Citation Nr: 1329984 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 09-30 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from December 1972 to December 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans' Affairs (VA), Regional Office (RO), in Oakland, California, that denied the Veteran's petition to reopen the previously denied claim of service connection for PTSD. In his July 2009 substantive appeal, the Veteran requested that he be scheduled for a hearing before a Veterans Law Judge of the Board at the RO. This hearing was scheduled for August 2013, and the Veteran was notified of this hearing by letter dated in July 2013. However, the Veteran failed to appear. He has not explained his absence or requested to reschedule the hearing. Thus, his appeal will be processed as if he withdrew the hearing request. 38 C.F.R. § 20.704(d) (2013). The Veteran presently seeks to reopen a claim of service connection for PTSD, last denied in January 2005. The Veteran did not appeal the decision, and in order for VA to review the merits of the claim, the Veteran must submit new and material evidence. The Board is required to address this issue despite the RO's findings. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). As such, the issue is as captioned above. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The issue of 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. FINDINGS OF FACT 1. Service connection for PTSD was denied by the RO in July 2000. The Veteran did not submit a notice of disagreement and new and material evidence was not received during the appeal period. 2. By rating action dated in January 2005, the RO determined that new and material evidence had not been received to reopen the claim of service connection for PTSD. The Veteran did not submit a notice of disagreement and new and material evidence was not received during the appeal period. 3. Evidence received since the January 2005 RO decision that determined new and material evidence had not been received to reopen the claim of service connection for PTSD, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The January 2005 rating decision that determined new and material evidence had not been received to reopen the claim of service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2013). 2. Additional evidence received since the January 2005 rating decision that determined new and material evidence had not been received to reopen the claim of service connection for PTSD is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. In this decision, the Board reopens the Veteran's claim for service connection for PTSD, and remands it for further development. Because the claim has been reopened, further notice or assistance is unnecessary to assist the Veteran in substantiating the claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Given the results favorable to the Veteran, further development under the VCAA or other law would not result in a more favorable outcome or be of assistance to this inquiry. Reopening Service Connection for PTSD Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases, to include psychoses, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). The Board must assess the credibility and weight of all the 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. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. The Veteran asserts that he currently has PTSD that is manifested as a result of his period of active service. Because the Veteran did not submit a notice of disagreement to the July 2000 rating decision denying service connection, that determination became final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302 (2013). Thereafter, because the Veteran did not submit a notice of disagreement to the January 2005 rating decision that determined new and material evidence had not been received to reopen the claim of service connection for PTSD, that determination became final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302 (2013). If new and material evidence is presented or secured with respect to a claim that has been disallowed the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is evidence which, 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. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. In a decision of the RO dated in August 2000, the Veteran's claim of entitlement to service connection for PTSD was denied. At the time of this decision, the evidence of record included his service treatment records, and outpatient treatment records from the North Valley Vet Center dated from May 1998 to December 1998. The evidence also included statements from the Veteran explaining numerous stressful events experienced during his period of active service. The Veteran's Report Of Separation From Active Duty (DD Form 214-3) shows that his military occupational specialty was security specialist. In correspondence dated in September 1998, the Veteran explained that when he was 24 years old in service, his unit was picked up from NKP, Thailand, and transported by helicopter into Cam Ranh Bay, Vietnam. At that time, one of the three transport helicopters was shot down, resulting in the loss of the crew, which included two of his best friends. The Veteran also described an incident in 1975 during which a non-commissioned officers' club was blown up by the enemy. He also described witnessing civilian casualties associated with the "Fall of Saigon" in April 1975 during which many, including infants, were killed trying to escape onto Navy vessels. In correspondence dated in January 1999, the Veteran added that there had been two squadrons involved, one out of NKP, and the other was the 51st or 52nd Security Police Squadron out of Korat. He added an incident in which his barracks had been destroyed took place between April and May 1975. He also indicated that the incident in which the non-commissioned officers' club was destroyed by the enemy took place around November to December 1975. The RO had requested that the United States Armed Services Center for Research of Unit Records (CRUR) attempt to verify the Veteran's stressors in June 2000, however, no reply had been received. In July 2000, the RO denied the Veteran's claim of service connection for PTSD as the record had not shown that the Veteran had service in Vietnam or engaged in combat with the enemy. The record had also failed to show that the Veteran had been diagnosed with PTSD. The Veteran did not submit a notice of disagreement within one year of the July 2000 decision. No evidence was received within the appeal period after the decision. As such, the decision became final. 38 U.S.C.A. § 7105(c) (West 2002); cf. 38 C.F.R. § 3.156(b) (2013) (new and material evidence received within the appeal period after a decision is considered as having been received in conjunction with the prior claim); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final). The Board notes that in September 2000, the CRUR replied to the RO's inquiry indicating that extensive research had not been able to document the incidents as stated by the Veteran, to specifically include the December 1975 explosion at the Cam Ranh Bay NCO club. In correspondence dated in November 2002, the Veteran requested that his claim for service connection for PTSD be reopened. In support of his claim, he submitted VA outpatient treatment records dated from February 2004 to September 2004 showing ongoing group therapy for reported symptoms associated with PTSD. The records did not provide a diagnosis of PTSD. The records also included descriptions of additional stressful events in service, to include removing bodies from crashed airplanes and helicopters in Thailand, as well as witnessing the killing of a Thai soldier by another Thai soldier, each occurring between 1974 and 1975. The Veteran's claim was denied by the RO in January 2005 as there had not been a diagnosis of PTSD, nor had there been a verifiable stressor that would support such a diagnosis. The Veteran did not submit a notice of disagreement within one year of the January 2005 decision. No evidence was received within the appeal period after the decision. As such, the decision became final. 38 U.S.C.A. § 7105(c) (West 2002); cf. 38 C.F.R. § 3.156(b) (2013); Bond, 659 F.3d at 1362. In correspondence dated in March 2007, the Veteran requested that his claim for service connection for PTSD be reopened. In support of his claim, in August 2007, the Veteran submitted various lay statements, including one from J. E. M., a fellow service member, in which it was indicated that they had served together at the Korat Royal Thai Air Force Base in 1975, and that they had been involved in the Mayaguez rescue attempt. It was also indicated that in April 1978, they had both witnessed a mid-air collision between two F-4 aircraft while at Seymour Johnson Air Force Base in North Carolina. The Veteran also submitted a portion of a rating decision of Mr. M., in which VA had conceded a stressor based on participation in an assault on Koh Tan Island in May 1975. The Veteran also provided a copy of an online encyclopedia article that confirmed the participation of the 40th Air Rescue and Recovery Squadron and the 21st Special Operations Squadron in the attack on Koh Tang Island. A private medical record from D. J. Brink, M.D., dated in September 2007, shows that the Veteran was said to have been diagnosed with PTSD ever since 1994. A private medical record from J. Jurgenson, Ph.D., dated in October 2007, shows that the Veteran was diagnosed with PTSD. In his impression, Dr. Jurgenson explained that the Veteran described difficulty with stress related to combat experiences in Vietnam, and from observing a plane crash that killed several people while he was stationed in Kansas. In July 2009, the Veteran provided an internet article noting an abstract of an apparent mid-air crash of two Air Force F-4's near Jacksonville, North Carolina, while on a training mission from Seymour Johnson Air Force Base, reported on the CBS Evening News on April 13, 1978. In July 2010, the Veteran indicated that he would be providing additional copies of his service personnel records. However, no subsequent records were received. In denying the Veteran's petition to reopen the claim of service connection for PTSD, the RO noted that despite two requests for the Veteran's complete personnel file, one in 1998 and the second in 2009, only partial records were received. These were said to confirm that he had been assigned to Thailand between August 1974 and August 1975. Service treatment records confirmed that he was stationed at Korat Royal Thai Air Force Base at this time, but unit and duties were unknown. The RO also conceded that the Veteran was stationed at Seymour Johnson Air Force Base in April 1978, but there was no record of a mid-air collision at Seymour Johnson Air force Base while he was assigned there in the late 1970's. The RO also concluded that it could not corroborate that the Veteran's unit was involved in the Mayaguez crew rescue incident in May 1975. The newly received evidence documents that the Veteran was being treated for symptoms associated with a diagnosis of PTSD, which the psychologist has related to active service. This evidence pertains to an element of the claim that was previously found to be lacking. The additional evidence also includes lay evidence which asserts that the Veteran was present during a number of stressful experiences in service as asserted by the Veteran. This new evidence, when considered with the old, triggers VA's duty to conduct additional development, to include provide an examination. The record contains competent current diagnoses, and the reports of symptoms in service and continuing since, suggest that the claimed disability may be related to service. Hence, it raises a reasonable possibility of substantiating the claim. Shade. As such, the above evidence bears directly and substantially upon the specific matter under consideration, is neither cumulative nor redundant, and by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the Veteran's claim of service connection for PTSD. Therefore, the claim is reopened. ORDER New and material evidence having been received, the claim of service connection for PTSD is reopened, and to this extent only the appeal is granted. REMAND The Board's finding that the evidence is new and material to reopen the claim of service connection for PTSD entails a finding that the evidence triggers VA's duty to conduct additional development, to include provide an examination. In light of the foregoing, additional development is warranted in this case. Initially, the Board notes that the service treatment records suggest that the Veteran was stationed at Seymour Johnson Air Force Base in April 1978 and could very well have been stationed at McConnell Air Force Base during a plane crash in March 1974 (service records reflect treatment of the Veteran in February 2004 at a clinic on that base). In this regard, in light of the July 2009 submission of the internet abstract noting an April 14, 1978, news report from CBS Evening News, concerning a mid-air collision of two F4 aircraft and the report from Aviations Safety Network reflecting the plane crash in March 1974, the Board finds that it is conceivable that the Veteran worked at the clean-up of these crashes in light of his military occupational specialty of security specialist. Additionally, in light of his July 2010 correspondence, the Veteran should be afforded an additional opportunity to provide any additional copies of his service personnel records that may be in his possession. Past claims of stressor incidents have not been verified and in fact several do not appear credible (the Veteran claimed an explosion at an enlisted man's club in Cam Ranh Bay in November or December 1975, about 6 months after the withdrawal of all U.S. troops from the Republic of Viet Nam and combat involving the crash of a helicopter in the Republic of Viet Nam in 1975, which resembles the stressor of J.M., except it was on an island off Thailand in May 1975). The diagnosis of PTSD by Dr. Jurgenson in October 2007 is based on combat stressors that have not been verified. However, in light of the newly claimed stressors that can be corroborated, the Veteran should be scheduled for a VA psychiatric examination for the purpose of determining whether the Veteran currently has PTSD, and if so, so that the examiner should indicate whether the corroborated stressors are responsible for the diagnosed PTSD. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall contact the Veteran and ask that he provide any additional copies of his service personnel records that may be in his possession. 2. Thereafter, the RO should schedule the Veteran for an examination by a VA psychiatrist to determine whether the diagnostic criteria for PTSD are met. The Veteran's claims file, to include a complete copy of this REMAND, must be provided to the examiner designated to examine the Veteran, and the report of examination should note review of the claims file. All necessary special studies or tests, to include psychological testing and evaluation, such as the Minnesota Multiphasic Personality Inventory, and the Mississippi Scale for Combat-Related PTSD, should be accomplished. The examiner should determine whether the veteran currently suffers from PTSD related to his participation of the cleanup of the plane crashes at or near McConnell and Seymour Air Force Bases in 1974 and 1978, respectively and whether it is adequate to support a diagnosis of PTSD. For purposes of the examination, no other claimed stressor, including any claim of combat duty, has been found credible or corroborated. If a psychiatric disability other than PTSD is diagnosed, the examiner should indicate whether it is likely as not (50 percent probability or greater) related to the Veteran's active service. The examination report should include the complete rationale for all opinions expressed. The examiner should provide a rationale for the opinions. The examiner should specifically identify the verified stressor(s) which is(are) responsible for PTSD, if diagnosed. 3. The RO/AMC will then readjudicate the Veteran's claims. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. No action is required of the veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2013). He 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. 2013). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs