Citation Nr: 1337217 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-08 404 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Roanoke, Virginia 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 depressive disorder, not otherwise specified (NOS), and PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to September 1971, to include service in Vietnam from April 1970 to March 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which disallowed the Veteran's previously denied claim for service connection for PTSD. After the decision was entered, the case was transferred to the jurisdiction of the RO in Roanoke, Virginia. The RO has thus far characterized the claim on appeal as limited to PTSD. However, it appears from the record that the Veteran has been diagnosed with acquired psychiatric disabilities other than PTSD, to include depressive disorder, NOS. Accordingly, the scope of the appeal has been expanded, in light of the decision of the United States Court of Appeals for Veterans Claims (Court) in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (indicating that a veteran's claim for service connection should not be limited to consideration of a specific diagnosis where the pleadings and evidence suggest a claim of broader scope). It appears that the RO may have determined that new and material evidence has been received to reopen the Veteran's claim for service connection for PTSD. However, the Board is required to consider that question independently. See 38 U.S.C.A. § 7104(b); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). With respect to the matter of the Veteran's entitlement to service connection for acquired psychiatric disorders other than PTSD, the Board notes that that claim has not been the subject of a prior final denial. As such, it is properly characterized as an original claim. See, e.g., Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). Accordingly-and in light of the Board's decision herein reopening the claim for service connection for PTSD-the issues on appeal have been recharacterized as set forth above, on the title page. The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the Veteran's claim. The electronic file contains additional evidence-including additional medical records and an August 2013 brief from the Veteran's representative-which the Board has reviewed. The Board's present decision is limited to the matter of whether new and material evidence has been received to reopen the Veteran's previously denied claim for service connection for PTSD. For the reasons set forth below, the underlying matter of the Veteran's entitlement to service connection for PTSD-and his entitlement to service connection for acquired psychiatric disorders other than PTSD, to include depressive disorder, NOS-is being REMANDED to the RO, via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. By a decision entered in September 2007, the RO in Roanoke, Virginia denied the Veteran's claim for service connection for PTSD; the Veteran did not appeal, and no new and material evidence was received during the one-year period following mailing of notice of the RO's decision. 2. New evidence received since the time of the RO's September 2007 decision, when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the Veteran's claim for service connection for PTSD and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The RO's September 2007 decision, denying service connection for PTSD, is final. See 38 U.S.C.A. §§ 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2007). 2. New and material evidence has been received to reopen the Veteran's claim for service connection for PTSD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., the diagnosis must comply with the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders, 1994 (DSM-IV)); in certain circumstances, credible supporting evidence that a claimed in-service stressor occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. See 38 C.F.R. §§ 3.304(f), 4.125 (2013); see also Cohen v. Brown, 10 Vet. App. 128, 140 (1997). Under the law in effect when the Veteran's claim was initially adjudicated in September 2007, when the claimed stressor was not related to combat, the Veteran's lay testimony, by itself, was generally not enough to establish the occurrence of the alleged stressor. Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Rather, the record had to contain service records or other corroborative evidence that substantiated the Veteran's testimony or statements as to the occurrence of the claimed stressors. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). However, in July 2010-while the current appeal to the Board was pending-the evidentiary standard outlined in 38 C.F.R. § 3.304(f) for establishing in-service stressors in claims for PTSD was relaxed. The new regulation provides that if a stressor claimed by a Veteran is related to the Veteran's 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, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 75 Fed. Reg. 39,843, 39,852 (July 13, 2010); 38 C.F.R. § 3.304(f)(3) (2013). For purposes of the amendments, "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. Id. In the present case, the RO in Roanoke, Virginia, by a decision entered in September 2007, denied the Veteran's claim for service connection for PTSD. Following a review of the claims file as it then existed-including the Veteran's descriptions of in-service stressors, and medical evidence reflecting a diagnosis of PTSD related to combat-the RO concluded, in essence, that the Veteran did not have a verified, or verifiable, stressor. Thus, the claim was denied. The Veteran was advised of the RO's decision, and of his appellate rights, by a letter dated on October 15, 2007. Later, in March 2008, he was reminded that if he wanted to appeal the RO's decision with respect to PTSD, he needed to file a notice of disagreement. In September 2008, during the one-year period following mailing of notice of the RO's September 2007 decision, the Veteran submitted a VA Form 21-0781 (Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD)). He also submitted additional VA medical records dated in February 2008. However, the information set out in the VA Form 21-0781, and in the additional medical records, was cumulative and redundant of evidence already of record at the time of the RO's September 2007 decision; reiterating information already provided in prior stressor statements, and repeating the prior diagnostic assessment that his PTSD was related to combat. Thus, the evidence was not new and material. No other pertinent evidence was received during the one-year period following mailing of notice of the RO's September 2007 decision. Nor did the Veteran initiate an appeal within that time frame. 38 C.F.R. §§ 20.200, 20.201 (2007). As a result, the RO's decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2007); see also 38 C.F.R. § 20.304 (2013) (the filing of additional evidence after receipt of notice of an adverse determination does not extend the time limit for initiating an appeal from that determination). Accordingly, his claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013); Jackson, supra. Here, the evidence received since the time of the RO's September 2007 decision includes the report of a September 2012 VA examination, wherein the Veteran reported that he had been under fire on several occasions during his service in Vietnam and a VA psychologist opined, in pertinent part, that the stressor was, in general, adequate to support a diagnosis of PTSD (although the Veteran did not meet the other diagnostic criteria required for an actual diagnosis of PTSD). This evidence was not before the RO when the Veteran's claim was denied in September 2007. When considered with the previous evidence of record, and in the context of current law, it relates to an unestablished fact necessary to substantiate the Veteran's claim for service connection for PTSD and raises a reasonable possibility of substantiating the claim. It is therefore new and material. The claim for service connection for PTSD is reopened. In view of the Board's present action on this claim, there is no need to engage in any analysis with respect to whether the requirements of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), have been satisfied with respect to the question of reopening. See, e.g., Kent v. Nicholson, 20 Vet. App. 1 (2006). That matter is moot. ORDER The Veteran's claim for service connection for PTSD is reopened; to this limited extent, the appeal is granted. REMAND The Veteran has not been specifically notified of the information and evidence necessary to substantiate a claim for service connection for an acquired psychiatric disorder other than PTSD, to include depressive disorder, NOS. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013). This needs to be corrected. Evidence in the claims file indicates that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA), with a "disability onset date" of September 1, 2006. Although the basis of the award is not clear on the current record, it appears likely that it was based, at least in part, on psychiatric impairment. See Letters from the VA Medical Center (VAMC) in Martinsburg, West Virginia, dated in February 2007 (to the effect that the Veteran was in strong recovery from substance abuse since approximately September 2006, and that he became a patient in the facility's intensive residential program for PTSD in December 2006). Because records from SSA could contain information pertinent to the issues on appeal, efforts should be made to procure them. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). The Veteran has reported receiving relevant treatment at the VAMC in Washington, D.C., in September 2008; through the Northwestern Regional Adult Detention Center (NWRADC) in Winchester, Virginia; and through a program referred to as Community Corrections. Presently, the claims file contains records from the NWRADC in Winchester dated in December 2008. However, it does not contain any records from that facility corresponding to other periods of the Veteran's incarceration, to include in 2010, 2012, or 2013. Nor does it contain any records of treatment from the VAMC in Washington, D.C., dated in September 2008, or from Community Corrections. Because these records, if procured, could contain information bearing on the outcome of the Veteran's appeal, efforts should be made to obtain them. The RO last associated with the Veteran's claims file records of his treatment through the VAMC in Martinsburg, West Virginia on March 10, 2011. On remand, efforts should be made to obtain records of any relevant VA treatment he may have undergone since that time, in order to ensure that his claim is adjudicated on the basis of an evidentiary record that is as complete as possible. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). The Board also finds that it would be helpful to have the Veteran examined by a psychiatrist, with psychological testing, for purposes of determining whether, based on a review of the expanded record, he has a current psychiatric disorder that can be properly attributed to his period of active duty. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). For the reasons stated, this case is REMANDED for the following actions: 1. Send the Veteran and his representative a VCAA notice letter advising them of the evidence and information necessary to substantiate a claim for service connection for an acquired psychiatric disorder other than PTSD, to include depressive disorder, NOS. The Veteran must be afforded a reasonable opportunity to respond to the notice, and any additional information or evidence received must be associated with the claims file. 2. Ask the Veteran to provide a release for additional, relevant records of treatment from the Northwestern Regional Adult Detention Center in Winchester, Virginia, and through the program referred to as Community Corrections, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the matter remaining on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the claims file. 3. Ask the SSA to indicate whether the Veteran has been awarded SSA disability benefits and, if so, to provide copies of any and all records pertaining to that award, to include any medical records considered in making that award, following the procedures set forth in 38 C.F.R. § 3.159. Efforts to obtain the evidence should be fully documented, and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The evidence obtained, if any, should be associated with the claims file. 4. Obtain copies of records pertaining to any relevant treatment the Veteran received at the VAMC in Washington, D.C., in September 2008, following the procedures set forth in 38 C.F.R. § 3.159. Efforts to obtain the evidence should be fully documented, and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The evidence obtained, if any, should be associated with the claims file. 5. Obtain copies of records pertaining to any relevant treatment the Veteran has received at the VAMC in Martinsburg, West Virginia since March 10, 2011, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the claims file. If additional records are not available, the claims file should be annotated to reflect that fact, and the Veteran and his representative should be notified. 6. After all of the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a mental disorders examination, to be conducted by a VA psychiatrist, or a psychiatrist with whom VA has contracted. The psychiatrist should review the claims file. All indicated tests, including psychological testing, should be conducted and the results reported. After examining the Veteran and reviewing the claims file, the psychiatrist should indicate whether the Veteran has met the diagnostic criteria for PTSD, whether currently or at any time since October 2008 (when he filed his most recent claim). If it is the psychiatrist's opinion that the diagnostic criteria for PTSD have been met, the psychiatrist should provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the diagnosis is related to one or more established in-service stressors (to include his reported fear of hostile military activity while stationed in Vietnam). For purposes of the examiner's assessment, the Veteran's statements with respect to fear of hostile military activity should be accepted as credible. If psychiatric disorders other than PTSD are diagnosed (or are found to have been present since October 2008), to include depressive disorder, NOS, the psychiatrist should provide an opinion, with respect to each such disorder, as to whether it is at least as likely as not that the disorder manifested in service or is otherwise attributable to service. If the psychiatrist concludes that it is at least as likely as not that the Veteran has a service-related psychiatric disorder, the psychiatrist should offer a further opinion as to whether it is at least as likely as not that the Veteran has a substance abuse disorder that has been caused or aggravated (i.e., permanently worsened beyond natural progression) by the service-related psychiatric disorder(s). In discussing the basis for his or her conclusions, the psychiatrist should discuss the evidence of record which reflects diagnoses of PTSD (including February 2007 statements from the Veteran's VA care providers, and entries in subsequent VA progress notes), as well as the evidence which indicates that he does not meet the criteria for such a diagnosis (including the September 2012 VA examination report, and subsequent addendum in October 2012). If pertinent, the psychiatrist should also discuss the medical significance, if any, of the February 2007 statement from the Veteran's treating VA psychiatrist to the effect that the Veteran has used illicit substances in an effort to "self medicate" his symptoms of PTSD. A complete medical rationale for all opinions expressed must be provided. 7. After conducting any additional development deemed necessary, the matter remaining on appeal should again be reviewed. If any benefit sought remains denied, furnish a supplemental statement of the case (SSOC) to the Veteran and his representative, and afford them an opportunity to respond. After the Veteran and his representative have been given an opportunity to respond to the SSOC, the claims file should be returned to this Board for further appellate review. No action is required by the Veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This matter 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. 2013). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs