Citation NR: 9612310 Decision Date: 05/03/96 Archive Date: 05/16/96 DOCKET NO. 90-28 529 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee 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: Roger W. Rutherford, Attorney WITNESSES AT HEARING ON APPEAL Appellant and [citation redacted] ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from August 1968 to April 1971. The claims file contains a report of a July 1984 rating decision wherein entitlement to service connection for post- traumatic stress disorder was denied. The above rating decision was followed by a September 1984 rating decision wherein it was determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for post-traumatic stress disorder. The veteran was notified by letter of the above determination and of his right to appeal. He did not file a timely appeal. The current appeal arose from an October 1989 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. 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, and denied entitlement to multiple joint arthritis. The Board of Veterans’ Appeals (Board) denied entitlement to service connection for post-traumatic stress disorder and arthritis of multiple joints in January 1991. The January 1991 Board decision was appealed to the United States Court of Veterans Appeals (Court). In a September 1992 Order the Court vacated the Board’s January 1991 decision and remanded the case to the Board for a new decision which included an analysis of the credibility or probative value of the evidence of record, including the hearing testimony. The Board REMANDED the case to the RO in May 1993 for further development to include association with the claims file of a detailed statement from the veteran pertaining to the claimed personal life threatening stressors to which he was exposed in connection with his service in Vietnam. The RO affirmed the previous determinations that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for post-traumatic stress disorder and that service connection was not warranted for multiple joint arthritis when it issued a rating decision in September 1993. In June 1994 the Board denied entitlement to service connection for post-traumatic stress disorder and multiple joint arthritis. During the interim, the veteran had submitted a statement pertaining to claimed personal life threatening stressors to which he had been exposed in connection with his service in Vietnam and such statement was associated with the claims file without any knowledge by the Board of the existence of such statement prior to the Board’s issuance of its June 1994 decision. In December 1995 a joint motion was filed with the Court to remand the issue of whether new and material evidence had been submitted to reopen a claim of entitlement to service connection for post-traumatic stress disorder and to dismiss the issue of entitlement to service connection for multiple joint arthritis. In December 1995 the Court issued an Order vacating the Board’s June 1994 adjudication of the issue of whether new and material evidence had been submitted to reopen a claim for entitlement to service connection for post-traumatic stress disorder, dismissing the issue of entitlement to service connection for multiple joint arthritis, and remanding the case to the Board for issuance of a decision which considered the statement of claimed exposure to personal life threatening stressors in connection with Vietnam service submitted by the veteran without knowledge of the Board when it issued its June 1994 decision. The case has been remanded to the Board for further action consistent with the Court’s December 1995 Order. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he suffers from post-traumatic stress disorder which cannot be dissociated form personal life threatening stressors to which he was exposed 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 & Supp. 1995), 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 post-traumatic stress disorder. FINDINGS OF FACT 1. In July 1984 the RO denied on the merits the veteran’s claim of entitlement to service connection for post-traumatic stress disorder. 2. Additional evidence since the July 1984 rating decision shows the veteran continues to be diagnosed with post- traumatic stress disorder and has submitted a statement of alleged personal life threatening stressors in connection with his service in Vietnam. 3. The additional evidence submitted by the veteran since the July 1984 rating 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 RO denied entitlement to service connection for post-traumatic stress disorder is new and material. 38 U.S.C.A. §§ 5107, 5108 (West 1991 and Supp. 1995); 38 C.F.R. § 3.156(a) (1995). 2. The decision of the RO in July 1984 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 (West 1991 and Supp. 1995); 38 C.F.R. § 3.104(a) (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The evidence which was of record at the time of the RO’s rating decision in July 1984 will be summarized below. The service records showed the veteran had trained and served as a heavy vehicle driver with the United States Army in Vietnam. His decorations included a Vietnam Service Medal, and a Republic of Vietnam Campaign Medal with a 60 Device. The service medical records were negative for any finding or evidence of a chronic acquired psychiatric disorder. VA psychotherapy reports dated in 1984 included a clinical impression of post-traumatic stress disorder. Post-traumatic stress disorder was diagnosed in connection with a private hospitalization of the veteran in January 1984. The additional evidence which has been submitted since the July 1984 rating decision will be summarized below. An April 1989 report from a private psychologist contains a diagnosis of post-traumatic stress disorder. A diagnosis of post-traumatic stress disorder was included in the report of a private psychologist dated in September 1989. The veteran provided testimony in support of his claim for service connection for post-traumatic stress disorder at an RO hearing held in May 1990. The individual who represented him in his claim for Social Security benefits also provided testimony. Social Security records on file include clinical documentation of treatment of the veteran for post-traumatic stress disorder. A 1993 statement from the veteran pertaining to personal life threatening stressors to which he was exposed in connection with his service in Vietnam was initially received by the RO, and later forwarded to the Board. Analysis The Board is of the opinion that all relevant facts have been properly developed. No further assistance to the veteran is required in order to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107(a). In the present case, as noted previously, the RO denied entitlement to service connection for post-traumatic stress disorder in July 1984. That decision is final, and it may not be reopened absent the presentation of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). 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. “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). “New and material evidence” means “evidence not previously submitted...which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in combination 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 evidence submitted by the veteran subsequent to the July 1984 rating decision is “new” in showing that the veteran has submitted a statement pertaining to alleged personal life threatening stressors to which he was exposed in connection with his service in Vietnam. The previously furnished diagnosis of post-traumatic stress disorder has been confirmed. The veteran has provided supplemental information pertaining to his appeal in view of the RO hearing transcript on file. The additional evidence is “material” because there is a possibility that such evidence, when considered in the context of all the evidence of record, both new and old, would change the outcome of the prior July 1984 rating decision wherein entitlement to service connection for post- traumatic stress disorder was denied by the RO. Colvin v. Derwinski, 1 Vet.App. 171 (1991). The Board concludes that there is at least a reasonable possibility that the veteran’s diagnosed post-traumatic stress disorder may be related to his service in Vietnam. Accordingly, as the Board noted above, the veteran’s claim is reopened. 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 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 actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1995). In this regard, the record available to the Board shows the veteran trained and served as a heavy vehicle driver with the United States Army in Vietnam. His decorations include a Vietnam Service Medal, and a Republic of Vietnam Campaign Medal with a 60 Device. The appellant is not shown to have been awarded the Combat Infantryman Badge, Purple Heart, or any other decoration reflective of combat activity. He has, however, provided a description in a statement on file, as well as in a clinical setting, of exposure to life threatening events in connection with his service in Vietnam. The Board observes that the stressor information which the appellant has provided to the RO has not been referred to the United States Army and Joint Services Environmental Support Group (ESG) in an attempt to verify the claimed stressors. In this respect, the Board acknowledges that the information provided by the veteran probably is not as complete or detailed as the ESG will need to verify the existence of the veteran’s 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 stressor, it is necessary to develop this evidence.” Manual M21-1, Part VI, 7.46(f)(2) (emphasis added). Accordingly, as the development outlined in Manual M21-1 includes providing the information submitted by the veteran to the ESG, such development is mandatory. The Board observes that VA and non-VA psychiatrists have determined that the veteran has post-traumatic stress disorder. An examination based on a questionable history, however, is inadequate for rating purposes, West v. Brown, 7 Vet.App. 70, 77-8 (1994). Thus, it is necessary that the veteran be provided an examination where the examiner has an accurate and verified history of the appellant’s military service. 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) (1995), the Board will not decide the issue of entitlement to service connection for post-traumatic stress disorder pending a REMAND of the case to the RO for further development as follows: 1. The RO should request from the veteran 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 the 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 full names, ranks, units of assignments, 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 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). The RO should caution the veteran that failure to provide all of the requested information may have an adverse affect on the outcome of his appeal. 2. After obtaining the foregoing requested information from the veteran, the RO should forward it with copies of his obtained service personnel records, and a copy of his record of service (DD- 214) to the United States Army and Joint Services Environmental Support Group (ESG), Building 5089, Stop # 387, Fort Belvoir, Virginia 22060, in an attempt to verify any claimed stressor. Any information obtained is to be associated with the claims file. 3. Following receipt of the ESG’s report, and the completion of any additional development suggested by that agency, the RO should prepare a report detailing the nature of any combat action, or inservice stressful event, verified by the ESG. If no combat stressor has been verified, the RO should so state in its report. This report is then to be added to the claims file. 4. Then, and only then, should the RO schedule the veteran for a special psychiatric examination by a board of two VA psychiatrists who have not previously seen or treated him. The examination is to be conducted in accordance with the diagnostic procedures outlined in the VA Physician’s Guide for Disability Evaluation Examinations (AMIE Worksheet number 0910) (located in VBA/ARMS electronic database on CD-ROM update issued 29 February 1996), and all appropriate studies, including post- traumatic stress disorder sub scales, are to be performed. The claims file must be made available to and reviewed by the examiners prior to conduction and completion of the 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 of 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 detailed in the ESG’s and/or the RO’s report is responsible for the 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. The examination report should be typed. 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 report to verify that any diagnosis of post- traumatic stress disorder was based on the verified history provided by the ESG and/or the RO. If the examiners relied upon a history which was not verified, that examination report 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 readjudicate the issue of entitlement to service connection for post-traumatic stress disorder. 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, if otherwise in order. 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, 741 (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 -