Citation Nr: 1415370 Decision Date: 04/08/14 Archive Date: 04/15/14 DOCKET NO. 12-20 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Ms. Christine Clemens, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1961 to October 1964 and from April 1966 to April 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Winston-Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO). In January 2014, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. The issue of service connection for PTSD (on de novo review) is being REMANDED to the RO. VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. An unappealed March 2006 rating decision denied the Veteran service connection for PTSD, based on a finding that that there was no credible corroborating evidence of a stressor event in service. 2. Evidence received includes the Veteran's January 2014 hearing testimony that further explains his alleged stressor events in service; relates to the unestablished fact necessary to substantiate the claim of service connection for PTSD; and raises a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has been received and the claim of service connection for PTSD may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim to reopen. Inasmuch as this decision grants in full that portion of the claim that is being addressed, there is no reason to belabor the impact of the VCAA on the matter, as any notice or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis A March 2006 rating decision denied the Veteran service connection for PTSD, based essentially on a finding that that there was no credible corroborating evidence of a stressor event in service. The Veteran did not appeal the decision (or submit new and material evidence in the year following) and it became final. 38 U.S.C.A. § 7105. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. "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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The United States Court of Appeals for Veterans Claims (Court) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. The Court interpreted the language of 38 C.F.R. § 3.156(a) and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). The pertinent evidence of record at the time of the March 2006 rating decision included the Veteran's service treatment records (STRs), service personnel records, a June 2005 private psychological evaluation, VA treatment records from October 2002 to November 2005, and the Veteran's statements. Evidence received since the March 2006 rating decision includes VA treatment records from November 2005 to June 2012, statements from the Veteran, a September 2008 private psychological evaluation, a March 2012 VA examination, and his January 2014 hearing testimony, which provided additional information regarding his alleged stressor events in service. The evidence received since the March 2006 rating decision was not before agency decision-makers at that time, is new, and directly addresses an unestablished fact necessary to substantiate the Veteran's claim of service connection for PTSD. Specifically, the Veteran testified that between December 1967 and March 1968 he was stationed in Guam and assigned to the 99th Bomb Wing as a firefighter (confirmed by his DD 214). He testified that his duties included assisting medical personnel loading and offloading injured soldiers returning from Vietnam. It has been established that that soldiers wounded in Vietnam were transported via Guam during the time the Veteran served there. As is explained above, for the purposes of reopening the claim, the Veteran's testimony is deemed credible. Consequently, particularly in light of the "low threshold" standard outlined by the Court in Shade, the Board finds that the evidence is both new and material, and that the claim of service connection for PTSD must be reopened. De novo consideration of the claim is addressed in the remand below. ORDER The appeal to reopen a claim of service connection for PTSD is granted. REMAND The Veteran alleges that his duties while serving in Guam included offloading wounded soldiers returning from Vietnam. He alleges that as a firefighter he was required to stand by while planes refueled and was often recruited to assist medical personnel with the transport of the injured. He claims that his exposure to those wounded in Vietnam is the underlying stressor for his current diagnosis of PTSD. While the Veteran's statements are presumed credible for the purposes of reopening, on de novo review, the plausibility of the accounts requires assessment. This requires development of the evidentiary record. Furthermore, if the Veteran's accounts of his duties are determined to be credible (or at least plausible), a VA psychiatric examination to determine whether he has a diagnosis of PTSD based on such stressor would be necessary. Accordingly, the case is REMANDED for the following action: 1. The RO should secure for association with record updated (to the present) records of any VA treatment the Veteran has received for psychiatric disability since June 2012. 2. The RO should arrange for all necessary development to determine the plausibility of/confirm the Veteran's accounts of his duties while serving in Guam (to include whether the accounts are consistent with his MOS (firefighter)). The RO should contact the appropriate service department sources, and request that an appropriate official (familiar with practices on Guam inn 1967/1968 provide responses to the following: Please comment on the plausibility of the Veteran's accounts that in his MOS as a firefighter, he was required to assist in the offloading of severely wounded soldiers being brought back from Vietnam. Are his accounts consistent with what is known regarding procedures for handling transfers of those severely wounded? Specifically would firefighters have been assigned or asked to assist in the transfers rather than such duties being reserved for trained medical personnel? The RO must thereafter make a finding for the record regarding the credibility of the Veteran's accounts of his duties in Guam. 3. Then, if the Veteran's accounts are found plausible or confirmed, the RO should arrange for the Veteran to be examined by a psychiatrist or psychologist to determine whether he has a psychiatric disability (PTSD) that is related to such stressor event in service. The examiner must be advised of the RO's findings regarding the credibility of the Veteran's reports of stressors. The record must be reviewed by the examiner in conjunction with the examination. Based on such review of the record and examination of the Veteran, the examiner should respond to the following: a. Please identify (by medical diagnosis) each psychiatric disability entity found, and specifically does the Veteran have a diagnosis of PTSD based on the stressor event the RO has found to be corroborated. If PTSD is not diagnosed, please explain why the criteria for such diagnosis are not met. b. As to any psychiatric disability entity other than PTSD diagnosed, please indicate whether such is at least as likely as not (a 50% or greater probability) related to the Veteran's active service. The examiner must explain the rationale for all opinions, citing to supporting clinical data as appropriate. 4. The RO should then review the record and readjudicate the claim. If the benefit sought remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the Veteran and his attorney the opportunity to respond. The case should then be returned to the Board,. The Veteran 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 for additional development or other appropriate action must be handled in an expeditious manner. ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs