Citation Nr: 1316429 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 10-21 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD J. Young, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to March 1971, including service in the Republic of Vietnam from April 1970 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which determined that new and material evidence was not received to reopen the Veteran's service connection for an acquired psychiatric disorder to include PTSD in which the Board issued an unappealed decision in August 2000. The Board acknowledges that prior to August 31, 2012 the Veteran was represented by an attorney. Official notice of the attorney's withdrawal from the Veteran's claim was received on September 6, 2012 and the Veteran is proceeding with his claim pro se. The Board observes that in addition to being diagnosed with PTSD, the Veteran was also diagnosed with major depressive disorder, cannabis dependence, alcohol dependence, and substance abuse mood disorder. The United States Court of Appeals for Veterans Claims (Court) held that, when a claimant identifies PTSD without more, it cannot be considered a claim limited only to that diagnosis, but rather must be considered a claim for any mental disability that may reasonably be encompassed by several factors including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. The Court found that such an appellant did not file a claim to receive benefits only for a particular diagnosis, but rather for the affliction (symptoms) that his mental condition, whatever that particular disorder may be, causes him. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board has recharacterized the issue as set forth on the title page. As will be discussed in further detail in the following decision, the Board finds that a reopening of the claim for service connection for an acquired psychiatric disorder to include PTSD is warranted. Thus, the Board is granting this aspect of the Veteran's appeal. The underlying claim for service connection 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. By an unappealed August 2000 decision, the Board denied service connection for an acquired psychiatric disorder to include PTSD. 2. In a July 2009 rating decision, the RO denied service connection for PTSD because the Veteran failed to specify a verified stressor(s) connected to his claim and did not have a current diagnosis of PTSD. 3. The Veteran submitted an August 2009 statement detailing specific combat related events and dates of possible stressors which are related to an unestablished fact necessary to substantiate the claim of service connection for an acquired psychiatric disorder to include PTSD and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The Board's August 2000 denial of service connection for an acquired psychiatric disorder to include PTSD is final. 38 U.S.C.A. § 7105 (West 2012); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1100 (2012). 2. Evidence received since the final August 2000 decision is new and material sufficient to reopen the claim. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156, 20.1100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim to reopen a previously and finally denied claim, VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit sought by the claimant. To satisfy this requirement, VA must look at the bases for the denial in the prior decision and provide a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). As discussed in detail below, the issue of whether new and material evidence has been submitted to reopen the claim for service connection for an acquired psychiatric disorder to include PTSD has been resolved in the Veteran's favor, any error in notice required by Kent is harmless error and analysis of whether VA has satisfied its duties to notify and assist is not in order. II. Legal Criteria A. New and Material A decision of the Board is a final decision, effective as of the date stamped on the face of the decision. 38 C.F.R. § 20.1100 (2012). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); see also Hodge v. West, 155 F.3rd 1356 (Fed. Cir. 1998). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384. See also Butler v. Brown, 9 Vet. App. 167, 171 (1996). "New" means evidence not previously submitted to agency decision makers and "material" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) held that, in determining whether new and material evidence has been received for purposes of reopening a claim, a Veteran's testimony regarding having experienced ongoing symptoms since service can be considered relevant as to the issue of nexus. In reaching this conclusion, the Court reaffirmed the notion that a veteran's testimony should not be rejected as not being material solely because he or she is a lay person, or because contemporaneous medical evidence is no longer available to corroborate it. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). B. Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For service connection for PTSD, medical evidence diagnosing the condition is required in accordance with 38 C.F.R. § 3.304 (f); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). A diagnosis of PTSD by a mental-health professional will, unless shown by evidence to the contrary, be presumed to be proper with respect to the sufficiency of stressor(s) and adequacy of symptomology. Cohen v. Brown, 10 Vet. App. 128, 140 (1997). Competent medical evidence includes evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, 492 F.3d at 1372. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. III. Factual Background The Veteran contends that his psychiatric disorder was acquired due to his military service, specifically resulting from service in the Republic of Vietnam from April 1970 to March 1971. In August 2000, the Board denied the Veteran's service connection claim for an acquired psychiatric disorder, to include PTSD because the evidence did not show that the Veteran had a current PTSD diagnosis nor was there evidence of an in service stressor. The Board also determined that there was no evidence establishing that the Veteran was diagnosed with any psychiatric disorder during service or within the first post-service year. See August 200 Board Decision. The Board further determined that an acquired psychiatric disorder incurred several years after the Veteran's active service. Id. The relevant evidence of record at the time of the August 2000 decision consisted of the Veteran's service personnel records, service treatment records (STRs), June 1994 private treatment records, the 1970 history of the 173rd Support Battalion and operational Report-Lessons Learned, a report from 1994 and 1995 VA PTSD examinations and a March 1995 letter from W. S., a private clinical psychologist. The Veteran's STRs did not show any treatment for, or diagnosis of, PTSD or any other psychiatric disorder. According to the March 1995 letter from W. S., the Veteran was exposed to a traumatic event in service and suffered from PTSD. W. S. did not report a specific in service event connected to the Veteran's PTSD diagnosis. In a November 1994 statement, the Veteran offered an account of visiting a wounded friend in a hospital while serving in Vietnam, but the RO was unable to verify that anyone matching the name reported by the Veteran was wounded or a casualty. At the 1995 VA PTSD examination, the Veteran described psychiatric symptoms, but did not reference specific or verified stressors. The examiner opined that the Veteran did not meet the criteria for PTSD. The Veteran did not submit an appeal of the August 2000 Board decision, but in March 2009, the Veteran submitted a request to reopen the claim. The Veteran's request to reopen included a letter from the National Personnel Records Center detailing the Veteran's service awards. The relevant evidence received since the August 2000 denial consists of the Veteran's August 2009 statement of in-service stressors related to combat, March 2009 through August 2012 VA treatment records which indicate treatment for PTSD, and a February 2012 VA PTSD examination. The Veteran's lay statements contain verifiable information concerning possible stressors connected to the Veteran's claim. The Veteran's August 2009 statement includes the month and year of verifiable stressors, the locations of where the alleged stressors occurred, approximate treatment dates, and additional information that may assist in confirming the Veteran's account. Specifically, in the Veteran's August 2009 statement he describes being under enemy fire while on guard duty in April of 1970 in "Cam Ranh Bay," Vietnam [spelling corrected]. The Veteran does not indicate that he suffered any physical injuries during the attack, but he describes not seeing who was firing upon the guard tower. See Veteran's August 2009 Statement. The Veteran also specifies being under fire during a separate event that occurred in December 1970; the Veteran asserts that he and four friends, D.J., F.K, D.S., and a male with the last initial B, were under fire in the village of "Phu Cat," Vietnam. The Veteran describes feeling fearful while under enemy fire in the village and recounts specifically being frightened when confronted one on one with an enemy fighter. The Veteran also asserts that his father noticed that he "had too many issues on my mind and I needed to go and get straight." Id. The March 2009 through August 2012 VA treatment records contain evidence of current treatment for PTSD, a diagnosis of depression, and a mood disorder; this is new and material evidence and is discussed in detail below. The February 2012 VA PTSD examination, although inadequate as discussed in detail below, provides evidence of the Veteran's current symptoms which is relevant in establishing that the Veteran has a current disability. The VA examiner reports that the Veteran displayed the following symptoms at the time of examination: "depressed mood, anxiety, chronic sleep impairment, flattened affect, and an inability to establish and maintain effective relationships." See February 2012 VA PTSD Examination. The examiner report denotes that he reviewed the Veteran's claim file as a part of his examination of the Veteran. Specifically he states that "Citations or medals received: usual service medals plus Veteran stated he was awarded the Bronze Star medal but I did not see that reflected on his DD-214." As discussed below, the VA examiner's statements pertaining to the Veteran's citation and metals are accurate, but they are inconsistent with the Veteran's claim file as assessed in its entirety. The examiner also noted that "This veteran does not meet Criteria A for PTSD. Additionally, the other symptoms he presents have changed to the degree that self-report no longer seems credible." Id. IV. Analysis In August 2000, the Board rendered a decision denying the Veteran's previous claim because there was no evidence of an in-service stressor, there was no evidence the Veteran was diagnosed with PTSD at the time the decision was rendered, and the Veteran failed to establish a nexus between his active service and his diagnosed psychiatric disorder; the Board's August 2000 decision is final because it was unappealed by the Veteran. See 38 C.F.R. § 20.1100 (2012); see also August 2000 Board Decision. The Veteran's March 2009 request to reopen his service connection claim included a letter from the National Personnel Records Center documenting the awards and medals that he received while in service. The Board finds the letter from the National Personnel Records Center to be cumulative and is therefore not new and material evidence. While the Board acknowledges that the Veteran's DD 214 fails to accurately designate the Veteran's entire service award history, a comprehensive review of the Veteran's claims file provides a full history of the Veteran's entire service award history. See Veteran's Bronze Star Citation and DD 214 Form. The Board finds that the March 2009 through August 2012 VA treatment records provide evidence of current treatment for PTSD, a diagnosis of depression, and a mood disorder. This is new and material evidence because it indicates that the Veteran has a current disability, which raises a reasonable possibility of substantiating the Veteran's service connection claim. See Justus, 3 Vet. App. 510, 513. The Veteran's August 2009 statement offers details of alleged in-service stressors and also indicates possible symptomology two weeks post-service. The Veteran's August 2009 statement is new and material evidence. The Board finds that the Veteran's lay statements offer a more complete picture of the circumstances surrounding his claim and are therefore new and material. See Hodge, 155 F.3d 1356, 1363. The Board notes that the accounts provided by the Veteran are indeed different than his prior statements due to the specific dates and locations provided. See Veteran's August 2009 Statement. The Veteran's statements, when considered with the new evidence of the current symptomology, raise a reasonable possibility of substantiating the Veteran's claim. See Justus 3 Vet. App. 510, 513. The Board finds that the Veteran's February 2012 VA PTSD examination also provides new and material evidence. The February 2012 VA examiner reports the Veteran's current symptoms, which are relevant to the Veteran's service connection claim. The Board discusses in the remand section below the inadequacy of the VA examination. Accordingly, the Board grants the Veteran's application to reopen this previously denied issue. ORDER New and material evidence having been received, the claim for service connection for an acquired psychiatric disorder, to include PTSD is reopened; the appeal is granted to this extent only. REMAND The Veteran has a current diagnosis of depression and is currently being treated for PTSD at a VA medical facility. See VA Treatment Records. The Veteran has a March 1995 letter from his private clinical psychologist which states that the Veteran suffered from PTSD and was being treated for PTSD. See Letter from W. S. 1995. However, the Veteran's February 2012 VA PTSD examination determined that the Veteran does not have a current PTSD diagnosis. While the Veteran's February 2012 VA PTSD examination is consistent with the Veteran's April 1995 VA PTSD examination, the Board finds that the VA examiner failed to consider the Veteran's entire claim file as part of the Veteran's examination. The Board finds that VA has not completed its duty to assist the Veteran because the VA examination afforded to the Veteran was inadequate. If VA provides the claimant an examination in accordance with a duty to assist, the examination must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The VA examiner designated on the Veteran's February 2012 VA PTSD examination report that he reviewed the Veteran's claim file as part of the evidence reviewed, however, on page 9 of the report, the examiner reports "Citations or medals received: usual service medals plus Veteran stated he was awarded the Bronze Star medal but I did not see that reflected on his DD-214." While the examiner's statement is accurate as to the DD 214, the Veteran's claim file contains verification of the Veteran's service medals, a copy of the Bronze Star Citation and the Letter from the National Personnel Records Center verifying the Veteran's in-service medals and awards. The VA examiner does not denote whether any of the specific accounts presented by the Veteran as possible stressors in the Veteran's August 2009 statement were considered as part of the VA examination. Yet, the examiner opined that "This veteran does not meet Criteria A for PTSD. Additionally, the other symptoms he presents have changed to the degree that self-report no longer seems credible." As evident by the VA examiner's statement, which appears to question the accuracy of the Veteran's statements regarding the receipt of particular in-service medals, and the apparent failure to consider the lay statements of the Veteran's August 2009 letter, the Board finds the VA examination to be inadequate. Therefore, upon remand, the Veteran shall be scheduled for a VA mental health examination, to determine the identity and etiology of any psychiatric disorder that may be present to include PTSD. Furthermore, on remand, the RO is to verify through all sources available, the Veteran's alleged stressors, specifically those aforementioned accounts reported in his August 2009 statement. Accordingly, the case is REMANDED for the following action: 1. Review the Veteran's August 2009 statement of reported stressors. All appropriate steps should be undertaken to verify the Veteran's claimed stressors. Such steps must be detailed in writing and associated with the claims file. 2. After completion of the foregoing, the AMC/RO must make a specific determination, based upon the complete record, with respect to whether the Veteran was exposed to a stressor or stressors in service. If the AMC/RO determines that the record verifies the existence of a stressor or stressors, the AMC/RO should specify what stressor or stressors in service it has determined are established by the record and examiner must be instructed to consider those events for the purpose of determining whether the Veteran was exposed to a stressor in-service. 3. Accord the Veteran an appropriate VA examination to determine the nature, extent, and etiology of any diagnosed psychiatric disorder, to include PTSD, major depressive disorder and a mood disorder, that he may have. His claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination, particularly any service records, private treatment records, morning reports, and verified in-service stressors and for the purpose of offering a medical opinion. A notation to the effect that this review has taken place should be made in the evaluation report. All indicated tests should be conducted. Specifically, psychological testing should be conducted with a view toward determining whether the Veteran meets the criteria for a diagnosis of PTSD (under DSM-IV criteria) or any other psychiatric disability and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. 4. Based on the examination and review of the record, the VA examiner should provide a summary of all currently diagnosed acquired psychiatric disorders and answer the following questions: (a) If PTSD is diagnosed, the examiner must identify the stressors supporting the diagnosis. The examiner should then address the following: (i) Is it at least as likely as not (i.e., probability of at least 50 percent) that the Veteran currently suffers PTSD based on a stressor verified by the AMC/RO? The examiner is instructed to consider only the stressors, if any, identified as having been verified by the record. (ii) If the answer to (i) is no, is it at least as likely as not (i.e., 50 percent probability) that the Veteran's current symptoms are related to a stressor involving fear of hostile military activity? For the purposes of this examination, "fear 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 upon 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. (b) If a psychiatric disorder other than PTSD is diagnosed, is it at least as likely as not (i.e., probability of 50 percent) that any currently diagnosed acquired psychiatric disorder other than PTSD is etiologically related to the Veteran's active military service? The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. Ensure that the examination report complies with (answer the questions posed in) this Remand. If the report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 6. Then, readjudicate the issue on appeal. If the benefit remains denied, the Veteran should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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. 2012). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs