Citation Nr: 1337282	
Decision Date: 11/15/13    Archive Date: 11/26/13

DOCKET NO.  11-09 211	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

1.  Whether new and material evidence has been presented to reopen a previously denied claim for entitlement to service connection for a psychiatric disorder, claimed as posttraumatic stress disorder (PTSD).  

2.  Entitlement to service connection for a psychiatric disorder.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and S.B.



ATTORNEY FOR THE BOARD

Evan M. Deichert, Counsel


INTRODUCTION

The Veteran served on active duty from October 1968 to October 1970, including service in the Republic of Vietnam.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of July 2004 of the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO).  In that decision, the RO declined to reopen the Veteran's claim for service connection for PTSD, finding that new and material evidence had not been submitted.  

The claim at issue here relates back to a November 2003 claim to reopen.  The RO denied this claim in July 2004, and the Veteran filed a notice of disagreement with this denial in July 2005.  No further action was taken on this denial until the Veteran sought to reopen his claim in May 2009.  Following a November 2009 rating decision and notice of disagreement, the RO established in its February 2011 statement of the case that the Veteran's November 2003 claim remained active, and the statement of the case thus related back to the July 2004 denial.  

The issues have been recharacterized to comport with the evidence of record.

The Veteran and S.B. testified at a video conference hearing before the undersigned Veterans Law Judge in May 2012.  A transcript of the hearing is in the Veteran's file.

The issue of entitlement to service connection for a psychiatric disorder 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.  Service connection for a psychiatric disorder was initially denied in a February 1993 rating decision; the Veteran perfected an appeal, and in March 1996, the Board denied his claim on the basis that it was not well grounded, as there was no clear evidence of his being diagnosed as suffering from PTSD.  That decision is now final.

2.  Subsequent attempts to reopen his claim for service connection were denied, most recently in a February 2000 rating decision that found no clear evidence of a PTSD diagnosis and no clear evidence of a valid stressor.   That decision is now final.

3.  Evidence received since February 2000 decision was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to an unestablished fact; and raises the reasonable possibility of substantiating the claim.


CONCLUSION OF LAW

The criteria for reopening a previously denied claim of entitlement to service connection for a psychiatric disorder have been met.  38 U.S.C.A. §§ 5107, 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a) (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and to Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  With respect to the Veteran's claim to reopen his previously denied claim for service connection, the Board is granting in full the benefit 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.  

II.  New and Material Evidence

Service connection for a psychiatric was first denied in a February 1993 rating decision on the basis that the Veteran was not diagnosed as suffering from PTSD.  The Veteran perfected his appeal to the Board.  In a March 1996 decision, the Board concluded that the Veteran's claim was not well grounded, as there was no clear evidence of his being diagnosed as suffering from PTSD.  This decision became final.  38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100.  

Subsequent to this decision, the Veteran has sought to reopen his claim for service connection numerous times.  In a January 1998 rating decision, the RO determined that, though the Veteran had presented evidence that he was diagnosed as suffering from PTSD, there was no evidence of a valid stressor to support this diagnosis.  A February 2000 rating decision denied the Veteran's claim, finding no clear evidence of a PTSD diagnosis and no evidence of a valid stressor.  

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."  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).

Since the February 2000 rating decision that last denied the Veteran's claim to reopen, much in the way of new evidence has been received.  Most importantly are a November 2010 letter from E.A.W., M.D., establishing that he has diagnosed the Veteran as suffering from PTSD; and the Veteran's letters and testimony regarding his claimed in-service stressors.  

Since this evidence was not before VA at the time of the Veteran's previous denial, it is new.  As it relates to unestablished facts necessary to substantiate his claim (i.e., both the current disability requirement and the stressor requirement), it is also material.  Reopening of the Veteran's claim for service connection for a psychiatric disorder is warranted.  


ORDER

Reopening of the previously denied claim of entitlement to service connection for a psychiatric disorder is granted.
REMAND

The evidence at this point remains divided as to whether the Veteran currently suffers from PTSD; though Dr. E.A.W. writes that the Veteran is diagnosed as suffering from this disorder, a January 2011 VA examination and other previous VA examinations have found that the Veteran does not suffer from PTSD or any other psychiatric disorder.  On remand, VA must attempt to obtain treatment records from Dr. E.A.W. and must provide the Veteran with a new examination.  

Accordingly, the case is REMANDED for the following action:

1.  With any necessary assistance from the Veteran, obtain treatment records from Dr. E.A.W.  

2.  Schedule the Veteran for a VA psychiatric examination by an appropriate professional, but not the examiner who performed the January 2011 examination.  The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, VBMS, CAPRI, and AMIE) must be reviewed by the examiner.  If the examiner does not have access to the virtual records, any relevant treatment records contained in the virtual file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review.

The examiner is to answer the following questions:

a)  From what psychiatric disorder or disorders does the Veteran currently suffer?  If you find that the Veteran does not suffer from PTSD, explain why your finding differs from that of Dr. E.A.W. and the VA treatment records.  

b)  If you find that the Veteran suffers from PTSD, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran's PTSD is related to his claimed stressors, including his fear of hostile military or terrorist activity.  

c)  If you find that the Veteran suffers from any psychiatric disorder other than PTSD, then is it at least as likely as not that this disorder is related to the Veteran's active service?  

The examination report must include a complete rationale for all opinions expressed.  If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

3.  Then, readjudicate the appeal.  If the benefit sought remains denied, issue a Supplemental Statement of the Case and return the case 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 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).




______________________________________________
RONALD W. SCHOLZ 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs