Citation Nr: 1331522 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 07-00 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disability, to exclude PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1969 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Seattle, Washington Department of Veterans Affairs (VA) Regional Office (RO). In March 2012, the Veteran appeared and provided testimony, at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. This case was previously before the Board in May 2012, at which time it was remanded for further development. In the May 2012 remand, the Board determined that the record supported a claim for entitlement to service connection for an acquired psychiatric disability, to exclude PTSD. As such, pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled), and such an issue was added to the Veteran's claim on appeal. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. The entitlement to service connection for an acquired psychiatric disability, to exclude PTSD, 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. A January 1992 rating decision denied the Veteran service connection for PTSD based essentially on a finding that his reported stressors, related to combat in the Republic of Vietnam, were not credible, as there was no evidence he ever served in the Republic of Vietnam; subsequent unappelaed rating decisions; most recently in April 2003, continued the denial. 2. Evidence received since the April 2003 rating decision is not new and material and the Veteran's claim of entitlement to service connection for PTSD cannot be reopened. CONCLUSIONS OF LAW 1. The April 2003 rating decision that denied reopening of the Veteran's claim of entitlement to service connection for PTSD is final. 38 U.S.C.A. § 7105(c) (West 2002). 38 C.F.R. § 3.156(b) (2012) 2. New and material evidence has not been received to reopen a claim of entitlement to service connection for PTSD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The Court has held that the VCAA requires additional notice when a claimant seeks to reopen a previously denied claim. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that VA must examine the basis for a denial of a previously disallowed claim and provide the appellant with notice of the evidence of service connection found lacking in the previous denial. Kent at 9-10. Here, the VCAA duty to notify was satisfied by way of numerous letters sent to the Veteran in November 2005, June 2011, July 2011, and January 2013. These letters informed the Veteran of what evidence is required to substantiate his claim and of his and VA's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. With respect to his request to reopen his claim of entitlement to service connection for PTSD, the Veteran was provided with notice in compliance with Kent in the July 2011 letter. The Board notes that this letter was dated after the adjudication at issue in this matter, however, following the July 2011 letter, the RO issued a November 2011 Supplemental Statement of the Case (SSOC) readjudicating the issue, and as such, the Board finds that any delay in providing the Veteran Kent notice was not prejudicial. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). The Board notes that the RO has obtained the Veteran's service treatment records and postservice VA outpatient treatment. There is no duty to provide a VA examination or obtain a medical opinion unless a previously denied claim is reopened via the submission of new and material evidence. Also, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the March 2012 Board hearing, the VLJ fully explained the issue on appeal, and asked questions focused on the nature and etiology of the disability in question, specifically as to the cause and symptoms of the Veteran's PTSD. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims files that might have been overlooked, or was outstanding, that might substantiate the claim. The Veteran was expressly advised that there were no records showing he served in Vietnam and he was asked if he had any evidence to submit on this point. The Veteran indicated that he intended to obtain some lay statements in order to help substantiate his claim, and as such the VLJ informed the Veteran that the record would be held open for thirty days in order to provide him and his representative the opportunity to obtain those statements and submit them to be considered with his claim. The Board notes that neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his claims discussed above. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Legal Criteria The Board has reviewed all of the evidence in the claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as 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). The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). III. Analysis An unappealed January 1992 rating decision denied the Veteran service connection for PTSD based essentially on the finding that his reported stressors, which concerned combat in the Republic of Vietnam, were not credible, as there was no evidence the Veteran ever had service in the Republic of Vietnam. Thereafter, the Veteran made a number of attempts to reopen his claim. An unappealed April 2003 rating decision denied the most previous attempt to reopen. The Veteran did not submit any new and material evidence in the matter or a notice of disagreement within one year, and the decision is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. The Veteran filed a claim to reopen in October 2005, which was denied by the RO in a November 2006 rating decision; the Veteran has appealed. Evidence of record at the time of the April 2003 rating decision included the Veteran's DD Form 214 and service personnel records, which showed that for his active service, the Veteran had been awarded a Rifle/Sharpshooter Badge and the National Defense Service Medal. His DD Form 214 shows that he had one year, five months, and 27 days of total service. Under "foreign and/or sea service", it shows that he had eight months and 22 days, and under "Remarks" it is noted "Inclusive Dates Of Service In Vietnam: None". The Veteran's service personnel records showed: (1) that he had arrived and disembarked at Kadena Air Force Base in Okinawa, Japan, on September 20, 1970, where he then transferred to Atsugi Naval Air Station, Japan, on the same day; (2) that he departed Atsugi Naval Air Station on October 17, 1970, then arriving at Kadena Air Force Base in Okinawa on that date; (3) that he departed Kadena Air Force Base on June 10, 1971, for transfer to the United States. The personnel records include a medical board report dated in January 1971 and a physical evaluation board dated in April 1971. His "Record of Service" shows that between February and June 1961, his primary duty was awaiting transfer. The personnel records show under "Combat History - Expeditions - Awards Record," there are no entries. Under "Awards," there is the National Defense Service Medal. "Offenses and Punishments" indicate two offenses - one in January 1971 and the other in February 1971 - and both reflect the incidents occurred at Camp Schwab, Okinawa. Also of record at the time of the April 2003 rating decision were the Veteran's service treatment records (STRs), which showed that he never received treatment for combat related injuries during active service. As noted above, a Medical Board report was completed in January 1971, which indicated that in October 1970, the Veteran had contracted scrub typhus when training at Camp Fuji, Japan, and that he was then hospitalized at the U.S. Army Hospital, Ryukyu Islands, for treatment. There are numerous treatment records dated in November and December 1970, stamped as "USAH, RYIS", which would be consistent with the notation that he had received treatment at the U.S. Army Hospital, Ryukyu Islands. There are no treatment records dated in 1971. Also of record at the time of the April 2003 rating decision were intermittent VA outpatient and inpatient treatment records from 1988 to 2003 which show the Veteran sporadically receives treatment for PTSD; and records from the Social Security Administration (SSA), which show that the Veteran had been awarded SSA disability in 1995 due to his various disabilities, including his PTSD. The Veteran had also submitted several lay statements which were of record at the time of the April 2003 rating decision, in which he alleged that he served in the Republic of Vietnam and that he was in combat. In one such statement, the Veteran asserted that he had received an honorable discharge and that he had been awarded a "Service Overseas Medal", a "Vietnam Medal", three Purple Heart Medals, and a Good Conduct Medal. However, as noted above, his DD Form 214 and service personnel records show that he did not have active service in the Republic of Vietnam, and the Veteran provided no objective evidence to corroborate his lay statements. Evidence received since the April 2003 rating decision includes additional statements from the Veteran alleging that he served in the Republic of Vietnam during active service, and that he was in combat; additional VA treatment records showing that he has continued to receive treatment for PTSD and other psychiatric disabilities; a memorandum to the file which notes that efforts were made to obtain any additional treatment records pertaining to the Veteran's PTSD from SSA, but that no such records were available; and a lay statement from the Veteran's brother, F.A., who stated that the Veteran told him he saw their brother, M.A., while serving in the Republic of Vietnam. In April 2011, the National Personnel Records Center stated that there was no evidence in the Veteran's file to substantiate service in Vietnam. Additionally, subsequent to the April 2003 rating decision, the Veteran testified at a March 2012 Board hearing that he served in combat in the Republic of Vietnam in 1971. He reported that he arrived in the Republic of Vietnam in October 1970 and left in May 1971. The Board is unable to view any of the newly received evidence as new and material. The newly received VA treatment records simply show that the Veteran continues to receive treatment for his PTSD; they provide no new information pertaining to the Veteran's alleged service in the Republic of Vietnam, and are therefore redundant of evidence previously of record. The Veteran argues the records showing his Vietnam service were burned in the fire at the National Personnel Records Center in 1973. That is incorrect. There is a voluminous personnel records file, as well as service treatment records including entrance and exit examinations and physical evaluation board proceedings. There is absolutely no indication that these records are somehow incomplete, and, furthermore, they contain entries clearly documenting the Veteran was in Japan during the time periods he states he was in Vietnam. This is not a situation where there is an absence of service records, but, rather, as described in detail herein, one where there are many records, all of which directly refute the Veteran's allegation that he served in Vietnam. With regard to the Veteran's statements regarding his alleged service in the Republic of Vietnam, the Board finds that based on the other evidence of record, these statements are inherently incredible, therefore cannot be considered new and material. See King, 5 Vet. App at 21. In this regard, the Board notes that, although the Veteran has continued to allege that he served in combat in the Republic of Vietnam, there is no objective evidence to support these statements, and the service department records clearly show he did not serve in the Republic of Vietnam, or in combat, specifically his DD Form 214 and his service personnel records. Further, the Veteran testified that the U.S.S. Kitty Hawk brought him to DaNang in October 1970. This is false, since his personnel records document he disembarked from the U.S.S. Kitty Hawk in Japan. [Although the Kitty Hawk went on to operations around Vietnam, since his records show he was in Japan, this fact is completely irrelevant.] He then testified he served all over Vietnam until he left somewhere between March and June 1971. Again, his testimony is clearly false since his records show, among other things, treatment in Japan in November and December 1970 and military offenses he committed in Okinawa in January and February 1971. As such, and even considering the holding in Shade v. Shinseki, 24 Vet. App. 110 (2010) to the effect that the VA regulation as to reopening a claim "must be read as creating a low threshold," the claim is not reopened. 38 C.F.R. § 3.156(a). As for the statement provided by his brother, F.A., this is not material evidence. This statement merely reflects the Veteran's own statement made to F.A. that he was in Vietnam. Even by the Veteran's own testimony, he stated he did not see F.A. when he was allegedly in Vietnam, but he saw their other brother. There is no statement from the other brother. Overall, the Board finds that the new evidence does not relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for PTSD. The new evidence provides no credible suggestion that the Veteran served in the Republic of Vietnam while on active service. Therefore, the Board concludes, that the Veteran has not presented new and material evidence to reopen his claim. Accordingly, the appeal is denied. See 38 U.S.C.A. § 5108. ORDER New and material evidence has not been received, and the claim for entitlement to service connection for PTSD may not be reopened. The appeal is denied. REMAND The Board finds that additional development is needed before the Veteran's remaining claim on appeal is decided. Of record are numerous VA treatment records that show the Veteran has been variously diagnosed with psychosis and depression, as well as SSA records, which show he has been awarded SSA disability benefits for various disabilities, including dysthymic disorder and personality disorder (passive aggressive). Further, the Board notes that in November 1990, the Veteran filed a claim of entitlement to service connection for scrub typhus, which he was treated for while on active service, and he stated that the scrub typhus caused him to develop a nervous condition. Additionally, the Board notes that October 1970 STRs of record reflect that while on active service, after receiving treatment for scrub typhus, the Veteran complained of nervousness. In August 1985, the Veteran was hospitalized following multiple stab wounds. In November 1985, he was then hospitalized at the VAMC in Seattle, with diagnosis of atypical psychosis and intermittent explosive disorder. 1988 VA records show long-term poly substance abuse and multiple medical problems. Also in the mid 1980s, he began to complain of problems he felt were the result of the in-service scrub typhus. He alleged he was in a coma for months and almost died. A 1993 VA examiner reviewed the record and concluded that there was no evidence the claimed "nervous condition" (among other things) resulted from the scrub typhus. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that VA must provide a medical examination in connection with a service connection claim when the record (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (B) establishes that the Veteran suffered an event, injury or disease in service; and (C) indicates that the claimed disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability, but (D) does not contain sufficient evidence for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4). See McLendon, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Based on the evidence of record that indicates the Veteran currently suffers from a variously diagnosed psychiatric disability and the October 1970 STRs which show that he complained of nervousness while on active service, the Board finds that the low threshold outlined by McLendon has been met. Therefore, a VA examination and opinion are needed to determine whether the Veteran's current acquired psychiatric disability, to exclude PTSD, is related to his active service. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination by a psychologist or psychiatrist with sufficient expertise to determine the nature and etiology of his current acquired psychiatric disability, to exclude PTSD. The claims file must be made available to and reviewed by the examiner. All tests and studies deemed necessary by the examiner should be performed. After examination and review of the claims files, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's acquired psychiatric disability, to exclude PTSD, is etiologically related to his active service, to include, specifically, scrub typhus. The complete rationale for all opinions expressed must be provided. The examiner is asked to specifically comment regarding the October 1970 STRs, which reflect the Veteran was treated for a nervous condition while on active service. If the requested opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a rationale provided. 2. When the development requested has been completed, and the RO or the AMC has ensured compliance with the requested actions, this case should again be reviewed and readjudicated by the RO or the AMC on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board 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). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs