Citation Nr: 1327187	
Decision Date: 08/26/13    Archive Date: 08/29/13

DOCKET NO.  11-15 608	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD).


WITNESS AT HEARING ON APPEAL

Appellant and A.S.


ATTORNEY FOR THE BOARD

A. Shawkey, Counsel



INTRODUCTION

The Veteran served on active duty from July 1973 to July 1977.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  In December 2010, the Veteran testified before a Decision Review Officer at the RO.  A transcript of that hearing is of record.  As shown on his substantive appeal (VA Form 9), dated in June 2011, the Veteran requested to appear at a Board video conference hearing.  However, on a subsequent VA Form 9, dated in July 2011 and received in August 2011, the Veteran stated that he did not wish to appear at a Board hearing.  Accordingly, the Board construes the Veteran's most recent VA Form 9 as indicative of his wishes and finds that he no longer requests a Board hearing.

Following the issuance of the statement of the case in May 2011, but prior to certification of the appeal to the Board in October 2012, the RO received additional evidence in support of the Veteran's claim for service connection for a psychiatric disability, to include PTSD.  The evidence includes a VA medical record dated in July 2011 from the Veteran's treating VA clinical psychologist.  Pertinent regulation provides that in such a case the RO must issue the Veteran a supplement statement of the case (SSOC).  See 38 C.F.R. § 19.37.  With that said, a review of the record reveals that the RO did not issue the appellant a SSOC; instead, it forwarded the case to the Board.  The Board in turn is required to refer pertinent evidence not yet considered by the Agency of Original Jurisdiction (AOJ) to the AOJ for its initial review, unless the appellant waives such review or unless the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal without such referral.  38 C.F.R. § 19.37(b); 38 U.S.C.A. § 20.1304(c).  In this case, the Board finds as is explained below that the evidence is favorable to the issue presently on appeal, that is, the application to reopen the claim of service connection for a psychiatric disability, to include PTSD.  Thus, referral of the evidence to the RO is not warranted with respect to this issue.  See 38 C.F.R. § 20.1304(c).

The underlying issue of entitlement to service connection for a psychiatric disability, to include PTSD, is being remanded and 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.  In a July 2004 rating decision, the RO denied entitlement to service connection for a psychiatric disability, to include PTSD. 

2.  Evidence associated with the record since the July 2004 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim.


CONCLUSIONS OF LAW

1.  The July 2004 rating decision denying service connection for a psychiatric disability, to include PTSD, is final.  38 U.S.C.A. § 7105 (West 2002). 

2.  New and material evidence has been received to reopen the claim for service connection for a psychiatric disability, to include PTSD.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000

In view of the Board's decision to reopen and remand the claim of entitlement to service connection for a psychiatric disability, to include PTSD, there is no need to address, at this time, VA's compliance with the Veterans Claims Assistance Act of 2000.

II.  Analysis

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

There are also particular requirements for establishing PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally.  Arzio v. Shinseki, 602 F. 3d 1343, 1347 (Fed. Cir. 2010).  Establishing service connection for PTSD requires (1) a diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor.  38 C.F.R. § 3.304(f).

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.  38 C.F.R. § 3.304(f)(1).  In this case, the Veteran did not receive any decorations that indicate that he engaged in combat with the enemy and the evidence does not otherwise so indicate.  See VA Adjudication Manual Rewrite, M21-1MR, Part IV, Subpart ii, 1.D.13.d (listing combat decorations warranting presumption that a veteran engaged in combat with the enemy).

Prior to a recent amendment to the regulations, where a determination was made that the Veteran did not "engage in combat with the enemy," or the claimed stressor was not related to combat, the Veteran's lay testimony alone was insufficient 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, service records or other corroborative evidence were required to substantiate or verify the Veteran's testimony or statements as to the occurrence of the claimed stressor.  Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).  However, effective July 13, 2010, 38 C.F.R. § 3.304(f) was amended to reduce the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity.  See Stressor Determinations for Posttraumatic Stress Disorder, Final Rule, 75 Fed. Reg. 39843 -01 (July 13, 2010), codified at 38 C.F.R. § 3.304(f)(3).  That amendment is relevant to the present case.  

The amendment provides that, if a stressor claimed by a veteran is related to the veteran's fear of hostile military activity, and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types, and circumstances of the veteran's service and there is no clear and convincing evidence to the contrary. Id.  "Fear of hostile military activity" is defined to mean 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, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id.  The list of examples of such an event or circumstance specifically includes experiencing, witnessing, or being confronted with small arms fire.  The Supplementary Information in the announcement of the Final Rule, however, indicated that "VA will not apply the rule to claims that were finally denied before the effective date of the rule unless new and material evidence is submitted," and, "The change in the evidentiary standard for establishing occurrence of an in-service stressor would not constitute a basis on which to reopen a finally denied claim for service connection for PTSD because it is procedural in nature and does not affect a substantive change in the law governing service connection for disabilities."  75 Fed. Reg. at 39851.

In this appeal, the RO initially denied the Veteran's claim for service connection for a psychiatric disability, to include PTSD, in July 2004.  The Veteran did not appeal this decision and it is final.  38 U.S.C.A. § 7105 (West 2002).  This is the last final rating decision on this matter on file.  The basis of the denial was that there was no confirmed diagnosis of PTSD on file and no stressor confirmation.  While it appears that the RO reopened the claim in February 2010 and reviewed the claim on the merits, it is the Board's jurisdictional responsibility to consider whether a claim should be reopened, no matter what the RO has determined.  Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996).

Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998).

Regarding petitions to reopen filed on or after August 29, 2001, as in this case, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 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).

Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).

The evidence before the RO at the time of the January 2004 denial included the Veteran's service treatment records which are devoid of a diagnosis or treatment of a psychiatric nature.  The evidence also includes the Veteran's report to a readjustment counseling therapist at the Vet Center in January 2004 regarding his fear serving as a guard in Thailand at an Air Force base.  He said he feared that the near-deserted base was vulnerable to enemy attacks.  He also reported that he almost volunteered to go on a helicopter mission that resulted in the helicopter crashing and killing all 26 servicemen on board.  He reported that a lot of the servicemen were his friends.  In addition, the evidence includes VA outpatient records referencing a self reported history of schizophrenia, a history of depression, and the Vet Center's readjustment counseling therapist's opinion in January 2004 that the Veteran had PTSD due to his experience in Thailand.  

The evidence received since July 2004 includes VA medical records showing that the Veteran received treatment for PTSD, and a VA clinical psychologist's September 2009 report that the Veteran had PTSD symptoms secondary to his service in Thailand.  It also includes a July 2011 report from the same VA clinical psychologist who opined that the Veteran suffered from PTSD which was secondary to his stressful experiences during his two weeks in Thailand "evacuating people and losing a great deal of people". 

In light of the July 2011 opinion relating PTSD to the Veteran's experience in Vietnam and the regulatory amendment above (38 C.F.R. § 3.304(f)(3)) intended to reduce the evidentiary burden of establishing a stressor, the Board concludes that the criteria for reopening the claim for service connection for a psychiatric disability, to include PTSD, are met.  See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  


ORDER

The application to reopen the claim for entitlement to service connection for a psychiatric disability, to include PTSD, is granted.


REMAND

Now that the Veteran's claim for service connection for a psychiatric disability, to include PTSD, has been reopened, additional development is warranted.  Such development includes affording the Veteran a VA psychiatric examination as VA has not yet obtained, from a VA or VA-contracted psychiatrist or psychologist, an opinion that is consistent with the requirements under the revised 38 C.F.R. § 3.304(f)(3).  Hence, the claims file should be provided to a VA or VA-contracted psychiatrist or psychologist.  Following a complete and thorough review of the claims file, the VA or VA-contracted psychiatrist or psychologist should provide a typewritten opinion as to whether the Veteran's reported stressors are adequate to support a diagnosis of PTSD, and, whether the Veteran's symptoms are related to the claimed stressors.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Also, as the title page above shows, the Veteran's appeal must be broadly construed to encompass service connection for any acquired psychiatric disorder, to include PTSD.  

In addition, updated pertinent VA treatment records should be obtained and associated with the claims file.  The most recent psychiatric treatment record on file is dated in January 2010.  38 U.S.C.A. § 5103A(b).

Lastly, the Veteran recently informed VA in May 2012 that he has been receiving disability benefits from the Social Security Administration since 1996 for disabilities that either solely or in part were caused by his PTSD.  These records are not on file and should be obtained.  See Murinscak v. Derwinski, 2 Vet. App. 363 (1992).  

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the claims file updated VA psychiatric treatment records from January 2010 to present.

2.  Obtain and associate with the claims file the decision(s) of the Social Security Administration (SSA) to award or deny benefits to the Veteran and the records upon which SSA based its decision(s).  If the search for such records has negative results, the claims file must be properly documented as to the unavailability of these records.

3.  Then, schedule the Veteran for a VA psychiatric examination in order to determine the nature and etiology of any psychiatric disorder(s) which may be present.  The entire claims file, to include a complete copy of the REMAND, must be made available to the examiner designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions.  Any further indicated tests and studies (to include psychological studies, if warranted) should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.

After examining the Veteran and reviewing the relevant evidence in the claims file, the examiner should identify all current psychiatric disorder(s) found.  With respect to each psychiatric diagnosis, the VA examiner should offer an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (50 percent or greater probability) that any psychiatric disorder:  (1) had its onset in or is otherwise related to the Veteran's period of active duty or (2) if a psychosis is diagnosed, the examiner should indicate whether it was manifested within one year after the Veteran's period of active duty.

If PTSD is diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that he has PTDS due to a claimed stressor that is adequate to support the diagnosis, and that is related to the Veteran's claimed stressor(s) based upon a reasonable fear of hostile military or terrorist activity.  In rendering the requested opinions, the physician should specifically consider and discuss the Veteran's contentions, the lay statements of record, his service personnel and treatment records, and his post-service private and VA medical records.

The examiner should set forth all examination findings, along with a complete rationale for any opinion reached, in a printed report. 

4.  Thereafter, the RO/AMC should readjudicate the claim for service connection a psychiatric disability, to include PTSD, based upon all additional evidence received.  If the claim remains denied, issue an appropriate SSOC and afford the Veteran the opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

The appellant 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).




______________________________________________
CHERYL MASON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs