Citation Nr: 1336241 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 10-32 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and wife ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service with the United States Army from November 1965 to November 1967, with service in Vietnam from June 1966 to July 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which reopened a previously denied claim of service connection for PTSD and denied the claim for that benefit on the merits. The August 2009 decision was itself a reconsideration of an August 2008 decision which declined to reopen the claim. Irrespective of the RO's action, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Jackson v. Principi, 265 F.3d 1366 (Fed Cir 2001) ("Thus, the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened...."). Accordingly, the issues on appeal have been recharacterized. The Veteran and his wife provided testimony before the undersigned Acting Veterans Law Judge at a videoconference hearing in September 2013. A transcript of the hearing associated with the file. At the hearing and after, the Veteran submitted additional evidence, to include letters written during service, and waived initial RO consideration. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. The issue of 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 unappealed August 2003 rating decision, service connection for PTSD was denied on the grounds that no verified stressor to support a diagnosis of PTSD was shown; the denial became final in August 2004. 2. Evidence received since August 2003 was not previously considered by agency decision makers, is not cumulative or redundant of evidence already of record, addresses an unestablished fact, and raises the reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 2003 denial of service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2013). 2. The criteria for reopening a previously denied claim of service connection for PTSD are met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board is granting in full the benefits sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. As is noted above, the Board must first decide whether the Veteran has submitted new and material evidence to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Jackson v. Principi, 265 F.3d 1366 (Fed Cir 2001) Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. 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. Knightly 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, 117 (2010). Furthermore, 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). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). As noted above, the Veteran's claim for service connection of PTSD was last denied in an August 2003 rating decision on the grounds that no verified stressor event to support a diagnosis of PTSD was shown. The Veteran did not appeal that decision, and it is now final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Since August 2003, the Veteran has raised a new allegation of a stressor event, not previously considered. In addition to providing additional information to allow inquiry after his allegations of exposure to combat, the Veteran alleged fear of rodents based on bites of one or more of his comrades. The renewed and clarified allegations are new as all the details provided were not previously considered, and are material in that if verified they would require further development and inquiry to establish the potential to support a diagnosis of PTSD. As new and material evidence has been received, reopening of the previously denied claim was proper. Adjudication of the Veteran's claim does not end with the determination that new and material evidence has been received. This matter must now be addressed on a de novo basis. For the reasons detailed in the remand section, additional development is required for a full and fair adjudication of the underlying service connection claim. ORDER New and material evidence having been received, the previously denied claim of service connection for PTSD is reopened; to this extent only, the appeal is granted. REMAND Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has alleged a variety of stressors, including direct participation in combat operations, fear and discomfort due to environmental factors such as rats and monsoon rain, and general fear of hostile enemy action. 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 circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f)(1); see also, 38 U.S.C.A. § 1154(b) (West 2002). Effective July 13, 2010, the 38 C.F.R. § 3.304(f) was amended to reduce the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity. See Stressor Determinations for Posttraumatic Stress Disorder, Final Rule, 75 Fed. Reg. 39843-01 (July 13, 2010), codified at 38 C.F.R. § 3.304(f)(3). The amendment provides that, if a stressor claimed by a Veteran is related to the Veteran's fear of hostile military activity, and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, a Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types and circumstances of the Veteran's service and there is no clear and convincing evidence to the contrary. Where a determination is made that the Veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat (to include the above fear of enemy action), the Veteran's lay testimony alone is not enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the Veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994) Here, the Board has determined that the Veteran did not engage in combat. Service personnel records indicate the Veteran was a supply handler, and as such would not typically have engaged in combat operations. He has in fact has described his main duties as being unrelated to combat, involving setting up supply depots and distributing material. He has also alleged that he took part in search and destroy missions, and engaged in firefights with his unit, however. Unfortunately, inquiries to the Joint Services Records Research Command (JSRRC) could not be made, as the Veteran did not provide sufficient detail with regard to dates, locations, or personnel to permit such. What inquires which could be made revealed that the Veteran's unit performed "garrison type missions" which would not be consistent with his allegations of combat. Inquiries were also made with regard to the allegations of a rat bite of a friend; a VA examiner has stated that this event could be a sufficient stressor. Unfortunately, records identified by JSRRC in July2009 do not support the allegation. Unit records do not corroborate the stressor occurred as the Veteran described, or even that there may have been individuals bitten by rats and evacuated because of it. This stressor must be considered unverified. However, the Veteran's allegations of fear of enemy action, particularly when deployed forward to set up supply areas, involve stressors which can be verified through his statements alone. 38 C.F.R. § 3.304(f)(3). Service personnel records reflect that the Veteran served in Vietnam from June 1966 to July 1967, where he served as a supply handler. The Veteran reports that he was in part responsible for setting up supply depots, which is verified based on contemporaneous letters home he has submitted describing his temporary duty. It was during these periods in forward areas that he felt most in danger. The allegations are consistent with his service. In order to be considered verified, a qualified examiner must state that such allegations are sufficient as stressors, and that they support a diagnosis of PTSD. Currently, no qualified psychiatrist or psychologist has done so. Remand is therefore required for such opinions. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA initial PTSD examination; the claims folder must be reviewed in connection with the examination. At the discretion of the examiner, no in-person examination may be required. The examiner must state whether the Veteran's allegations of fear of enemy action, based on repeated attacks at Pleiku, is a sufficient stressor to support a diagnosis of PTSD, and if so, whether a diagnosis of PTSD based on such stressor is warranted. A full and complete rationale for all opinions expressed is required. 2. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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). ____________________________________________ WILLIAM H. DONNELLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs