BVA9503204 DOCKET NO. 92-00 840 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. P. Gallagher, Counsel INTRODUCTION The appellant has active service from November 1959 until November 1979. This appeal arises from a rating decision by the Department of Veterans Affairs (VA) Philadelphia, Pennsylvania, Regional Office (RO) in May 1990 which determined the veteran had not submitted new and material evidence to reopen a claim which had been denied by a rating action in June 1986 and not timely appealed. This case was remanded by the Board to the RO in August 1992 for further development and was returned to the Board in October 1994. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that he has submitted new and material evidence to reopen his claim for service connection for post-traumatic stress disorder. It is contended that information is now of record which shows that seven soldiers were killed and 84 wounded in action against the enemy from the 196th Light Infantry Brigade on Thanksgiving Day of 1967. This information is consistent with the veteran's claimed stressors in a memorandum submitted by the representative. It is contended that the veteran did not complete his recent post-traumatic stress disorder examination and that, therefore, the VA did not have adequate information to substantiate the diagnosis of post- traumatic stress disorder which had been submitted by Arnold T. Shienvold, Ph.D., in June 1990. It is admitted that, to the extent possible, the RO complied with the Board's remand. It is also contended that, because the VA examiner was unable to make a diagnosis on the most recent psychiatric examination, the Board should request an independent medical review of the record by a specialist in psychiatry in order for the specialist to make a diagnosis. Reference is made to the provisions of 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.303(b) concerning traumas in service. It is contended the veteran does not have any severe psychiatric trauma except that which he incurred in service. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file and for the following reasons and bases, it is the decision of the Board that new and material evidence sufficient to reopen a claim for entitlement to service connection for post-traumatic stress disorder has not been presented. FINDINGS OF FACT 1. A rating decision by the RO in June 1986 denied entitlement to service connection for post-traumatic stress disorder. The veteran was notified and the decision was not timely appealed. 2. Additional evidence received since the above rating decision, when viewed in the context of all the evidence of record, does not raise a reasonable possibility of a change in the prior adverse outcome. 3. This case does not involve medical complexity or controversy. CONCLUSIONS OF LAW 1. Evidence received since the RO's denial of service connection for post-traumatic stress disorder in June 1986 is not both new and material, and the veteran's claim for this benefit has not been reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1994). 2. The RO's June 1986 decision denying entitlement to service connection for post-traumatic stress disorder is final. 38 U.S.C.A. §§ 1110, 1131, 1154, 7105 (West 1991); 38 C.F.R. § 3.104(a) (1994). 3. The criteria warranting referral for an expert medical opinion have not been met. 38 U.S.C.A. §5109 (West 1991); 38 C.F.R. § 19.177 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Unappealed rating actions are final, with the exception that a claim may later be reopened by the submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7105 (West 1991). The question now presented is whether new and material evidence has been submitted since the prior adverse rating decision of June 1986 to permit reopening of the claim. Manio v. Derwinski, 1 Vet.App. 140 (1991). For the evidence to be deemed new, it must not be cumulative or redundant; to be material, it must be relevant and probative to the issue at hand; and, when viewed in the context of all the evidence, it must raise a reasonable possibility of a change in the prior adverse outcome. 38 C.F.R. § 3.156 (1994); Colvin v. Derwinski, 1 Vet.App. 171 (1991). The evidence which was of record at the time of the RO's prior denial of service connection for post-traumatic stress disorder in June 1986 may be briefly summarized. Available personnel records disclosed that the veteran served from July 1967 until July 1968 with the 8th Support Battalion, 196th Light Infantry Brigade in Vietnam as a supply sergeant. He also served in Vietnam from April 1971 to February 1972 as a supply sergeant at troop command and on duty at a drug rehabilitation center. His two military occupational specialities were reported as construction foreman for 5 years and 11 months, and unit supply specialist for 3 years and 8 months. His decorations, medals, badges and citations included the Vietnam Service Medal, the Vietnam Campaign Medal and the Army Commendation Medal but did not include a Purple Heart or the Combat Infantryman Badge. The service medical records disclose no complaints or manifestations of a psychiatric disorder. On a reenlistment examination in September 1965 he reported having had nervous trouble due to family problems but on the report of medical history prior to final retirement from service in 1979, he denied that he suffered from nervous problems of any sort. On the veteran's application for benefits in February 1981, the veteran did report that he suffered from bad nerves and stress syndrome in 1972 at Cam Ranh Bay, Vietnam. The veteran underwent a VA examination in April 1981. He complained that it had been a big adjustment from service to civilian life and that anybody who had been 20 years in service was bound to get nervous. There was no history of poor appetite, weight loss, palpitation, tremulousness, etc., and he denied difficulties with sleep or interpersonal relationships. The examiner stated there was no social/industrial impairment due to a psychiatric disorder, which he diagnosed as adjustment reaction of adult onset with mild anxiety. On a statement in support of claim prepared in November 1985, the veteran claimed post-traumatic stress disorder due to sleep disturbance, extreme nervousness and nightmares. The veteran underwent a VA psychiatric examination in March 1986. It was reported he had a claim pending for service connection for post-traumatic stress disorder. His claims file was present and was reviewed. He complained of a lot of nightmares of Vietnam. He slept about 5 or 6 hours every night. He often woke up sweating, but that occurred only 3 or 4 times a month. When asked about the content of his dreams and nightmares, he reported that he seemed to relive his time in Vietnam but stated he was not interested in post-traumatic stress disorder and did not want to go through with this. He seemed unable to describe any symptoms that were bothering him other than the nightmares, the content of which he could not describe. In regard to his military history, he reported that, from 1967- 1968, he spent one year with the 196th Light Infantry in Vietnam. His duty was moving supplies with the 8th Support Battalion. Asked if he was involved in combat, he said he was at L. Z. Ross, a forward base camp north of Chu Lai, where he said "you were being shot at all the time. I was not in face-to-face combat with anyone but I carried a weapon and fired but you don't know if you hit anyone." When not at L. Z. Ross, he was back at Chu Lai guarding the perimeter. In the Tet Offensive in 1967-1968, they hit Chu Lai. After his year in Chu Lai, he was assigned to Fort Knox, Kentucky. He went back to Vietnam in 1971-1972 for another 12 months. He was at Cam Ranh Bay, "when they blew the hell out of that place. I was in charge of storage area B at the Cam Ranh Bay depot. I had 54 people under my control, and half of them were junkies. Drugs were so bad it was pathetic." He described being stationed at other military bases and postservice employment. After mental status evaluation, the clinical assessment was that the examiner agreed with the prior diagnosis of adjustment reaction of adult onset with mild anxiety. The veteran was not able to relate any episodes of severe psychological trauma that occurred during his service years. He was in hazardous conditions, but his duties were mainly in supply and he was not assigned directly to combat. During the interview, he expressed his opinion more than once that he was pretty lucky that he was not in the midst of combat destructiveness. When asked to describe his most outstanding traumatic event, he said, "there wasn't any, but I am paranoid when it comes to rats and snakes." He stated that, during the Tet Offensive in his first year in Vietnam he guarded the perimeter of the Air Base and was standing on top of a bunker when an ammo dump was hit and he was picked up and sent 20 feet. It scared him, but he was not hurt. Another time it was reported that three Viet Cong had come in the area one night. He walked the perimeter but never made contact and when he got back, he found his weapon was out of order anyway. It was as though, in retrospect, he feared what might have happened if they found the Viet Cong, but it never really materialized. The psychiatric diagnosis was adjustment disorder of adult life in making a change from military to civilian life. Evidence added to the claims file since the prior final rating decision includes statements of Arnold T. Shienvold, Ph.D., a statement from the United States Army Reserve Personnel Center, dated in August 1990, to the veteran to the effect that he was medically disqualified for mobilization recall, information received from the United States Army and Joint Services Environmental Support Group (ESG), and the report of a VA psychiatric examination conducted in March 1994. The Board has considered the additional evidence submitted and has determined it is "new," particularly in view of the diagnosis of post-traumatic stress disorder by the private psychologist and the information obtained from ESG concerning the 196th Light Infantry Brigade. However, the United States Court of Veterans Appeals (the Court) in Colvin v. Derwinski, 1 Vet.App. 171 (1991), held that, in order to reopen a claim, the additional evidence must also be material, and that there be a reasonable possibility that the additional evidence, when viewed in the context of all the evidence both new and old, would change the outcome. There are statements from Dr. Shienvold, dated in February, March and June 1990. In a detailed statement in June 1990, he reported that the veteran, at various times over the past 10 years, had experienced feelings of anxiety, agitation, depression and feelings of persecution which may relate historically to problems in service 25 years ago after two combat tours in Vietnam. His diagnoses were: Dysthymic disorder; post-traumatic stress disorder, secondary to Vietnam and exacerbated by the current work situation; and mixed personality disorder with dependent and paranoid features. In January 1993, the veteran's representative reported in a letter that the veteran documented two specific stressful events to support his claim for post-traumatic stress. One was during Thanksgiving of 1967 while with the 196th Light Infantry Brigade at Chu Lai; he was responsible for removing bodies after a battalion had suffered severe casualties. This extremely stressful event was documented in a place called Cam Duc. Another stressful event was in the Tet Offensive in 1968 while assigned to Chu Lai Air Base. He watched an aircraft explode in midair. The subsequent debris of that aircraft incident included human body parts. He specifically stated that he saw legs and arms from the pilots scattered on the airfield among other debris. His job required him to get those body parts and put them back in the body bags for appropriate identification and processing. In February 1993 the RO sent a letter to ESG in order for it to review the records and attempt to confirm the veteran's claim concerning stressors. In November 1993, ESG replied, stressing that anecdotal incidents, although they may be true, are not researchable. In order to be researched, incidents must be reported and documented. The stressors, such as the veteran's personally assisting casualties, are seldom found in the combat records. Enclosed with this letter was a history of the 196th Light Infantry Brigade in Vietnam, including the battle which began on Thanksgiving Day. This resulted in seven fatalities which occurred in the first two hours of action. All casualties were evacuated through the brigade clearing station eight minutes from the fight and sorted there. The brigade history was silent concerning the Tet Offensive in 1968. The report of a VA examination conducted in March 1994 is of record. The veteran stated he did not know why he was there for the examination because he had told Philadelphia RO to forget it. He stated that if he was granted disability for his post- traumatic stress disorder they would just take it out of his military retirement, and if his post-traumatic stress disorder benefits were reduced, they would just put it back in his military retirement and it was all the same to him. He indicated he had recall of many aspects and missions in Vietnam and that he was seeing a VA counselor. He also stated that he did a lot of rehashing, and that he was starting to go over it the second time now, and that it did not do any good. He did not want to proceed with this examination. He indicated he always got the short end of the stick with the Federal Government. When asked why he came to the examination if he felt that way, he stated the letter told him that, if he did not show up for the examination, it would reflect badly on his disability. The veteran left the examination after about six minutes expressing the above line of thought. The examiner was unable to make any psychiatric diagnosis because of limited contact with the veteran. As indicated above, the additional evidence does contains a diagnosis of post-traumatic stress disorder by a private psychologist However, Dr. Shienvold's report contained no basis for that diagnosis; there was only a general reference to service in Vietnam with no stressor indicated, and only a speculative statement that current symptoms may be due to difficulties in service. This statement is insufficient to indicate stressors in Vietnam, symptoms related to those stressors or a valid diagnosis of post-traumatic stress disorder. The veteran was afforded a VA examination by a psychiatrist to determine whether or not he suffered from post-traumatic stress disorder, but as a result of his refusal to undergo a complete psychiatric examination, there is no diagnosis of record by a psychiatrist of post-traumatic stress disorder. As the Court indicated in Wood v. Derwinski, 1 Vet. App. 190 (1991), reconsideration denied, 1 Vet.App. 406 (1991), in addition to a diagnosis of post-traumatic stress disorder, the record must also demonstrate the appellant was exposed to a confirmed stressor and warrant the diagnosis. In the Wood decision, the Court stated the Board was not bound to accept the appellant's uncorroborated account of his Vietnam experiences. Also, the Court in that decision noted that neither the appellant's military specialty (cannoneer) nor his service records disclose the nature of his duties exposed him to more than ordinary stressful environment, given the fact that service in a combat zone is stressful in some degree to all who are there, whatever their duties and experiences. In addition, the Board has referred to 38 C.F.R. § 3.304(f), which provides in pertinent part, as follows: (f) Post-traumatic stress disorder. Service connection for post-traumatic stress disorder requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. In this regard, the Board stresses that the veteran stated on the VA examination in 1986 that he was mainly in supply and he was not assigned directly to a combat occupational specialty during either of his periods in Vietnam. Also, the record does not indicate that he received the Combat Infantryman Badge, Purple Heart or other combat-related award. The Board has considered the reports of the 196th Light Infantry Brigade in Vietnam, including the battle which began on Thanksgiving Day resulting in seven fatalities, in association with the veteran's claimed stressor concerning the dead bodies. The Board notes, however, that the report does not indicate any participation by his unit, although several units are named in the report. There is no indication that he was near the scene of the battle and the evidence received does not tend to show that he engaged in combat. To the extent that he claims to have removed bodies, this is anecdotal and not researchable; the Board notes, however, that it does not appear to be a function of a supply sergeant. The 196th Light Infantry Brigade history made no mention of any incident involving the Tet offensive. The Board stresses that, for the evidence to be material, the additional evidence, when viewed in context of all the evidence both new and old, must present a reasonable possibility that it would change the outcome. In viewing the old evidence, in association with the new, the Board notes the veteran's statements on the VA examination in April 1986 are contradictory in that the veteran was not able to relate any episodes of severe psychological trauma that occurred during his service years. When asked to describe his most outstanding traumatic event, he indicated that there was not any, although he was paranoid about rats and snakes. Therefore, in the absence of new additional evidence of exposure to combat or a confirmed stressor, there is no reasonable possibility that the additional evidence, when viewed in context of all the evidence both new and old, would change the outcome. The evidence added to the record, in association with the reopened claim, is not both new and material. As such, there is no basis for reopening the claim. Once new and material evidence is not found, adjudication of the claim should cease. See Kehoskie v. Derwinski, 2 Vet.App. 31 (1991). The Board also notes that the RO did not obtain Dr. Shienvold's clinical records as directed in the Board's remand. However, that failure is held to be harmless in light of the failure of any indication that there is a valid basis for the diagnosis of post-traumatic stress disorder made by him and in light of the veteran's refusal to undergo VA psychiatric examination. In Wood the Court noted the responsibility of the veteran to assist in providing necessary information. In this case, in light of the unsubstantiated diagnosis of post-traumatic stress disorder by a psychologist, the RO required examination to determine the proper psychiatric diagnosis. The veteran failed in his responsibility to submit to such examination, and further development for the psychologist's records is deemed unnecessary. In regard to the request for an independent medical review of the evidentiary record by a specialist in the field of psychiatry, the Board initially notes that this case is not one of medical complexity or controversy as to warrant the opinion of an independent medical expert. Such opinion could not serve to verify an alleged stressor. In addition, the VA examiner was unable to make a psychiatric diagnosis because the veteran did not want to proceed with the examination and felt it would be of no net benefit to him; he refused to be examined by the VA specialist in any meaningful way and has not shown that the evaluation of his condition is beyond the competence of the VA specialist. Furthermore, as indicated above, the veteran has the burden of submitting both new and material evidence in order to reopen the claim. To obtain an independent expert medical opinion in this case without first submitting evidence which is both new and material to reopen the claim, would place this veteran in the same position as one filing an original claim and emasculate the principle of finality. ORDER The claim for service connection for post-traumatic stress disorder is not reopened and the benefit sought is denied. (CONTINUED ON NEXT PAGE) HOLLY E. MOEHLMANN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.