Citation Nr: 1124082 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 09-31 316 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD J. T. Sprague, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from May 1984 to August 1994. In a September 1999 administrative decision, it was determined that the period of service from September 27, 1991, to August 26, 1994, was dishonorable. This matter comes before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The issue of entitlement to service connection for an acquired psychiatric disability 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. FINDING OF FACT Evidence received since the last final decision of record, which denied service connection for PTSD/an acquired psychiatric disability, relates specifically to an unestablished fact necessary to substantiate the claim; it raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material having been received, the claim for service connection for an acquired psychiatric disorder is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). REASONS AND BASES FOR FINDING AND CONCLUSION On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. First, VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b) (2010). Information means non-evidentiary facts, such as the claimant's address and Social Security number or the name and address of a medical care provider who may have evidence pertinent to the claim. See 66 Fed. Reg. 45620, 45,630 (August 29, 2001); 38 C.F.R. § 3.159(a)(5) (2010). Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2010). As discussed in more detail below, sufficient evidence is of record to grant the application to reopen the Veteran's claim of entitlement to service connection for an acquired psychiatric disability. The claim on the merits requires additional development, which is addressed in the remand below. Therefore, no further development is needed with respect to the aspect of the appeal decided herein. Legal Criteria-New and Material Evidence In general, decisions of the agency of original jurisdiction (the RO) or the Board that are not appealed in the prescribed time period are final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See Knightly v. Brown, 6 Vet. App. 200 (1994). Evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. See Evans v. Brown, 9 Vet. App. 273 (1996). 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(a). Legal Criteria-Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. With a chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support a claim of service connection. Id. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Analysis The Veteran in this case was denied service connection for PTSD in a May 2004 rating decision. The basis for the denial was that there was no evidence confirming the Veteran's alleged noncombat stressor. The Veteran did not perfect an appeal for this rating action, and it became final within a year of notification to him. The Veteran has since come forth with his current claim, alleging that there is new and material evidence of record to support a reopening. The RO, in reviewing the case, determined that new and material evidence was present and that the case should be reopened. This action notwithstanding, the Board must evaluate all petitions to reopen in their own right, before addressing the merits of the underlying claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v, Principi, 26 5 F.3d 1366 (Fed. Cir. 2001). The Veteran has alleged that he developed a psychiatric disorder as a result of his service in the Persian Gulf War and as a result of his exposure to a suicide of a fellow service member while serving in Germany. The Veteran did serve in the Southwest Theater of Operations, and has a diagnosis of PTSD; however, the stressors occurred during a period of service that is considered dishonorable for VA purposes. The Veteran's service from May 1984 to September 1991 was honorable; service from September 27, 1991, to August 1994 was deemed to be dishonorable. During the latter period, the Veteran had periods where he was absent without leave (AWOL), and he was released from active duty with an other than honorable discharge. In connection with the claim to reopen, the Veteran has submitted service department evidence which shows the service member the Veteran named, a Specialist Kowalski, did commit suicide in May 1988 while on active duty. The Veteran had alleged witnessing this suicide in filing his previous claim for service connection; however, there was no service department verification until this petition to reopen was submitted. This evidence is new, in that it was not of record at the time of the previous denial, and it is material, in that is relates to an unestablished fact that is necessary to substantiate the claimed benefit. Although there has been no nexus provided between the witnessing of this event and a current psychiatric diagnosis, the event does at least raise the possibility of a relationship between a current disorder, to include PTSD, and an in-service event during a "good" period of active service. As such, the criteria for reopening have been met, and the application to reopen is granted. See 38 C.F.R. § 3.156. ORDER The claim of entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is reopened; to that extent only, the claim is granted. REMAND The submission of the service department records, which do document the suicide of a Specialist Kowalski, show that the Veteran was exposed to a traumatic event while in a period of service recognizable for VA purposes. It is noted that the Veteran has been diagnosed as having PTSD as a result of events during a period of dishonorable service. The Veteran has also, however, been found to exhibit schizoaffective disorder, which in April 2008 was determined to be worsened by combat. At the time of the consultation with the VA clinician who made this assessment, the Veteran did not report the impact regarding his thoughts of seeing his comrade's suicide; however, he has maintained that the witnessing of Kowalski's suicide has been a haunting memory for him throughout the history of his claim for service connection. This is a significant event that has only recently been verified, and it does not appear as if this confirmed stressor has been considered in any of the treatment records currently on file. The record indicates that the Veteran has been admitted to VA for psychiatric treatment for PTSD, and that he has completed a PTSD treatment program. The central focus of these encounters appears to be from his period of dishonorable service. Given that the Veteran has submitted new and material evidence, which does verify that the serviceman the Veteran named did commit suicide, there is a need to determine if any portion of the psychiatric disability, had causal origins with this in-service event. That is, a VA psychiatrist should provide an opinion as to whether any psychiatric disability, to include PTSD and schizoaffective disorder, was caused or had causal origins in the period of active service occurring between May 1984 and September 1991, to include the witnessing of a suicide of a fellow soldier. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Ensure that all notification and development actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully satisfied. 2. Schedule the Veteran for a comprehensive VA psychiatric examination to determine if any current psychiatric disability, to include PTSD and schizoaffective disorder, was at least as likely as not (50 percent or greater probability) caused by any event of active military service from May 2, 1984 to September 26, 1991, to include the witnessing of the suicide of a Specialist Kowalski in 1988. A detailed rationale should accompany any conclusions reached. 3. Following the directed development, the RO must conduct a de novo review of the claim for service connection on the merits. Should the claim be denied, issue an appropriate statement of the case to the Veteran and his representative and return the claim to the Board for final adjudication. 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 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). ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs