BVA9509298 DOCKET NO. 90-28 104 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for post- traumatic stress disorder and, if so, whether the reopened claim may be granted. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran served on active duty from September 1969 to April 1972. By rating action dated in August 1987, the Regional Office (RO) denied the veteran's claim of entitlement to service connection for post-traumatic stress disorder (PTSD). He was notified of this determination and of his right to appeal by a letter dated the following month, but a timely appeal was not received. Recently, he has submitted additional evidence seeking to reopen his claim of entitlement to service connection for PTSD. In a rating decision dated in April 1989, the RO found, in effect, that the additional evidence submitted by the veteran was not new and material, and the claim for service connection for PTSD remained denied. This case was previously before the Board of Veterans' Appeals (the Board) in January 1991, at which time it was remanded for additional development. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the evidence he has submitted is new and material, warranting service connection for PTSD. He asserts that while in Vietnam, he was subjected to rocket and mortar fire at least twenty times per week. He states that he witnessed an acquaintance die when he fell into a rock crusher. He witnessed an incident when an American soldier shot six other Americans, killing one and wounding the others. He maintains that these incidents still bother him. He reports that he has nightmares and flashbacks every now and then. He points out that several Department of Veterans Affairs (VA) physicians have concluded 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 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 rating decision dated in August 1987, the RO denied the veteran entitlement to service connection for PTSD. 3. He was notified of that determination and of his right to appeal by a letter dated in September 1987, but a timely appeal was not received. 4. The evidence received since the RO's August 1987 decision includes evidence which has not previously been considered and is relevant, probative and capable of changing the outcome. CONCLUSION OF LAW 1. The evidence received since the RO denied entitlement to service connection for PTSD in August 1987 is new and material and the claim is reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 20,302(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In this case, the veteran has presented recent psychiatric treatment reports which include diagnoses of PTSD and are, therefore, sufficient to conclude that his claim is well-grounded. See Zarycki v. Brown, 6 Vet.App. 91 (1993). As noted above, by rating action of August 1987, the RO denied the veteran's claim of entitlement to service connection for PTSD. This decision was predicated on a determination that PTSD was not diagnosed on VA psychiatric examination of June 1987. Since the veteran did not file a timely appeal from the 1987 rating decision, that determination became final and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.302. In order to reopen his claim, the veteran must present evidence which is deemed to be new and material with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108. 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). 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" evidence is that which is not merely cumulative of other evidence of record. "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 additional evidence submitted in this case includes numerous VA and private medical records, some of which were considered by the RO in its August 1987 determination, the veteran's testimony at a hearing at the RO in March 1990, a statement dated in November 1970 from one of the veteran's commanding officers, statements from the veteran, a letter from his sister and reports from the United States Army and Joint Services Environmental Support Group. The evidence now contains diagnoses of PTSD by VA physicians based on examination and treatment of the veteran. In this regard, the Board notes that when the veteran was most recently afforded a psychiatric examination by VA in September 1992, the examiner indicated that the veteran gave a history of problems commensurate with the diagnosis of PTSD. This confirmed the diagnosis of PTSD made following the August 1989 VA examination. During this examination, the veteran related the events he considered to be stressors to the examiner. In addition, the Board notes that during the hearing at the RO in March 1990, the veteran presented testimony concerning several stressful events which occurred in service. The Court, in Justus v. Principi, 3 Vet.App. 510 (1992), has held that such testimony must be presumed to be credible for the limited purpose of determining whether new and material evidence has been submitted. 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 (1991). Given the diagnosis of PTSD, it is apparent that this raises the possibility that the veteran's claim is valid. It is evidence which suggests that the veteran does, in fact, have PTSD. Accordingly, the Board concludes that with the submission of new and material evidence, the veteran's claim for service connection for PTSD is reopened. ORDER New and material evidence has been submitted, and the claim of entitlement to service connection for PTSD is reopened. To this extent, the appeal is granted. REMAND In light of the determination above that the evidence submitted by the veteran is new and material and that, therefore, the claim for service connection for PTSD is reopened, the RO must adjudicate the veteran's claim without regard to finality of the August 1987 determination. In this regard, the Board points out that neither the statement of the case nor either of the supplemental statements of the case set forth the criteria for a grant of service connection on the merits. (38 U.S.C.A. §§ 1110, 1154.) In addition, the Board notes that the RO, in denying the veteran's attempt to reopen his claim for service connection for PTSD held, in effect, that there was no stressor. Under 38 C.F.R. § 3.304(f) (1994), 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 in service 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 in service 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, 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. The veteran is not shown to have received one of the citations specified in 38 C.F.R. § 3.304(f). As noted above, even if the record contained evidence that the veteran "engaged in combat with the enemy," his accounts would still have to be reviewed to determine if they were credible and consistent with the circumstances, conditions and hardships of his service. In light of the above discussion, the Board finds that the appellant should be provided the opportunity to submit additional evidence in light of Zarycki, 38 C.F.R. § 3.304(f) and the considerations discussed above, and for the RO to view the record in light of these same matters. In Zarycki, the Court held that in addition to demonstrating the existence of a stressor, the facts must also establish that the alleged stressful event was sufficient to give rise to post traumatic stress disorder. Id. at 98-99. In West v. Brown, 7 Vet.App. 70 (1994), the Court elaborated on the analysis in Zarycki. In West, the Court held that the sufficiency of the stressor is a medical determination, and therefore adjudicators may not render a determination on this point in the absence of independent medical evidence. The Court also held in West that a psychiatric examination for the purpose of establishing the existence of PTSD was inadequate for rating purposes because the examiners relied, in part, on events whose existence the Board had rejected. Upon reviewing Zarycki and West, it appears that in approaching a claim for service connection for PTSD, the question of the existence of an event claimed as a recognizable stressor must be resolved by adjudicatory personnel. If the adjudicators conclude that the record establishes the existence of such a stressor or stressors, then and only then, the case should be referred for a medical examination to determine the sufficiency of the stressor and as to whether the remaining elements required to support the diagnosis of PTSD have been met. In such a referral, the adjudicators should specify to the examiner(s) precisely what stressor or stressors has been accepted as established by the record, and the medical examiners must be instructed that only those events may be considered in determining whether the veteran was exposed to a stressor during service of sufficient severity as to have resulted in ongoing psychiatric symptomatology. In other words, if the adjudicators determine that the existence of an alleged stressor or stressors in service is not established by the record, a medical examination to determine whether PTSD due to service is present would be pointless. Likewise, a diagnosis of PTSD based upon claimed stressors whose existence the adjudicators have not accepted would be inadequate for rating purposes. In view of the above, the Board finds that additional development of the record is required. Accordingly, the case is REMANDED to the RO for action as follows: 1. The RO should again provide the appellant with an opportunity to submit additional evidence in light of the above discussion of Zarycki and 38 C.F.R. § 3.304(f), etc. Specifically, the RO should provide the appellant with copies of the letters from the Environmental Support Group of April 30, 1992 and December 27, 1993, which specify the type of information required to verify the incidents claimed by the appellant. It remains the appellant's responsibility to provide this information. 2. Following (1) and any additional action deemed appropriate, the RO must make specific findings, based upon the complete record, as to whether the veteran "engaged in combat with the enemy" and, if not, whether there are service records which corroborate the veteran's accounts as to the occurrence of the alleged stressful event or events in service. The Board emphasizes again that, under the case law from the Court, this is not a medical but an adjudicatory determination. In resolving this matter, the RO should consider the complete record, and should address and resolve any credibility questions. For example, the consistency of the appellant's accounts from the earliest to the current records should be reviewed. The appellant has alleged that he was experiencing symptoms of PTSD from shortly after service, and the RO may therefore inquire as to whether the medical reports reflect a history consistent with these accounts. Should the RO find that the veteran was exposed to a stressor or stressors in service and, the RO must specify the nature of these episodes. 3. If, and only if the RO determines as an adjudicatory matter that the record establishes the existence of a stressor or stressors, then the RO should arrange for the veteran to be examined by a board of two VA psychiatrists, if available, who have not previously examined him, to determine the diagnoses of all psychiatric disorders present. The RO must specify for the examiners the stressor or stressors that it has determined are established by the record and the examiners must be instructed that only those events may be considered for the purpose of determining whether exposure to a stressor in service has resulted in current psychiatric symptoms and whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. The examination report should reflect a review of pertinent material in the claims folder. The examiners should integrate the previous psychiatric findings and diagnoses with current findings to obtain a true picture of the nature of the veteran's psychiatric status. If the diagnosis of PTSD is deemed appropriate, the examiners should comment upon the link between the current symptomatology and one or more of the in service stressors found to be established by the RO. The report of the examination should include the complete rationale for all opinions expressed. All necessary special studies or tests, should be accomplished. The claims folder must be made available to the examiners in conjunction with the examination. 4. The RO should then review the record and ensure that all the above actions have been completed. When the RO is satisfied that the record is complete and the psychiatric examination is adequate for rating purposes, the claim should then be readjudicated on the merits on a de novo basis. 5. If the veteran's claim is not granted, the RO should prepare a supplemental statement of the case which summarizes all pertinent evidence, and which provides the veteran with the statutory and regulatory criteria for direct service connection on the merits. Following completion of the above, the RO should furnish the veteran and his representative the supplemental statement of the case, and the case should then be returned to the Board for further appellate consideration. By this action, the Board intimates no opinion, legal or factual as to the ultimate determination warranted. RICHARD B. FRANK 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).