Citation Nr: 1136489	
Decision Date: 09/28/11    Archive Date: 10/11/11

DOCKET NO.  10-17 626	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Whether new and material evidence has been presented to reopen the claim of service connection for posttraumatic stress disorder.

2. Entitlement to service connection for posttraumatic stress disorder.


REPRESENTATION

Veteran represented by:	The American Legion

WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD

Cheryl E. Handy, Associate Counsel





INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  

The Veteran, who is the appellant, served on active duty from July 1968 to June 1969, including service in the Republic of Vietnam.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

In August 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is in the Veteran's file.

The reopened claim of service connection for posttraumatic stress disorder is REMANDED to the RO via the Appeals Management Center in Washington, DC.


FINDINGS OF FACT

1.  In a rating decision in September 2004, the RO denied service connection for posttraumatic stress disorder because an in-service stressor was not verified; after the Veteran was notified of the adverse determination and of the right to appeal, he did not appeal the rating decision and the rating decision became final based on the evidence then of record.

2.  The additional evidence presented since the rating decision in September 2004 relates to an unestablsihed fact necessary to substantiate the claim of service connection for posttraumatic stress disorder.





CONCLUSIONS OF LAW

1.  The rating decision in September 2004 by the RO, denying service connection for a posttraumatic stress disorder, became final.  38 U.S.C.A. § 7105(c) (West 2002). 

2.  The additional evidence presented since the rating decision in September 2004 is new and material and the claim of service connection for posttraumatic stress disorder is reopened.  38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38 C.F.R. § 3.156 (2011).  

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.  

As the claim is reopened, VCAA compliance need not be further addressed. 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Legal Standard for Reopening Claims

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 considered.  38 U.S.C.A. § 7105.  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 decision makers.  "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. 

When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).

Evidence Previously Considered

In the rating decision in September 2004, the RO denied service connection for posttraumatic stress disorder because there was no verified in-service stressor.  

The evidence previously considered consisted of the service treatment and service personnel records, a completed posttraumatic stress disorder questionnaire, VA records and private medical records, and statements by the Veteran's spouse and sister.  The Veteran's specifically identified stressor incidents included witnessing a man killed when run over by a transport truck and killing a sniper later discovered to be someone the Veteran knew.  The medical records considered included a diagnosis of posttraumatic stress disorder based on the stressor incidents described.  

Evidence Subsequently Submitted

In conjunction with the Veteran's claim to reopen, additional evidence has been submitted.  Included in the newly submitted evidence were additional statements from the Veteran's wife and sister regarding his symptoms and changes in his personality after Vietnam.


There was also a copy of an Army Commendation Medal citation received by the Veteran and additional stressor statements and testimony.  The Veteran's additional statements related experiences standing guard duty at an ammunition depot, his initial arrival in Vietnam and landing while the airport was receiving incoming enemy fire, and receiving enemy fire at the ammunition depot where he was stationed.  He also stated that as part of his duties at the ammunition depot he was the driver for his commanding officer and that one night their vehicle was hit by enemy fire. 

Other newly submitted evidence included additional medical records, specifically from VA, describing the Veteran's s symptoms and confirming the diagnosis of posttraumatic stress disorder based on incidents in Vietnam described by the Veteran.  
Analysis

The additional evidence submitted since the rating decision in September 2004 relates to an unestablished fact necessary to substantiate the claim, that is, evidence and information about other in-service stressors, the lack of which was the basis for the previous denial of the claim.  

In addition, the revision to the law with regard to in-service stressors supports the Board's determination that the identification of the additional in-service stressors is sufficient to reopen the claim.   Therefore the evidence received since the prior denial is new and material and the claim is reopened.  38 C.F.R. § 3.156.


ORDER

As new and material evidence has been presented, the claim of service connection for posttraumatic stress disorder is reopened and to this extent only, the appeal is granted.



REMAND

After the statement of the case was issued, the evidentiary standard for establishing an in-service stressor to support the diagnosis posttraumatic stress disorder was amended.  The amended regulation provides that if a stressor claimed by a Veteran is related to the Veteran's fear of hostile military 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 posttraumatic stress disorder and that the Veteran's symptoms are related to that stressor, in the absence of clear and convincing evidence to the contrary and where 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.  

"Fear of hostile military or terrorist activities" means that a Veteran experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, 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).

Here, the Veteran has been diagnosed by VA with posttraumatic stress disorder. The Veteran's service personnel records, including his DD-214 and citation for the Army Commendation Medal, confirm his statements that he was assigned to ammunition storage depot during his service in Vietnam, and provide information regarding the area where he served and the unit to which he was assigned.  The places, types, and circumstances of the Veteran's service are consistent with the type and nature of the stressors he has described. 






Under 38 C.F.R. § 3.159(c)(4), a VA examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the Veteran 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 or with another service-connected disability, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim.  See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 

In this case, the Veteran's diagnosis and the nature and circumstances of his service are sufficient to warrant a VA examination under McLendon to determine if the identified events are sufficient stressors to support the diagnosis of posttraumatic stress disorder as mandated under the recently amended provisions of 38 C.F.R. § 3.304(f)(3). 

In addition, the Board notes that the Veteran has been diagnosed as having both depression and posttraumatic stress disorder.  It does not appear that the question of service connection for a psychiatric disability other than posttraumatic stress disorder, to specifically include depression, has been considered during the adjudication process.  The question of whether such a separate diagnosis is warranted should be incorporated in the VA examination in order to ensure proper development of the claim under Clemons v. Shinseki, 23 Vet. App. 1 (2009). 

Accordingly, the case is REMANDED for the following action:

1. Afford the Veteran a VA examination to determine: 

a).  Whether it is more likely than not (greater than 50 percent probability), at least as likely as not (approximately 50 percent probability), or less likely than not (less than 50 percent probability) that posttraumatic stress disorder is related to the Veteran's service in Vietnam.

The VA examiner is asked to consider whether the Veteran's fear of hostile military activity supports a diagnosis of posttraumatic stress disorder.  

b).  If it is determined that the identified stressors are not sufficient to support the diagnosis of posttraumatic stress disorder, the examiner is asked to provide an opinion as to whether or not the Veteran has a separate psychiatric disorder such as depression, related to service. 

The Veteran's file should be provided to the examiner for review. 

2.  On completion of the foregoing, the claim should be adjudicated.  If any aspect of the decision remains adverse to the Veteran, then provide him and his representative a supplemental statement of the case and return the case to the Board.

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).

The 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. 2011).



______________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs