Citation Nr: 1820144 Decision Date: 04/05/18 Archive Date: 04/16/18 DOCKET NO. 14-35 445 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York 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: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1968 to March 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by the New York, New York, Department of Veterans Affairs (VA) Regional Office (RO), which declined to reopen a claim of service connection for PTSD. In January 2018, a videoconference hearing was held before the undersigned; a transcript of the hearing is in the Veteran's record. A July 1995 final Board decision declined to reopen a claim of service connection for a psychiatric disability. Thereafter, a February 1997 final rating decision denied service connection for a nervous condition, and a final October 1998 rating decision denied service connection for the specific psychiatric diagnosis of PTSD. Given the finality of the prior decisions, and that the current claim to reopen specifically seeks service connection for PTSD, the appeal before the Board is limited to the diagnosis of PTSD. FINDINGS OF FACT 1. An unappealed October 1998 rating decision denied the Veteran service connection for PTSD based essentially on a finding that there was no credible corroborating evidence of a stressor event in service. 2. Evidence received since the October 1998 rating decision is cumulative or does not tend to corroborate the occurrence of an alleged stressor event in service; does not relate to an unestablished fact necessary to substantiate the claim of service connection for PTSD; and does not raise a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has not been received, and the claim of service connection for PTSD may not be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. VA's duty to notify was satisfied by correspondence in May 2011. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159. The Veteran and his representative have not raised any issues with VA's duties to notify and assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ; Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Legal Criteria, Factual Background and Analysis The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. 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. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C. § 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 a claim should be reopened, the credibility of the newly submitted evidence is presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The United States Court of Appeals for Veterans Claims (CAVC) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The CAVC 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 Veteran's STRs note his report on March 1969 separation examination of difficulty sleeping due to family problems and weight loss as he ate less than he did prior to service; psychiatric examination was normal. The Veteran's service personnel records show that he enlisted in the Air Force, and upon entry on active duty underwent basic training at Lackland Air Force Base (AFB)(Lackland), which he completed on November 7, 1968; on November 12, 1968 he began a security policemen course at Lackland, which he completed in February 1969; during that training course he received non-judicial punishment of a $23 reduction in pay for failure to appear for KP assignment in January 1969; he was then stationed at an AFB in North Carolina, where he applied for, and received a hardship discharge (to help support his disabled mother. The service personnel records do not show a transfer for a period of correctional confinement. Civilian records show pre-service and post-service history of arrests for various offences, including a conviction (and period of incarceration) for a drug violation. In a PTSD questionnaire received in February 1998 the Veteran reported a 14 to 21 day period of correctional custody for "failing to lower [his] chin." He also described an incident (during the correctional custody) when he sustained physical injury to his penis pulling whole trees through a swamp; and reported psychological abuse sustained in the course of Marine Training Instructor. He asserted he never should have been drafted. On March 1998 VA examination the diagnoses included PTSD (based on a reported stressor event of 21 days of incarceration during service for insubordination) and heroin and cocaine abuse in remission. [He was scheduled for further examinations in September and October 1998, but failed to report.] An October 1998 rating decision denied the Veteran service connection for PTSD based essentially on a finding that he did not serve in combat, and that his alleged stressor event in service (mistreatment during a 21-day period of confinement in a correctional facility in service ) could not be corroborated. Evidence of record at the time included his service treatment records (STRs), outpatient treatment records, (which noted diagnoses of psychosis and substance abuse), his lay statements, and a private medical statement which confirmed that in the 1970s he was treated at the Postgraduate Center for Mental Health, but that records of such treatment were unavailable. Evidence received since the October 1998 rating decision includes updated VA treatment records (including March 2011 and December 2017 statements from his treating psychologist), a June 2014 VA psychiatric examination report, and the Veteran's lay statements. Following the October 1998 rating decision, the Veteran contacted the National Personnel Records Center (NPRC) seeking records pertaining to an alleged period of confinement in correctional custody. A September 1999 reply notes that, "Basic training records are not maintained in the military personnel file. Your record contains no documentation concerning time spent in correctional custody." In a March 8, 2011 statement the Veteran's VA treating psychiatrist provided a copy of her initial assessment of the Veteran in March 2010, when her impressions included likely PTSD from military traumas, schizophrenia by history, and history of polysubstance abuse. She noted a past history of 30 days in a military stockade, and also noted an incident when he was "working in a swamp clearing up trees, and over-exerted himself, had bleeding from the penis" The instant claim to reopen was received in April 2011. On June 2014 VA psychiatric examination, the Veteran reported that he was "punished for a minor infraction" in service and sent to correctional custody for three weeks, where he performed heavy manual labor which resulted in an internal urethral injury. The examiner diagnosed PTSD and related it to the Veteran's alleged (but uncorroborated) stressor. In August 2014, the U.S. Army and Joint Services Records Research Center (JSRRC) issued a formal finding of a lack of information required to corroborate the Veteran's alleged stressor event. The JSRRC Coordinator found that the claimed in-service stressor (a period of correctional custody) could not be substantiated based on the evidence available. In December 2017, VA received another medical statement from the Veteran's VA treating psychiatrist (nearly identical to one from the same psychiatrist received in March 2011.] Because service connection for PTSD was previously denied based on a finding that there was no credible evidence of a stressor event in service, for evidence to be new and material in this matter, it would have to pertain to that unestablished fact, i.e., tend to show that he was exposed to a stressor event in service underlying a current diagnosis of PTSD. Addressing the pertinent evidence added to the record since the October 1998 rating decision in turn, the Board notes the Veteran's lay statements describing stressors in service, while new in that they vary somewhat from his initial descriptions of the events (e.g., he now alleges a 30 day period of confinement, whereas he had initially reported 21 days), are not material evidence; they remain unaccompanied by any credible corroborating evidence, and remain inconsistent with his service personnel records (which do not show any period of correctional confinement during service). The statements by the Veteran's VA treating psychiatrist with references to a diagnostic impressions of PTSD cite to the same stressor event(s) as the Veteran had reported at the time of the October 1998 rating decision and therefore are cumulative, and not new, evidence. The Veteran's reports of a period of confinement and maltreatment in service do not achieve corroboration/gain in probative value by virtue of being repeated by yet another medical professional. See Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996)(An opinion by a mental health professional based on a postservice examination of the Veteran cannot be used to establish the occurrence of a specific stressor.) Notably, the treating psychiatrist does not cite to any source (other than the Veteran's redundant self-reports) as corroborating that the alleged stressor events occurred. The Veteran's (and the AOJ') attempts to seek official verification of his alleged period of confinement during service were unsuccessful, and obviously cannot be new and material evidence. The Veteran's alleged stressor event in service (a variously reported 21, 27, or 30 day period of confinement in service during which he was mistreated) remains facially inconsistent with the factual evidence of record, specifically his service personnel records, which show that during what he alleges is the period when he was confined, he completed basic training and a military occupation course and was promoted in rank, and that the only disciplinary action shown was a non-judicial punishment of a $23 reduction in pay for failure to report for a KP detail. In summary, nothing received for the record since the October 1998 rating decision is new evidence that tends to corroborate the occurrence of a non-combat stressor in service. Accordingly, the Boards finds that evidence pertaining positively to the unestablished fact necessary to substantiate the claim of service connection for PTSD and raising a reasonable possibility of substantiating such claim has not been received, and that the claim of service connection for PTSD may not be reopened. ORDER The appeal to reopen a claim for service connection for PTSD is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs