Citation Nr: 1319541	
Decision Date: 06/18/13    Archive Date: 06/27/13

DOCKET NO.  09-27 120	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for psychiatric disability and if so whether the reopened claim should be granted.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

S. M. Marcus, Counsel

INTRODUCTION

The Veteran served on active duty from May 1968 to March 1971.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  Although the RO determined that new and material evidence had been submitted to reopen the Veteran's claim, the Board must determine on its own whether new and material evidence has been submitted to reopen this claim.  See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  

The Veteran testified at a videoconference hearing before the Board in April 2013.  A transcript of the proceeding is of record.

The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA.


FINDINGS OF FACT

1.  In a July 2005 rating decision, the RO denied service connection for depression and PTSD; the Veteran was notified of the decision but did not file a notice of disagreement or submit any pertinent evidence within the appeal period.

2.  Evidence received after the expiration of the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim.






CONCLUSION OF LAW

New and material evidence has been submitted to reopen the claim for service connection for psychiatric disability.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Legal Criteria

Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002).  An 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 which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.  Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).

New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a). 

The United States Court of Appeals for Veterans Claims (Court) recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Shade v. Shinseki, 24 Vet. App. 110 (2010).  See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 

Factual Background and Analysis

The Veteran's claim for service connection for depression and PTSD were originally denied in a July 2005 rating decision because the evidence did not confirm any psychiatric diagnosis or an in-service stressor.  The Veteran did not appeal this decision or submit any pertinent evidence within the appeal period.

The evidence received after the expiration of the appeal period includes private and VA medical records reflecting variously diagnosed psychiatric disorders, to include depression and PTSD.  A March 2013 VA outpatient treatment record specifically indicates the Veteran most likely has PTSD related to his duties in the Army as an art instructor watching films all the time regarding combat situations in Vietnam.

This evidence is not cumulative or redundant of the evidence previously of record.  Moreover, it relates to an unestablished fact necessary to substantiate the claim.  Accordingly, it is new and material and reopening of the claim is warranted.






ORDER

The Board having determined that new and material evidence has been submitted, reopening of the claim for service connection for psychiatric disability is granted.


REMAND

The Veteran claims he is entitled to service connection for psychiatric disability because his psychiatric problems began in service and have continued since then.  Specifically, he indicates that he served as an instructor in an intelligence school in Japan training students to be spies in Vietnam.  As part of the training, he watched films of actual combat in Vietnam depicting real life combat situations.  These films were horrific and graphic, and the Veteran claims he watched them over and over again over the period of 14 to 16 months.  Ever since that time, he has experienced insomnia, intrusive memories, and other psychiatric symptoms.

In support of his claim, he submitted VA outpatient treatment records indicating diagnoses of depression and PTSD.  Some of these records are as recent as March 2013 and were not considered by the agency of original jurisdiction (AOJ).

The last supplemental statement of the case (SSOC) of record is dated in December 2012.  It is noteworthy that the December 2012 SSOC references VA outpatient treatment records from 2010 to 2012, which are contained in the claims folders or Virtual VA.

In light of the possibility of missing VA outpatient treatment records, and subsequent treatment records not yet considered by the AOJ, the Board concludes a remand is necessary to ensure the file is complete.

To that end, the Board further notes the Veteran testified to receiving psychiatric treatment privately from Kaiser as early as the 1980s.  Records of that treatment are not of record and there is no indication that the RO has attempted to obtain those records.

The Veteran is competent to describe in service duties performed.  With regard to PTSD specifically, however, credible supporting evidence is required showing that the claimed in-service stressor occurred.  Lay evidence may be sufficient where the stressor is related to the Veteran's fear of hostile military or terrorist activity.  That is not the case here and, therefore, the Veteran's PTSD stressor must be verified with credible supporting evidence.  38 C.F.R. § 3.304(f).  With regard to other psychiatric diagnoses, however, corroborating evidence of the alleged stressor is not required.

The claims folder contains enough military documentation to confirm the Veteran was in fact an instructor in an intelligence school in Okinawa during his active military service.  There is no objective confirmation, however, of the specific film exposure he claims.  In light of the current diagnoses and medical opinions of record, a VA examination is necessary to reconcile his current diagnosis or diagnoses, to include PTSD and/or depression, and whether any found diagnosis is related to his in-service duties, to include working as an instructor in an intelligence school in Okinawa.  Cf. McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions:

1.  Undertake appropriate development to obtain all available, outstanding records pertinent to the Veteran's claims, to include records pertaining to his private treatment in the 1980's and VA outpatient records for the period from 2010 to the present.  All efforts to obtain these records, including follow-up requests if appropriate, must be fully documented if any requested records are not obtained.

2.  Then, afford the Veteran a VA examination by a psychiatrist or psychologist.  The claims folders and any pertinent evidence in Virtual VA that is not contained in the claims folders must be made available to and reviewed by the examiner.

With respect to each acquired psychiatric disorder present during the period of the claim, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder is etiologically related to the Veteran's active service.

A diagnosis of PTSD should be confirmed or ruled out.  If PTSD is diagnosed the examiner should identify the elements supporting the diagnosis, to include the stressor(s) resulting in the disorder.  If PTSD is not diagnosed, the examiner should explain why the Veteran does not meet the criteria for the diagnosis.

For purposes of the opinions, the examiner should assume that the Veteran is a reliable historian.

The rationale for all opinions expressed must be provided.  

If any required opinion cannot be provided, the examiner should explain why.  In particular, 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. 

3.  If the foregoing examination results in a diagnosis of PTSD due to a service stressor that has not been verified, the RO or the AMC should undertake any indicated development to verify the stressor.

4.  The RO or the AMC should also undertake any other development it determines to be warranted.

5.  Then, readjudicate the Veteran's reopened claim.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, provide the Veteran and his representative with a supplemental statement of the case and an appropriate period of time for response before returning the case to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This REMAND must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2002).



______________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs