Citation Nr: 1539372 Decision Date: 09/15/15 Archive Date: 09/24/15 DOCKET NO. 11-04 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence has been received to reopen a previously-denied claim for service connection for posttraumatic stress disorder (PTSD), and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from March 1967 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's request to reopen a previously-denied claim for service connection for PTSD. In June 2015 the Veteran testified before the undersigned Veterans Law Judge in a Travel Board hearing. A transcript of his testimony is of record. The issue of service connection for PTSD on the merits is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Service connection for PTSD was denied by a rating decision in May 2004 and continued in a Statement of the Case in November 2005. The Veteran did not subsequently file a Substantive Appeal and the denial is final. 2. Evidence received since November 2005 relates to an unestablished fact necessary to substantiate the claim for service connection for PTSD. CONCLUSION OF LAW The requirements to reopen the previously-denied claim of entitlement to service connection for PTSD have been met. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The RO issued a rating decision in May 2004 that denied service connection for PTSD. Evidence of record at the time included service treatment records (STRs), service personnel records and the Veteran's report of the following in-service stressors: (1) that during basic training he was forced to jump into a swimming pool, despite his phobia of drowning; (2) that during subsequent sea duty he constantly feared drowning; (3) that while serving at sea off the coast of Vietnam some of his shipmates went crazy. The May 2004 rating decision denied service connection for PTSD, based on a finding that the Veteran's claimed stressors were not verifiable. The Veteran submitted a Notice of Disagreement, asserting a new stressor of feeling responsible for "friendly fire" casualties by misdirecting naval gunfire during a fire mission in Vietnam. In August 2005 the Veteran had a VA psychiatric examination in which he reported stressors including the swimming pool incident and the "friendly fire" incident, but the examiner found no diagnosed psychiatric disorder. In a November 2005 Statement of the Case (SOC), the RO continued the denial, based on a determination that the stressors cited by the Veteran were not verifiable and that he had not been diagnosed with PTSD. Following the SOC cited above the Veteran did not submit a Substantive Appeal. Thus, the May 2004 rating decision became final. See 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2015). The evidence submitted since that time includes a page from a history of the USS John Paul Jones, the ship to which the Veteran was assigned during his Vietnam service, which states the Jones spent 40 days on the "gun line" offshore and came under enemy fire 15 times. The specific dates of that period were not provided. An April 2010 treatment note by a licensed clinical social worker (LCSW) at the VA Vet Center noted a clinical impression of PTSD. Presuming the credibility of such evidence as it pertains to the new and material evidence analysis, the Board finds such evidence relates to the prior bases for denial of the claim. Accordingly, the evidence is both new and material, and the claim for service connection for PTSD is reopened. ORDER New and material evidence having been received, the claim for service connection for PTSD is reopened, and to this extent only the appeal is granted. REMAND Reopening the claim does not end the inquiry. Rather, the claim must now be addressed on the merits. However, the Board finds that additional development is necessary. In December 2014 the Veteran had a VA examination by a psychologist in which he reported the stressors involving the "friendly fire" incident, swimming pool incident fear of drowning while serving aboard ship, and shots being fired against the ship. However, the examiner only addressed the friendly fire incident as a stressor and found it was not a sufficient stressor to cause PTSD. The examiner thereafter did not address the other reported stressors, nor address the remaining PTSD diagnostic criteria. During his hearing, the Veteran testified that he was in constant fear of drowning, to include contemplating what would happen if his ship were hit by a torpedo. He also stated that he "I was scared and they would shoot back and whatever, but it never bothered me to the point of I'm never going to go home again." In light of the above, the Board finds that a new examination is warranted. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2014). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers (both VA and private) who have recently treated him for a psychiatric disability. After securing the necessary release, the AOJ should request any relevant records identified. If any requested records are not available, the Veteran should be notified of such. 2. Schedule the Veteran for a VA PTSD examination. The claims file must be reviewed in conjunction with the examination. All indicated tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should indicate whether the Veteran meets the diagnostic criteria for PTSD based on his claimed stressors, to include the fear of hostile military activity. The examiner should explain the reasoning for the opinion provided. 3. After the development requested above has been completed to the extent possible, the AOJ should again review the record. If the benefit sought on appeal remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant 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 2014). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs