Citation Nr: 1320717 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 09-09 329 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for degenerative joint disease (DJD) of the right ankle. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD), and, if so, whether service connection for PTSD is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty in the military from December 1964 to December 1968. This appeal to the Board of Veterans' Appeals (Board) is from April and July 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The April 2008 rating decision denied entitlement to a disability rating in excess of 20 percent for the right ankle disability. The July 2008 rating decision denied reopening the Veteran's claim of entitlement to service connection for PTSD on the basis that new and material evidence had not been submitted. In this decision, the Board is denying entitlement to a schedular disability rating in excess of 20 percent for DJD of the right ankle, and is reopening the claim of entitlement to service connection for PTSD. The issue of entitlement to service connection for PTSD on the merits is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's does not have ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity. 2. The Veteran's DJD of the right ankle caused marked, versus just moderate, limitation of motion; however, there is no additional limitation of motion of this ankle, meaning above and beyond this, due to pain, fatigue, weakness or lack of endurance, including after repetitive (prolonged) use of this ankle. 3. In October 2005, the RO denied the Veteran's claim of entitlement to service connection for PTSD because of lack of verified PTSD stressors. 4. The evidence added to the record since the final October 2005 RO denial concerning the claim of entitlement to service connection for PTSD is new and raises a reasonable possibility of substantiating the Veteran's claim. CONCLUSIONS OF LAW 1. The criteria are not met for a disability rating in excess of 20 percent for DJD of the right ankle. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.71a, Diagnostic Codes (DCs) 5010, 5271 (2012). 2. The October 2005 RO decision that denied reopening the claim of entitlement to service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2012). 3. New and material evidence has been received in order to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C.A. §§ 5107, 5108; 38 C.F.R. §§ 3.102, 3.156, 3.159 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist As the Board's decision to reopen the Veteran's claim of entitlement to service connection for PTSD is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations with respect to this claim. However, consideration of the merits of the claim is deferred pending additional development consistent with the VCAA. The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, January 2008, August 2010, and June 2012 letters were sent advising the Veteran of the evidence and information necessary to substantiate his increased rating claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. With respect to the timing of the notice that was provided, even though complete VCAA notice was not provided until after the initial denial of the claims in April and July 2008, the AOJ subsequently readjudicated the claims based on all the evidence in a supplemental statement of the case issued in February 2013, thereby rendering harmless this prior error. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). The Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. Therefore, the Veteran has not been precluded from participating effectively in the processing of his claims and the late notice did not affect the essential fairness of the decision being rendered. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the claims has been obtained. The Veteran's available service treatment records and VA treatment records have been obtained. After exhausting all avenues to obtain records from the VA Medical Center records from Hampton, Virginia, dated January 1980 to December 1981, VA issued a formal finding of unavailability in April 2012 VA also attempted to obtain records pertaining to the Veteran's benefits from the Social Security Administration (SSA). However, in January 2013 VA issued a formal finding of unavailability of these records after receiving notice from SSA in January 2013 that the records were not available because they had been destroyed. The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf. The Veteran also was provided with VA examinations in March 2006, February 2008, September 2010, and September 2012. The Veteran has not alleged that these examinations are inadequate for rating purposes. Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected right ankle disability as they include an interview with the Veteran, a review of the record, and a full physical examination with diagnostic testing addressing the relevant rating criteria. Further, the Veteran has not alleged, nor does the record show, that his service-connected right ankle disability has worsened in severity since the most recent examination. As such, a new examination is not required. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Increased Rating Claim Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). "Staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's service-connected right ankle disability, diagnosed as degenerative joint disease (DJD) of the right ankle, is rated as 20 percent disabling under 38 C.F.R. §§ 4.2 , 4.71a, Diagnostic Codes 5010-5271. Under Diagnostic Code (DC) 5010, arthritis due to trauma is substantiated by X-ray findings and rated as degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010. Under Diagnostic Code 5003, degenerative arthritis, when established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. See 38 C.F.R. § 4.71a. However, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For purposes of rating disability from arthritis, the ankle is considered a major joint. 38 C.F.R. § 4.45(f). Under DC 5271, a 10 percent evaluation is assigned when there is moderate limitation of ankle motion. A maximum 20 percent rating is awarded for marked limitation of ankle motion. Normal range of motion for the ankle is dorsiflexion to 20 degrees and plantar flexion to 45 degrees, as set forth at 38 C.F.R. § 4.71, Plate II. The words "moderate" and "marked" are not defined in Diagnostic Code 5271. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6. DC 5271 provides a maximum benefit of 20 percent. Even considering any complaints of weakness, fatigability, or loss of function due to pain, a higher disability may not be assigned. See Johnston v. Brown, 10 Vet. App. 80 (1997) (if a claimant is already receiving the maximum schedular disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable). The Board has also considered Diagnostic Code 5270. Under this Diagnostic Code, a disability rating in excess of 20 percent will be warranted for an ankle disability when there is ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees, (30 percent disabling under Diagnostic Code 5270); or ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity (40 percent disabling under Diagnostic Code 5270). 38 C.F.R. § 4.71(a), Diagnostic Code 5270. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health 68 (4th ed. 1987)). The Veteran was first examined in connection with his increased rating claim for his right ankle disability in March 2006. At that time, he complained of constant pain, localized to his ankle. The examiner noted there was no evidence of weakness, stiffness, swelling, heat, redness, giving way, lack of endurance, locking, fatigability, or dislocation. There was no evidence of incapacitation or functional impairment as a result of the right ankle disability. Range of motion of the right ankle showed plantar flexion of 45 degrees, and dorsiflexion of 20 degrees. The examiner indicated there was no additional limitation of movement for the right ankle because of pain, weakness, fatigue, after repetitive use or during flare-ups. The Veteran underwent a VA examination in February 2008. He complained of constant pain, weakness when walking, stiffness when lying and sitting, swelling when walking, giving way, locking, and fatigability. There was no indication of heat, redness, lack of endurance and dislocation. Physical examination showed weakness, tenderness, and guarding, but no edema, redness, heat, effusion, or subluxation. Range of motion of the right ankle showed plantar flexion of 15 degrees, and dorsiflexion of 10 degrees. The examiner indicated there was additional limitation of movement at 0 degrees for the right ankle because of pain, weakness, fatigue, or repetitive use. The examiner also specifically determined that there was no evidence of malunion of the os calcis or astralgus. The diagnosis was DJD of the right ankle. The Veteran was again examined in September 2010. At that time, the Veteran again reported stiffness, swelling, giving way, locking, tenderness, and pain. He denied weakness, heat, redness, lack of endurance, fatigability, deformity, drainage, effusion, subluxation, or dislocation. He reported flare-ups as often as three times per day. The Veteran also states he requires the use of a cane or walker, and can only walk about 20 feet unassisted. Upon physical examination, the examiner stated the Veteran's gait is abnormal, and needs a cane to step. There was guarding of movement, but no evidence of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, or ankylosis. Range of motion of the right ankle showed plantar flexion of 10 degrees, and dorsiflexion of 10 degrees. The examiner indicated that repetitive range of motion was possible, and there was no additional limitation of motion. The Veteran was most recently examined in September 2012. At that time, the examiner confirmed the diagnosis of DJD of the right ankle, and noted the Veteran's use of a cane. The Veteran again reported constant pain, with flare-ups. Upon physical examination, the examiner noted the right ankle is swollen and 2 inches bigger than the left. Range of motion of the right ankle showed plantar flexion of 10 degrees, and dorsiflexion of 5 degrees. The examiner indicated that repetitive range of motion was possible, but that there was functional loss manifested by less movement than normal for both ankles. The examiner also noted there was pain on movement, swelling, deformity, interference with sitting, standing, and weight-bearing, and localized tenderness of the right ankle. Muscle strength in the right ankle was 4/5. However, ankylosis of the subtalar and/ or tarsal joints was excluded. The examiner also determined the Veteran does not have shin splints, stress fractures, Achilles tendonitis/ tendon rupture, malunion of the calcaneus, or talus. The Veteran has never had a talectomy. The Board has also considered the Veteran's VA treatment records, dated through December 2012. These records reflect his continued complaints of and treatment for pain associated with his right ankle disability. For the entirety of the appeals period, the Veteran's right ankle disability has been manifested by limitation of motion which is determined to be "marked" and rated as 20 percent disabling. As previously stated, DC 5271 provides a maximum benefit of 20 percent. The Board has also considered DC 5270, which may provide a basis for higher evaluations for the ankle. However, in order to warrant an increased rating under DC 5270, there must be evidence of ankylosis. At no time during the appeals period has there been evidence of ankylosis of the right ankle. In fact, the three VA examiners all specifically determined that ankylosis was not present. Therefore, an increased rating is not warranted under DC 5270. In an April 2013 statement, the Veteran's representative contends that the Veteran's ankle disability warrants a 40 percent schedular disability rating under Diagnostic Code 5167 for loss of use of the foot. 38 C.F.R. § 4.71(a), Diagnostic Code 5167. However, 38 C.F.R. § 4.63 dictates that loss of use of the foot will be determined based on actual remaining function of the foot and whether the acts of balance and propulsion could be accomplished equally well by an amputation stump with prosthesis. In this case, the evidence shows the Veteran still uses his right foot for balance and propulsion as he walks with a cane. Additionally, the September 2012 VA examiner marked "no" as his response when queried whether the Veteran had functional impairment of the lower extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Therefore, it has not been shown that he has lost the function of his foot to the extent that balance and propulsion could be accomplished equally well by an amputation stump with prosthesis. As such, the Board finds that the Veteran's right ankle disability does not warrant a 40 percent disability rating under Diagnostic Code 5167. The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). Under the provisions of 38 C.F.R. § 3.321(b)(1) (2012), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Id. The Court clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). A determination of whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made by the RO or Board. If the rating criteria are inadequate, the RO or Board must proceed to determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this case, the Board finds that there appear to be additional symptoms of the Veteran's right ankle disability that are not contemplated by the schedular rating criteria, which is based primarily on limitation of motion, to include ankylosis. In this case, the competent evidence of record also shows the Veteran experiences an altered gain, (limping), must use a cane for ambulation, and has tenderness, swelling and guarding of the right ankle. Nevertheless, there is no showing that the Veteran's overall symptomatology results in an exceptional disability picture as there is no evidence of marked interference with employment or frequent periods of hospitalization. Therefore, the Board finds that referral for consideration of an extraschedular rating is not warranted. Finally, the Board does not find that this case raises a claim for a total disability evaluation based upon individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Neither the Veteran nor the record raises the issue that the Veteran cannot obtain and retain substantially gainful employment because of his service-connected ankle disability. As such, a claim for TDIU has not been raised. II. New and Material Evidence The Veteran filed a petition to reopen his claim of entitlement to service connection for PTSD in October 2007. However, in order to consider the merits of the Veteran's claim for service connection, the Board must first determine if new and material evidence has been received to reopen this claim of entitlement to service connection. For the reasons explained below, the Board finds that new and material evidence has been submitted to reopen the claim. In October 2005, the RO initially denied the Veteran's claim of entitlement to service connection for PTSD for lack of a verified PTSD stressor in-service. The RO considered the Veteran's service treatment records, VA treatment records dated through June 2005, and the Veteran's own statement in support of his claim. In the statement regarding his PTSD stressors, the Veteran claimed that he was in Vietnam for a couple of weeks and went out on four patrols, two of which involved ambushes where he witnessed people wounded or killed. He provided no names or timeframes for these events. He also claimed to have witnessed a Philippine civilian stabbed to death and being shot at while riding in a taxi when he was stationed in the Philippines. The RO denied the claim, noting that the record did not show the Veteran engaged in combat with the enemy and he did not provide enough information to attempt to corroborate his stressors. Based on the lack of confirmed stressors, the RO denied the PTSD claim. The Veteran did not file a notice of disagreement (NOD) in response to initiate an appeal to the Board. In determining whether the October 2005 rating decision is final, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011) (holding that VA must evaluate submissions received during the relevant appeal period and determine whether they contain new evidence relevant to a pending claim); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011) (holding that if new and material evidence is received before an appeal period has expired, a rating decision does not become final). In the instant case, additional VA treatment records dated January 2005 to February 2006 were associated with the claims file in March 2006, which is during the appeals period. However, while new, these VA treatment records did not contain any additional information that would assist the Veteran in substantiating his claim, namely, by providing specific information regarding his claimed stressors. Therefore, the VA treatment records are not considered material. As a result, the October 2005 decision became final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). 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 which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Changes to the definition of new and material evidence as set forth in 38 C.F.R. § 3.156(a) have been made. These changes apply to claims to reopen received on or after August 29, 2001. See 66 Fed. Reg. 45,620 (August 29, 2001). As the Veteran filed his application to reopen his claim of entitlement to service connection for PTSD in October 2007, the definition of new and material evidence effective August 29, 2001, found at 38 C.F.R. § 3.156(a), applies in this case. 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). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the October 2005 RO decision, the Veteran has submitted VA treatment records dated through December 2012, showing his continuous treatment for PTSD. He also submitted additional lay statements in support of his claimed stressors. In addition to alleging being ambushed on patrol in Vietnam (an allegation already of record at the time of the October 2005 rating decision, the Veteran additionally claims there was a mortar attack in his camp area. As explained above, the credibility of this additional evidence is presumed for the limited purpose of determining whether this evidence is new and material. Justus, 3 Vet. App. 510, 513 (1992). Therefore, the Board finds that the new evidence tends to prove a previously unestablished fact necessary to substantiate the underlying claim of service connection for PTSD. Consequently, the newly received evidence raises a reasonable possibility of substantiating the Veteran's claim. Accordingly, the claim of entitlement to service connection for PTSD is reopened. ORDER The claim of entitlement to a schedular disability rating in excess of 20 percent for DJD of the right ankle is denied. New and material evidence having been received, the appeal to reopen a claim of entitlement to service connection for PTSD is granted. REMAND The Board finds that additional development of the evidence is required and, therefore, the case is remanded to the agency of original jurisdiction for the action discussed herein. The Veteran alleges that he suffers from PTSD as a result of his military service. Specifically, the Veteran claims he was sent to Vietnam for three to four weeks. He stated that he was on patrol to set up an ambush, but before they could set up, two or three men were killed. He also described a mortar attack in his camp area. To establish service connection for PTSD, in particular, there must be: (1) medical evidence diagnosing this condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). As of July 13, 2010, VA amended its rules for adjudicating disability compensation claims for PTSD contained at 38 CFR § 3.304(f) to relax the evidentiary standard for establishing the required in-service stressor in certain cases. See 75 Fed. Reg. 39843 (July 13, 2010). This revision adds to the types of claims that VA will accept through credible lay testimony, alone, as being sufficient to establish the occurrence of an in-service stressor without undertaking other development to verify the Veteran's account. The primary result of this most recent amendment of 38 CFR § 3.304(f) is the elimination of the requirement for corroborating evidence of the claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." The new regulatory provision requires that: (1) a VA psychiatrist or psychologist, or contract equivalent, confirm that the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (3) the Veteran's symptoms are related to the claimed stressor. The Board notes that the Veteran has been diagnosed with PTSD. In the October 2005 rating decision, the RO denied the Veteran's claim for PTSD because the evidence did not support a finding that the Veteran had engaged in combat in order to lessen his burden of proof of establishing the occurrence of a traumatic event during his military service, and because he had not provided any information or details needed to independently corroborate the Veteran's claim. However, in his February 2008 stressor statement, the Veteran submitted additional details about the deaths of two or three soldiers and a mortar attack. Since, as mentioned, VA has amended its rules, especially concerning the requirement regarding stressor confirmation, a VA compensation examination and opinion are needed to determine whether the Veteran's purported stressors are consistent with the places, types, and circumstances of his service and the reason he has PTSD, depression, etc. See the revised, as of July 13, 2010, 38 C.F.R. § 3.304(f)(3). The Board further finds that any outstanding treatment records regarding the Veteran's PTSD should be obtained while this case is on remand. Accordingly, the case is REMANDED for the following action: 1. The AOJ must obtain any outstanding private or VA treatment records dated from December 2012 to the present. Any response received should be memorialized in the Veteran's VA claims file. 2. If and only if any of the claimed stressors are consistent with the places, types, and circumstances of the Veteran's service, the Veteran should be scheduled for a VA examination with the appropriate medical professional. The VA examiner should thoroughly review the Veteran's claims file and a complete copy of this REMAND in conjunction with the Veteran's examination and note this has been accomplished in the VA examination report. The examiner is asked to determine the likely nature and etiology of the Veteran's PTSD. The VA examiner should state whether it is at least as likely as not (a degree of probability of 50 percent or higher) that the Veteran's PTSD is based on the in-service stressors. The examiner must discuss the rationale of the opinion provided, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record, including the Veteran's lay testimony. 3. Thereafter, the AOJ must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Finally, readjudicate the claims for service connection on a de novo basis, in light of the additional evidence. If this claim is not granted to the Veteran's satisfaction, he should be issued a supplemental statement of the case and given an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claim. The Veteran 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. 2012). ______________________________________________ M.N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs