Citation NR: 9734801 Decision Date: 10/15/97 Archive Date: 10/24/97 DOCKET NO. 93-22 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Whether new and material evidence has been received to reopen the claim of service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARINGS ON APPEAL Appellant and appellant’s spouse INTRODUCTION The appellant-veteran served on active duty from January 1964 to August 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a January 1993 rating decision of the Huntington, West Virginia, Department of Veterans Affairs (VA) Regional Office (RO). This appeal is being decided by the Acting Member of the Board who conducted a hearing on appeal in Washington, D.C., in August 1997. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends he has PTSD that was diagnosed by VA, that he received the Air Force Commendation Medal for combat- related incidents and that much of what he did in Vietnam was classified. DECISION OF THE BOARD In accordance with 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), after review and consideration of all the evidence and material of record in the veteran's claims file and for the following reasons and bases, the Board decides that new and material evidence has been received to reopen the claim of service connection for PTSD. FINDINGS OF FACTS 1. In an April 1990 decision, in pertinent part, the Board denied the veteran’s claim of service connection for PTSD on the grounds that he did not have PTSD. 2. The additional evidence received since the Board’s April 1990 decision creates a reasonable possibility of changing the outcome of the claim on the merits. CONCLUSIONS OF LAW 1. The April 1990 decision of the Board is final. 38 U.S.C.A. § 7103(a) (West 1991). 2. Since the Board’s April 1990 decision, new and material evidence has been received and the claim of service connection for PTSD is reopened. 38 U.S.C.A. § 5108 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION During the pendency of this appeal 38 C.F.R. § 3.304 was amended, effective in May 1993, to include subsection (f), pertaining specifically to PTSD service-connection claims. Prior to the May 1993 amendment, PTSD claims were governed by provisions of the VA Adjudication Procedure Manual M21-1 [hereinafter M21-1], Subchapter XII, para. 50.45 (Jan. 25, 1989), that required essentially the same elements that were incorporated in 38 C.F.R. § 3.304(f). Subsequently, the M21- 1 provisions were amended to reflect the PTSD requirements set forth in 38 C.F.R. § 3.304(f). See M21-1, Part VI, para. 11.38 (first sentence) (Feb. 13, 1997). As a general rule, the veteran is entitled to have his claim adjudicated under whichever regulatory or M21-1 provision would be more favorable to him in light of the regulatory change while his case was on appeal to the Board. See Karnas v. Derwinski, 1 Vet.App. 308, 312-13 (1991). Also the United States Court of Veterans Appeals (Court) has previously held that the M21-1 provisions of para. 7.46, pertaining to PTSD, were substantive rules and the equivalent to VA regulations. The adoption of 38 C.F.R. § 3.304(f) in May 1993 moots the M21-1 provisions regarding PTSD adjudications except where the M21-1 is more favorable to the veteran. Subsection (f) of 38 C.F.R. § 3.304 (1996) provides that 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. Also service connection for PTSD requires that the evidence be evaluated in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran’s military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). In short, the award of service connection for PTSD requires the presence of three elements: (1) a current, clear medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and, (3) medical evidence of a causal nexus between current symptomatology and the specified claimed in-service stressor. Finality The veteran’s claim of PTSD was initially denied by the Board in an April 1990 decision on the grounds that he did not have PTSD, and that decision is final. 38 U.S.C.A. § 7103(a). To reopen a claim where there is a prior final determination by the Board, a claimant must submit new and material evidence. 38 U.S.C.A. § 5108. With an application to reopen a finally disallowed claim, the Board must conduct a two-step analysis. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). In the first step, the Board must determine whether the evidence presented or secured since the prior final disallowance of the claim is new and material with the credibility of the new evidence presumed. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); Justus v. Principi, 3 Vet.App. 510, 513 (1992). The first step involves three questions: (1) Is the newly presented evidence new (not of record at the time of the last final disallowance of the claim and not merely cumulative of other evidence of record? (2) Is it probative of the issues at hand (probative only as to each element that was specified basis for the last disallowance)? (3) If it is new and probative, then, in light of all the evidence of record, is there a reasonable possibility that the outcome of the claim on the merits would change? Evans v. Brown, 9 Vet.App. 273 (1996). The Board’s April 1990 decision, denying the veteran’s claim for PTSD, constitutes the last final disallowance of the claim under Evans. Evidence of Record at the time of the Board’s April 1990 Decision A summary of the “old” evidence of record at the time of the April 1990 decision by the Board follows. The service medical records, including the report of separation examination in August 1971, contain no history or finding of an acquired psychiatric disorder, including PTSD. The records do show that the veteran was in Vietnam in 1966 and in 1967 with the 14th Field Maintenance Squadron at the Air Force Bases in Nha Trang and Pleiku. Copies of service personnel records, including a copy of a DD Form 214 for the period from January 1968 to August 1971, discloses that the veteran was in Vietnam from July 1966 to July 1967 as an airframe repairman, but there is no indication that he engaged in combat. He also served in Japan from April 1969 to April 1972 with temporary duty in Southeast Asia in August and September 1969. He had a secret security clearance. His awards included the Air Force Commendation Medal. After service, VA records disclose: no evidence of psychiatric disorder (reports of VA examinations in October 1971 and in September 1973); a psychiatric consultation for depression, but no diagnosis (January/March 1979 hospital summary for treatment of back pain); under treatment for nerves by family doctor (January 1981 report of physical examination); diagnosis of major depression (March/June 1982 hospital summary for self-inflicted gunshot wound in a suicide attempt over family, financial and school problems); complaint of nervousness (January 1987 report of orthopedic examination); diagnosis of major depressive disorder (April 1988 psychiatric hospital summary); treatment since suicide attempt [1982] with incomplete recovery from depression without much about veteran’s Vietnam experience (September 1988 statement of the Chief of Psychiatric Service); symptoms of PTSD (November 1988 statement of certified social worker); classic symptoms of PTSD in the context of salvaging downed aircraft with remains of the crew (May 1989 report Vet Center Readjustment Counselor); and, diagnosis of major depressive disorder (May 1989 hospital summary). Non-VA medical records disclose that: the veteran had been under care since 1975 for a nervous disorder (July 1980 statement of a private physician); and, he received psychotherapy from December 1981 to March 1982 and he had symptoms of PTSD and diagnostically he appeared to suffer from dysthymic disorder and PTSD (January 1989 report of a non-VA mental health center, extracted from progress notes). In a November 1988 Statement in Support of Claim, the veteran stated that between 1966 and 1967: (1) While he was at the Bong Son Army Base for repair of a C-123 aircraft, the base came under mortar attack which was followed by a fire fight that involved him, and he was nearly struck by a body part from a bunker near him [hereinafter Bong Son stressor; and, (2) he removed body remains from a crash of a C-146 at Nha Trang [hereinafter Nha Trang stressor]. At a hearing in April 1990, the veteran submitted several photographs, depicting aircraft wreckage and apparently personal effects of the crew, with the printed notation on the backs of the photographs of “Recovery mission Vietnam 1966” [apparently depicting the Nha Trang stressor]. The Board’s April 1990 written decision includes portions of the veteran’s April 1990 testimony (the transcript is not in the veteran’s claims file) in which he identified the photographs as those of a crashed C-46 gunship that he helped retrieve and that contained the remains of the crew [apparently the Nha Trang stressor]. There is also the veteran’s testimony that, when he was sent to repair a damaged aircraft, he came under a mortar attack and two Army troops in a bunker next to his were directly hit with one suffering the loss of a body part [Bong Son stressor]. Current Claim After the Board’s decision in April 1990, the veteran applied to reopen his claim of service connection for PTSD in December 1992. In a January 1993 rating decision, the RO determined that the evidence was not new and material to reopen the claim. After the veteran was notified of the adverse determination, he perfected an appeal that is now before the Board for review. A hearing before the Board was held in January 1994. When the claim was initially before the Board in July 1994, it was remanded for further development, including verification of the veteran’s stressors and to have the veteran examined. In August 1997, the veteran exercised his right for another hearing before a Member of the Board who would make the decision on his appeal as the Board Member who had conducted the January 1994 hearing was no longer employed by the Board. Evidence Added to the Record Since the Board’s April 1990 Decision Item (1) consists of copies of temporary duty orders from Nha Trang Air Base to Pleiku Air Base, beginning October 15, 1966, for about 179 days, and from Japan to Tan Son Nhut Air Base, Vietnam, beginning August 27, 1969, for about 52 days; (2) October 1989 report of Vet Center Readjustment Counsel with statement that the veteran had numerous PTSD symptoms; item (3) copy of May 1989 VA hospital summary with diagnosis of major depressive disorder; (4) copy of January /February 1991 VA hospital summary with diagnosis of depression, probably secondary to service-connected low back disability; (5) October 1992 report of VA orthopedic examination with history of bipolar condition; and, (6) copies of August and October 1992 progress notes of a VA Mental Hygiene Clinic without identification the psychiatric disorder being treated. Item (7) consists of June and July 1992 reports of VA neuropsychologic evaluation of the veteran for PTSD. The data was based on interviews with the veteran and questionnaires including the Military History Form, Combat Stress Inventory and the Mississippi Scale for Combat-Related PTSD. The reports disclose that, in addition to service in Vietnam from July 1966 to July 1967, he was in and out of Vietnam in 1969 and 1970. His primary job in Vietnam was aircraft structural repair, including the recovery or destruction of downed aircraft or aircraft parts. His duties also took him to Cambodia and Laos. He was subjected to mortar attacks and fire fights. His worst experience occurred, when he was sent to repair a C-123 aircraft and he came under a mortar attack and people in a bunker next to his were blown up [Bong Son stressor]. He was also subjected to two mortar attacks and several fire fights at Pleiku, where 23 aircraft were destroyed [hereinafter Pleiku stressor]. The neuropsychologist’s diagnostic impression was a number of classic symptoms of PTSD. Item (8) consists of a copy of a February 1992 consultation report of a VA Mental Hygiene Clinic with a diagnosis of PTSD; item (9), the veteran’s January 1994 testimony about the Bong Son and Nha Trang stressors; item (10) copies of progress notes from January 1993 to January 1996 of a VA Mental Hygiene Clinic with the assessment of PTSD; item (11) a copy of the citation for Air Force Commendation Medal for meritorious service as a structural repairman for the 14th Field Maintenance Squadron, Nha Trang, Republic of Vietnam, from July 1966 to July 1967; (12) veteran’s statements, dated in August and November 1994, describing details of the Bong Son and Nha Trang stressors; item (13) a copy of a August/September 1994 VA psychiatric summary with a diagnosis of PTSD with specific reference to the Bong Son and Pleiku stressors; item (14) a copy of a May 1995 VA psychological evaluation with the diagnosis of PTSD with specific reference to Bong Son, Pleiku and Nha Trang stressors, and accompanying hospital summary; item (15) August 1995 report of VA psychiatric examination with diagnosis of PTSD with specific reference to the Bong Son and Nha Trang stressors; and item (16) U.S. Armed Services Center for Research of Unit Records (USASCRUR) (formerly U.S. Army & Joint Services Environmental Support Group (ESG)) with extracts on attacks on Nha Trang and Pleiku Air Bases during the veteran’s tour in Vietnam. Item (17) consists of the veteran’s testimony before the Board in August 1997. He testified about the Bong Son stressor and that on several recovery missions, including missions involving classified aircraft, he had to remove body remains. At the hearing the veteran presented additional evidence, item (18), and waived initial review of the evidence by the RO. Item (18) consists of a July 1997 VA report by a staff psychiatrist and a social worker, disclosing a diagnosis of PTSD. In September 1997, the veteran submitted to the Board additional evidence, item (19), and waived initial review of the evidence by the RO. Item (19) consists of a March 1996 report of VA psychiatric examination by a Board of two psychiatrists who diagnosed PTSD with specific reference to the mortar attack in which personnel were blown up and to the removal of human body remains from downed aircraft. Analysis As discussed above, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the claim will be reopened, and the former disposition will be reviewed. 38 U.S.C.A. § 5108. In order to reopen the claim, the veteran would have to produce new and material evidence bearing on the question of whether he currently has PTSD -- the specified basis for the last disallowance of his claim. Item (3) clearly does not pass the threshold requirement of new evidence as the May 1989 hospital summary with the diagnosis of major depression is duplicative of evidence already of record and previously considered in the Board’s April 1990 decision. Items (1) and (11), pertaining to duty assignments in Nha Trang, Pleiku and Tan Son Nhut, and the citation for the Air Force Commendation Medal, and (2), pertaining to symptoms of PTSD, and (4) to (6), pertaining to no diagnosis or diagnoses other than PTSD, are cumulative because the evidence of record, namely, service personnel records and VA records from 1971 to May 1989, as of April 1990 established the same set of facts. Items (9), (12) and (17), pertaining to the veteran’s description of the Bong Son and Nha Trang stressors are also cumulative because the evidence of record, namely, the veteran’s November 1988 Statement in Support of Claim and the veteran’s April 1990 testimony, as of April 1990 established the same set of facts. Items (7), (8), (10), (13), (14), (15), (18) and (19), pertaining to medical evidence of PTSD symptoms and diagnoses of PTSD associated with the Bong Son and Nha Trang stressors are new and material as they are probative of the issue at hand, that is, whether the veteran suffers from PTSD. The specified basis for the April 1990 disallowance of the claim was that the veteran did not have PTSD. Item (16), pertaining to the USASCRUR, is also new and material because it is credible supporting evidence that the claimed inservice stressors actually occurred. This evidence is new and probative, and when considered in light of all the evidence of record, there is a reasonable possibility that the outcome of the claim on the merits would change. For the above reasons, the evidence submitted since the last disallowance of the claim is new and material and the claim of service connection for PTSD is reopened. ORDER The claim of service connection for PTSD is reopened and to this extent the appeal is allowed. REMAND Under 38 C.F.R. § 3.304(f), eligibility for service connection for PTSD requires three elements: (1) a current, clear medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred; and, (3) medical evidence of a causal nexus between current symptomatology and the specified claimed in-service stressor. As to the first element the veteran has a current and clear diagnosis of PTSD. As to the third element, several VA physicians have expressed the opinion that the veteran’s Vietnam experience is directly related to his PTSD. As for the second element, credible supporting evidence that the claimed in-service stressor(s) actually occurred, the evidence is inconclusive. Before the merits of the claim of service connection for PTSD can be considered in light of all the evidence of record, the Board determines that further evidence is essential for a proper appellate decision and remands the case to the RO for the following action: 1. The veteran may submit additional evidence or argument on the question of credible supporting evidence that the claimed in-service stressor(s) actually occurred. 2. - GEORGE E. GUIDO, JR. Acting Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), 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 which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -