Citation Nr: 1336812	
Decision Date: 11/13/13    Archive Date: 11/26/13

DOCKET NO.  11-19 323	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disability.

2.  Entitlement to service connection for a psychiatric disability.  

3.  Entitlement to service connection for hearing loss.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

R. Hagen, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1966 to July 1969.  
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  

The Veteran requested a videoconference hearing with a member of the Board.  A hearing was scheduled in July 2013 and the Veteran was notified at his current address.  He did not report for the hearing.  The case will proceed as if the request for a hearing had been withdrawn.  38 C.F.R. § 20.704(d) (2013).  

The issues of entitlement to service connection for hearing loss and entitlement to service connection for a psychiatric disability are REMANDED to the RO via the Appeals Management Center in Washington, D.C.


FINDINGS OF FACT

1.  An October 1999 rating decision denied service connection for PTSD, and the Veteran did not file a timely substantive appeal.  

2.  Evidence previously not of record, added to the claims file after the October 1999 rating decision, relates to an unestablished fact necessary to substantiate a claim of entitlement to service connection for a psychiatric disability, and raises a reasonable possibility of substantiating the claim.  


CONCLUSION OF LAW

The criteria for reopening a claim of entitlement to service connection for PTSD have been met.  38 U.S.C.A. § 5108 (West 2012); 38 C.F.R. § 3.156 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran may appeal a review or determination on a claim by the RO to the Board.  38 U.S.C.A. § 7104(a) (West 2002).  Appeals to the Board are initiated by the filing of a notice of disagreement with the RO.  38 U.S.C.A. § 7105(a) (West 2002).  Except in the case of simultaneously contested claim, which this was not, the notice of disagreement shall be filed within one year of the mailing of notice of the initial review or determination.  38 U.S.C.A. § 7105(b)(1) (West 2002).  If no notice of disagreement is filed within that year, the RO decision becomes final and the claim will not thereafter be reopened or allowed, except as otherwise provided by regulation.  38 U.S.C.A. § 7105(c) (West 2002).

The RO denied service connection for PTSD in an October 1999 rating decision, notice of which was mailed to the Veteran with his appellate rights the following month.  The Veteran was unrepresented at that time.  He initiated an appeal of that decision by filing a notice of disagreement in March 2000.  After issuance of a statement of the case in March 2000 and a supplemental statement of the case in April 2000, the Veteran submitted private treatment records and a statement in which he referred to the basis of the RO's denial.  His statement did not include evidence of an intent to complete the appeal to the Board.  38 C.F.R. § 20.202 (2013).  

In May 2000, the RO sent a letter to the Veteran indicating to him that it had received the evidence submitted earlier that month and that his "claim must fail."  Thus, the RO considered the evidence submitted in the appeal period and continued to deny the claim.  Significantly, the RO informed him that if he desired, he could file a formal appeal within the one year time limit following the November 1999 letter notifying him of the decision.  The RO did not receive any appeal document until June 2007. 

Once a claimant initiates an appeal of an RO decision and the RO issues a statement of the case, the RO may close the appeal if the claimant does not respond by filing a formal appeal.  38 U.S.C.A. § 7105(d)(3) (West 2002).  Here, the RO closed the appeal.  Therefore, the October 1999 decision is final.  

The Board has considered that new and material evidence received within the appeal period of a decision is considered to have been filed in connection with the claim which was pending at the beginning of the appeal period.  The Board has also considered that failure to consider new and material evidence received within that appeal period prevents the decision from becoming final.  38 C.F.R. § 3.156(b) (2013); Young v. Shinseki, 22 Vet. App. 461 (2009).

Here, the RO did consider the evidence submitted by the Veteran following the March 2000 supplemental statement of the case and continued to deny the claim.  Therefore, operation of 38 C.F.R. § 3.156(b) did not prevent the decision from becoming final.  Furthermore, the RO specifically informed the Veteran as to how to continue the appeal, but the Veteran did not respond.  Therefore, the Board finds that operation of 38 C.F.R. § 3.156(b) did not prevent finality.  

In October 2009, the Veteran filed a new claim of entitlement to service connection for PTSD.  If new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim.  38 U.S.C.A. § 5108 (West 2002).  New and material evidence is evidence not previously submitted to agency decision makers which is neither cumulative nor redundant, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2013).  The phrase "raises a reasonable possibility" in the context of a claim to reopen suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim.  Shade v. Shinseki, 24 Vet. App. 110 (2010).

In determining whether evidence is new and material, the credibility of the new evidence must be presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).  

The basis for the October 1999 final denial was that evidence failed to show a current diagnosis of PTSD and did not establish an in-service stressor.  Therefore, an unestablished fact necessary to substantiate that claim is some competent evidence that the Veteran has had a current diagnosis of PTSD or experienced an in-service stressor.  

In October 2009, the Veteran submitted a new claim of entitlement to service connection for PTSD.  He requested that the RO obtain his VA treatment records because he received treatment from VA.  The Veteran stated in a February 2010 statement that he experienced attacks, mortar fire, and an ambush while in Vietnam.  Further, the Veteran stated that a base fence was breached, allowing the destruction of equipment and bunkers.  The Veteran also stated that he helped recovered a Jeep in which one of his Lieutenants died from a roadside bomb.  

The Veteran has submitted new and material evidence.  That evidence was not of record at the time of the October 1999 decision and the evidence relates to an unestablished fact, a PTSD stressor, necessary to substantiate his claim of entitlement to service connection for PTSD.  Furthermore, it raises a reasonable possibility of substantiating the claim because there are relevant diagnoses in VA treatment records subsequent to the rating decision that make further development of the claim necessary.  In addition, the criteria regarding service connection for PTSD have been amended since the most recent final denial.  38 C.F.R. § 3.304(f) (2013).  The Veteran has also submitted evidence showing a diagnosis of a psychiatric disability.

The Board finds that new and material evidence has been received and the claim for service connection for a psychiatric disability is reopened..


ORDER

New and material evidence has been received and the claim of entitlement to service connection for a psychiatric disability is reopened.  To that extent only, the claim is granted. 


REMAND

Unfortunately, a remand is necessary so that VA can meet its duty to assist the Veteran in obtaining evidence regarding his claims of entitlement to service connection for hearing loss and a psychiatric disability.  That duty includes assisting him in obtaining relevant records related to his service in the Ohio National Guard and United States Army Reserve.  38 U.S.C.A. § 5103A (c)(1)(C) (West 2002); 38 C.F.R. § 3.159(c)(2) (2013).  It also includes providing an examination that takes into account any post-service noise exposure in the Ohio National Guard and Army Reserve.  38 U.S.C.A. § 5103A(a), (d) (West 2002); 38 C.F.R. §§ 3.159(c)(4), 4.1 (2013).  When VA undertakes to provide a VA examination or obtain a VA opinion, even when not required by law, VA must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  

The Veteran's claims he has hearing loss as a result of his active duty and reserve service.  In his August 2010 notice of disagreement, the Veteran stated that he was exposed to acoustic trauma while working in construction in the Ohio National Guard and Army Reserve.  The Veteran's service separation form notes that upon separation from active service, he was transferred to the Army Reserve.  

Additional efforts should be made to determine whether the Veteran had a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) during which his claimed hearing loss occurred.   

In addition, at the May 2010 VA examination, the examiner did not have access to the Veteran's claims file and any service records.  The Board finds that another examination, where the examiner has access to the claims file, is needed.  Furthermore, the examiner should provide an opinion pursuant to the most recent criteria for service connection for PTSD.  38 C.F.R. § 3.304(f) (2013).

Accordingly, the case is REMANDED for the following action:

1.  Contact the National Personnel Records Center (NPRC), the Records Management Center (RMC), the Veteran's unit, and any other appropriate location, and obtain the Veteran's complete service personnel records, and all treatment and personnel records from the Ohio Army National Guard.  Additionally, request verification of the dates of the Veteran's service, including service in the Ohio Army National Guard, to include the dates for each period of active duty, active duty for training, and inactive duty for training that he attended.  If no records exist, obtain negative responses and associate them with the claims file.  

2.  Then, schedule the Veteran for a VA audiology examination.  The examiner must review the claims file and should note that review in the report.  The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hearing loss was caused by noise exposure during active service, or during National Guard and Army Reserve service.

3.  Schedule the Veteran for a VA mental disorders examination.  The examiner must review the claims file and should note that review in the report.  The examiner should provide the following information:

(a)  Diagnose all mental disorders present pursuant to DSM-IV and specifically state whether or not each criterion for a diagnosis of PTSD is met.

(b)  If a diagnosis of PTSD is warranted, state whether it is due to the fear of hostile military or terrorist activity.  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, 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.

(c)  If a diagnosis of PTSD is warranted due to any other stressor, identify the stressor.

(d)  For each psychiatric disability diagnosed, other than PTSD, state whether it is at least as likely as not (50 percent probability or greater) that the psychiatric disability was incurred in service or is due to or the result of any disease, event, or injury during service.

4.  Then readjudicate the claim.  If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Then, return the claim to the Board.  

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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs