Citation Nr: 1325522 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 05-20 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for posttraumatic stress disorder (PTSD) and anxiety disorder. 2. Whether new and material evidence has been submitted to reopen a claim of service connection for memory loss due to undiagnosed illness. 3. Whether new and material evidence has been submitted to reopen a claim of service connection for sleep disturbances due to undiagnosed illness. 4. Whether new and material evidence has been submitted to reopen a claim of service connection for hair loss due to undiagnosed illness. 5. Entitlement to service connection for posttraumatic stress disorder (PTSD) and anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION The Veteran had active service from November 1986 to March 1987 and February 1988 to December 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana which reopened and denied the claim for service connection for PTSD and anxiety disorder, and denied reopening the claims for service connection for memory loss, sleep disturbances and hair loss all due to undiagnosed illness. Irrespective of the RO's action, the Board must decide whether the appellant has submitted new and material evidence to reopen the claims of service connection for PTSD and anxiety disorder, memory loss, sleep disturbances and hair loss. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board notes that the Veteran filed a notice of disagreement with a December 2009 rating decision which denied service connection for chronic adjustment disorder, panic disorder, and irritable bowel syndrome. A statement of the case (SOC) was issued in April 2013 however it was not appealed and the issues are therefore not before the Board. The issues of whether new and material evidence has been submitted to reopen the claims of service connection for memory loss due to undiagnosed illness, sleep disturbances due to undiagnosed illness, and hair loss due to undiagnosed illness, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a January 2002 rating decision, the RO denied service connection for PTSD and anxiety disorder. The Veteran did not appeal the decision. No new evidence was received within one year of the decision and no additional relevant service treatment records were received. The decision is now final. 2. Evidence submitted since the RO's January 2002 rating decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for PTSD and anxiety disorder. 3. The Veteran has been diagnosed with PTSD due, at least in part, to his experience of fear of hostile military or terrorist activity during his military service. CONCLUSIONS OF LAW 1. The January 2002 rating decision that denied service connection for PTSD and anxiety disorder is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.160(d) (2012). 2. The criteria for reopening the claim for service connection for PTSD and anxiety disorder are met. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for service connection for PTSD and anxiety disorder have been met. 38 U.S.C.A. 1101, 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance as to these issues is not required, and deciding the appeal at this time is not prejudicial to the veteran. New and Material Evidence In a January 2002 rating decision the RO denied service connection for PTSD and anxiety disorder, finding that there was no evidence of an inservice stressor. No evidence was received within one year of the RO decision and no additional relevant service records have been received. The decision is now final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.160(d) (2012). Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. Id. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. The regulations define 'new' evidence as existing evidence not previously submitted to agency decisionmakers. 'Material' evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). With regard to the recent amendment to the PTSD regulation and its relevance to applications to reopen, VBA Training Letter 10-05 (July 16, 2010) provides: "To reopen a claim under new § 3.304(f)(3), VA will accept a Veteran's lay statement regarding an in-service stressor - 'fear of hostile military or terrorist activity' - as sufficient to constitute new and material evidence for the purpose of reopening a previously denied claim, if the Veteran's record otherwise shows service in a location involving exposure to "hostile military or terrorist activity." If review of the record discloses a previously submitted lay statement demonstrating "fear of hostile military or terrorist activity," such statement will be sufficient for reopening a claim if the Veterans' record otherwise demonstrates service in a location involving exposure to 'hostile military or terrorist activity." In this case, at a September 1996 VA examination the Veteran reported stress related to his experience in Saudi which included exposure to bombings, not that he was bomb[ed] necessarily. At an April 2001 VA examination the Veteran stated that in the Gulf War seeing bodies blown in half put a fear of death in him. The Board finds that this evidence contains a previously submitted lay statement demonstrating fear of hostile military activity, and the Veteran's records, including his personnel records showing military occupation specialty (MOS) of infantryman and receipt of Southwest Asia service medal and Kuwait Liberation medal-Kuwait, reflect service in a location involving exposure to hostile military activity. Pursuant to the VBA training letter interpreting the recent amendment to the PTSD regulation, this statement is sufficient to reopen the claim. Reopening of the claim for entitlement to service connection for PTSD and anxiety disorder is warranted. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The regulations related to claims for PTSD were recently amended. Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence 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 posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and 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. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3). 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Multiple VA examinations have been conducted in conjunction with the Veteran's claim. In a September 1996 VA examination the Veteran reported in service stress of exposure to bombings -although not directly bombed, and seeing dead bodies of soldier friends. At this time he was diagnosed with anxiety and stress attacks. At an April 2001 VA examination the Veteran reported service in the Gulf War with combat exposure stressors such as receiving incoming fire from the enemy, encountering mines and booby traps, receiving sniper fire, engaging enemy troops in firefights, riding in convoys, and searching bunkers and seeing prisoners of war. He reported seeing several of his comrades get blown up and excessive dead bodies which put the fear of death in him. The examiner diagnosed PTSD and found that the Veteran's symptoms had occurred since he returned from the Gulf War. At an October 2010 VA examination the Veteran reported experiencing intense fear, helplessness and horror during service. Although the examiner evaluated the Veteran, diagnosed PTSD and conceded that he had a stressor due to service in Saudi Arabia, she was unable to determine without resorting to speculation whether the Veteran's PTSD was related to his fear of hostile military or terrorist activity as he had been exposed to other events in the 17 years since service. In June 2012 the same examiner was asked to clarify her opinion and she indicated by check box that the claimed condition was at least as likely as not incurred in or caused by the claimed in service injury, event, or illness. She opined that all of the events during the Veteran's lifetime contributed to the Veteran's PTSD and the stressor is conceded. The Veteran has a current diagnosis of PTSD. He has consistently reported stressors related to his fear of hostile military or terrorist activity during the Gulf War. The most recent VA examiner found that the claimed service stressors, in part, contributed to the diagnosis of posttraumatic stress disorder (along with all of the Veteran's other stressful life events). This opinion is partly favorable to the Veteran, but it must also be noted that the 2001 VA examiner consider the service stressors and found PTSD. The claimed stressors are consistent with the places, types, and circumstances of his service therefore the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressors. Resolving reasonable doubt in the Veteran's favor, service connection for PTSD and anxiety is warranted. ORDER New and material evidence has been received, the petition to reopen a claim for service connection for PTSD and anxiety disorder is granted. Service connection for PTSD and anxiety disorder is granted. REMAND In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that, in the context of an application to reopen, VCAA notice (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. Id. at 11-12. Further, VA is required, in response to an application to reopen, to look at the bases for the denial in the prior decision and send a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Id. Although the Veteran was provided notice that he needed to submit new and material evidence, he was not informed of the basis for the prior denial or the information necessary to substantiate his claim in compliance with Kent. Accordingly, the case is REMANDED for the following action: 1. Provide notice to the Veteran, in compliance with Kent, to include an explanation as to what evidence would be necessary to substantiate the elements required to establish service connection that were found insufficient in the previous denial. 2. Readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative a supplemental statement of the case with adequate time for response. If any benefit sought remains denied, the case should be returned to the Board. 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). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs