Citation Nr: 1127574 Decision Date: 07/25/11 Archive Date: 08/02/11 DOCKET NO. 08-17 070 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for post traumatic stress disorder (PTSD), and if so, whether the claim should be granted. ATTORNEY FOR THE BOARD Heather M. Gogola, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to April 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board's decision addressing the request to reopen the claim for service connection for PTSD is set forth below. The claim for service connection for PTSD, on the merits, is addressed in the REMAND portion of the decision below and is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Entitlement to service connection for PTSD was denied in an unappealed March 2004 rating decision. 2. The evidence received since the March 2004 decision includes evidence that is not cumulative or redundant of that previously of record and relates to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW New and material evidence has been received to reopen a claim for service connection for PTSD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claims. In addition, the evidence currently of record is sufficient to substantiate his entitlement to the benefits sought on appeal. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010) or 38 C.F.R. § 3.159 (2010). Legal Criteria Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The 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. New evidence means existing evidence not previously received by 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. 38 C.F.R. § 3.156(a). The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Analysis In an unappealed rating decision dated in March 2004, the RO denied service connection for PTSD. The claim was denied based on the RO's determination that the Veteran was not involved in combat while in Vietnam, nor did the Veteran provide specific information to perform an adequate search to verify stressor information. The evidence added to the record since that decision relates to the Veteran's claimed stressors during his military service. The Veteran submitted a statement indicating that he served in Vietnam from February 1969 to April 1970, and was stationed along with the 14th Aviation Company. He further stated that during his tour of duty in Vietnam, his base came under incoming enemy attack. The Veteran also submitted an excerpt from a previous Board decision indicating that a verified attack on Vinh Long occurred on April 11, 1969. The Veteran also submitted medical evidence that was essentially duplicative of previously submitted treatment records indicating a diagnosis of PTSD related to the Veteran's reported numerous roles in Vietnam, including serving as a reconist. The Board has carefully considered those statements. The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. Therefore, it is new and material and reopening of the claim is in order. ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for PTSD is granted. REMAND After review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claim. The Veteran contends that he suffers from PTSD as the result of events that occurred during his active service in Vietnam. The Veteran's DD 214 indicates that he served in Vietnam for approximately 12 months. He was awarded the Vietnam Service Medal and the Vietnam Campaign Medal. His military occupational specialty was wheel vehicle mechanic and scout driver. Personnel records confirm that he was stationed in Vietnam from February 1969 to March 1970 with the D Troop, 7th Squadron, 1st Air Cavalry. The Veteran claims that while stationed at Vinh Long in Vietnam, he served in a number of different capacities, including reconnaissance, troop support, and vehicle maintenance, during which he was exposed to enemy fire while in the field performing his duties. He also stated that his base in Vinh Long came under enemy fire, and that he witnessed injuries and the death of numerous fellow soldiers and others. Private treatment records from Goldsboro Psychiatric Clinic dated November 2003 to April 2004, as well as a May 2008 evaluation from Psychological Consulting Services, indicated that the Veteran reported the above listed stressors, including witnessing injuries and deaths of numerous soldiers as well as coming under enemy fire while out in the field performing his duties, including reconnaissance and troop support. The November 2003 Goldsboro record and the May 2008 Psychological Consulting services evaluation provide diagnoses of PTSD related to reported combat stressors. The Board notes that, effective July 13, 2010, during the pendency of this appeal, VA has amended its adjudication regulations governing service connection for PTSD. The revised regulation indicates that 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 a 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, a Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. "[F]ear 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 up on 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. See 75 Fed. Reg. 39.843 (Jul. 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3)). Although the Veteran's claimed stressor related to an incoming attack at Vinh Long has not been verified, the Veteran's allegations regarding coming under enemy fire while performing duties in the field as a scout driver, as well as his base in Vinh Long, are plausible and consistent with his service. Further the Board fined these stressors to be reasonably encompassed within the definition of fear of hostile military activity. As such, the revised regulations apply. In light of the above, the Board finds that an examination must be afforded to the Veteran to determine if he suffers from PTSD related to in-service stressors, to include the attack at the Vinh Long base, as well as his reported exposure to enemy fire while in the field. Additionally, the Board notes that while the Veteran submitted an evaluation from Psychological Consulting Services dated May 2008, the evaluator indicated that the Veteran had been under his care since June 2007. Those records have not been associated with the claims file and should be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC obtain should undertake appropriate development to obtain a copy of any pertinent evidence, not already associated with the claims folders, to include any pertinent records from Psychological Consulting Services. 2. The Veteran then should be scheduled for a VA psychiatric examination to determine whether he has PTSD or another psychiatric disorder related to his tour of active duty. All indicated tests and studies are to be performed. In conjunction with the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Pursuant to VA Training Letter 10-05, issued on July 16, 2010, the examining psychologist or psychiatrist is to note that: "If a diagnosis of PTSD is made, the examiner must now also determine if the Veteran's claimed stressor is related to the Veteran's fear of in-service hostile military or terrorist activity." Based on a review of the record, and examination of the Veteran, and considering only the claimed in-service stressors that are consistent with his military service, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has PTSD related to an event in service. The examiner should identify which claimed stressor(s) is/are adequate to support the diagnosis of PTSD. The opinion should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. If any psychiatric disability recognized by the DSM-IV other than PTSD is diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that such disability is related to military service. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the Veteran's claim based on a de novo review of the record. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be issued, and the Veteran should be afforded the requisite opportunity to respond before the claims folders are returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals