Citation Nr: 1324003	
Decision Date: 07/29/13    Archive Date: 08/07/13

DOCKET NO.  11-03 478	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD), and if so, whether service connection is warranted.



REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L. J. Vecchiollo


INTRODUCTION

The Veteran served on active duty from June 1972 to November 1980.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen the Veteran's claim for service connection for PTSD.  

The Veteran testified at a hearing at the RO before the undersigned in March 2011.  A transcript of the proceeding is of record. 

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 RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required on his part.


FINDINGS OF FACT

1.  In a July 2005 rating action, the RO denied the claim of service connection for PTSD; the Veteran did not file a substantive appeal after a September 2006 statement of the case (SOC) was issued and that decision is final.

2.  Some of the evidence received since the RO's July 2005 decision bears directly and substantially upon the specific matter under consideration, is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 


CONCLUSION OF LAW

New and material evidence has been received, and the claim for entitlement to service connection for PTSD is reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran was originally denied service connection for PTSD in a July 2005 rating decision because the record did not show that the Veteran had ever been diagnosed with PTSD and stressor information had not been provided.  The Veteran submitted a timely notice of disagreement.  38 C.F.R. § 20.201, 20.302(a).  The RO issued a statement of the case in September 2006.  In a notice letter accompanying the statement of the case (SOC), the Veteran was informed that a substantive appeal must be filed within 60 days of the SOC or the case would be closed.  No timely substantive appeal was received, nor was any relevant evidence submitted within the one year appeal period.  Accordingly, the rating decision became final.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.302(b), 20.1103; see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011).  

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); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).

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) (2012).

Furthermore, the Court of Appeals for the Federal Circuit has indicated that evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision."  Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998).

VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened.  See Hickson v. West, 12 Vet. App. 247, 251 (1999).  For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible.  See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium) (holding that the "presumption of credibility" doctrine continues to be precedent).

Service connection for PTSD was initially denied in a July 2005 rating decision because there was no evidence of a diagnosis of the disorder and because the Veteran did not provide a completed PTSD Questionnaire concerning his stressors.  

Since the prior final decision in July 2005, evidence and argument have been added to record.  In May 2007, the Veteran filed his petition to reopen this claim, requesting service connection for PTSD based on two in-service traumatic events: a motor vehicle accident and either witnessing a fellow serviceman committing suicide or discovering the body.  He stated he initially received mental health treatment by his family physician in the late 1980's.  

A January 2005 private psychiatric evaluation stated "[t]he patient reports he has been diagnosed with posttraumatic stress disorder related to childhood abuse (he was often beaten with a strap by his parents) and stressful experiences in the military, and especially, in his work as a prison guard for twenty-three years."  The Veteran did not mention the in-service motor vehicle accident or suicide of the fellow serviceman.    

VA treatment records dated from 2006 to 2010 note a diagnosis of PTSD related to in-service events of a motor vehicle accident and the suicide of a fellow serviceman.  

This evidence is new, since it was not considered in the July 2005 decision.  The evidence is also material because it raises a reasonable possibility of substantiating the claim - namely, it provides a diagnosis of PTSD based on claimed in-service stressors.  Such evidence is presumed credible solely for the purpose of determining whether new and material evidence has been submitted.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  Accordingly, the claim for service connection for PTSD is reopened.

Since the Board is reopening the claim for service connection for service connection for PTSD and then remanding the claim for further development before readjudicating it on its underlying merits, the Board need not at this juncture discuss whether there has been compliance with the notice and duty to assist provisions of the Veterans Claims Assistance Act (VCAA).  38 U.S.C.A. §§ 5100, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).


ORDER

New and material evidence having been received, the claim for service connection for PTSD is reopened, and to this extent only, the appeal is granted. 


REMAND

Reopening the claim does not end the inquiry.  Consideration of the claim on the merits is required.  

The Board notes that the service treatment records do indicate the Veteran was in a motor vehicle accident in 1974 and suffered some facial trauma, although nothing indicates he suffered any other injuries in that accident.  While being seen for complaints of palpitations in August 1977 he was assessed with moderately severe situational anxiety. 

The Veteran also alleged a stressor of seeing a soldier who committed suicide.  In a stressor statement received in July 2009, the Veteran indicated he did not recall the soldier's name or unit, but that the incident occurred during the Veteran's basic training at Fort Dix, New Jersey.  On remand, the RO/AMC should attempt to verify that stressor, or make a formal finding that the evidence is insufficient to permit verification. 

A November 2010 VA compensation examination found the Veteran did not suffer from PTSD, but diagnosed dysthymic disorder.  The examiner stated that the Veteran was exposed to stressful experiences in the military both in the motor vehicle accident and discovery of the serviceman who committed suicide.  The examiner also stated that there were no avoidance or intrusive-based symptoms associated with the in-service motor vehicle accident.  Although the examiner opined the condition was as likely as not related to service, such assessment appears to have included the unverified stressor concerning a soldier's suicide, and did not address other evidence in the record suggesting childhood trauma and post service work as a prison guard as etiological factors in the Veteran's psychiatric disability.

Moreover, during the Veteran's hearing, he testified as to having difficulty driving in congestion, having to pull over at times and nightmares regarding his accident.  

For the reasons set forth above, the Board finds that an additional VA examination is necessary.  

Additionally, the Veteran stated he initially received mental health treatment by his family physician in the late 1980's.  He should be asked to provide the information needed to obtain these records.  Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the issues are REMANDED for the following:

1.  The RO/AMC should AMC should attempt to verify the Veteran's claimed stressor of the soldier's suicide during basic training at Fort Dix from June to August 1972, or make a formal finding that the evidence is insufficient to permit verification.

2.  The RO/AMC should contact the Veteran and request the names of all physicians or medical facilities that have treated him for a psychiatric disorder since separation from service, specifically the name of his family physician that treated him in the late 1980's.  After securing any necessary release, the RO/AMC should request all relevant records identified which are not duplicates of those contained in the claims file.  Relevant ongoing VA treatment records should also be obtained from the Altoona VA Medical Center dating since February 2011.  If any requested records cannot be obtained, the Veteran should be notified of such.  

3.  After the above has been completed to the extent possible, schedule the Veteran for a VA PTSD examination to determine the current nature of his psychiatric disability, and to obtain an opinion as to whether any such disorder is possibly related to military service.  The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination.  All tests deemed necessary should be conducted and the results reported in detail.

Following review of the file and examination of the Veteran, the examiner should determine whether the Veteran suffers from PTSD as a result of his military service, to include his verified in-service motor vehicle accident, and any other stressors identified by the RO/AMC on remand as being corroborated.  A rationale for any opinion expressed should be provided.  If PTSD is diagnosed, the examiner should identify the specific stressor(s) upon which the diagnosis is based.  If the Veteran suffers from other psychiatric disorders, the examiner should provide an opinion as to whether those disorders are at least as likely as not (50 percent probability or greater) related to service, to include the motor vehicle accident and the notation of situational anxiety in 1977.  The examiner should provide the reasoning for the opinions provided. 

4.  If the benefits sought on appeal remain denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and be given the opportunity to respond thereto.  Thereafter, the case should be returned to the Board, if in order.

The appellant has the right to submit additional evidence and argument on the 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).



______________________________________________
K. A. BANFIELD 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs