Citation NR: 9724997 Decision Date: 07/18/97 Archive Date: 07/25/97 DOCKET NO. 94-45 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Mark J. Swiatek, Counsel INTRODUCTION The veteran had active service from September 1969 to October 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In February 1997, the Board remanded the case to the RO for due process considerations. The case has recently been returned to the Board for further appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the evidence establishes that he has PTSD related to combat experiences in Vietnam. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), 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 to reopen a claim of service connection for PTSD has been submitted. FINDINGS OF FACT 1. The RO in January 1993 denied service connection for PTSD which the veteran did not appeal. 2. Evidence received since the January 1993 RO decision is relevant as it includes a clear diagnosis of PTSD related to events in service and information and testimony from the veteran regarding occurrences in Vietnam claimed as stressors. CONCLUSION OF LAW Evidence received since the January 1993 decision of the RO denying service connection for PTSD is new and material and the claim for that benefit is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION Following the RO determination in January 1993, an RO determination in July 1994 from which the current appeal arose appeared to consider this claim without regard to any finality in the January 1993 RO decision, although it was noted that evidence was submitted to “reopen claim.” However, the RO in March 1997 adequately addressed the Board’s concerns regarding due process. After careful review of the record, the Board finds that the claim should be reopened and afforded a de novo review. Evans v. Brown, 9 Vet.App. 273 (1996); Cox v. Brown, 5 Vet.App. 95, 98 (1993); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The Board has noted that the claim for service connection for PTSD was the subject of a final RO decision in 1993. Though final based on the evidence then of record, the claim may be reopened if new and material evidence has been submitted. Manio v. Derwinski, 1 Vet.App. 140 (1991); 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104(a) (1996). In determining whether new and material evidence has been submitted, the Board is obligated to review all evidence submitted since the last final disallowance on any basis which, in this case, is considered to have been the January the 1993 RO decision. Evans, supra. After careful review of the record, the Board finds that the evidence received since this decision is new and material with respect to claim for service connection for PTSD and that the claim should be reopened. In determining if the reopening of the claim is warranted, the Board is not required to review the additional evidence with regard to the prior evidence of record in every instance. The new evidence must be viewed in light of the specific elements specified as a basis for the last final disallowance of the claim. Evans, 9 Vet.App. at 284-86, clarifying and affirming Glynn v. Brown, 6 Vet.App. 523, 528- 29 (1994). The essential inquiry initially is whether the evidence is new. That is, evidence neither previously of record nor cumulative of such evidence and, if new, whether it is probative of an issue at hand. The “issue at hand” being a specified basis for the last final disallowance. Then, if the first two elements area satisfied, the new evidence must be viewed with the evidence previously of record to determine if a reasonable possibility of a different outcome is presented. The January 1993 RO decision denying service connection for PTSD found, in essence, that evidence of a clear diagnosis of PTSD or verifiable stressors were not shown. Psychiatrically, situational depression and inadequate personality were reported in service and, thereafter, substance abuse and depressive neurosis were reported during an extensive VA hospitalization from December 1975 to July 1976. His initial application for service connection for PTSD, filed in 1992, listed VA psychiatric treatment since the early 1980’s, and referred to the same during service. A VA diagnosis of PTSD during hospitalization in 1992 was not confirmed on a December 1992 psychiatric evaluation specifically for PTSD. Thus, the newly presented evidence must be probative of the critical elements of a nexus to service and a clear diagnosis of PTSD, which requires competent medical evidence. The additional evidence clearly does meet this test. Pertinent evidence consisting of VA medical records in 1994 and a medical statement in 1995 from the veteran’s VA clinician which supplemented the veteran’s sworn testimony refers to events in service related to the current diagnosis of PTSD. This evidence is probative evidence of a clear diagnosis of PTSD currently, relating to an essential element to establish service connection previously absent. In addition, the veteran in October 1994 correspondence and the January 1995 medical report has identified several stressors, repeated rocket attacks at locations in Vietnam, severe injury to another unit member which had been mentioned previously. However a 1973 record received in 1994 mentions the veteran’s recollection of a fellow serviceman’s severe wounds which tends to parallel his later reference to a traumatic event. Further, since the claim was initially adjudicated, the VA issued a regulation, 38 C.F.R. § 3.304(f), regarding PTSD and the veteran is entitled to have his claim adjudicated under these provisions or applicable VBA ADJUDICATION PROCEDURE MANUAL, M21-1 (Manual M21-1) provisions whichever are more favorable to him. Regarding the occurrence of an inservice stressor, which appears to be the element on which the RO has now focused (September 1994 Statement of the Case and March 1997 Supplemental Statement of the Case), the Board must point out that the current development guidelines instruct that the RO should “...always send an inquiry in instances in which the only obstacle to service connection is confirmation of an alleged stressor. A denial solely because of an unconfirmed stressor is improper unless it has first been reviewed by the ESG or the Marine Corps.” Manual M21-1, Part III, para. 5.14b(5). The additional evidence augments the record and is probative of critical elements absent at the time of the 1993 RO adjudication of the claim Therefore, the new evidence, being probative, is material to the question of service connection. The newly presented evidence is not solely cumulative and includes competent medical evidence. The Board is of the opinion that additional development is necessary because of the essential inquiries that must be made to establish the existence of the claimed stressors, which, in this case involve alleged combat experiences, and to establish that there is a clear diagnosis of PTSD related to confirmed stressors. The veteran did not receive any decorations that would allow for a presumption of a stressor’s occurrence without further corroboration. His DD Form 214 and his personnel records are in agreement that he was awarded the Air Medal but without “V Device,” the receipt of which, in the absence of information to the contrary, will be considered evidence of participation in a stressful episode. Manual M21-1, Part III, para. 5.14a. However, the Board must observe that his specialty as an artillery surveyor and construction draftsman, alone, is not a sufficient basis to rule out combat as claimed. Indeed, the veteran has referred to contact with enemy forces, including rocket and mortar attacks. However, his involvement is not clear from the available information and he also testified to having been under fire which cannot be confirmed from the current information. In addition, there must be a determination of whether the veteran engaged in combat with the enemy. Cohen v. Brown, 10 Vet.App. 128, 142- 43, 145-49 (1997). ORDER New and material evidence having been submitted, the claim of entitlement to service connection for PTSD is reopened; the benefit sought on appeal is granted to that extent. REMAND In view of the decision reopening the appellant's claim for service connection for PTSD, the RO must readjudicate the claim without regard to the finality of the January 1993 RO decision, based on all evidence, both new and old. The Board has previously noted the evidence of significance regarding PTSD. However, without additional development as set forth below, the Board concludes that the record is not adequately developed to permit an informed determination. The Board has referred to the veteran’s information concerning stressors but that an attempt to verify the occurrence as claimed has not been undertaken. Accordingly, additional development in this regard is necessary. See 38 C.F.R. § 3.304(f) (1996); Moreau v. Brown, 9 Vet.App. 389 (1996); Zarycki v. Brown, 6 Vet.App. 91 (1993); West v. Brown, 7 Vet.App. 70 (1994); Wood v. Derwinski, 1 Vet.App. 190 (1991). The current development guidance requires that “[a]ny evidence available from the service department indicating that the veteran served in the area in which the stressful event is alleged to have occurred and any evidence supporting the description of the event will be made part of the record.” Manual M21-1, Part III, para. 5.14a. Where the record before the Board is inadequate to render a fully informed decision on the issue under consideration, a remand to the RO is required in order to fulfill the statutory duty to assist. Ascherl v. Brown, 4 Vet.App. 371, 377 (1994). Accordingly, the case is REMANDED to the RO for the following actions: 1. The veteran should be asked to identify all sources of treatment for his PTSD or any other psychiatric disorder recently, VA or private, including periods of treatment, dates, names of treating physicians, and addresses. The RO should obtain treatment records from all sources identified which are not already of record. In particular, the RO should obtain all VA treatment records to the present time. 2. The veteran should be asked to provide a comprehensive statement containing as much detail as possible regarding the stressors to which he alleges he was exposed in service. The veteran should be asked to provide to the best of his ability any additional information including, but not limited to, instances of any combat exposure; detailed descriptions of stressful events, including all dates, places, and identifying information concerning any other individuals involved in the stressful events, including their names, ranks, and units of assignment, the veteran’s unit of assignment at the time of each incident, and any other identifying detail. The veteran is hereby advised that this information is needed to help obtain supportive evidence of the alleged stressful events. He must be as specific as possible, because without such details a successful search for verifying information cannot be conducted. 3. Then, the RO should review the claims file and compile all information reported by the veteran concerning his claimed stressors and forward the information along with the personnel records to the U.S. Armed Services Center for Research of Unit Records (USASCRUR), 7798 Cissna Road, Suite 101, Springfield, Virginia 22150-3197, to attempt to confirm any of the stressors claimed by the veteran. 4. Following the above, the RO should make a determination as to whether the veteran engaged in combat, or whether there is credible supporting evidence that the claimed stressor(s) actually occurred. 5. If the RO determines that the record establishes, through combat participation or otherwise, the existence of a claimed stressor or stressors in service, the veteran should be examined by a VA psychiatrist who has not previously examined him to determine whether the veteran has PTSD that is related to the confirmed stressor(s). The RO must specify for the examiner the stressor or stressors that it has determined are established by the record. The psychiatrist should conduct the examination with consideration of the criteria for PTSD. The examination report should include a detailed account of all pathology found to be present. If a diagnosis of PTSD is appropriate, the examiner should specify the “stressor(s)” that caused the disorder and the evidence relied on to establish the existence of the stressor(s). The examiner must also comment explicitly upon whether there is a link between such stressor or stressors and current symptoms. The report of the examination should include rationale for all opinions expressed. All necessary special studies or tests should be accomplished. The entire claims folder and a copy of this REMAND must be made available to the examiner for review in conjunction with the examination. 6. The RO should review the examination report and determine whether the findings comply with the requirements of paragraph (5) above. If not, the report should be returned to the examiner to correct any deficiencies. Thereafter, the RO should readjudicate the veteran's claim for service connection for PTSD, on a de novo basis, with consideration of the adjudication guidance in Cohen v. Brown. If the benefit sought on appeal is not granted to the satisfaction of the veteran, he and his representative should be furnished an appropriate supplemental statement of the case which reflects the consideration undertaken and provided the applicable period to respond. The case should then be returned to the Board for further consideration, if otherwise in order. By this REMAND, the Board does not intimate, in any manner, the final outcome warranted with respect to the matter at issue. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1996) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. WILLIAM J. REDDY Member, Board of Veterans' Appeals 38 U.S.C.A. § 7102 (West Supp. 1996) 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 & Supp. 1996), 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, 102 Stat. 4105, 4122 (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) (1996). - 2 -