Citation Nr: 1416406	
Decision Date: 04/14/14    Archive Date: 04/24/14

DOCKET NO.  10-14 828	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim for service connection for a posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

3.  Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	To Be Clarified


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

J. Acosta, Associate Counsel


INTRODUCTION

The Veteran had active duty from December 1967 to December 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision of the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA).  

The Board initially notes that its review of the Office of General Counsel's Accreditation Search does not list the Veteran's current attorney of record as an accredited attorney or agent to represent veterans in claims for VA benefits.  Consequently, as remand will otherwise be required, while the case is in remand status, the Board will request that certain action be taken by the RO concerning the Veteran's representation in this matter prior to the case being returned to the Board for further appellate review.  This will be addressed more fully in the REMAND portion of this decision.

A review of the record shows that a claim for service connection for PTSD was previously denied on a direct basis in an unappealed rating action entered in June 2005.  The fact that the Veteran has since raised an additional theory of causation (i.e., that his stressor is related to fear of hostile military or terrorist activity) does not operate to transform his previously denied claim into a new one. See, e.g., Boggs v. Peake, 520 F.3d 1330, 1336-37   (Fed. Cir. 2008); Velez v. Shinseki, 23 Vet. App. 199, 206 (2009); Ashford v. Brown, 10 Vet. App. 120, 123 (1997).  

Under the circumstances, it is the Board's conclusion that new and material evidence must be received to reopen the Veteran's claim before it can again be considered on the merits. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38 C.F.R. § 3.156(a) (2013).  Consequently, and because the Board is required to consider the question of reopening independent of the RO's determination on the matter, the issue on appeal has been characterized as set forth above, on the title page.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).
      
The Board has reviewed the Veteran's electronic record prior to rendering a decision and remand in this case.

The issues of entitlement to service connection for PTSD and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  


FINDINGS OF FACT

1.  In an unappealed June 2005 decision, the RO denied service connection for PTSD based on the finding that there was no evidence to substantiate a diagnosis of PTSD, no evidence of an in-service stressor, and no evidence of a relationship of the claimed PTSD and an in-service stressor.

2.  The evidence added to the record since the June 2005 rating decision when viewed by itself or in the context of the entire record, relates to an unestablished fact that is necessary to substantiate the claim of service connection for PTSD.


CONCLUSIONS OF LAW

1.  The June 2005 rating decision denying service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2013).

3. With respect to the Veteran's claim for service connection for PTSD, new and material evidence has been received since the June 2005 rating decision denying service connection for PTSD. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.158 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).  Since the Board is reopening the claim for PTSD on the basis of new and material evidence, there is no need to discuss whether the Veteran has received sufficient notice insofar as the specific reasons for the prior final denial.  Even if he has not, this is inconsequential and, at most, harmless error.  See Kent v. Nicholson, 20 Vet. App. 1 (2006); see also Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  

The RO issued a decision in June 2005 that denied service connection for PTSD.  Such was based on the finding that there was no evidence to substantiate a diagnosis of PTSD, no evidence of an in-service stressor, and no evidence of a relationship of the claimed PTSD and an in-service stressor.  Evidence considered by the RO includes the Veteran's statement in his application for benefits that he has PTSD, his service treatment records (STRS), VA treatment records and a private psychological examination from 1993.  The Veteran did not appeal the June 2005 decision, nor did he submit any new and material evidence within a year of the decision.  See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242 (2011).  As such, the June 2005 rating decision is the last final denial of the claim. 

The evidence received since the June 2005 decision includes the report of an August 2010 private examiner which reflects a diagnosis of PTSD.  The report is new in that it was not previously of record.  It is also material because it relates to an unestablished fact necessary to substantiate the Veteran's claim.  Specifically, the newly received evidence indicates that the Veteran has a current diagnosis of PTSD.  This evidence is both new and material to the PTSD disability claim.  See 38 C.F.R. § 3.1556(a); Shade v. Shinseki, 24 Vet. App. 110 (2010).


ORDER

New and material evidence having been received; the claim for service connection for PTSD is reopened.  To this extent and this extent only, the appeal is granted.


REMAND

Having decided that that the Veteran's PTSD claim should be reopened, VA's duty to assist has been triggered and the claim must be developed as necessary. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). 

The Board first notes that where a determination is made that a veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat, the veteran's lay testimony alone will not be 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.  See Doran v. Brown, 6 Vet. App. 283, 289 (1994).  Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors.  See Moreau, 9 Vet. App. at 395-96; Cohen v. Brown, 10 Vet. App. 128 42 (1997).

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 posttraumatic stress disorder 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. 

For purposes of this paragraph, "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. 38 C.F.R. § 3.304(f)(3) (2013).

While the Veteran has a diagnosis of PTSD that seems to relate to his claimed in-service stressor, driving truck convoys in the constant threat of enemy attack, the examiner who provided this opinion was not a VA psychiatrist or psychologist, or a psychiatrist or a psychologist with whom VA has contracted as required by 3.304(f)(3) (2013).  Thus, the Board finds that, in light of the Veteran's current diagnosis of PTSD in a private opinion which relates the PTSD to his claimed "fear of hostile military or terrorist activity" in service, a VA examination should be afforded the Veteran to allow a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted to review the evidence and offer an opinion so as to meet the requirement established by 38 C.F.R. § 3.304(f)(3) (2013). 

The Veteran's claim seeking TDIU is inextricably intertwined with the claim of service connection for PTSD.  Hence, adjudication of the TDIU claim must also be deferred pending resolution of the service connection claim.

Finally, as noted in the Introduction, in the process of reviewing the Office of General Counsel's Accreditation Search, the Board was unable to locate the name of the Veteran's current attorney of record as an accredited attorney or agent to represent veterans in claims for VA benefits.  Consequently, while the case is in remand status, the RO must make an effort to contact the Veteran's attorney to determine whether she desires accreditation and if so, whether the process involved can be accomplished in sufficient time to permit her to continue to offer representation to the Veteran should he continue to wish for her to do so.  If accreditation cannot be accomplished within a time frame that would permit continued representation in this matter, the Veteran should be permitted an opportunity to obtain alternative representation, if he so desires.  Clarification of representation should be accomplished prior to the case being returned to the Board for further appellate review.

Accordingly, the case is REMANDED for the following action:

1.  An effort must be made to contact the Veteran's attorney to determine whether she desires accreditation and if so, whether the process involved can be accomplished in sufficient time to permit her to continue to offer representation to the Veteran should he continue to wish for her to do so.  If accreditation cannot be accomplished within a time frame that would permit continued representation in this matter, the Veteran should be permitted an opportunity to obtain alternative representation, if he so desires.  Clarification of representation should be accomplished prior to the case being returned to the Board for further appellate review.

2.  The RO/AMC should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all medical care providers, VA and non-VA, inpatient and outpatient, who may possess additional records referable to treatment of his PTSD.  After obtaining any necessary authorization or medical releases, the RO/AMC should request and associate with the claims file legible copies of the Veteran's complete treatment reports from all sources identified whose records have not previously been secured.  Regardless of the Veteran's response, the RO/AMC should secure all outstanding VA treatment records.

The Board directs particular attention to the Veteran's service hospital records from 1968 at the 23rd Evacuation Hospital, and records from Central Arkansas Veterans Healthcare System from 1994 to 1995.  Any archived records should be retrieved from storage. 

3.  After the above development is completed, schedule the Veteran for a VA psychiatric examination with an appropriate examiner to determine the etiology of the Veteran's diagnosed PTSD in light of 38 C.F.R. § 3.304 (f).  The Veteran's claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination.  All pertinent symptomatology and findings must be reported in detail.  The examiner must record all pertinent medical complaints, symptoms, and clinical findings, and must review the results of any testing prior to completion of the report.  

Following a review of the claims file, to include service and post-service medical records, and the examination results, the examiner is 
is requested to offer an opinion as to whether it is at least as likely as not (i.e. a 50 percent probability or more) that any such disability was caused by, or is otherwise related to, service, to include the fear of hostile military or terrorist activity during the Veteran's period of service.

"Fear of hostile military or terrorist activity" means the Veteran's experience of, witness of, or confrontation 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.
A complete rationale for all opinions must be provided.

4. The RO/AMC should review the claims file and ensure that all development actions have been conducted and completed in full.  If any development is incomplete, appropriate corrective action is to be implemented.  Specific attention is directed to the examination report.  If the requested report does not include an adequate response to the specific opinion requested, the report must be returned for corrective action.

5.  After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal, to include specific consideration of the amended provisions of 38 C.F.R. § 3.304 (f) and entitlement to TDIU.  If the benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond.

The Veteran has the right to submit additional evidence and argument on the matter or matters 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).




______________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs