Citation Nr: 1333762 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 12-10 472 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD) 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from December 1947 to December 1952, March 1953 to March 1959, and June 1959 to May 1968. His awards and decorations include the Combat Infantryman Badge (CIB), awarded for his first period of service. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In January 2013, the Veteran and his wife testified before the undersigned at a videoconference hearing at the RO. A transcript of this hearing is of record. At the hearing the Veteran was granted a 60-day abeyance period for the submission of additional evidence. That period of time lapsed, and no additional evidence was received. The record reflects that the RO has characterized the Veteran's psychiatric claim as a claim for service connection for PTSD. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court of Appeals for Veterans Claims (Court) found that an appellant's claim for service connection for PTSD should have been construed more broadly by VA as a claim for service connection for any mental disability. The Court noted that the claimant was not competent to diagnose a particular psychiatric disability, such as PTSD, but that he was competent to describe his mental symptoms. Id. at 4-5, citing Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) and Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Court also noted that the evidence submitted in support of the claim showed that the appellant had been diagnosed with psychiatric disabilities other than PTSD and that these disabilities arose "from the same symptoms for which he was seeking benefits." Id. at 9. The Court held that, in construing a claim, the Board must consider any disability "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Id. at 5. As is discussed in more detail below, the medical evidence of record in this case indicates that the Veteran has been diagnosed with various mental health disorders during the period of this appeal, including PTSD, pain disorder, nightmare disorder and parasomnia not otherwise specified. The Board has recharacterized the Veteran's psychiatric claim accordingly. In June 2013 the Board obtained an advisory medical opinion for the case from the Veterans Health Administration (VHA). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). In October 2013, the Veteran submitted additional evidence, including a December 1996 private treatment record. The Veteran requested that the evidence be considered in the first instance by the RO; therefore, the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, must be REMANDED. VA will notify the appellant if further action on his part is required. FINDINGS OF FACT 1. An unappealed January 1999 rating decision denied service connection for PTSD on the basis that there was no medical evidence of a diagnosis of PTSD related to the Veteran's service. 2. Evidence received since the January 1999 rating decision includes evidence that is neither cumulative to, nor redundant of, the evidence previously of record, namely a diagnosis of PTSD, and raises a reasonable possibility of substantiating the claim of service connection for PTSD. CONCLUSION OF LAW New and material evidence has been received, and the claim seeking entitlement to service connection for PTSD 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 CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). With respect to the issue of whether new and material evidence has been received to reopen the claim for service connection for PTSD, the RO had a duty to notify the Veteran what information or evidence was needed in order reopen his claim. In the decision below, the Board has reopened the Veteran's claim, and therefore, regardless of whether the requirements have been met in this case, no harm or prejudice to the appellant has resulted. Therefore, the Board concludes that the current laws and regulations have been complied with, and a defect, if any, in providing notice and assistance to the Veteran was at worst harmless error in that it did not affect the essential fairness of the adjudication. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Law and Regulations Generally, a claim which has been denied by an unappealed RO decision may not thereafter be reopened and allowed based on the same record. 38 U.S.C.A. § 7105(c). However, under 38 U.S.C.A. § 5108, 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 means existing evidence not previously submitted to agency decisionmakers. 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 United States Court of Appeals for Veterans Claims (Court) has 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). Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after 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). The conditions at issue, PTSD and parasomnia, are not "chronic diseases" listed under 38 C.F.R. § 3.309(a), therefore, 38 C.F.R. § 3.309(b) does not apply in this case. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319 (2007). Service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); 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. 38 C.F.R. § 3.304(f). The applicable regulation requires that the in-service stressor or traumatic event involve actual or threatened death, serious injury, or a threat to the physical integrity of self or others and the person's response involve intense fear, helplessness, or horror. See DSM-IV § 309.81 (4th ed. 1994). Factual Background and Analysis of Claim to Reopen The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, 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 the claim. A January 1999 rating decision denied the Veteran's claim of entitlement to service connection for PTSD because there was no medical evidence of a diagnosis of PTSD related to the Veteran's service. The Veteran submitted a notice of disagreement in July 1999 and the RO issued an SOC in August 1999. The Veteran did not perfect his appeal by submitting a substantive appeal by January 2000. The January 1999 rating decision thereby became final. 38 U.S.C.A. § 7105. Evidence of record in January 1999 included: the Veteran's service personnel records, which show that he was awarded the CIB; the Veteran's STRs, which are negative for complaints or findings related to PTSD; and a November 1998 VA examination report which specifically states that the Veteran did not have PTSD. Evidence received since the January 1999 rating decision includes private treatment records dated from June 2009 to October 2009 which note the Veteran's diagnosis of and treatment for PTSD. As noted above, the RO denied service connection for PTSD in January 1999 based in part on a finding that there was no medical evidence of a diagnosis of PTSD related to the Veteran's service. Evidence received since the January 1999 rating decision includes private treatment records which note a diagnosis of PTSD. Because confirmed diagnosis of a current disorder was one of the elements not present in January 1999, this evidence is sufficient to reopen the previously-denied claim. Shade, supra. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for PTSD is reopened, and to this extent only, the appeal is granted. REMAND In October 2013, the Veteran submitted additional evidence and argument in response to the VHA opinion obtained by the Board, as indicated on the returned "Medical Opinion Response Form." Among the evidence submitted is a December 1996 private treatment record which notes the Veteran's complaints of nightmares and diagnoses of DIMS (difficulty initiating and maintaining sleep), PTSD and possible bipolar disorder. On the "Medical Opinion Response Form," the Veteran specifically did not waive initial RO review of the evidence. Rather, he expressly requested that his case be remanded to the RO for its consideration of this evidence and argument in the first instance. See generally, 38 C.F.R. § 20.1304(c). In view of the above, and to avoid any prejudice to the Veteran (see Bernard v. Brown, 4 Vet. App. 384 (1995)), the matter of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, must be remanded for consideration of the claim in light of all additional evidence added to the record. In addition, any further development suggested by the record should be undertaken. Accordingly, the case is REMANDED to the RO for the following action: After undertaking any further development deemed warranted, readjudicate the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. If the benefit sought on appeal is not granted, issue a supplemental statement of the case (SSOC) that includes a review of all pertinent evidence submitted since the January 2012 SOC. Then, afford the Veteran and his representative the requisite opportunity to respond before returning the case to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. See 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 or by the Court 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). ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs