Citation Nr: 1801564 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-07 000A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), and if so, whether the claim should be granted. REPRESENTATION Appellant represented by: Nancy Lavranchuk, Accredited Agent ATTORNEY FOR THE BOARD A. Diaz-Ferguson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1981 to February 1986. This matter comes before the Board of Veterans' Appeals (Board) from September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The RO in Roanoke, Virginia currently holds jurisdiction over this matter. In April 2017, the Veteran filed a Motion to Advance on the Docket due to severe financial hardship. This motion is granted and the appeal has been advanced on the Board's docket. See 38 U.S.C.A. § 7107 (a)(2) (West 2014); 38 C.F.R. § 20.900 (c) (2017). The record before the Board consists of electronic records in Virtual VA and the Veterans Benefits Management System (VBMS). The issue of entitlement to service connection an acquired psychiatric disorder, claimed as PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An April 2005 rating decision denied the claim of entitlement to service connection for a mental disorder, claimed as PTSD; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period. 2. Evidence received subsequent to the expiration of the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claim for service connection for an acquired psychiatric disorder, claimed as PTSD. CONCLUSION OF LAW New and material evidence has been presented to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b) (2017). New evidence is defined as existing evidence not previously submitted to agency decision makers. 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 U.S. Court of Appeals for Veterans Claims (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." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." 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). In its April 2005 rating decision, the RO denied the Veteran's claim of service connection for a mental disorder, claimed as PTSD, reasoning the evidence continued to show the condition was not incurred in service as the record did not indicate the Veteran served overseas. At the time of the rating decision, the evidence of record consisted of some of the Veteran's service treatment records (STRs), and VA treatment records. The Veteran did not appeal the rating decision or submit any pertinent evidence within the appeal period and the rating decision became final. When the Veteran submitted a claim to reopen in March 2011, he submitted additional, more recent, VA treatment records. Since then, the record has been amended to include the Veteran's complete STRs and military personnel record, and the evidence includes several buddy statements in support of the Veteran's PTSD claim. When viewing this evidence in the light most favorable to the Veteran, the Board finds the evidence to be new and material. This follows because it is not cumulative or redundant of the evidence previously of record, and it tends to show the Veteran's PTSD may have been caused or be otherwise etiologically related to service. Accordingly, the claim for service connection for an acquired psychiatric disorder, claimed as PTSD is reopened. This reopened claim will be further addressed in the REMAND section of this decision. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD; to that extent only, the appeal is granted. REMAND While the Board regrets further delay, additional development is required before the Veteran's claim is adjudicated. The Veteran claims entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD. As his in-service stressors, the Veteran has cited multiple incidents. These included witnessing a fire fight break out with insurgents and having to kill a man while he was in Honduras; holding a baby girl in his arms while she bled to death after a Honduran village was heavily attacked with mortar fire; witnessing a friend being shot in the face while stationed in Honduras; and witnessing a helicopter being shot down and four men burn to death. In July 2013, VA determined that the information required to corroborate the stressful events described by the Veteran was insufficient to send to the U. S. Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. The RO requested further details on some of the stressors from the Veteran and listed the reasons why the stressors could not be verified. However, in the last paragraph the RO noted the JSRRC was able to locate "an unofficial source in which Ft. Bragg officials state that the 426th Signal Battalion, of which the Veteran was a member, was part of about 6000 U.S. troops who would be conducting maneuvers in Honduras and that the unit was deploying during the august 1983 time period." The Regional Office adjudicating the claim noted that given this evidence, the PTSD stressor should be conceded. The Board first notes the formal finding was incorrect in stating that JSRRC located the unofficial source. A review of the record shows it was the defense personnel records information retrieval system (DPRIS) that located the unofficial source and information regarding the deployment of the 426th Signal Battalion. In that regard, the Board also notes search queries from June 2013 in which the location searched is "Turhillo, Honduras." This is inaccurate as a simple internet search reveals the correct spelling is "Trujillo." While the Board recognizes the efforts made by the RO to verify the Veteran's stressors, a remand is warranted for the information to be sent to the JSRRC, and to attempt to verify the claimed stressors through additional channels, to include a search for combat pay, and hostile/imminent danger pay records. On remand all relevant ongoing medical records should be obtained. 38 U.S.C.A. § 5103A (c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Undertake all steps necessary to obtain any additional records to corroborate the Veteran's presence in Honduras between 1983 and 1985. Specifically, initiate accurate fact-based referrals to the JSRRC and U.S. Army CRC, as well as any other relevant sources, to attempt to verify the alleged stressors. Additionally, take steps to determine if the Veteran was in receipt of combat pay, or hostile fire/imminent danger pay during the time period that he alleges he served in Honduras. 2. Undertake any other development determined to be warranted. 3. Then, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the board intimates no opinion as to any final outcome warranted. 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 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). ______________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs