Citation Nr: 1332355	
Decision Date: 10/18/13    Archive Date: 10/24/13

DOCKET NO.  12-22 755	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Whether new and material evidence has been received to reopen the previously denied claim for service connection for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

R. Erdheim, Counsel






INTRODUCTION

The Veteran served on active duty from February 1982 to February 1994.

This matter comes before the Board of Veterans' Appeals (Board) from a January 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen the previously denied claim for service connection for PTSD. 

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issue of entitlement to service connection for 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.  In an April 2009 rating decision, the RO denied service connection for PTSD.  The Veteran did not file a timely appeal. 

2.  The evidence added to the record since the last final decision in April 2009 is not cumulative of the evidence previously considered, contributes to a more complete picture of the Veteran's claim for service connection for PTSD and creates a reasonable possibility of an allowance of the claim. 


CONCLUSIONS OF LAW

1.  The April 2009 rating decision that denied the claim for service connection for PTSD is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012).

2.  New and material evidence has been received to reopen the claim for service connection for PTSD.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As the Board's decision to reopen the Veteran's claim of entitlement to service connection for PTSD is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations.  However, consideration of the merits of the issue is deferred pending additional development consistent with the VCAA.

The Veteran contends that while stationed in Iraq and Saudi Arabia, he was exposed to combat conditions such as going through a mine field, driving on roads with dead bodies, and witnessing the explosion of a jeep.  He contends that he not only suffers from his service-connected depression, but also suffers from PTSD related to those combat stressors.

The RO denied the Veteran's claim for service connection for PTSD in a April 2009 rating decision.  At the time of the decision, the RO found that the Veteran's service stressors could not be confirmed and that there was no indication of a diagnosis of PTSD, thus service connection was denied. 

Although in the January 2012 rating decision on appeal, the RO declined to reopen the Veteran's claim for service connection for PTSD, the Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claim de novo.  If the Board finds that no such evidence has been offered, that is where the analysis must end.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). 

A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier.  38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.302, 20.1100, 20.1103 (2012).  Thus, the previous decision became final because the Veteran did not file a timely appeal. 

The claim for service connection may be reopened if new and material evidence is received.  Manio v. Derwinski, 1 Vet. App. 140 (1991).  The Veteran filed an application to reopen his claim in June 2010.  Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with the 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) (2012).  In determining whether evidence is new and material, the credibility of the new evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992). 

The evidence before VA at the time of the prior final decision in 2009 consisted of the Veteran's service treatment records, VA and private treatment records, and a VA examination that related his depression to his service-connection hypertension.

After a review of all the evidence, the Board finds that the evidence received since the last final decision in 2009 is not cumulative of other evidence of record, relates to an unestablished fact, and raises a reasonable possibility of substantiating his claim. 

Newly received evidence includes two diagnoses of PTSD, in June 2010 and in November 2012.  At the time of the previous decision, there was no diagnosis of PTSD.  Moreover, at the time of the previous decision, the Veteran had not elaborated as to the specifics of his stressors, as he has done since.  Thus, the new evidence was not previously considered by agency decision makers, is not cumulative or redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.303.  New evidence is sufficient to reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin of an appellant's disability, even where it may not convince the Board to grant the claim.  Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).  Accordingly, the claim for service connection for PTSD is reopened.  To that extent only, the appeal is allowed. 


ORDER

As new and material evidence sufficient to reopen a claim for service connection for PTSD has been received, the Veteran's previously-denied claim is reopened.


REMAND

The Veteran contends that while stationed in Kuwait, Saudi Arabia and at the border of Iraq, he was exposed to combat conditions such as going through a mine field, driving on roads with dead bodies, and witnessing the explosion of a jeep.  He contends that he not only suffers from his service-connected depression, but also suffers from PTSD related to these combat stressors.

The Veteran's service personnel records confirm that he received imminent danger pay while serving in Saudi Arabia, and that he received the Bronze Service Star and Kuwait Liberation Medal.  

The Board notes that effective July 13, 2010, the regulations governing PTSD claims eliminate the requirement for corroborating that the claimed in-service stressor occurred if a stressor claimed by a Veteran is related to his/her 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 PTSD and that the Veteran's symptoms are related to the claimed stressor - provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service.  75 Fed. Reg. 39843 -52 (July 13, 2010); 38 C.F.R. § 3.304(f)(3) (2013). 

In this case, the Veteran's service stressors and service personnel records appear consistent with his "fear of hostile military" activity and are "consistent with the places, types, and circumstances," of his service.  Such was also stated by the September 2010 VA examiner.

However, the September 2010 VA examiner also determined that the Veteran did not meet the criteria for a diagnosis of PTSD, concluding instead that the Veteran met the diagnosis for major depressive disorder and alcohol abuse.  The examiner explained that the Veteran reported his PTSD symptoms by rote and lacked the emotional narrative of signs that bind the symptoms into an anxiety disorder.

Subsequently, the Veteran began treatment in a PTSD therapy group.  In November 2012, he was diagnosed with PTSD based upon his frequent combat nightmares.  The VA psychiatrist stated that the Veteran had "a history of symptoms strongly suggestive of PTSD."

Thus, in this case, there are competing opinions as to whether the Veteran meets the criteria for a diagnosis of PTSD.  Therefore, a clarifying VA examination and opinion is necessary prior to further disposition of the claim.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  The RO should undertake any appropriate stressor development, to include obtaining a complete set of his service personnel records, and should thereafter prepare a summary of all known facts which are relevant to the Veteran's claimed stressors such as his dates and places of assignment during the relevant periods.  

2.  Schedule the Veteran for a VA examination to determine the nature and etiology of his contended PTSD.  The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner.  Any indicated evaluations, studies, and tests should be conducted.  


a)  Does the Veteran have a valid diagnosis of PTSD, taking into consideration and discussing the June 2010 diagnosis, the November 2012 diagnosis, and any other diagnosis in the record of PTSD?  If PTSD is not diagnosed, the examiner should clearly explain that conclusion.

(b)  If PTSD is diagnosed, the examiner should identify the stressor(s) supporting the diagnosis of PTSD.  In identifying any claimed stressor(s) the examiner should independently review the entire record, to include the Veteran's statements regarding his claimed stressors.  After consideration of these stressors, the examiner should explain whether they satisfy the criteria to support a diagnosis of PTSD, to include those stressors consistent with fear of hostile military or terrorist activity as set forth in 38 C.F.R. § 3.304(f) (2012).

3.  After completing the above, the Veteran's claim should be readjudicated based on the entirety of the evidence.  If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.  Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 


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).



______________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs