Citation Nr: 1323705 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 10-02 690 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen a claim for service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to November 1969. He served in the Republic of Vietnam from September 1968 to September 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 decision rendered by the Waco, Texas, VA RO. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this case, however, the issue of entitlement to service connection for a mental disorder, claimed as depression, has already been adjudicated in previous rating decisions, which the Veteran did not appeal, and the Veteran specifically asserted that he is currently claiming service connection for PTSD. Therefore, as the issue of entitlement to service connection for mental disorders other than PTSD has already been considered and addressed by VA previously, the Board finds no reason at this point to recharacterize the issue on appeal so as to include all acquired psychiatric disabilities. Despite any determination reached by the RO regarding reopening, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. The following decision addresses this question. The claims file contains a September 2006 statement of the case (SOC) which addressed the issues of entitlement to service connection for PTSD and for a back condition and a December 2008 SOC which addressed the issue of entitlement to service connection for chloracne as a result of exposure to herbicides. As the Veteran did not submit a timely substantive appeal with regard to the December 2008 SOC, and he indicated in October 2006 that he wished to drop the issues of entitlement to service connection for a back condition and PTSD, the issues from the September 2006 SOC and the December 2008 SOC were not properly appealed to the Board. The Veteran indicated on a VA Form 9 appeal signed on December 11, 2009, that he wished to be scheduled for a Board hearing at a local VA office. On a VA Form 9 appeal signed on December 14, 2009, the Veteran indicated that he did not want a Board hearing. Moreover, the representative indicated in the June 2013 Appellant's Brief that the Veteran has requested to waive his right to attend a hearing before the Board. As such, the Board will proceed to adjudicate the claim. Additional medical evidence was associated with the claims file after the most recent supplemental statement of the case (SSOC) was issued with respect to the claim on appeal. However, as this evidence duplicates or essentially duplicates medical evidence already of record, the Board will proceed to evaluate the claim as done below with no prejudice to the Veteran. The issue of entitlement to service connection for PTSD 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 April 2006 rating decision, the claim of service connection for PTSD was denied based on the absence of a confirmed in-service military stressor or a confirmed diagnosis. 2. Evidence received since the April 2006 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the claim of service connection for PTSD. CONCLUSIONS OF LAW 1. The April 2006 rating decision denying the Veteran's claim of service connection for PTSD is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. New and material evidence sufficient to reopen the Veteran's claim of service connection for PTSD has been submitted. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's application to reopen his previously denied claim, this application, and only this application, has been granted, as discussed below. As such, the Board finds that any errors related to the VCAA solely with regard to the Veteran's application to reopen is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Veteran. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen the Veteran's previously denied claim of entitlement to service connection for PTSD. After review of the evidence of record, the Board finds that new and material evidence has been submitted. The Board notes that the Veteran's claim of service connection for PTSD was denied in an April 2006 rating decision. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a) (2012). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c) (West 2002); 38 C.F.R. §§ 3.160(d), 20.201, and 20.302(a) (2012). The Veteran submitted a notice of disagreement (NOD) with regard to the April 2006 denial, and a SOC was issued in September 2006. However, he did not file a timely appeal. Therefore, the April 2006 rating decision became final. See 38 U.S.C.A. § 7105 (West 2002). In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 2002). New evidence means 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) (2012). According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. See Evans v. Browns, 9 Vet. App. 273 (1996). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, a Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). The basis for the April 2006 denial was an absence of a confirmed in-service military stressor or a confirmed diagnosis. At the time of this denial, service treatment records, personnel records, VA and private medical records, and statements submitted by the Veteran were considered. The new evidence submitted since this denial consists primarily of statements from the Veteran and VA medical records. With regard to the newly submitted medical evidence, the claims file contains VA treatment records noting a diagnosis of PTSD. Therefore, as the newly submitted medical evidence speaks to the issue of whether the Veteran has a confirmed diagnosis of PTSD, the Board concludes that it satisfies the low threshold requirement for new and material evidence. As such, the claim is reopened. However, the Board cannot, at this point, adjudicate the reopened claim, as further development is necessary. This is detailed in the REMAND below. ORDER As new and material evidence has been submitted regarding the claim of service connection for PTSD, the Veteran's claim is reopened. To this extent, and to this extent only, the appeal is granted. REMAND After a thorough review of the Veteran's claims folder, additional development is necessary prior to the adjudication of this claim. The Veteran asserts that he has PTSD as a result of working as a firefighter during service in Vietnam. Specifically, the Veteran indicated in a June 2009 statement that, while stationed at Nha Trang Air Force Base in Vietnam from September 1968 to September 1969, his job was to stand by on medical evacuations. He contended that, about 2 or 3 times per week, he witnessed dead or injured soldiers that were being transported from Nha Trang to other bases for hospitals or sent home for burial. The Veteran also indicated that, at some point during his time in Vietnam, an aircraft came in on the runway with no landing gear, so they had to foam down the runway. The aircraft made a belly landing, came to a rest, and blazed up. The aircraft had ammunition under the wings, and they had to meet it head on and put out the fire. Service treatment records reveal no complaints, treatment, or diagnoses of PTSD or a psychiatric disability of any kind. The Veteran's DD-214 Form reflects that he served as an apprentice fire protection specialist. An airman performance report indicated that his duties included being responsible for control and extinguishment of fires by use of the handline on various types of firefighting equipment assigned to his base, assisting in rescue operations as needed, and proper cleaning of his assigned vehicle and station area. Recent VA medical records reflect that the Veteran has been diagnosed with PTSD. Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2012). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f)(1) (2012); see also, 38 U.S.C.A. § 1154(b) (West 2002). Otherwise, the law requires verification of a claimed stressor. Where a determination is made that the Veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the Veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet. App. 128, 42 (1997). In recent years, the regulations governing PTSD have been amended, effective July 13, 2010. 75 Fed. Reg. 39843-52 (July 13, 2010). Specifically, this amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred if a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist 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 PTSD and that the Veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. Id. With regard to the Veteran's alleged stressors, he has essentially reported witnessing casualties of combat in Vietnam. However, he has not asserted that he himself was involved directly in combat or that his service involved fear of hostile military or terrorist activity. As such, his alleged stressors do not fit into the confines of the July 13, 2010, amendment, which would eliminate the need for corroboration of his claimed in-service stressors. Notwithstanding this fact, however, the Veteran should be afforded the opportunity to provide any additional evidence or details that could help to corroborate his stressors. Specifically, he should be notified that providing a 60-day time frame in which any of his alleged stressors occurred could help to verify these reported stressors. Should the Veteran provide sufficient detail, the RO/AMC should attempt to verify any stressors through all appropriate channels. Additionally, while the claims file contains some of the Veteran's personnel records, it does not appear that all available personnel records have been associated with the claims file. As such, in order to help corroborate the Veteran's reported stressors, the RO/AMC should obtain all of the Veteran's personnel records upon remand. If, and only if, any of the Veteran's reported stressors are verified, the Veteran should be scheduled for a VA examination to determine whether he has a current psychiatric disability of any kind, to include PTSD, that was caused or aggravated by his active duty service. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). Finally, the Board notes that the Veteran has submitted VA medical records documenting psychiatric treatment. Therefore, as it appears that the Veteran is receiving ongoing treatment for a psychiatric disability, the RO/AMC should obtain all relevant VA treatment records that have not yet been associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain any and all relevant VA treatment records that have not yet been associated with the claims file. 2. Obtain and associate with the claims file all of the Veteran's personnel records. 3. Provide the Veteran a letter offering him the opportunity to corroborate his alleged stressors. This letter should notify the Veteran of evidence that he could provide to corroborate his stressors. Additionally, this letter should inform the Veteran that he should provide the approximate dates of occurrence of any alleged stressors within a 60-day time frame. Specifically, the Veteran should be requested to provide a 60-day time period with regard to his reported stressor involving an aircraft landing without landing gear in Nha Trang, Vietnam, at some point from September 1968 through September 1969. 4. If the Veteran provides sufficient information to attempt to verify his alleged stressors, prepare a letter asking the United States Army and Joint Services Records Research Center (JSRRC) to provide any available information which might corroborate the Veteran's alleged stressors. 5. If, and only if, any of the Veteran's reported stressors are verified, schedule the Veteran for a VA examination for his claimed PTSD. All appropriate tests and studies should be performed and all clinical findings reported in detail. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. Additionally, the examiner should elicit from the Veteran a history of his symptoms relating to his PTSD. After reviewing the file, examining the Veteran, and noting his reported history of symptoms, the examiner should diagnose the Veteran with all current psychiatric disabilities, to include PTSD. Then, the examiner should opine as to whether it is at least as likely as not that any of the Veteran's currently diagnosed psychiatric disorders, to include PTSD, had its onset during, or was caused or aggravated by, the Veteran's active duty service. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should explain the reasons behind any opinions provided. 6. Then, readjudicate the claim. In particular, the RO should review all the evidence that was submitted since the SSOC. If the benefit sought remains denied, the Veteran and his representative should be provided a SSOC. After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. 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). No further action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that his cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by 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 Supp. 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs