Citation Nr: 1806591 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-28 999 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. REPRESENTATION Veteran represented by: Sheila Hughes, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. A Board videoconference hearing was held July 2017 before the undersigned Veterans Law Judge (VLJ) of the Board. The transcript is of record. At the hearing the Veteran's attorney provided additional evidence consisting of VA Medical Center (VAMC) records and a PTSD stressor statement, along with a waiver of initial consideration and review of the evidence by the Agency of Original Jurisdiction (AOJ). During pendency of the appeal, the Regional Office considered service connection for PTSD to be reopened, but because the submission of new and material evidence is a jurisdictional requirement the Board itself must address this question de novo. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996). Here, after reopening the claim, the Board expands the issue to include any acquired psychiatric disorder, including PTSD, diagnosed since the claim was presented. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The claim for service connection for PTSD is being reopened. The underlying claim for service connection on the merits is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The September 1994 RO rating decision denied the Veteran's original claim for service connection for PTSD. The Veteran did not pursue an appeal. 2. The December 2008 rating decision denied the Veteran's petition to reopen his claim. There was no ensuing appeal. 3. Since then, additional evidence has been obtained and associated with the record that presents a reasonable possibility of substantiating the Veteran's claim on the merits. CONCLUSIONS OF LAW 1. The September 1994 and December 2008 RO rating decisions denying the Veteran's claim for service connection for PTSD and petition to reopen a claim for service connection for PTSD are final. 38 U.S.C.A. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.200, 20.302 (2017). 2. New and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for PTSD. 38 U.S.C.A. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS By a September 1994 rating decision, the RO denied the Veteran's original claim for entitlement to service connection for PTSD. The RO's decisional rationale indicated that while there was a medical diagnosis of PTSD on record pursuant to a VA examination, the in-service stressor that had been alleged by the Veteran up to that point had not been corroborated. The averred stressors was as follows: the Veteran participated in the evacuation of Saigon while assigned to the First Battalion Ninth Marines on Operation Eagle Pull, and had stated that he could remember a mortar shell exploding and killing two Marines in front of his eyes. There were several other people killed or injured. He recalled having had civilians asking him for protection. On attempting to independently corroborate this averred stressor, the RO was unable to do so, finding that the Veteran's Form DD-214 was negative for a Vietnam service ribbon for any campaigns. The Veteran's personnel file was reviewed and considered. The file showed primary duty as motor vehicle operator. Records show that the Veteran was reassigned from El Toro, California to Okinawa, Japan in March 1975. The Veteran's personnel file for Combat History, Expedition Awards record was blank for participation in Operation Eagle Pull. The record of authorized awards was also blank. The RO proceeded to deny the Veteran's PTSD claim, since there was no evidence in the Veteran's personnel file indicating that he went on an expedition to Vietnam. The Veteran did not appeal the decision or submit new and material evidence within one year of its promulgation, and hence that decision became final and binding on the merits. See 38 U.S.C.A. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.200 (2017). Thereafter, the Veteran filed a petition to reopen the claim. By a December 2008 rating decision, this time based primarily upon the Veteran's apparent nonresponse to RO correspondence requesting and intended to procure further evidence in regard to his then pending claim. The Veteran did not appeal the decision and did not submit new and material evidence within one year of its promulgation. That determination became a final and binding decision of record. The petition to reopen these matters was received in November 2012. The Board will consider the evidence of record since the December 2008 RO rating decision, as this constituted the last final denial of the Veteran's claim. See generally Juarez v. Peake, 21 Vet. App. 537 (2008) . When a claim to reopen is presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim, which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). There has since been several additional items of evidence obtained and associated with the Veteran's claims file, the primary focus upon which will be those pertaining to the claim for service connection for PTSD. The key additional evidence is for the purpose of stressor development. By July 2017 statement (provided at the Board videoconference hearing), the Veteran provided substantial detail regarding his claimed stressors, indicating that the incidents in question occurred Summer 1975 in Okinawa, Japan. Most details are given therein, in summary, the Veteran described an in-service personal assault committed by several other members of the Shore Patrol that he observed was racially motivated, and from which he had sustained severe injuries requiring hospitalization. Similar testimony was given during the Board hearing. Another claimed incident was that the Veteran experienced verbal abuse during his boot camp experience. Another incident was the previously stated stressor from when the claim was denied before, that the Veteran was at one point stationed in Vietnam and assisted with the evacuation of soldiers out of Saigon. Based on the foregoing, regarding the first claimed incident, there clearly is a recently and additional averred in-service stressor. It is alleged with sufficiently clarity and information that based on the foregoing event, there is a reasonable possibility of substantiating the Veteran's claim. This fulfills the requisite standard for "new and material" evidence. See 38 C.F.R. §3.156(a). The claim is therefore reopened, and further development is requested below. ORDER New and material evidence having been received, the claim for service connection for PTSD is reopened; the appeal to this extent herein is granted. REMAND The reopened claim for service connection for PTSD, to include any acquired psychiatric disorder, must be considered anew on the merits (or in other words, de novo). The Board finds it would be useful to obtain documentation on what the Veteran described at the hearing as a Court Martial proceeding, which happened apparently due to events with some association to the claimed stressor involving a personal assault. There are specific VCAA notice provisions for claims based on personal assault. The Veteran should receive the necessary stressor development letter. See 38 C.F.R. § 3.304(f)(5) (2017). There furthermore may be outstanding records to obtain with regard to a disability benefits claim filed with the Social Security Administration (SSA). See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). VA examination should then be conducted to determine whether the Veteran's claimed condition of PTSD is etiologically related to a verified stressor. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of records pertaining to any claim and/or award of disability benefits from the Social Security Administration, including the administrative decision on that claim and supporting medical records. All negative replies should be documented and the Veteran should be notified. 2. Contact the appropriate agency or agencies, and request a copy of a Court Martial Proceeding that Veteran indicated that he underwent while a member of the First Battalion, Ninth Marines. All negative replies should be documented and the Veteran should be notified. 3. Schedule the Veteran for VA psychiatric examination for PTSD. The Veteran's claims file must be provided to and reviewed by the examiner in conjunction with the examination and such review should be noted in the examination report. The examiner should indicate whether a current diagnosis of PTSD (under the DSM-5 criteria) is warranted. If PTSD is diagnosed, then determine whether it is at least as likely as not (50 percent or greater probability) that this condition is related to a verified in-service stressor. A complete rationale should be provided for the opinion offered. 4. Review the claims file. If the directives specified in this remand have not been implemented, take proper corrective action before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 5. Thereafter, readjudicate the claim on appeal in light all additional evidence received. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). ______________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs