Citation Nr: 1621071	
Decision Date: 05/25/16    Archive Date: 06/02/16

DOCKET NO.  14-16 458	)	DATE
	)
	)

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


THE ISSUES

1.  Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for PTSD to include as due to personal assault.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. VanValkenburg, Associate Counsel



INTRODUCTION

The Veteran served on active duty from June 1968 to June 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from the November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York.

The Veteran was scheduled to appear at a Travel Board hearing in April 2016, but failed to appear.  He did not offer a reason for his failure to appear, nor did he request that his hearing be rescheduled.  As such, the Board deems his hearing request withdrawn.

The issue of entitlement to service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The evidence received since the last final denial of service connection for PTSD in the November 1996 rating decision, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim; and raises a reasonable possibility of substantiating the claim of entitlement to service connection.


CONCLUSIONS OF LAW

1.  The November 1996 rating decision that denied service connection for PTSD is final.  38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. § 3.104 (2015).
 
2.  The evidence received subsequent to the November 1996 rating decision is new and material and serves to reopen the Veteran's claim of entitlement to service connection for PTSD.  38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

VA's duty to notify and assist

As set forth at 38 U.S.C.A. §§ 5100, 5103A, 5107, 5126; 38 U.S.C.A. §§ 5102, 5103; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a), VA must notify claimants of certain procedural aspects of their claims and must assist claimants in obtaining evidence that might substantiate their claims.  As the Board is granting the claim to reopen and remanding the underlying claim, any error (if committed) with respect to VA's duty to notify or assist does not result in unfair prejudice to the claimant and need not be discussed.

Claims to Reopen

Rating decisions from which an appeal is not timely perfected become final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103.  An appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal.  38 C.F.R. § 20.200. 

The Veteran originally filed his claim for service connection for PTSD on a VA Form 21-526 received in July 1996; the RO denied his claim in a November 1996 rating decision.  Essentially, there was no evidence of a current PTSD diagnosis and no nexus between any psychiatric condition and service.  The Veteran did not express a disagreement with the decision, and no new and material evidence was received within a year of the decision.  Accordingly, the decision became final. 

A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108.  The Secretary must reopen a final claim when new and material evidence is presented or secured with respect to that claim.  Knightly v. Brown, 6 Vet. App. 200 (1994).  The Veteran filed a claim to reopen in August 2010.  VA treatment records reflect a current diagnosis of PTSD and ongoing treatment, including admittance into a 45 day PTSD program.  See e.g., VA treatment dated July 16, 2007 (a positive PTSD screen), February 28, 2013 (PTSD diagnosis) and September 17, 2012 (PTSD program admittance records).  The Board finds that the medical records support a current diagnosis PTSD, an element that was missing when the claim was denied in 1996.  Therefore, there are records associated with the claims file since the last final denial that satisfy the requirements for new and material evidence.  Consequently, the claim for service connection for PTSD is reopened.

Having reopened the claim, the Board concludes that further development of the issue of entitlement to service connection for PTSD is warranted.  This additional development is addressed in the REMAND below.


ORDER

New and material evidence having been received; the claim for entitlement to service connection for PTSD is reopened.


REMAND

Further development is required prior to the adjudication of the Veteran's claim of entitlement to service connection for PTSD to include as due to personal assault.

The Veteran asserts that during airborne school he had a 250 foot tower jump and the wind blew his parachute toward the tower and he panicked.  Several fingers were broken in this incident.  Upon returning to his barrack he was physically assaulted by other soldiers described as a "blanket party" and later assaulted by the drill instructor.  He reported that due to the trauma at airborne school he was provided a new military occupational specialty (MOS) as a cook.  See VA treatment records dated September 10, 2012, September 28, 2012, and October 22, 2012.   

The Board observes that the Veteran is currently service-connected for a fracture of his left 5th metacarpal that he sustained in June 1968.  Within military personnel records, the record of assignments reflect the Veteran underwent airborne training from January 1969 through February 1969 and then was assigned a cook position in February 1969.  

In general, establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor.  38 C.F.R. § 3.304(f).  See Cohen v. Brown, 10 Vet. App. 128 (1997).  A medical opinion may be used to corroborate a personal-assault stressor.  See Menegassi v. Shinseki, 638 F.3d 1379, 1381 (Fed. Cir. 2011).

To establish service connection for PTSD based on personal trauma, there must be credible evidence to support the Veteran's assertion that the stressful event occurred.  Where the claimed stressor alleges personal trauma, there are special evidentiary procedures.  Patton v. West, 12 Vet. App. 272 (1999).  Because personal trauma is an extremely personal and sensitive issue, many incidents of personal trauma are not officially reported, and the victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor.  It is often necessary to seek alternative evidence.  See VBA Manual M21-1, IV.ii.1.D.5.m. 

Thus, when the claimed stressor is physical or sexual assault, evidence from sources other than the service records may corroborate the Veteran's account of the stressor incident.  Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy.  Evidence of behavior changes following the claimed assault is one type of evidence that may be found in these sources.  Credible supporting evidence may also consist of a medical opinion, based on review of the evidence, that the personal assault occurred.  38 C.F.R. § 3.304(f)(5) (2015); Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011). 
 
PTSD cases based on personal assault stressors have special notice requirements.  The notice letter must include information about the alternative forms of evidence.  VA must provide the veteran with such notice prior to denying the claim.  38 C.F.R. § 3.304(f)(5) (2015).  In the present case, the Veteran has not received such notice; therefore, on remand, the Veteran is to be provided with appropriate notice for service connection of PTSD secondary to personal assault. 

In light of the Veteran's claimed personal trauma and a PTSD diagnosis in the record, the Board finds that the Veteran must be provided a VA examination to determine if the evidence supports the Veteran's assertion of an in-service personal assault and, if so, whether any current PTSD diagnosis is etiologically related to this.

Accordingly, the case is REMANDED for the following action:

1.  Send the Veteran proper notice that advises him of the alternative forms of evidence to verify personal assault stressors in PTSD cases, such as VA Form 21-0781a, Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD) Secondary to Personal Assault.  Based on the information provided by the Veteran, conduct any development that may be necessary to verify the Veteran's alleged personal assault stressor(s).

2.  After the above development has been completed, schedule the Veteran for a VA psychiatric examination by an appropriate VA examiner to determine the nature and etiology of any PTSD.  The claims file and a copy of this remand must be made available to and reviewed by the examiner.  The examination report must include a notation that this record review took place.  All necessary tests and studies, to include psychological testing, should be accomplished, and all clinical findings should be reported in detail.

After the record review and a thorough examination and interview of the Veteran, the VA examiner is asked to offer an opinion addressing the following inquiries:

(a)  Does the Veteran meet the criteria for a diagnosis of PTSD? 

Address any conflicting evidence of record.

(b)  For any diagnosed PTSD, is it at least as likely as not (a 50% or higher degree of probability) that it is causally related to his reported stressors during service, to include personal assault?  

All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided.  If the examiner believes that an opinion cannot be provided without resorting to speculation, then he/she must provide a detailed medical explanation as to why this is so.

3.  After ensuring that the requested actions are completed, readjudicate the claim on appeal.  If the benefits sought are not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto.  The record should then be returned to the Board for appellate review.

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 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).




______________________________________________
S. HENEKS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs