Citation NR: 9630068 Decision Date: 10/29/96 Archive Date: 11/08/96 DOCKET NO. 95-06 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa 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: Jeannette Keller, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from October 1952 to October 1954. The Board of Veterans’ Appeals (Board) denied entitlement to service connection for a chronic acquired psychiatric disorder to include post traumatic stress disorder in September 1993. The Board found, among other things, that post traumatic stress disorder was not shown to be present. The claims file contains a report of a rating decision dated in May 1994 wherein entitlement to service connection for post traumatic stress disorder was denied. The current appeal arose from a December 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. 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. The RO affirmed the denial of entitlement to service connection for post traumatic stress disorder when it issued a rating decision in July 1996. 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 as the result of his exposure to personal life threatening stressors during combat service in Korea, 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 files. 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. The Board denied entitlement to service connection for post traumatic stress disorder in September 1993. 2. The evidence added to the record since the September 1993 rating decision consists of hearing testimony, VA and non-VA correspondence, psychotherapy, hospital, and special psychiatric examination documentation repeatedly noting a diagnosis of post traumatic stress disorder. 3. The additional evidence is new, probative of the issue at hand, and in light of all the evidence of record, both new and old, raises a reasonable possibility of changing the prior outcome. CONCLUSIONS OF LAW 1. Evidence received since the September 1993 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) (1995). 2. The decision of the Board in September 1993 denying the veteran’s claim of entitlement to service connection for post traumatic stress disorder has now been reopened. 38 U.S.C.A. §§ 1110, 1154, 5108, 7104 (West 1991); 38 C.F.R. § 3.104(a) (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The pertinent evidence which was of record at the time of the Board’s September 1993 decision denying entitlement to service connection for post traumatic stress disorder will be briefly summarized below. The service medical records were negative for a finding of post traumatic stress disorder. The veteran’s record of service (DD-214) showed he trained in Field Service Artillery and served a tour of duty with the United States Army in Korea. His decorations included a Korean Service Medal with 2 Bronze Service Stars, and a United Nations Service Medal. The veteran provided testimony in support of his claim for service connection for post traumatic stress disorder before a hearing panel at the RO in August 1989, and before a hearing panel at the Board in January 1991. Post traumatic stress disorder was not diagnosed on VA examination and was not shown by the evidence of record. The evidence which has been submitted since the September 1993 Board decision denying entitlement to service connection for post traumatic stress disorder will be briefly summarized below. Associated with the claims file were correspondence, psychotherapy reports, hospitalization records, and examination reports from VA and non-VA medical health professionals showing the veteran has been repeatedly diagnosed with post traumatic stress disorder. The veteran and his son provided testimony in support of his claim for service connection for post traumatic stress disorder before a member of the Board from the RO via a teleconference transmission in July 1996. 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. See 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. See 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. Since the Board’s September 1993 decision denying the veteran’s claim for service connection for post traumatic stress disorder, VA and non-VA professional health care providers have repeatedly diagnosed the veteran with post traumatic stress disorder. The veteran and his son have testified in support of his claim for compensation benefits for post traumatic stress disorder. This additional evidence is new, probative of the issue at hand, and when viewed in the context of all the evidence of record, both new and old, raises a reasonable possibility of changing the prior outcome. 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 additional evidence showing the veteran has post traumatic stress disorder represents 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 for 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 of 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. See Hadsell v. Brown, 4 Vet.App. 208, 209 (1993). In this regard the record shows the veteran served in the Field Service Artillery while on active duty during the Korean Conflict. There is, however, no record of the appellant 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. See West v. Brown, 7 Vet.App. 70, 77- 8 (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 Korea. Service connection for post traumatic stress disorder requires medical evidence establishing a clear diagnosis of the disorder, credible supporting evidence that the claimed in service stressor(s) actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in service stressor(s). 38 C.F.R. § 3.304(f) (1995). The Board observes that the statements on file from the veteran pertaining to claimed personal life threatening stressors have never been referred to the United States Army and Joint Services Environmental Support Group (ESG). In this respect, the Board acknowledges that the stressor information provided by the veteran is not as complete or detailed as the ESG will need to verify the existence of the 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 in service traumatic stressor(s), 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) (West 1991); 38 C.F.R. § 3.103(a) (1995), the Board is deferring adjudication of 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 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, 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 an onerous task. See Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). 2. After obtaining the foregoing requested information from the appellant, the RO should forward it together with a copy of the veteran’s obtained service personnel records and medical records, and a copy of his record of service (DD- 214) to the United States Army and Joint Services Environmental Support Group (ESG), 7798 Cissna Road, Suite 1, Springfield, Virginia 22150, in an attempt to verify any claimed stressor(s). 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 warranted or suggested by that agency, the RO should prepare a report detailing the nature of any combat action, or in service 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 folder. 4. Then, and only then, should the RO schedule the veteran for a 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. 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 in service 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 (GAF) 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 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. See 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 -