russian ships and planes. The Board notes that the provisions relating to the establishment of service connection for PTSD, found at 38 C.F.R. § 3.304(f), were amended, effective July 13, 2010. See 75 Fed. Reg. 39,843-39,852 (Jul. 13, 2010) and 75 Fed. Reg. 41,092 (Jul. 15, 2010) (effectuating a correction to the July 13, 2010 Federal Register). As set forth in the Federal Register, the revised provisions of 38 C.F.R. § 3.304(f) were made effective July 13, 2010, and apply to any claim that "[w]as appealed to the Board before July 13, 2010 but has not been decided by the Board as of that date." Id. Because the Veteran's claim was pending before the Board on July 13, 2010, but had not yet been decided at that juncture, the amended provisions of 38 C.F.R. § 3.304(f) are for consideration in this case. This recent regulatory change has eliminated the requirement for corroboration of a claimed in-service stressor if it is related to the Veteran's fear of hostile military or terrorist activity. It is necessary that 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, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. 38 C.F.R. § 3.304(f)(3)(2010). For purposes of 38 C.F.R. § 3.304(f)(3), "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. Thus, with respect to the Veteran's allegations, this regulatory change is only applicable to his allegations of experiencing a generalized fear for his life when cruising off the coast of Vietnam, due to sampans possibly blowing him up, and being harassed by Russian ships and planes, because such relates to "fear of hostile military or terrorist activity." The Board notes that a response, to an October 1998 inquiry by the RO, regarding his service in Vietnam, reflected that the Veteran served September 12, 1966 to October 19, 1966, October 30, 1966 to December 4, 1966, and from December 26, 1966 to February 1, 1967, in Vietnam. Available personnel records reflect that he was stationed aboard the USS Coral Sea between August 1966 and February 1967. An April 2010 U.S. Army and Joint Services Records Research Center (JSRRC) report reflects that deck logs from the USS Coral Sea reveal that in October 1966 the ship had to maneuver to clear an unidentified fishing vessel off the coast of Vietnam. Cobbled together, and without any evidence to the contrary, the Board finds that there is sufficient evidence to support the Veteran's allegations of fearing for his life when cruising off the coast of Vietnam, due to sampans possibly blowing him up. See Pentecost v. Principi, 16 Vet. App. 124, 128 (2002) (holding that the veteran's presence with the unit at the time such attacks occurred corroborates his statement that he experienced such attacks personally). The Board initially notes that there are numerous VA outpatient treatment records confirming a diagnosis of PTSD in accordance with the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). Although the available service treatment records do not note any complaints or treatment for psychiatric issues, a March 2007 VA staff psychiatrist considered the Veteran's allegations of fearing for his life when cruising off the coast of Vietnam, due to sampans possibly blowing him up, and a provided a diagnosis of PTSD related to military trauma. The March 2007 VA staff psychiatrist considered the Veteran's history. She noted the Veteran's reports that he had seen body bags being delivered onto his ship and seeing body parts in clear plastic bags on the ship deck. She considered his allegations that he thought he might die on many occasions when cruising off the coast of Vietnam due to sampans possibly blowing them up. She also noted his reports of being harassed by Russian ships and planes. The VA staff psychiatrist diagnosed the Veteran with PTSD related to military trauma. She noted that the Veteran presented with a history, symptoms and signs consistent with PTSD and recurrent depression dating and relating to Vietnam experience but worsening recently in relation to the stresses of the war in Iraq. Similar findings were noted in a January 2008 evaluation by the same staff psychiatrist. There are no contradictory opinions of record. As noted above, in order to apply the recent regulatory change eliminating the requirement for corroboration of a claimed in-service stressor, it is necessary that 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. The March 2007 VA staff psychiatrist's opinion meets these requirements. Pursuant to this decision, the Board has made a credibility determination that the Veteran's in-service stressor occurred, as it is consistent with the places, types, and circumstances of his service. Additionally, as his stressor relates to his fear of hostile military or terrorist activity, and a VA staff psychiatrist has confirmed that the Veteran suffers from PTSD because of the military-related experience he reported, the Board finds that the doctrine of reasonable doubt supports a grant of service connection for PTSD. The Board additionally notes that the Veteran has been diagnosed with depression, a major depressive disorder, and anxiety post-service. Nevertheless, as service connection for PTSD is being allowed, any underlying claim for service connection for an acquired psychiatric disorder is also being allowed. Put another way, as all psychiatric disabilities are rated under the same diagnostic code, and depression and anxiety are considered symptoms that would be considered in evaluating the level of severity of his PTSD, the determination as to whether the depression, a major depressive disorder, or anxiety are related to service is essentially moot. ORDER New and material evidence to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, a major depressive disorder, and anxiety has been received, to this extent, the appeal is granted. Entitlement to service connection for PTSD is granted. REMAND 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 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The Board finds that further development is necessary with respect to his new and material claim for a bilateral foot disorder, claimed as residuals of an in-service bilateral toe injury. Social Security Administration Records- The Board notes that the Veteran reported at a January 2008 VA treatment visit that he was receiving Social Security benefits. It is unclear whether these are related to age or disability. VA is required to obtain relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain. 38 U.S.C.A § 5103A(c)(3); Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006). Indeed, the Court has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (there is no duty to get SSA records when there is no evidence that they are relevant). As it is unclear whether the Veteran is receiving disability benefits associated with his feet/toes, the Veteran should be contacted to determine whether there are potentially relevant documents. If the Veteran is in receipt of SSA benefits associated with his feet/toes, these records must be obtained. VA Treatment Records- The claims file reflects that the Veteran has received medical treatment from the Portland VA Medical Center and Metro West Community Based Outpatient Clinic (CBOC); however, as the claims file only includes treatment records from these facilities dated up to February 2009, any additional records should be obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The AMC/RO should obtain and associate with the claims file all outstanding VA records. VCAA Notice- The Board notes that corrective VCAA notice should be sent regarding this issue. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify a claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the appellant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. The February 2007 letter sent to the Veteran correctly identified the last final rating decision on this issue as November 1998. However, the letter merely states that the Veteran's claim was previously denied because "it was not service connected." It continues stating that "therefore, the evidence you submit must relate to this fact." This letter does not adequately reflect that the Veteran's claim was previously denied due to a lack of nexus between the Veteran's current complaints and service. Accordingly, the RO should provide the Veteran with complete notice pursuant to the VCAA and Kent v. Nicholson, supra, of the information and evidence needed to reopen his claim of entitlement to service connection for a bilateral foot disorder, claimed as residuals of an in-service bilateral toe injury. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran corrective notice pursuant to the VCAA and Kent v. Nicholson of the information and evidence needed to reopen the Veteran's claim of entitlement to service connection for a bilateral foot disorder, claimed as residuals of an in-service bilateral toe injury. 2. Contact the Veteran to determine for if he is receiving SSA disability benefits, and if so, for what disabilities he is in receipt of SSA disability benefits. If the Veteran is in receipt of SSA benefits associated with his feet/toes, obtain SSA records, including the medical evidence used to determine disability eligibility. Any negative search result should be noted in the record. 3. The AMC/RO should contact the Veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, that treated the Veteran for his bilateral feet/toes disorder. After the Veteran has signed the appropriate releases, those records not already associated with the claims folder, should be obtained and associated with the claims folder. Regardless of whether or not the Veteran responds the AMC/RO must obtain the Veteran's treatment records from the Portland VA Medical Center and Metro West CBOC since February 2009. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be included in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 4. The RO should then readjudicate the claim. If any benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. The case should then be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs