Citation Nr: 1543970 Decision Date: 10/14/15 Archive Date: 10/21/15 DOCKET NO. 14-10 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Jan Dils, Attorney-at-Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1975 to May 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, that, inter alia, declined to reopen a denied claim of service connection for PTSD. In September 2014 this matter was remanded (by a Veterans Law Judge other than the undersigned) for a hearing before the Board to be scheduled. In July 2015 a Travel Board hearing was held before the undersigned; a transcript is associated with the record. At the hearing, the Veteran's attorney clarified that the Veteran had not intended to perfect appeals in two additional matters decided in the January 2012 rating decision (regarding the rating for scars and seeking to reopen a claim of service connection for a left thumb disorder). Consequently, those matters are not before the Board. The issue of service connection for a psychiatric disability, to include PTSD, on de novo review is being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. A November 2004 rating decision denied the Veteran service connection for PTSD based essentially on findings that his alleged stressor event in service was not corroborated and his psychiatric disability was not shown to be related to his service (the diagnosed psychiatric entities were attributed to other etiologies); he did not perfect an appeal of that decision, and it became final. 2. Evidence received since the November 2004 rating decision includes information corroborating his alleged stressor event in service; relates to an unestablished fact necessary to substantiate a 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 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. As this decision grants that portion of the claim that is being addressed (reopens the claim), there is no reason to belabor the impact of the VCAA on this matter, as any notice or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis A November 2004 rating decision denied the Veteran service connection for PTSD, finding that his alleged (non-combat) stressor was not corroborated, and that there was otherwise no nexus between his psychiatric diagnosis shown and his active service. He did not appeal this decision, or submit new and material evidence within a 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); Justus v. Principi, 3 Vet. App. 510 (1992). 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) as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence of record at the time of the November 2004 rating decision included the Veteran's STRs (which are silent for complaints, findings, treatment, or diagnosis of a chronic psychiatric disability), available postservice treatment records (which showed, inter alia, a diagnosis of PTSD, related to childhood abuse (i.e., not to a stressor in service)), and a lay statement from the Veteran, alleging that, in 1976, while both were assigned to the Motor Transport Platoon, 1st Medical Battalion, 1st Force Service Support Group, 1st Marine Division the Veteran's friend, PFC [redacted], died in a motor vehicle accident. At that time, the RO determined that the lay statement did not contain sufficient evidence to attempt corroboration of the claimed stressor event. Evidence received since the November 2004 rating decision includes considerable additional information regarding the alleged stressor event. Specifically, the Veteran has stated that in the summer (June or July) of 1976, he was a squad leader in charge of 11 other Marines during a training exercise in the Las Pulgas area at Camp Pendleton, under the authority of NCOs Staff Sergeant [redacted] and Sergeant [redacted]. Their platoon was called "[redacted]." Private [redacted] was driving the rear vehicle (a "gama goat" ambulance) at the rear of a convoy; the Veteran was in the next-to-last vehicle. When the convoy came to a stop, Private [redacted], who was not a skilled driver and had been trying to catch up to the rest of the convoy, slammed his vehicle into the back of the Veteran's vehicle. Private [redacted] was mortally injured and medically evacuated to Balboa Naval Hospital, where he died. Private Mays, who was riding in the vehicle with the Veteran, was also injured. The Veteran stated that a memorial service was held for Private [redacted] at the medical battalion at Camp Pendleton. The Veteran asserted that he was transferred to the 1st Maintenance Battalion due to his difficulty coping after the accident, first on temporary assigned duty (TAD), and then permanently. (See March 2012 statement and July 2015 Board hearing transcript.) This evidence, the credibility of which is presumed for the purpose of reopening, is new, in that it was not part of the record at the time of the prior final denial, and material, in that it supports the Veteran's contention that a stressor event occurred during his active service (and provides sufficient detail to attempt to corroborate the claimed stressor). Thus, the additional testimony raises a reasonable possibility of substantiating the claim. Consequently, particularly in light of the "low threshold" standard for reopening endorsed by the Court in Shade, the Board finds that the evidence received is new and material, and that the claim of service connection for PTSD may be reopened. ORDER The appeal to reopen a claim of service connection for PTSD is granted. REMAND At the outset, the Board notes that the instant claim was initially developed and adjudicated strictly as pertaining to the sole psychiatric diagnosis of PTSD (properly so, as the prior final rating decision was limited to such diagnosis). Because the claim has been reopened (and there is no legal, finality related, bar to de novo consideration of service connection for any psychiatric disability), and because the record suggests the Veteran may have additional psychiatric diagnoses (e.g., depression and intermittent explosive disorder), and in light of the Court's decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the issue is expanded and characterized to encompass any psychiatric disability diagnosed. As noted above, the Veteran asserts that while he was a squad leader at Camp Pendleton, one of his men died as a result of a motor vehicle accident that occurred during a training exercise. In the initial (final) rating decision denying the Veteran's claim, the RO determined that there was not enough information available to attempt verification of the claimed stressor event. Since then, he has provided additional details, noted above, concerning the incident in service. Specifically, the Veteran has alleged that, in June or July of 2006, a platoon known as "[redacted]," under the authority of Staff Sergeant [redacted] and Sergeant [redacted], was conducting a training exercise in the Las Pulgas area at Camp Pendleton, under the authority of NCOs Staff Sergeant [redacted] and Sergeant [redacted]. Private [redacted], who was driving the rear vehicle (a "gama goat" ambulance) on a convoy, ran into the back of the Veteran's vehicle, was seriously wounded, was medically evacuated to Balboa Naval hospital, and died. Another Marine, Private Mays, was also injured. A memorial service for Private [redacted] was held at the medical battalion at Camp Pendleton. Personnel records confirm that the Veteran was transferred to the 1st Maintenance Battalion in October 2006, which he alleges was due to his difficulty coping after the accident. The alleged stressor event is clearly of a verifiable nature, and a remand for verification is necessary. Additionally, at the July 2015 Board hearing, the Veteran's attorney cited to a January 2012 independent medical evaluation of the Veteran by a Mr. Atkinson that apparently provides a diagnosis of PTSD related to the alleged stressor event, as well as an April 2014 response from the National Archives. These items do not appear in the record before the Board, and it is unclear whether they were previously before the RO. On remand, the AOJ must obtain this identified evidence and associate it with the record. Also, the May 2013 DRO conference report includes a statement by the Veteran's attorney indicating that service personnel records would show a change in performance evaluations following the MVA in service. While some service personnel records are associated with the claims file, they do not include performance evaluation reports. The records presently available do confirm the Veteran's testimony that, shortly after the date of the alleged incident, he was transferred out of his unit on a temporary basis, then permanently assigned to a new unit. On remand, exhaustive development for any outstanding personnel records, to specifically include any performance reviews outstanding is necessary. Furthermore, reopening the claim triggers VA's duty to assist by securing a medical opinion, if necessary. Given the diagnoses noted in the record (to include depression, intermittent explosive disorder, and a reported history of persecutory delusions while in service, see, e.g., July 2004 VA treatment record) and that the diagnosis of a psychiatric disability, and its etiology (to include questions of sufficiency of stressor to support a PTSD diagnosis) are medical questions, the Board finds that an examination to secure a medical advisory opinion is necessary. Finally, it appears that the Veteran receives ongoing treatment for his psychiatric disability/ies. His most recent (VA) treatment records in the file are from July 2013. As records of treatment since may contain pertinent information, and because VA treatment records are constructively of record, they must be sought. Accordingly, the case is REMANDED for the following: 1. The AOJ should ask the Veteran to identify the provider(s) of any and all evaluations and/or treatment he has received for his psychiatric disability/ies, and to provide authorizations for VA to secure records of any such private treatment. The AOJ should secure for the record complete clinical records of all pertinent evaluations or treatment (records of which are not already associated with the record) from the providers identified, to specifically include all VA records. If any records sought are unavailable, the reason for their unavailability must be noted in the record. If a private provider does not respond to the AOJ's request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received. 2. The AOJ should conduct exhaustive development to secure for association with the record copies of the Veteran's complete service personnel file, to specifically include performance evaluations. All facilities where such records may be stored should be searched. If such records have been destroyed or are irretrievably lost, it must be so certified for the record, and the Veteran should be so notified. The scope of the search must be noted in the record. 3. After the above development is completed, the AOJ should also arrange for exhaustive development to verify the Veteran's account of the alleged stressor event. Specifically, the Veteran has alleged that: * In the summer (likely June or July) of 2006, a platoon known as "[redacted]," under the authority of Staff Sergeant [redacted] and Sergeant [redacted], was conducting a training exercise in the Las Pulgas area at Camp Pendleton, under the authority of NCOs Staff Sergeant [redacted] and Sergeant [redacted]. * Private [redacted] (also spelled [redacted] or [redacted]), who was driving the rear vehicle (a "gama goat" ambulance) on a convoy, ran into the back of the Veteran's vehicle, was seriously wounded, was medically evacuated to Balboa Naval hospital, and died. * Another Marine, Private Mays, was also injured. * A memorial service was held for Private [redacted] at the medical battalion at Camp Pendleton. * Personnel records confirm that the Veteran was transferred to the 1st Maintenance Battalion in October 2006, which he alleges was due to his difficulty coping after the accident. If the information of record, to include that obtained pursuant to the development ordered above, is insufficient to corroborate the stressor, the Veteran should be notified of the specific information that is needed [to allow for verification] and afforded opportunity to respond. Any response indicating that verification was not possible (records could not be located) should specify what exactly cannot be located or verified. The AOJ should thereafter make a formal finding for the record regarding the Veteran's alleged stressor event, indicating whether or not it is indeed corroborated by credible supporting evidence. If any development sought in this matter cannot be completed, the reason why completion is not possible must be explained, and the scope of the attempt must be described. 4. After the above-sought development is completed, the AOJ should arrange for the Veteran to be examined by an appropriate psychologist or psychiatrist to ascertain the nature and likely etiology of his psychiatric disability/ies. The Veteran's entire record (to include this remand and the AOJ's formal findings of whether the alleged stressor event is corroborated) must be reviewed by the examiner in connection with the examination. Following examination and interview of the Veteran and review of the pertinent medical history, the examiner should offer opinions that respond to the following: (a) Please identify (by diagnosis) each psychiatric disability found. Specifically, does the Veteran have a diagnosis of PTSD based on a corroborated stressor event (if any is found by the AOJ)? If PTSD is not diagnosed, indicate clearly what symptom(s) needed for such diagnosis is/are lacking. (b) Please identify the likely etiology for each acquired psychiatric disability other than PTSD diagnosed, specifically, is it at least as likely as not (a 50 % or better probability) that it is related to the Veteran's military service or events therein? The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. 5. The AOJ should then review the record and readjudicate the claim. If the benefit sought remains denied, the AOJ should issue an appropriate SSOC, afford the Veteran and his attorney opportunity to respond, 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs