Citation Nr: 1325008 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 09-17 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty in the Air Force from May 1966 to March 1970. He also had active duty in the Army Reserve from 1981 to 1984, which it has been determined by April 2003 RO administrative decision was not under honorable conditions for VA purposes, and therefore cannot substantiate VA compensation or other benefits premised on that time period. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The regulatory criteria for establishing service connection for PTSD are: (1) medical evidence diagnosing PTSD; (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. A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which provides that all psychiatric diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). 38 C.F.R. § 3.304(f) (2012). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy," as established by recognized military combat citations or other official records. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 66 (1993); Cohen v. Brown, 10 Vet. App. 128 (1997). If VA determines the veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required provided that such testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions, or hardships of service." See 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.304(d) (2012); Dizoglio v. Brown, 9 Vet. App. 163, 164 (1996); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Under the former version of applicable law, if the veteran's stressor was unrelated to participation in combat, then his lay testimony, in and of itself, was categorically insufficient to establish the occurrence of the alleged stressor. Instead, the record must have contained credible supporting information from an independent source that corroborated his testimony or statements, such as service records, or even competent lay testimony from a third-party. See Cohen, 10 Vet. App. at 146-47. See also Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996). Apart from the above provisions, however, there has been a regulatory change to the pertinent criteria for service connection for PTSD, effective July 13, 2010. See 75 Fed. Reg. 39,843 (later codified at 38 C.F.R. § 3.304(f)). The revised regulation essentially removes the requirement that there be objective corroboration of a claimed in-service stressor under certain circumstances. Under this standard, 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 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 the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. The dispositive issue in this case is whether the Veteran has a verifiable stressor that would support his claim for service connection for PTSD. The other underlying issue of a current diagnosis of PTSD from at least one mental health professional is not in question, as such evidence was available as remotely as the May 1996 RO rating decision that denied the Veteran's original claim. Therefore, the compelling requirement at this stage is that a stressor is established. To this effect, the records reflects that the Veteran responded to an August 2003 VA PTSD stressor questionnaire with general allegations concerning his present psychiatric state and symptomatology in response to stressful circumstances of his military service, which he stated included service in Vietnam during the Vietnam War. In November 2004, the Veteran then provided photocopies of documents which indicated temporary duty assignments (TDYs) from his permanent station in Taiwan to Vietnam, for various occupational assignments including "Records and File Clerk"; Inspection of Records"; and "Communications and Morgue Det." In his VA Medical Center (VAMC) psychiatric treatment records the Veteran also referred to mental stress in relation to a temporary duty assignment carrying out mortuary duties while in Vietnam. In February 2005, the RO issued a formal memorandum to the claims file indicating that no PTSD stressor of record could be verified. The RO found the Veteran's general allegations of stressful circumstances including feeling guilt-ridden about service in Vietnam to be inherently unverifiable. The RO further deemed the photocopies of TDY assignments submitted by the Veteran to be suspicious as to their veracity, in light of the fact that his official personnel file showed no evidence of service in Vietnam based on awards, orders or evaluation reports, and also as explained in a follow-up memorandum, given the anomalies and apparent changes in the typeface of the orders. The Board at minimum agrees with the assessment that up to this point, no verifiable stressor had been shown. Even assuming there was authenticity to the TDY order documents submitted, this alone would not establish a stressor, but only confirm the Veteran's presence in Vietnam for a period of time. Thereafter, in February 2007, the Veteran provided further documentation in support of his appeal, which is the focus of the Board's present inquiry into whether there is any verified stressor. Included in the documentation was a photocopy (regarding which a notary had identified as a true copy of the original) of a November 21, 1968 Letter of Commendation from a superior officer. According to this letter, the Veteran had been assigned to the 412 MMS Squadron of the Air Force on a TDY from September 1, 1968 to November 1, 1968 as part of a remote communications center outside of Cam Ranh Bay Air Base, where he filled a critical vacancy of several months in this capacity. The letter proceeded to indicate that "[r]ecently the communications center he was assigned to was under heavy attack by the Viet Cong. [The Veteran] was NCOIC of the center and he acted in a brave military manner by destroying classified communications and equipment. [The Veteran] acted in a brave manner by carrying out orders he received for him and the men working under him. The communications center took many direct hits but [the Veteran] never hesitated to defend the center until help arrived." The Board views this documentation with every intention of assisting in the development of the Veteran's claim, though ultimately, further developmental inquiry is found warranted. The Board cites to a June 2007 formal memorandum of the RO, which parallels some of the Board's own observations regarding the conclusiveness of the November 1968 commendation letter. In the June 2007 memo, the RO points out apparent misspellings and inconsistencies within the commendation letter. Also cited is that the Veteran's official service personnel file nowhere references a TDY to Vietnam, or the actual incident underlying the commendation letter, and to the contrary, performance evaluation records from May 1968 through December 1968 contradict the Veteran's having had service in Vietnam during that time period. [The Board notes that the validity of the document itself is crucial to establishing the Veteran's claimed stressor. Whereas under the revised regulation under 38 C.F.R. § 3.304(f), lay testimony alone is sufficient to establish a stressor related to fear of hostile military activity, that provision only applies where the claimed stressor was consistent with the places, types, and circumstances of the claimant's service. Without clear proof that the Veteran indeed had a TDY to Vietnam, there is no means by which having fallen under enemy attack would qualify as an event consistent with the circumstances of service.] In summary, the Board believes that an objective, outside verification of the validity of the November 1968 commendation letter is appropriate under the circumstances, to assist with clarifying the factual discrepancies of record. Therefore, this case is being forwarded to the office of the Joint Services Records Research Center (JSRRC) to obtain an independent assessment of whether there is more definitive evidence of the Veteran's receipt of a November 1968 commendation for service under circumstances that would substantiate a valid in-service stressor from his military service. As one further procedural consideration, specific action is necessary to apprise the Veteran of the specific evidentiary showing that must be met in order to reopen his claim, pursuant to the requirements of the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2012). Moreover, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) established additional criteria as to the content of the notice to be provided in connection with a petition to reopen, requiring that VA provide a claim-specific and comprehensive definition of "new and material" evidence. In carrying out this notice obligation, VA must consider the basis for the previous denial and then provide an explanation of what evidence would be needed to substantiate the element(s) found insufficient in the previous denial. The Court further held that failure to describe what would constitute "material" evidence, in particular, in almost all circumstances will have a prejudicial effect upon the adjudication of the claim, and thus, the absence of such information would not be harmless error. As stated, the basis of the original May 1996 RO rating decision's denial of service connection was the absence of a verified stressor to support a clinical diagnosis of PTSD. The Veteran should formally receive VCAA notice indicating that this preliminary showing of a verified stressor is required to reopen his claim. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send the Veteran another VCAA letter providing a detailed and case-specific definition of the requirement of "new and material" evidence as it pertains to the Veteran's claim on appeal, as required by the Court's holding in Kent v. Nicholson, 20 Vet. App. 1 (2006). 2. Then forward this case to the JSRRC and request an independent assessment of the validity of the photocopy of a November 21, 1968 commendation letter that the Veteran has provided in furtherance of a claimed stressor, to support his petition to reopen service connection for PTSD. Namely, request that the JSRRC specifically state whether it can verify the validity of the document based upon the written content of the document itself; comparison with the remaining documents in the Veteran's personnel file (including the performance evaluation reports from May to December 1968 that do not indicate; and research of any additional pertinent unit history records that are on file. 3. The RO/AMC should then review the claims file. If any of the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, the RO/AMC should readjudicate the claim on appeal in light of all additional evidence received. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran 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 the 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). _________________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).