Citation Nr: 1135583 Decision Date: 09/22/11 Archive Date: 10/03/11 DOCKET NO. 09-26 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1943 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in April 2008 by the VARO in Providence, Rhode Island, which reopened and denied the Veteran's claim for service connection of PTSD. 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 issue of entitlement to service connection for PTSD 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. A May 2007 Board decision denied the Veteran's claim for service connection for PTSD. 2. New evidence associated with the claims file since the May 2007 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, and raises a reasonable possibility of substantiating the claim for service connection for PTSD. CONCLUSION OF LAW As evidence received since the RO's November 2004 denial is new and material, the criteria for reopening the Veteran's claim for service connection for PTSD are met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA 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. In this case, the Veteran's application to reopen the claim for service connection PTSD was received in December 2007. Thereafter, he was notified of the provisions of the VCAA by the RO in correspondence dated in December 2007 and May 2011. These letters notified the Veteran of VA's responsibilities in obtaining information to assist him in completing his claim, identified his duties in obtaining information and evidence to substantiate his claim, and provided other pertinent information regarding VCAA. To the extent that this claim has been reopened, any failure of VA to provide the Veteran the specific notice requirements concerning new and material evidence, as addressed in Kent v. Nicholson, 20 Vet. App. 1 (2006), is harmless error. New and Material Evidence In a May 2007 decision, the Board denied the Veteran's claim for service connection for PTSD. The Board noted that the evidence failed to establish a PTSD diagnosis. This Board action represents the last final decision on any basis as to the issue of entitlement to service connection for PTSD. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100; Evans v. Brown, 9 Vet. App. 273 (1996). The Veteran attempted to reopen his claim for service connection for PTSD in December 2007. This appeal arises from the RO's April 2008 decision which reopened and denied the Veteran's claim for service connection. 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). The Board has a jurisdictional responsibility to consider whether it is proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board. Jackson v. Principi, 265 F.3d 1366 at 1369 (Fed. Cir. 2001) and Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); 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. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a) (2010). 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, 282-3 (1996). In this case, the last final denial of the claim was the May 2007 Board decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Evidence added to the claims file since the May 2007 denial includes statements from the Veteran; VA progress notes dated from August 2008 to August 2009 and October 2009 to May 2010; and a letter from VA social worker J. B. dated in August 2009. This evidence is "new" in that it was not previously before agency decision makers at the time of the May 2007 decision, and is not cumulative or duplicative of evidence previously considered. This evidence is "material", as it constitutes evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, i.e., a current PTSD diagnosis. Since the May 2007 Board denial, the Veteran has been treated further for PTSD with group therapy and a September 2008 VA progress note by a VA psychologist gives a diagnosis of PTSD. Furthermore, the letter from J. B., M.S.W., indicates the Veteran has PTSD due to in-service combat stressors. Under these circumstances, the Board concludes that the criteria for reopening the claims for service connection for PTSD are met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. To that extent, the appeal is granted, although the reopen claim is subject to remand. ORDER New and material evidence to reopen the claim for service connection for PTSD has been received, and to this extent, the appeal is allowed. REMAND 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), are applicable to this appeal. The Veteran alleges that he has PTSD as a result of stressful incidents during his service during World War II. The Veteran's DD-214 indicates he was a heavy truck driver. The Veteran has submitted multiple statements of stressors which include picking up dead bodies and seeing a Jeep explode. The Veteran's claim was previously denied on the basis of no diagnosis of PTSD and a negative nexus opinion by a May 2005 VA examiner. The Veteran was originally diagnosed with PTSD by a VA social worker in November 2004. A September 2008 VA progress note reports the Veteran participated in group psychotherapy for World War II veterans. The assessment listed a diagnosis of PTSD. In an August 2009 letter, the Veteran's treating social worker provided a letter endorsing the Veteran's PTSD diagnosis due to combat stressors. Although the Veteran has submitted evidence of a diagnosis of PTSD by a VA social worker, the revised regulation requires a determination of whether the claimed stressors can reasonably cause PTSD by a VA psychologist or psychiatrist. Therefore, a remand is necessary for a VA psychological evaluation by a VA or contract psychiatrist or psychologist to determine the nature and etiology of any claimed psychiatric disorder. 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 AMC/RO should contact the Veteran and his representative and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, who treated the Veteran for his PTSD and whose records are not found within the claims file. After the Veteran has signed the appropriate releases, those records not already associated with the claims file should be obtained and associated with the claims file. 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 inserted 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. 2. The Veteran should be scheduled for an examination by a VA psychiatrist or psychologist. All indicated tests and studies are to be performed. Prior to the examination, the claims folder and a copy of this remand must be made available to the psychiatrist or psychologist 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. The examination must be conducted following the protocol in VA's Disability Worksheet for VA Initial PTSD Examination. Based on a review of the record, and examination of the Veteran, and considering the identified stressors and DD-214, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that he has PTSD due to a claimed stressor that is related to the Veteran's fear of hostile military or terrorist activity. For any psychiatric diagnosis other than PTSD, opine whether it is at least as likely as not due to active service. 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. 3. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 4. After completing any additional necessary development, the AMC/RO should re-adjudicate the issue of service connection for PTSD. If the disposition of the claim remains unfavorable, the AMC/RO should furnish the Veteran and his representative a supplemental statement of the case and afford the applicable opportunity to respond. 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. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs