Decision Date: 11/30/95 Archive Date: 12/01/95 DOCKET NO. 94-02 725 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from August 1968 to February 1971, and from October to November 1983. The Board of Veterans' Appeals (Board) denied entitlement to service connection for post-traumatic stress disorder in December 1987. The Board found, among other things, that post-traumatic stress disorder had not been diagnosed. The current appeal arose from a September 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The RO affirmed the denial of entitlement to service connection for post- traumatic stress disorder. The RO determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for post-traumatic stress disorder when it issued a rating decision in September 1993. The case has been forwarded to the Board for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has post-traumatic stress disorder which is directly due to his exposure to personal life threatening stressors in connection with his service in Vietnam, thereby warranting entitlement to a grant of service connection. 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 the veteran has presented new and material evidence warranting the reopening of his claim of entitlement to service connection for post-traumatic stress disorder. FINDINGS OF FACT 1. The Board denied entitlement to service connection for post-traumatic stress disorder in December 1987. 2. The evidence added to the record since the December 1987 Board decision consists of service personnel records, VA psychotherapy reports utilized by the Social Security Administration in awarding disability benefits, and psychiatric examination reports from VA and non-VA mental health professionals noting a diagnosis of post-traumatic stress disorder. 3. The additional evidence submitted since the December 1987 Board decision, when viewed in light of all the evidence of record, raises a reasonable possibility of changing the prior outcome. CONCLUSIONS OF LAW 1. Evidence received since the December 1987 Board decision denying the veteran's claim of entitlement to service connection for post-traumatic stress disorder is new and material. 38 U.S.C.A. §§ 5107, 7104 (West 1991); 38 C.F.R. § 3.156(a) (1994). 2. The decision of the Board in December 1987 denying the veteran's claim of entitlement to service connection for post-traumatic stress disorder is not final and such claim has been reopened. 38 U.S.C.A. §§ 1110, 5108, 7104 (West); 38 C.F.R. § 3.104(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The evidence which was of record at the time of the Board's December 1987 decision denying entitlement to service connection for post-traumatic stress disorder will be summarized below. The service records showed the veteran had trained and served as a personnel specialist and had served a tour of duty in Vietnam. His decorations included a Vietnam Service Medal with three Bronze Service Stars and a Vietnam Campaign Medal. The medical records for the first period of service were not of record. The records for the second period of active service were negative for any evidence of a psychiatric disorder and the veteran denied all psychiatric symptomatology on the medical history portion of examinations. VA psychotherapy reports dated during the 1980's were negative for any finding of post-traumatic stress disorder. Post-traumatic stress disorder was not diagnosed when the veteran was examined by VA in May 1985 and October 1986. Lay statements from the veteran's mother dated in 1986 were to the effect that he experienced nightmares, was withdrawn, and had experienced a personality change. Operations reports pertaining to the veteran's military unit activities in Vietnam were associated with the claims file. The veteran and his wife provided testimony at an RO hearing held in May 1987. The additional evidence which has been submitted since the December 1987 Board decision denying entitlement to service connection for post-traumatic stress disorder will be summarized below. Associated with the claims file were the veteran's military service personnel records. Associated with the claims file were VA psychotherapy reports dated during previous years which were utilized by the Social Security Administration in considering the veteran's claim for disability benefits. Those records include a comment noting symptomatology associated with post-traumatic stress disorder overlapped with other psychiatric symptomatology. The veteran underwent VA psychology studies and a special psychiatric examination in August 1992. The psychiatric examination concluded in a diagnosis of post-traumatic stress disorder, the symptomatology of which was noted by the examiner to be associated with service in Vietnam. In May 1993 the veteran submitted a report of a special psychiatric examination from Daniel J. Cuneo, Ph.D. Dr. Cuneo diagnosed post-traumatic stress disorder and indicated the veteran's symptomatology was related to service in Vietnam. Analysis Initially, the Board notes that all relevant facts have been properly developed, that the evidence of record is sufficiently complete, and that no further assistance to the veteran is required in order to comply with the duty to assist him in the development of facts pertinent to his appeal. Murphy v. Derwinski, 1 Vet.App. 78 (1990). Except as provided by 38 U.S.C.A. § 5108, when a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed, and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7104. 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. "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 issue at hand, and which must be of sufficient weight or significance (assuming its credibility), see generally, Justus v. Principi, 3 Vet.App. 510, 513 (1992), 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 prior outcome. Cox v. Brown, 5 Vet.App. 95, 98 (1993). After a review of the record, the Board concludes that the additional evidence is both "new" and "material." Accordingly, the veteran's claim is reopened and the Board's previous decision entered in December 1987 is not final. The additional evidence constituting service personnel records, VA psychotherapy reports utilized by the Social Security Administration, and special psychiatric examination reports from VA and non-VA mental health professionals is "new" in the sense that it is not cumulative of the evidence already of record. In this regard, the Board observes the prior denial in December 1987 was predicated on the basis that a diagnosis of post-traumatic stress disorder had not been provided. In other words, post-traumatic stress disorder was not shown by the evidence of record. Since the Board's December 1987 decision, the record shows that post-traumatic stress disorder symptomatology was recognized when the veteran was seen by VA for psychotherapy during recent years. More importantly, VA and non-VA mental health professionals have diagnosed the veteran with post- traumatic stress disorder and have related such disorder to the veteran's service. This evidence is "material" in nature because there is a reasonable possibility that when it is considered in the context of all the evidence, both new and old, it would change the outcome of the Board's December 1987 decision, which was the last decision on the merits. Colvin v. Derwinski, 1 Vet.App. 171 (1991). The record now shows that post-traumatic stress disorder has been diagnosed. Accordingly, because the Board must assume that the statements presented in an attempt to reopen the veteran's claim are credible, the Board finds that the examination and psychotherapy reports showing the veteran has post-traumatic stress disorder represent new and material evidence warranting the reopening of the claim for service connection. 38 U.S.C.A. §§ 5107, 5108, 7104; 38 C.F.R. §§ 3.104(a), 3.156(a). ORDER New and material evidence having been submitted to reopen a claim of entitlement to service connection for post- traumatic stress disorder, the claim is reopened. REMAND In light of the decision to reopen, the review of the veteran's claim for service connection for post-traumatic stress disorder must be conducted on a de novo basis. Significantly, however, as the question whether or not service connection is warranted on the merits is a question of fact, the Board may inquire into the credibility or probative value of any evidence presented. Hadsell v. Brown, 4 Vet.App. 208, 209 (1993). In this regard, the record shows that the appellant trained and served as a personnel specialist while on active duty in Vietnam. There is, however, no record of the veteran sustaining a combat injury, or having been awarded any combat related decoration. The examinations which have resulted in diagnoses of post-traumatic stress disorder have been predicated on the veteran's unverified and potentially inaccurate history that he, among other things, was subjected to personal life threatening stressors. Accordingly, because an examination report was based on less than complete or inaccurate history is inadequate for adjudication purposes, West v. Brown, 7 Vet.App. 70, 77-78 (1994), an examination must be conducted by examiners who have reviewed the veteran's claims folder and the objective evidence relating to the veteran's actual service in Vietnam. Service connection for post-traumatic stress disorder requires medical evidence establishing a clear diagnosis of the disorder, credible supporting evidence that the claimed inservice stressor(s) actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1994). The Board further observes that the veteran never initially responded to the RO's August 1992 stressor development correspondence. The stressor information provided by the veteran to VA and non-VA mental health professionals has never been referred to the United States Army & Joint Services Environmental Support Group (ESG). In this respect, the Board acknowledges that the information provided by the veteran probably is not as complete as the ESG will need to verify the existence of claimed stressors. Nevertheless, the provisions of the VA Adjudication Procedure Manual M21-1 (Manual M21-1) pertaining to the adjudication of post-traumatic stress disorder provide that, "where records available to the rating board do not provide objective or supportive evidence of the alleged inservice traumatic stressor, it is necessary to develop the evidence." Manual M21-1, Part VI, 7.46(f)(2). Accordingly, as the development outlined in Manual M21-1 includes providing the information submitted by the veteran to the ESG, such development is mandatory. Therefore, pursuant to VA's duty to assist the veteran in the development of facts pertinent to his claim under 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a) (1994), this case is REMANDED to the RO for the following development: 1. The RO should request from the appellant a statement containing as much detail as possible regarding any and all stressful events to which he was exposed in service. He should be asked to provide specific details of the claimed stressful events to the best of his ability. The veteran's statement should include dates, places, detailed descriptions, units of service, duty assignments, as well as the names, ranks, units of assignment and any other identifying information concerning other individuals involved in the events. In this respect, the Board takes this opportunity to inform the veteran that the United States Court of Veterans Appeals (Court) has held that asking the veteran to provide the underlying facts, i.e., the names of individuals involved, the dates, and the places where the claimed events occurred, does not constitute an impossible or onerous task. Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). 2. After obtaining the foregoing requested information from the veteran, the RO should forward it together with copies of the veteran's service personnel records, and a copy of his record of service (DD-214) to the ESG, Building 5089, Stop # 387, Fort Belvoir, Virginia 22060. 3. Following receipt of the ESG's report, and the completion of any additional development warranted or suggested by that office, the RO should prepare a report detailing the nature of any combat action, or inservice stressful event(s), verified by the ESG. If no combat stressor(s) has (have) been verified, the RO should so state in its report. This report is then to be added to the claims folder. 4. Then, and only then, should the RO schedule the appellant for a psychiatric examination by a board of two VA psychiatrists who have not previously seen or treated the veteran. This examination is to be conducted in accordance with the diagnostic procedures outlined in the VA Physician's Guide for Disability Evaluation Examinations in order to determine the nature and extent of any psychiatric disorder(s) which may be present. All indicated studies, including post-traumatic stress disorder sub scales, are to be performed. The claims file must be provided to and reviewed by the examiners prior to concluding their examinations. In determining whether or not the veteran has post-traumatic stress disorder due to an inservice stressor the examiners are hereby notified that only the verified history detailed in the reports provided by the ESG and/or the RO may be relied upon. If the examiners believe that post-traumatic stress disorder is the appropriate diagnosis they must specifically identify which stressor(s) detailed in the ESG's and/or the RO's report is (are) responsible for that conclusion. Any and all opinions expressed must be accompanied by a complete rationale. The examiners must assign a Global Assessment of Functioning Score which is consistent with the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, and explain what the assigned score means. 5. Following completion of the foregoing the RO should review the claims file to ensure that all of the foregoing development has been completed in full. In particular, the RO should review the VA psychiatric examination reports to verify that any diagnosis of post-traumatic stress disorder was based on the verified history provided by the ESG and/or RO. If the examiners relied upon a history which was not verified, those examination reports must be returned as inadequate for rating purposes. The Board emphasizes that the Court has held that a diagnosis of post-traumatic stress disorder, related to service, based on an examination which relied upon an unverified history is inadequate. West, 7 Vet.App. at 77. 6. After undertaking any development deemed appropriate in addition to that specified above, the RO should adjudicate the issue of entitlement to service connection for post- traumatic stress disorder on a de novo basis. If the benefit requested on appeal is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. ALBERT D. TUTERA 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 Supp. 1995), 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board's decision, because a 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). - 2 -