BVA9505950 DOCKET NO. 91-19 782 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran served on active duty from June 1942 to December 1945. By decision of October 1972, the Board of Veterans' Appeals (the Board) denied the veteran's claim of entitlement to service connection for anxiety neurosis. In a subsequent decision dated in July 1986, the Board denied the veteran entitlement to service connection for an acquired psychiatric disorder, claimed as post- traumatic stress disorder (PTSD). Recently, he has submitted additional evidence seeking to reopen his claim of entitlement to service connection for a psychiatric disability, to include PTSD. By rating decision dated in October 1989, the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, determined that the evidence submitted by the veteran was not new and material, and his claim of entitlement to service connection for a psychiatric disorder, to include PTSD, was again denied. This case was previously before the Board in September 1991 and again in October 1993, and was remanded on each occasion for additional development of the evidence. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts that the evidence he has submitted is new and material, warranting service connection for an acquired psychiatric disorder. He claims that he participated in invasions of many islands in the Asiatic-Pacific theater of operations. He points out that he was hospitalized during service for battle fatigue, due to his continuous and hazardous sea duty, and states that even after his discharge from the hospital, he continued to experience flashbacks and difficulty sleeping. He reports that he sought treatment for his symptoms after service, but that the physicians' records are no longer available. He refers to the findings of the most recent Department of Veterans Affairs (VA) examination, and notes that it was the consensus of the examiners that he has PTSD. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, and that the evidence as a whole supports the claim of service connection for PTSD. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. By decision of July 1986, the Board denied the veteran's claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD. 3. The evidence submitted since that determination includes numerous reports of VA examinations, statements from a private psychologist, as well as a copy of a recently received letter from the appellant to his family dated in December 1945. 4. This evidence has not been previously considered and is relevant, probative and capable of changing the outcome of this case. 5. The veteran engaged in combat with the enemy aboard an "LCI rocket ship" in World War II. 6. The service medical records disclose that the veteran was hospitalized beginning in May 1945 for "operational fatigue." 7. The veteran has described many stressful events which are consistent with his combat service in World War II. 8. The veteran has PTSD as a result of his World War II combat service. CONCLUSIONS OF LAW 1. The evidence received since the July 1986 decision of the Board which denied entitlement to service connection for an acquired psychiatric disability, to include PTSD, is new and material and the claim is reopened. 38 U.S.C.A.§§ 5107, 5108, 7104 (West 1991); 38 C.F.R. §§ 3.156, 20.1105 (1994). 2. The appellant's PTSD was incurred in active wartime service. 38 U.S.C.A. §§ 1110, 5107(b) (West 1991); 38 C.F.R. § 3.304(f) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The initial question before the Board is whether the veteran has submitted a well-grounded claim as required by 38 U.S.C.A. § 5107. The United States Court of Veterans Appeals (the Court) has held that a well-grounded claim is one which is plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In this case, the medical evidence of PTSD and the veteran's evidentiary assertions concerning the onset of PTSD that are within the competence of a lay party to report are sufficient to conclude that his claim is well-grounded. Proscelle v. Derwinski, 2 Vet.App. 629 (1992); Espiritu v. Derwinski, 2 Vet.App. 492 (1992), King v. Brown, 5 Vet.App. 19 (1993). In July 1986, the Board determined that service connection was not warranted for an acquired psychiatric disability, to include PTSD. It was found on that occasion that the evidence failed to show that the veteran had PTSD attributable to his combat service in World War II. When a claim is disallowed by the Board, it may not thereafter by reopened and allowed, and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7104 (b). The exception to this rule provides that, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. 5108; 38 C.F.R. § 20.1105. The Court has set forth a two-step analysis to be applied when a claimant seeks to reopen a claim. The Board must first determine whether the evidence is new and material and, if so, the case will be considered to be reopened, and the claim must then be evaluated in light of the entire evidence of record, both new and old. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in conjunction with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). "New" evidence is that which is not merely cumulative of other evidence of records. "Material" evidence is that which is relevant to and probative of the issues at hand and which must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Cox v. Brown, 5 Vet.App. 95 (1993). The evidence added to the records since 1986 includes a copy of a December 1945 letter purportedly from the veteran to his parents, received in September 1989, various recent statements from the veteran concerning his in-service stressors, a 1990 lay statement from a post war classmate, a copy of an article concerning PTSD, his testimony at a 1991 hearing and numerous private and VA medical reports, dated from 1990. In the photocopied letter, dated December 1945, the veteran stated that he was still nervous, and that he could not sleep or eat. In addition, the medical records now confirm that the veteran has PTSD. Based on a review of the record, the Board concludes that the additional evidence submitted by the veteran is new and material. That is, it is evidence which has not previously been considered and which is relevant and probative of the issue under review. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Since the preponderance of this evidence shows that the veteran has PTSD, it clearly raises the possibility that the veteran's claim is valid. Accordingly, the Board concludes that with the submission of new and material evidence, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. The Board will, therefore, review the entire evidence of record on a de novo basis. Since the veteran has submitted new and material evidence warranting reopening of his claim, the Board must next consider whether the due process requirements of Bernard v. Brown, 4 Vet.App. 384 (1993), have been satisfied prior to addressing the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. As noted above, the Board, in a July 1986 decision, found that the evidence failed to establish that he had PTSD. The Board concludes, however, that the due process requirements of Bernard have been met, and that the veteran will not be prejudiced by the Board's decision on the merits of the claim. His arguments clearly relate to the fact that he was subjected to stressful events in service and that he now has PTSD as a result thereof. Moreover, his statements and testimony at a hearing before the undersigned in April 1991 show that he understood the nature of the evidence needed to substantiate his claim on the merits. Finally, the statement of the case and the supplemental statements of the case have informed him of the pertinent laws and regulations governing a decision on the merits. Under the law, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. Service connection for PTSD 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. 38 C.F.R§ 3.304(f). The evidence of record reflects that the veteran had more than two years of foreign or sea service, and that he served aboard an "LCI rocket ship in the Pacific area" during World War II. The service medical records reveal that the veteran was seen in May 1945 for complaints of being tense, anxious and apprehensive of sea duty. It was noted that he indicated he had frequent headaches, and that he could not sleep. These complaints had been present reportedly for four months. An examination disclosed that he was moderately tense and anxious, and he was admitted to the hospital. It was reported when he was hospitalized that he had served 25 months on an "LCI rocket ship" in the Pacific. It was believed that he had "operational fatigue." On a report of medical survey dated in June 1945, it was noted that he had been subjected to prolonged, arduous and hazardous sea duty. The psychiatric findings were those of a fatigue state, with tension, tremors and sweating. No psychiatric abnormalities were reported on the separation examination in December 1945. In a statement dated in April 1972, a private physician related that he had seen the veteran in November 1969 for an intake interview. The problem at that time was that he had periods of anxiety. The diagnostic impression was anxiety neurosis. Another private physician wrote in April 1972 that the veteran was apprehensive and needed a great deal of reassurance on every question. A statement from the veteran's brother in 1972 indicates that the veteran was very nervous and irritable when he returned from service. In a letter received in July 1972, W. Myers noted that the veteran had left the ship after 25 months of hazardous duty, and that he had been in a highly nervous state. A VA Social Work Service Report dated in November 1985 is of record. The veteran described inservice stressors. He stated that while leading assaults on several islands, he witnessed a lot of blood and bodies floating in the water. He also saw many casualties, and that approximately ten of his friends were killed. He related that he had night sweats, but he did not recall nightmares. On VA psychiatric examination in November 1985, the veteran stated that he would remember the bodies floating in the water, and that he sometimes felt guilty that he was alive. He attributed his being uptight, irritable and anxious as being secondary to battle fatigue. Following a mental status examination, the clinical impression of the examining physician was "more that of a dysthymic neurosis" than PTSD. In a copy of a December 1945 letter, received by the VA in September 1989, the veteran wrote to his parents that he would be discharged in a few days. He stated that he was still nervous and that he could not sleep or eat. Of record are several statements, dated in 1990, from a private psychologist in which it is concluded that the veteran has PTSD. The veteran was afforded a psychiatric examination by the VA in June 1990. It was noted that anxiety and neurosis were reported in November 1969. It was indicated that there were many inconsistencies in the veteran's accounts. The examining physician found the veteran to be a highly manipulative, rather inconsistent individual, who showed no evidence of mental illness. The examiner indicated that he concurred with the results of a VA sociological interview and psychological testing, both dated in June 1990, which indicated that the veteran was malingering, and had a dependent personality disorder. In November 1991, the veteran was examined by three psychiatrists on behalf of the VA to ascertain the nature of any psychiatric disability present. Following the examination, one psychiatrist concluded that the veteran had no symptoms of PTSD except for recall of war memories. Another commented that he did not have PTSD on the basis of the period of time which had elapsed since he had the supposed stressors. The third psychiatrist noted that the veteran stated that he did reexperience thoughts of the traumatic events, that he avoided some stimuli associated with the trauma, and that he had increased arousal, such as hypervigilance, difficulty concentrating and difficulty falling asleep. He further noted that the veteran was aware of the criteria for PTSD and may well be representing that he has them when he does not. This examiner, following a review of psychological tests administered by VA in January 1992, and a second interview that month, stated that the veteran reported the presence of frightening dreams, avoidant behavior with respect to memories of traumatic war experiences, hyper-vigilant orientation, difficulty concentrating and difficulty falling asleep. He concluded that the veteran had an anxiety disorder with some chronic depressive features that appeared to be related to PTSD. He also noted that the veteran had some personality pattern difficulties which involved passive-aggressiveness, passive-dependence, and self-defeating and avoidant features. The PTSD which appeared to be involved was of moderate severity and appeared to relate back to his traumatic war experiences. The veteran was hospitalized by the VA in March 1994 to evaluate him for the presence of PTSD. His complaints included exposure to trauma during twelve beach landings, during which he witnessed other people being killed in combat. He reported that he had significant problems with anxiety, nightmares, exaggerated startle response and some avoidance symptoms for the first three years following his discharge from service. Subsequently, his main complaints referable to PTSD included irritability, initial insomnia and night sweats. He denied nightmares, flashbacks, social avoidance or other PTSD symptoms. A psychological evaluation was conducted during the course of the hospitalization in March 1994. It was noted that the veteran did not indicate the range of symptoms one would expect from an individual with PTSD. Further, it was concluded that, except for the absence of evidence of avoidant behavior or psyche numbing in the years immediately after World War II, it seemed likely that the veteran suffered from acute PTSD during those years. However, he showed evidence of an obsessive-compulsive disorder. Whether an acute PTSD consolidated into an obsessive-compulsive disorder could not be definitively determined by the test results. The March 1994 VA hospital report further notes that the veteran was evaluated by three psychiatrists. It was the consensus opinion that he may have suffered from acute PTSD in the late 1940's, but that he was not displaying evidence of active PTSD at the present time. However,two of the physicians concluded that he was demonstrating some mild residual symptoms of PTSD, namely, initial insomnia, possibly some mild hyperarousal in terms of increased startle reaction and possibly some mild avoidance of talking about specific events, although this was not at all clear. The other psychiatrist was reported to be somewhat more convinced that the veteran actually continued to have PTSD. The Axis I diagnoses were history of acute PTSD and mild residual PTSD symptoms. The Axis II diagnosis was obsessive-compulsive personality traits. The veteran was again afforded a psychiatric examination by VA in September 1994. It was noted that he had at least one symptom from each cluster of symptoms of PTSD which included reliving some of the experiences of the trauma, some avoidance factors and autonomic hyperactivity. It was concluded by two psychiatrists that the veteran did not have any acute symptoms of PTSD, but that he did have PTSD, residual type. Under 38 C.F.R. § 3.304(f) (1993), service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in- service 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 addition, VA's Manual M21-1 contains specific procedures for VA to follow in evaluating claims for service connection for PTSD. Manual M21-1, Part VI, Para 7.46(e), (f) (Dec 21, 1992). In Zarycki v. Brown, 6 Vet.App. 91 (1993), the Court set forth procedures for VA to follow in adjudicating claims for service connection for PTSD. The Court concluded that the statutory and regulatory criteria provided a framework in which the evidence necessary to establish the occurrence of a recognizable stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the veteran was "engaged in combat with the enemy." Where it is determined, through recognized military citations, or other supportive evidence, that the veteran was engaged in combat with the enemy and the claimed stressors are related to such combat, the veteran's lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence and no further development for corroborative evidence will be required, provided that the veteran's testimony is found to be credible and "consistent with the circumstances, conditions, or hardships of such service "(emphasis added)". 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f); Manual M21-1, Part VI, Para. 7.46(e), (f). If VA determines that the veteran did not engage in combat with the enemy, or that the veteran did engage in combat with the enemy but the claimed stressor is not related to such combat, the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor, unless it is substantiated by service records. Id. The Court further held that even if it is found that there was a stressful event in service, it must still be determined whether that stressful event was of sufficient gravity to support a diagnosis of PTSD as required in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, (3d. ed. 1987) (DSM-III-R). The essential feature of PTSD is "a psychologically distressing event that is outside the range of usual human experience." The most common traumata involve a threat to one's life, a threat to the lives of one's friends, or seeing another person who has recently been seriously injured or killed as the result of an accident or physical violence. Id. at 247, 248. The Court emphasized, however, that mere service in a combat zone, in and of itself, was insufficient to support a diagnosis of PTSD. In light of the fact that the veteran is shown by the available evidence to have served for more than two years of sea duty on an "LCI rocket ship" in the Pacific area during World War II, which was characterized in service as being hazardous duty, the Board concludes that the veteran engaged in combat with the enemy. His recollection of the stressful events is acknowledged. Moreover, it is significant to note that he was hospitalized for battle/operational fatigue in service. With the benefit of 20/20 hindsight, the foregoing takes on increased significance as it has recently been concluded by some examiners that medically the veteran does indeed have PTSD as a result of his World War II combat service. The mere fact that he may have only mild residual symptoms does not negate the fact that he does apparently have PTSD, residual type. Accordingly, while there may be no uniformity of medical opinion in this case, the Board finds that the entire evidence of record, as recently constituted with new and material evidence, nevertheless is productive of relative equipoise; against this background, the veteran prevails in his claim of service connection for PTSD, as the benefit of the doubt must be resolved in his favor. See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990); 38 U.S.C.A.§ 5107 (b). ORDER New and material evidence having been submitted to reopen a claim of entitlement to service connection for PTSD, service connection for PTSD is granted, based on a review of all the evidence now of record. J. F. GOUGH 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.