Citation Nr: 1127808 Decision Date: 07/26/11 Archive Date: 08/02/11 DOCKET NO. 09-12 890 ) 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 received to reopen a claim for service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Kirscher Strauss, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to February 1973. This case comes to the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied reopening the claim for service connection for PTSD. The Board notes that the notice of disagreement was received in December 2007, after the expiration of the appeal period. However, it was argued that the notice of the October 2006 denial was sent to an old address, the Veteran did not receive the notice, and was not advised of the denial until contact with his representative in December 2007. The RO accepted the notice of disagreement and initiated appeal procedures. The Board will not disturb the RO's apparent conclusion that the appeal was considered timely. In April 2011 the Veteran submitted to the Board additional evidence for consideration in connection with the claim on appeal. A waiver of RO jurisdiction for this evidence was received in a written statement dated in April 2011 that is included in the record. The Board accepts this evidence for inclusion in the record on appeal. See 38 C.F.R. § 20.1304 (2010). For the reasons explained below, the claim for service connection for PTSD on the merits is REMANDED to the RO via the Appeals Management Center (AMC). VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. In a June 2001 decision the RO denied entitlement to service connection for PTSD because new and material evidence had not been submitted; the Veteran did not appeal and the decision became final. 2. Evidence associated with the claims file since the June 2001 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim for service connection for PTSD or raises a reasonable possibility of substantiating a claim for service connection for PTSD. CONCLUSION OF LAW Evidence received since the RO's June 2001 denial is new and material, and the claim for service connection for PTSD is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled. Given the favorable decision in this case with respect to reopening the claim for service connection and the determination that remand is required, no further discussion of VCAA compliance is necessary. Analysis Service connection for PTSD was denied in a September 1994 decision because the Veteran was not shown to suffer from PTSD. He attempted to reopen his claim in 2001. A June 2001 rating decision denied the claim because the Veteran did not submit medical evidence of a diagnosis of PTSD or details of a stressful event that was capable of verification. The Veteran did not appeal this decision and it became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010). Evidence of record at the time of that decision included service treatment records; service personnel records; private treatment records pertaining to a motor vehicle accident from West Paces Ferry Hospital and from Mayfield Chiropractic Center dated from January to November 1983; several VA spine or orthopedic examination reports; a private examination report from A. G., M.D., dated in December 1990 in which the Veteran reported that he had been separated for three months, he was under a great deal of stress, and he worked as a clothing salesman; statements and hearing testimony regarding a claim for service connection for a back disorder; and a May 1994 VA PTSD examination report that diagnosed major depressive reaction. The Veteran again attempted to reopen his claim for service connection for PTSD in 2004. In a March 2005 rating decision, the RO denied the Veteran's claim, noting that there was no verifiable stressor or current diagnosis of PTSD. The Veteran was notified of the decision in a March 2005 letter, which also advised him that he had until December 10, 2005 to submit the evidence requested in the December 2004 VCAA notice letter to support his claim. In October 2004 the Veteran asked that his claim be reopened. On December 9, 2005 the Veteran submitted a detailed letter concerning some of his claimed stressors. This appeal arises from the RO's October 2006 decision that again denied the application to reopen the claim for service connection for PTSD. Regardless of the RO's actions, the Board must still determine whether new and material evidence has been submitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). For purposes of the "new and material" analysis, the credibility of the evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Evidence added to the claims file since the June 2001 RO decision includes VA examination reports; statements from the Veteran and his representative; a November 1992 Vet Center authorization for three assessment visits for individual, marriage, and group readjustment counseling with A. W., M.D.; a September 2006 statement from A. W., M.D.; treatment records from the Atlanta VA Medical Center (VAMC) dated from December 2004 to March 2008; a February 1984 statement from Atlanta Center for Psychological Services that described pain resulting from a motor vehicle accident and diagnosed PTSD; a report of attacks on USAF Operating Bases in the Republic of Vietnam received in November 2008 from the Center for Unit Research of Records (CURR); a January 2009 memorandum from the U.S. Army and Joint Services Records Research Center (JSRRC) coordinator that conceded one of the Veteran's claimed military stressors; Durham VAMC treatment records dated from July to September 2008 and from May to December 2009; an April 2009 VA PTSD examination report; three "buddy" statements; a February 2010 statement from a psychotherapist qualified to practice in the United Kingdom; and a May 2010 statement from a clinical hypnotherapist in Ecuador. The additionally received evidence is "new" in the sense that it was not previously before agency decision makers. Further, the evidence is material. At the time of the prior denial, evidence of record did not demonstrate a verified stressor or a PTSD diagnosis. A January 2009 memorandum by the VA JSRRC coordinator concluded that the stressor of the Veteran's unit experiencing shelling while in Vietnam should be conceded. Also, new VA treatment records reflect that the Veteran has been diagnosed with PTSD. Accordingly, the claim must be reopened. ORDER New and material evidence has been submitted to reopen a claim for entitlement to service connection for PTSD; to this extent only the appeal is allowed. REMAND Reopening the claim does not end the inquiry; rather, the claim must be reviewed on the merits to determine whether service connection is warranted. Service treatment records were entirely silent for any complaints, findings, or reference to any psychiatric problems. A February 1973 separation medical examination report documented normal psychiatric findings on clinical evaluation, and the Veteran denied any depression or excessive worry, frequent trouble sleeping, or nervous trouble of any sort in a February 1973 report of medical history. Service personnel records showed that the Veteran was stationed at DaNang Air Base with the 366th Security Police Squadron from November 1971 to December 1972. His DD Form 214 showed that he served as an executive support officer; the related civilian occupation was administrative assistant. Awards and decorations were not indicative of combat. The Veteran's claimed military stressors included his unit being shelled in August 1972 and October 1972. Lay statements corroborated his account of frequent rocket attacks. He has also reported unverified stressors. A January 2009 memorandum by the VA JSRRC coordinator concluded that the stressor of the Veteran's unit experiencing shelling while in Vietnam should be conceded, reasoning that as a member of a military police unit on the airbase, it is at least as likely as not that even if the Veteran or his unit did not directly experience a particular attack, they would have responded to and dealt with the aftermath, to include casualties and damage. Some of the Veteran's VA treatment records have diagnosed him with PTSD, most stating that PTSD is related to "combat" experiences. On a VA examination in April 2009, the examining psychiatrist, who had reviewed the claims file, diagnosed depressive disorder not otherwise specified. He stated that the Veteran had some symptoms consistent with a diagnosis of PTSD, but not enough to meet the DSM-IV criteria. The examiner did not indicate whether the diagnosed depression was related to military service, to include the verified stressor of rocket attacks on the Veteran's military base. The Court has held that claims for service connection for PTSD includes claims for service connection for any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of the above, the Board concludes that an additional VA examination is needed, to determine whether the Veteran meets the diagnostic criteria for PTSD, or whether his diagnosed depression and symptoms of PTSD are related to his military service, to include the verified stressor of rocket attacks on his military base. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, this issue is REMANDED for the following: 1. Ask the Veteran to provide the names and addresses of all medical care providers, both VA and private who have treated him for a psychiatric disability to include PTSD since September 2008. After securing the necessary release, the RO/AMC should obtain these records. 2. Thereafter, the Veteran should be afforded a VA PTSD examination to determine whether he meets the diagnostic criteria for that disorder and/or whether the any presently identified psychiatric disorder is related to service, to include the verified stressor of rocket attacks at the Veteran's military base in Vietnam. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should identify all present psychiatric disorders and indicate whether the Veteran meets the diagnostic criteria for PTSD. If PTSD is diagnosed the examiner should indicate whether such diagnosis is related to the verified stressor of rocket attacks on the Veteran's military base in Vietnam. If any other psychiatric diagnosis is identified on the examination, the examiner should indicate whether such disorder is related to service, to include the verified stressor of rocket attacks on the Veteran's military base in Vietnam (or PTSD if diagnosed, whether the psychiatric disorder is related to PTSD). A rationale for all opinions expressed should be provided. 3. After the development requested above has been completed to the extent possible, the RO/AMC should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran 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 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). ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs