Citation Nr: 1716989 Decision Date: 05/18/17 Archive Date: 06/05/17 DOCKET NO. 13-00 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an anxiety disorder, to include PTSD. 3. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty in the Army from February 1968 to February 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2011 and March 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issues of entitlement to service connection for PTSD, and whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for diabetes mellitus, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A May 2006 rating decision denied an application to reopen a claim of entitlement to service connection for PTSD; the Veteran did not file a notice of disagreement or submit new and material evidence within one year of the decision. 2. Evidence received since the May 2006 rating decision is new, not cumulative or redundant, material to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for PTSD. CONCLUSIONS OF LAW 1. The May 2006 rating decision that denied an application to reopen a claim of entitlement to service connection for PTSD is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2016). 2. New and material evidence has been received sufficient to reopen the claim for service connection for PTSD. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The Veteran's application to reopen his claim of entitlement to service connection for PTSD is granted herein and remanded for further development. Therefore, the Board finds that any error under the VCAA with regard to the Veteran's claim is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis An issue for resolution is whether new and material evidence has been received sufficient to reopen the Veteran's previously denied claims of entitlement to service connection for PTSD. For the reasons explained below, the Board finds that new and material evidence has been received, and therefore, the claim is reopened. If a notice of disagreement is not filed within one year of the date of mailing of a decision by the AOJ, the decision generally becomes final. See 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2016). After the decision becomes final, the claim may be reopened if new and material evidence is received. See 38 U.S.C.A. § 5108 (West 2014); Evans v. Brown, 9 Vet. App. 273 (1996). New evidence means 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 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) (2016). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). A September 2004 rating decision denied entitlement to service connection for PTSD. The denial cited the lack of a diagnosis of PTSD meeting the diagnostic criteria and the lack of a verified stressor. The Veteran did not file a notice of disagreement or submit new and material evidence within one year of the decision, and the May 2006 rating decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. In August 2005, the Veteran filed an application to reopen the claim. A May 2006 rating decision denied reopening the claim. The denial cited the lack of new and material evidence relating to a diagnosis and the lack of supporting evidence of a claimed stressor. The Veteran did not file a notice of disagreement or submit new and material evidence within one year of the decision, and the May 2006 rating decision became final. Id. In August 2010, the Veteran filed an application to reopen the claim, which was denied by a March 2011 rating decision. The Veteran appealed to the Board. At the time of the last final denial in May 2006, the evidence associated with the claims file included the Veteran's service treatment records, which show that a history of mild anxiety was noted in September 1967 on entry. Also of record were the Veteran's VA treatment records dated through March 2006, which show a diagnosis of possible PTSD, as well as depression and situational anxiety. The Veteran conceded that his depression is not related to his service. See Statement, April 2011. Also of record were the Veteran's statements, e.g., in April 2004, in which he alleged that another soldier named K. assaulted him by striking him over the back of the head with a Pepsi bottle while the Veteran was on guard duty. Since the last final denial, new records associated with the claims file include, but are not limited to, a November 2010 VA examination report that shows the VA examiner diagnosed PTSD related to the Veteran's reported assault in service. Also new is a February 2011 Form 21-0781 stressor statement in which the Veteran provided more details about the date and location of the alleged assault in service, i.e., that it occurred around June 1970 or August 1970 at an asphalt plant in Nakhon Phanom, Thailand. Also, in the February 2011 stressor statement, the Veteran reported another stressor in August 1969 in Korat, Thailand, involving seeing a person shot in the head by Thai police. The Board finds that the November 2010 VA examination report showing diagnosed PTSD, and the February 2011 stressor statement with more specific date and location information regarding the alleged stressor are new and material as they relate to a previously unestablished facts necessary to substantiate the claim. Therefore, the Veteran's application to reopen the claim is granted, and the claim is reopened. The Board finds, however, that additional development and adjudication on the merits by the agency of original jurisdiction is necessary before a decision may be made on the claim. ORDER The application to reopen the claim of entitlement to service connection for PTSD is granted. REMAND A. PTSD The Veteran served on active duty from February 1968 to February 1971, including service in Thailand from December 1968 to December 1969. His military occupational specialty was surfacing equipment specialist, with a civilian history working with asphalt. See DD Form 214, and DA Form 2-1. His primary contention is that he has PTSD due to an assault in service by another soldier. Specifically, the Veteran alleges that sometime between June 1970 and August 1970, while on guard duty at an asphalt plant in Nakhon Phanom, Thailand, a soldier from another company named K. struck him on the back of the head with a Pepsi bottle, and that he was rendered unconscious and bleeding. He alleges that he K. was subsequently tried, reduced in rank, forfeited six months' pay. The Veteran submitted a copy of an August 30, 1969 travel voucher for travel from that date through September 4, 1969 to Korat, Thailand, which he asserts was for the purpose of attending the "trial." See Statements, November 2004 (trial), May 2010, March 2011 (trial), and February 2012; Form 21-0781, February 2012; Personnel Records, received May 2010 at p.10 of 10 (travel voucher). The Veteran also alleges that in August 1969, in Korat, he witnessed a person being shot in the head by Thai police. See Form 21-0871, February 2012. As an initial matter, a November 2010 VA examination report shows the VA examiner diagnosed PTSD relating to the Veteran's reported stressor involving the assault in service. Regarding the Veteran's alleged stressor involving seeing dead bodies, a March 2013 JSRRC memorandum shows that the stressor was unable to be verified. Regarding the alleged in-service assault, a March 2011 JSRRC memorandum shows that the alleged stressor was considered unable to be verified. While the Board acknowledges that in February 2012, the Veteran provided more specific date and location information regarding the alleged assault, he has thus far not been able to provide K.'s full, rank, or unit information other than that the soldier was in another company in the 809th Engineering Battalion. Thus, as shown above, to date, the Veteran's alleged stressors have been unable to be verified. The May 2010 VCAA notice letter did not, however, explain that for claims for service connection for PTSD based on an alleged in-service personal assault, evidence from sources other than a veteran's service records may corroborate the veteran's account of the stressor incident, and it did not provide examples of such types of evidence. See 38 C.F.R. § 3.304(f)(5) (2016). Therefore, the Board finds that the Veteran may be provided with a new VCAA notice that explains the types of evidence that may be submitted to corroborate his alleged assault as provided in 38 C.F.R. § 3.304(f)(5). To afford the Veteran all possible assistance in substantiating his claim, on remand, the Veteran should be provided with one more opportunity to provide the first name, unit, and rank of the alleged assailant in service (K.). If and only if he is able to do so, then to the extent feasible, K.'s personnel records should be requested and reviewed in order to verify whether K. was tried or otherwise disciplined for an assault as alleged by the Veteran. In performing such development, and prior to associating any copies of records with this Veteran's claims file, the AOJ must follow VAOPGCPREC 5-2014 involving obtaining records of other veterans in PTSD cases involving alleged personal assault. Specifically, the agency holding the records must confirm that the record(s) can be disclosed to the Veteran and placed in his claims file under the appropriate privacy regulations. Additionally, to fully accomplish VA's duty to assist, a request is necessary to the U.S. Army Judge Advocate General for copies of records of courts martial or other disciplinary proceedings held at Korat from August 30, 1969 to September 4, 1969 in the case of personal assault of the Veteran claimant. Also, in February 2012, the Veteran reported that he was treated in 1985 at Baptist Hospital for a panic attack. He also reported that in June 2003, Dr C.H. treated his wrists after he attempted suicide. See Form 21-4138, February 2012. On remand, these records should be obtained. As a final matter, none of the Veteran's VA mental health treatment records dated since November 2010 has been associated with the claims file. Therefore, on remand, all of his more recent VA mental health records dated since November 2010 should be associated with the claims file. B. Diabetes mellitus A May 2009 Board decision denied entitlement to a restoration of service connection for diabetes mellitus. In August 2011, the Veteran filed an application to reopen the claim. He alleges that he has diabetes mellitus due to herbicide exposure in Thailand between December 1968 and December 1969. Before a decision may be made on the application to reopen the claim, the Board finds that further development is required. In the case of certain herbicide exposed veterans, service connection may be presumed for those diseases listed in 38 C.F.R. § 3.309(e), including diabetes mellitus. The Board notes that in this case, however, herbicide exposure may not be presumed because no service in the Republic of Vietnam is shown. See 38 C.F.R. § 3.309(a)(6) (2016). Rather, the Veteran alleges herbicide exposure in Thailand. The current version of the VA Adjudication Procedures Manual provides that "Compensation Service has determined that a special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them at or near the perimeters of Thailand military bases." See M21-1,IV.ii.1.H.5.a. In the case of veterans who served in the U.S. Air Force during the Vietnam era at one of the listed Air Force bases, including Korat, the manual provides that herbicide exposure may be conceded on a facts-found basis if they served as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. See M21-1, IV.ii.1.H.5.b In the case of veterans who served at a U.S. Army base in Thailand during the Vietnam era, the manual further provides that herbicide exposure may be conceded on a facts-found basis if they served as a member of the military police unit, or with a military police occupational specialty. Otherwise, the manual directs that the Veteran should be asked for the approximate dates, location, and nature of alleged exposure, and if sufficient information is received, a request should be sent to JSRRC for verification of exposure to herbicides. See M21-1, IV.ii.1.H.5.b. In this particular case, the Veteran essentially alleges that while stationed in Thailand, including at the Korat RTAFB and at an asphalt plant in Nakhon Phanom, he came into contact with Agent Orange while building or paving roads in areas that were defoliated with Agent Orange off base (i.e., not on base). Therefore, the Board finds that this matter should be remanded so that the JSRRC may be asked to clarify whether the Veteran may have been exposed to Agent Orange on or off base in Thailand while working on paving roads in defoliated areas. In addition, the February 2012 VCAA notice letter was not complaint with that portion of Kent v. Nicholson, 20 Vet. App. 1 (2006) because it did not generally explain the need for and what constitutes "new" and "material" evidence to reopen a previously denied claim. Accordingly, the case is REMANDED for the following action: 1. Send a new VCAA notice letter to the Veteran relating to his PTSD claim that explains the types of evidence that may be submitted to corroborate his alleged in-service assault as provided in 38 C.F.R. § 3.304(f)(5). 2. Request that the Veteran provide the full name, unit, and rank of K., the soldier who he alleges assaulted him in service. If so provided, then obtain K.'s personnel file for review to attempt to verify whether K. was tried or otherwise disciplined for an assault as alleged by the Veteran. In performing such development, and prior to associating any copies of K.'s personnel records with this Veteran's claims file, the AOJ should be mindful of VAOPGCPREC 5-2014 involving privacy concerns with obtaining records of other veterans (in PTSD cases involving alleged personal assault). Only evidence necessary to verify the occurrence of an assault on the Veteran claimant is necessary. 3. Request from the office of the U.S. Army Judge Advocate General available records of any military disciplinary procedure including courts martial convened at Korat between August 30 and September 4, 1969 involving an assault by a member of the 809th Engineering Battalion. Associate any records received with the claims file. 4. Send a new VCAA notice letter relating to the request to reopen the diabetes mellitus claim that that generally explains the need for and what constitutes new and material evidence to reopen a previously denied claim. 5. Associate with the claims file all of the Veteran's VA treatment records dated from November 2010 to present, including but not limited to his mental health records. 6. Associate with the claims file any outstanding private treatment records from Baptist Hospital dated in 1985 relating to a hospitalization for a panic attack, and from Dr. C.H. dated in June 2003 relating to the Veteran having slit his wrists in an attempted suicide. 7. Request verification from JSRRC as to whether the Veteran may have been exposed to Agent Orange during his service in Thailand between December 1968 and December 1969. Note that he reports he served with the 809th Engineer Battalion as an asphalt operator, that he came into contact with Agent Orange because vegetation was defoliated in connection with the paving of the roads in Thailand, and that he has provided photos that he asserts show defoliated areas. 8. Then, readjudicate the Veteran's claims. If any claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran has been given the applicable time to submit additional argument, the claim(s) should be returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ____________________________________________ J.W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs