Citation Nr: 1335345 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-45 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for a left wrist disability. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kalisse Anderson, Associate Counsel INTRODUCTION The Veteran had active military service from February 1951 to February 1954. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In the Veteran's VA Form 9, the Veteran requested a hearing before the Board in conjunction with his appeal. However, the Veteran's representative withdrew the hearing request in an alternate VA Form 646 dated January 25, 2011, and the record does not reflect that he has made a further request to reschedule the cancelled hearing. The Board thus finds that the Veteran's hearing request is withdrawn, such that appellate review may proceed. 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). The issue of service connection for an acquired psychiatric disorder, to include 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. The Veteran's claim of service connection for a left wrist disability was most recently denied by a September 1969 rating decision. The Veteran did not complete an appeal of this decision; thus, the rating decision became final. 2. Evidence received since the September 1969 rating decision with respect to a left wrist disability is not new and material and does not raise a reasonable possibility of substantiating the Veteran's claim of service connection for a left wrist disability. CONCLUSION OF LAW The criteria for reopening the claim of service connection for a left wrist disability have not been met. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the instant case, the Veteran received sufficient notification through a VCAA letter dated July 2008. This notice letter advised the Veteran of what information and evidence was needed to substantiate the claim decided herein and what information and evidence must be submitted by him, namely, any additional evidence that his injury began or was aggravated in service. The July 2008 letter also included notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded, see Dingess v. Nicholson, 19 Vet. App. 473 (2006), and the requirements of new and material evidence with respect to the Veteran's application to reopen his previously disallowed claim pursuant to Kent v. Nicholson, 20 Vet. App. 1 (2006). Finally, the letter advised him of what information and evidence would be obtained by VA, namely, medical records and records from other Federal agencies. Even though the RO cited the incorrect rating decision of the last prior denial in their VCAA letter dated July 2008, the Board finds that this mistake did not prejudice the Veteran by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013). Limited service treatment and personnel records have been associated with the claims file. The RO learned that the Veteran's service records were partially destroyed in the 1973 fire at the National Personnel Records Center (NPRC). In a case in which a veteran's service records are unavailable through no fault of his own, there is a heightened obligation for VA to assist the appellant in the development of his claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); see also Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that a heightened duty to assist a veteran in developing facts pertaining to his claim in a case in which service medical records are presumed destroyed includes the obligation to search for alternative records). The RO informed the appellant in an April 2008 letter that it was experiencing difficulty in obtaining the Veteran's service records due the fire, and asked the appellant to submit any evidence pertaining to these records, as well as to complete a VA Form NA-13075 to aid in reconstructing the Veteran's military service. The Veteran returned the completed VA Form NA-13075 in May 2008. In September 2008, the RO determined that all efforts to obtain the necessary files were exhausted and any further attempts would be futile. See September 2008 Formal Finding on the Unavailability of Service Records. Additionally, the appellant identified several health care providers that provided treatment to the Veteran and the RO attempted to send the Veteran Authorization and Consent forms to complete for each of the health care providers identified. However, the RO made two separate attempts to send these forms to the Veteran's last known address and on both occasions, the letters were returned to sender by the United States Postal Service. As a result, the Board finds that the RO made reasonable efforts to acquire these medical records and therefore, the VA's duty to further assist the appellant in locating additional records has been satisfied. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. 3.159(c)(4); Wells v. Principi, 327 F. 3d 1339 (Fed. Cir. 2002). An examination was scheduled by the RO for the left wrist disability but was cancelled in October 2008 due to the Veteran's failure to report. An additional VA examination was not scheduled or provided in conjunction with the Veteran's claim for a left wrist disability, and an examination is not warranted. VA's duty to provide a VA examination applies to a claim to reopen a finally adjudicated claim only after new and material evidence has been submitted. 38 C.F.R. 3.159(c)(iii) (2013). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Kightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). Finally, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Service connection for a left wrist disability was denied by a September 1969 rating decision. The Veteran was notified of his appellate rights in the September 1969 rating decision and he did not initiate an appeal. In addition, during the one-year period following the RO decision, no new and material evidence was received requiring readjudication of the claim. See Bond v. Shinseki, 659 F.3d 1362 (2011). In the September 1969 rating decision, the RO determined that the Veteran's pre-existing left wrist disability was not aggravated by service. The RO stated, "[n]o aggravation of the [V]eteran's pre-existing injury is demonstrated. Accordingly, service-connection must be denied for the [V]eteran's left wrist condition." See September 1969 Rating Decision. The rating decision from September 1969 also states, "[e]nlistment examination of 2-8-51 revealed limitation of extension at left wrist with dorsal bony deformity, post-traumatic. He was given a two profile and accepted for enlistment. On 2-23-51 he was seen complaining of re-injuring his left wrist the night before. X-rays demonstrated an old un-united fracture of the navicular bone, moderate hypertrophic changes of the wrist and an old un-united fracture of the ulnar styloid. On 4-14-52 he was seen as he wanted his profile changed from 2 to 1. His wrist was asymptomatic. Examination at discharge was negative." Id. The evidence received since the September 1969 rating decision includes a Compensation and Pension examination from February 1982. The examiner noted the Veteran's medical history and stated that in 1950 the Veteran broke his left wrist when a horse fell on him and that the Veteran re-injured the wrist in-service when it was jammed. A complete examination of the left wrist in 1982 revealed a deformity of the left wrist and limited flexion. See February 1982 Report of Medical Evaluation for Disability Evaluation. An additional Compensation and Pension examination from April 1983 revealed that the natural progression of the Veteran's left wrist injury was worsening. The examiner notes that the Veteran "has multiple fractures, at least two or three in the left wrist area since 1950 and has been told he has developed arthritis since then." See April 1983 Report of Medical Evaluation for Disability Evaluation. When reviewing the cumulative evidence received since the last prior denial, it is evident that it does not constitute new and material evidence with respect to the issue of service connection for a left wrist disability. This evidence supports a diagnosis of a pre-existing left wrist disability, which was of record at the time of the September 1969 denial. The newly obtained records do not in any way provide any indication that the Veteran's left wrist disability was aggravated by active service. Currently, the new evidence that the Veteran provided does not indicate such an increase in severity during service. Consequently, the evidence received subsequent to the September 1969 rating decision is cumulative and redundant of the last prior denial and does not raise a reasonable possibility of substantiating the Veteran's claim of service connection; therefore, the evidence is not new and material. Without submission of new and material evidence, reopening the Veteran's claim of entitlement to service connection for a left wrist disability is not warranted. ORDER New and material evidence sufficient to reopen a claim of service connection for a left wrist disability has not been submitted; the appeal is denied. REMAND The Veteran asserts entitlement to service connection for PTSD which, in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has expanded to include a major depressive disorder, or another acquired psychiatric disorder. However, for reasons discussed below, additional development is necessary with respect to this issue prior to adjudication on the merits. Service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) occurred, and a link established by medical evidence between current symptomatology and the claimed in-service stressor(s). 38 C.F.R. § 3.304(f) (2013). With regard to the second PTSD element as set forth in 38 C.F.R. § 3.304(f), evidence of an in-service stressor, the evidence necessary to establish the claimed stressor actually varies depending on the circumstances of the stressor and the nature of the veteran's service. 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 circumstance, condition, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f)(2) (2013). Otherwise, credible supporting evidence is required to corroborate the veteran's stressor(s). Cohen v. Brown, 10 Vet. App. 128 (1997). The record indicates that the Veteran served in the Korean conflict. However, the RO has been unable to verify whether the Veteran served in combat as alleged. Currently there is no competent or credible evidence of record corroborating the Veteran's in-service stressors. Thus, the Veteran's lay evidence alone is insufficient to establish a stressor related to combat while serving in Korea. However, recent amendments to the regulations governing PTSD now allow service connection for PTSD in the absence of combat experience or a verified stressor if, among other requirements, the claimed stressor is related to the veteran's fear of hostile military or terrorist activity. See 38 C.F.R. § 3.304(f)(3). If a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the Veteran's symptoms are related to the claimed stressor, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not 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. For the purposes of this section, "fear of hostile military or terrorist activity" means 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." 38 C.F.R. § 3.304(f)(3). VA has a duty to provide a VA examination when the record lacks evidence to decide a veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury or disease. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that the Veteran should be provided a VA psychiatric examination to determine if the stressor of fear of hostile or military activity is adequate to support a diagnosis of PTSD and, if so, whether this diagnosis of PTSD is etiologically related to this, or any other verified in-service stressor(s). An opinion should also be obtained regarding any relationship between service and any other current psychiatric diagnosis. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychological examination, to be performed by a licensed psychiatrist or a psychologist to determine the existence and etiology of any psychiatric disorder, to include PTSD. The claims folder, including a copy of this REMAND, must be provided to the examiner for review of the pertinent documents therein, and the examiner should review the results of any testing prior to completion of the examination report. It is imperative that the examiner utilize the DSM-IV in arriving at any diagnoses and should explain whether and how each of the diagnostic criteria is or is not satisfied. After providing a current diagnosis, the examiner should address the following: a. If a psychiatric disorder other than PTSD is diagnosed, is it at least as likely as not (i.e., probability of 50 percent) that any currently diagnosed acquired psychiatric disorder other than PTSD is etiologically related to the Veteran's active military service. b. If PTSD is diagnosed, the examiner should address whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran currently suffers from PTSD that is etiologically related to his military service. The examiner is also asked to confirm whether the Veteran's current symptoms are related to a stressor involving fear of hostile military activity. For purposes of the examination, "fear of hostile military activity" means that the 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, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefit sought on appeal is not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate time should be allowed for response. 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). ______________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs