Citation Nr: 9835532 Decision Date: 12/02/98 Archive Date: 12/15/98 DOCKET NO. 90-26 676 ) 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 of entitlement to service connection for post- traumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had active service from January 1968 until January 1970; from January 1971 to October 1972; and from January 1978 until April 1980. An administrative decision of the Department of Veterans Affairs (VA) in February 1973 held that the veteran was barred from VA benefits on the basis of his second period of service as a result of the character of his discharge. However, a subsequent VA administrative decision in May 1978 noted that the discharge from that period of service had been upgraded and was no longer a bar to benefits. In 1975 a decision of the Board of Veteran's Appeals (Board) denied service connection for nervous disorder and in July 1981 the Board denied service connection for a chronic psychiatric disease. A claim for service connection for PTSD was denied by the RO in August 1982 and on appeal to the Board it was held in December 1983 that new and material evidence had not been received since the Board denials to reopen the claim for service connection for psychiatric disability and denied service connection for PTSD, holding that the “medical evidence of record [] will not support a diagnosis of [PTSD].” In March 1992 the veteran sought to reopen the claim for service connection for PTSD. This matter comes before the Board from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in April 1992 which denied service connection for PTSD and nonservice-connected pension benefits. In June 1992, he filed a timely notice of disagreement (NOD) as to the denial of the application to reopen the PTSD claim but no statement of the case (SOC) was ever issued in response to the NOD. An April 1993 decision of the Board denying entitlement to nonservice-connected pension benefits was appealed to the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (hereafter the Court) which in September 1994, pursuant to a joint motion for remand, vacated that Board decision and remanded the case for further development. Thereafter, a decision of the Board in July 1996 granted entitlement to nonservice-connected pension benefits but the veteran appealed that decision to the Court, alleging a failure to adjudicate various claims of service connection. In an August 14, 1998, Memorandum decision the Court vacated the July 1996 Board decision but only as to a failure to properly develop an appeal as to the 1992 denial of service connection for PTSD by failing to issue an SOC following the timely receipt of an NOD in June 1992 in which the veteran stated that he was appealing the denial of service connection for “delayed stress syndrome.” [citation redacted]. In the August 1998 Memorandum decision the Court specifically held that the June 1992 statement constituted a timely NOD and that it was error not to have issued an SOC as to the PTSD claim. Moreover, the Court held that subsequent RO denials in January and March 1996 did not deprive the June 1992 NOD of its effectiveness. However, the Court also held that prior claims for “service connection for an anxiety reaction, hypertension, residuals of a back injury, rectal polyps, and arthritis due to Agent Orange exposure were denied by RO decisions [and the veteran did not file] an NOD as to any of these previously denied claims.” [citation redacted]. Moreover, the Court held that the veteran’s “prior claims for service connection for a musculoskeletal disorder of a lower extremity, exostosis of the left foot, chest pain, and inadequate personality with paranoid traits have been denied by Board decisions [and the veteran had not] filed a timely Notice of Appeal (NOA) that would place any of these claims before this Court.” [citation redacted]. REMAND With respect to the August 1998 Memorandum decision of the Court, two procedural matters are noted. First, because there was a prior and unappealed, and thus final, denial of service connection for PTSD by the Board in December 1983, the application in March 1992 was actually to reopen that previously and finally denied claim. Under 38 U.S.C.A. §§ 5108, 7104(b) (West 1991) and 38 C.F.R. §§ 20.1104, 20.1105 (1998) a decision of the Board is final and may not be reopened unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996), aff’g Barnett v. Brown, 8 Vet. App. 1 (1995), holding that new and material evidence is jurisdictional and if not submitted the Board is without jurisdiction to adjudicate the merits. See also McGinnis v. Brown, 4 Vet. App. 239, 244 (1993) and Butler v. Brown, 9 Vet. App. 167, 171 (1996). But also see Hodge v. West, No. 98-7017 (Fed. Cir. Sept. 16, 1998) in which the United States Court of Appeals for the Federal Circuit lowered the threshold for reopening based on new and material evidence from “a reasonable possibility of changing the outcome” to being so ‘significant’ that it ‘must be considered in order to fairly decide the merits of the case’ as was the purpose in the regulation defining new and material evidence at 38 C.F.R. § 3.156 which became effective on January 22, 1991 prior to the Court’s decision on March 8, 1991 in Colvin v. Derwinski, 1 Vet. App. 171 (1991) which first announced the “reasonable possibility of changing the outcome” standard. Secondly, in its Memorandum decision the Court remanded this case back to the Board for “further development and adjudication [] all consistent with this decision.” [citation redacted]. As to this, the Court stated that the Board should have remanded “the claim to the RO with instructions to issue an SOC as to that [PTSD] claim.” However, in the Memorandum decision the Court cited Archbold v. Brown, 9 Vet. App. 124, 133 (1996) that a veteran was “not required to respond to [an] SSOC in order to have his … claim returned to the Board for completion of its appellate review.” [citation redacted]. As to this, 38 C.F.R. § 19.38 (1998) provides that remanded cases will not be closed for failure to respond to a Supplemental SOC (SSOC). However, this regulation presupposes that the Board has jurisdiction of the claim. Indeed, 38 C.F.R. § 20.302(c) (1998) states that “[p]rovided a Substantive Appeal has been timely filed in accordance with paragraph (b) of this section, the response to [an SSOC] is optional and is not required for the perfection of an appeal, unless the [SSOC] covers issues that were not included in the original [SOC].” In Archbold the Court went on to state that no response was needed to an SSOC in that case “because [the appellant] had filed a Substantive Appeal as to that claim prior to the Board remand” (thus perfecting the appeal). Archbold, at 133. Here, no appeal has been perfected as to the denial of the application to reopen the claim for service connection for PTSD. Rather, the Board’s jurisdiction for the purpose of issuing this remand derives from the mandate of the Court to afford the veteran due process and not from the perfection of an appeal. An appeal consists of a timely filed NOD in writing and, after an SOC has been furnished, a timely filed Substantive Appeal. 38 C.F.R. § 20.200 (1998). Proper completion and filing of a Substantive Appeal are the last actions the appellant needs to take to perfect an appeal. 38 C.F.R. § 20.202 (1998). The matter of whether upon remand of this case to the RO, the RO should then issue an SOC or an SSOC, is jurisdictional since an appeal must be perfected by the filing of a substantive appeal and there are specified time limits for the filing of a substantive appeal. The time limits for filing a substantive appeal vary according to whether it follows an original SOC or is in response to an SSOC which addresses a new issue for the first time. With respect to an original SOC, a substantive appeal must be filed within 60 days of the date of mailing the SOC, 38 U.S.C.A. § 7105(d)(3) (West 1991), or within the remainder of the one-year period from the date of NOD notification, whichever periods ends later. 38 C.F.R. § 20.302(b) (1998). However, if an SSOC covers issues not included in the original SOC, a Substantive Appeal must be filed with respect to those issues within 60 days in order to perfect an appeal with respect to the additional issues. 38 C.F.R. § 20.302(c) (1998). In other words, for the veteran not to have to file a jurisdictionally required substantive appeal following an SSOC, the appeal would first have had to have been perfected by the prior filing of a substantive appeal. Here, since no SOC has been issued in the first instance (as the Court noted) the appeal as to the denial of reopening of the PTSD claim could not have been perfected by the timely filing of a substantive appeal. Moreover, an SSOC can be issued only after an original SOC, or after an original SOC followed by one or more prior SSOCs, has been issued as to a particular claim. Such is not the case here. Accordingly, the issue to be remanded is whether new and material evidence has been submitted to reopen a claim of service connection for PTSD. If the claim remains denied (as to reopening or if reopened it is denied de novo) the RO must issue an original SOC. Thereafter, the veteran must perfect the appeal by the timely filing of a substantive appeal within 60 days of the issuance of the SOC (since more than one year has past since the initial notification of the denial). If a timely substantive appeal is not received, the RO should make a specific determination in that regard and the veteran must be notified of any such determination. He may then appeal such a determination since the question of the timeliness of the filing of a substantive appeal in itself a separately appealable issue. In this regard it has recently been held that a timely NOD is jurisdictional and “[a] determination of the timeliness of an NOD is itself an appealable issue, as to which a claimant is entitled to file an NOD and as to which he or she must then receive an SOC. See 38 C.F.R. § 20.101(c) (1997).” Marsh v. West, No. 98-634, slip op. at 4 (U.S. Vet. App. Oct. 5, 1998). When there is a question as to the timeliness in initiating (by filing a timely NOD) an appeal [or, presumably, perfecting an appeal by the timely filing of a substantive appeal] the appellant must be afforded an opportunity to submit evidence or argument, or both, on that question. Otherwise, the appellant is prejudiced. The Board’s obligation to assess its own jurisdiction cannot come at the expense of the procedural rights of an appellant who has not had an opportunity to present evidence or argument on that jurisdictional issue. Marsh v. West, No. 98-634, slip op. at 5 (U.S. Vet. App. Oct. 5, 1998). While Marsh dealt with the timelines of an NOD, analogously the same procedural safeguards should apply to any RO determination that an appeal has not been filed in a timely manner. Also, the Board notes that the veteran may request an extension of time within which to file a timely substantive appeal for good cause under 38 U.S.C.A. § 7105(d)(3) (West 1991). However, 38 C.F.R. § 20.303 (1998) requires that the request “must” be in writing and "must" be made prior to the expiration of the filing time limit. Roy v. Brown, 5 Vet. App. 554, 555 (1993). A denial of a request for extension may be appealed to the Board. 38 C.F.R. § 20.203 (1998). However, this also would require notification to the appellant of his appellate rights and the filing of an NOD as to that specific RO determination. However, since the December 1983 Board denial and the 1992 denial of the claim for reopening there have been significant changes which will necessitate readjudication by the RO of the application to reopen the claim prior to the issuance of an SOC. The Board notes that there has been a significant amount of case law issued by the Court concerning claims for PTSD. Generally see Wood v. Derwinski, 1 Vet. App. 190 (1991) [Wood I]; Wood v. Derwinski, 1 Vet. App. 406 (1991) [Wood II]; Zarycki v. Brown, 6 Vet. App. 91 (1993); West v. Brown, 7 Vet. App. 70 (1994); Caluza v. Brown, 7 Vet. App. 498 (1995); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996) (decided after Caluza); Dizoglio v. Brown, 9 Vet. App. 163 (1996); Moreau v. Brown, 9 Vet. App. 389 (1996); Marcoux v. Brown, 10 Vet. App. 3 (1996); Cohen v. Brown, 10 Vet. App. 128 (1997). Also, 38 C.F.R. § 3.304(f) became effective on May 19, 1993 and provides that service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, 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. 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 inservice stressor. In this case the veteran served in Vietnam during his first period of service and is service-connected for residuals of a shrapnel wound of the right anterior thigh, which is assigned a noncompensable rating. Additionally, there is now also case law dealing with 38 U.S.C.A. § 1154(b) West 1991) and 38 C.F.R. § 3.304(d) (1998) which pertain to injury or disease incurred in combat. When PTSD is claimed as a result of combat stressor(s), there must be a specific finding of fact of whether the veteran was engaged in combat and, if so, whether the claimed stressor(s) is related to combat. Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If he was not engaged in combat, or if he was but the claimed stressor(s) is unrelated to combat, it must be determined whether lay evidence thereof is corroborated by service records so as to establish the occurrence of the claimed noncombat stressor(s). Zarycki, at 100. However, this does not mean that every statement made by a veteran pertaining to injury or disease incurred in combat must be taken at face value. For example in this case it was noted in the July 1996 Board decision, at page 11, that the veteran had related a bizarre story which included having been purportedly attacked by Russians while apparently in Vietnam with the result that after surgery his entire ulna had been thrown away. Moreover, there are new diagnostic criteria for evaluation of PTSD claims, as set forth in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM), fourth edition, (DSM IV), as revised in 1994. However, the DSM criteria (whether the 3rd or 4th ed.) does not add requirements over and above the three primary elements in 38 C.F.R. § 3.304(f) and, thus, DSM criteria play an auxiliary role in PTSD claims. Cohen v. Brown, 10 Vet. App. 128, 139-40 (1997). The DSM sets forth criteria as to the sufficiency of stressor(s) and adequacy of symptomatology for a clear diagnosis of PTSD which are not contained in 38 C.F.R. § 3.304(f). Therefore, a clear (unequivocal) PTSD diagnosis by a mental-health professional will, unless shown by evidence to the contrary, be presumed to be in accord with DSM criteria as to sufficiency of stressor(s) and adequacy of symptomatology. Cohen v. Brown, 10 Vet. App. 128, 140 (1997). Only when there is a medical opinion as to the first (clear diagnosis) and third (nexus of current symptoms to in-service stressor(s)) PTSD elements do the DSM criteria come directly into play for VA adjudication. At that point the DSM criteria (as to symptoms or stressor requisites) may be used but only as that basis for return of an examination report to the RO for clarification or further examination. This is mandated when the Board believes that the report is not in apparent accord with DSM criteria (as to symptom adequacy and stressor requisites) and, thus, remand for clarification by examination or record review is mandatory. See revised 38 C.F.R. §§ 4.125 and 4.126; and M21-1, part VI, para. 7.46(e) (1995) and M21-1, Subch. XII, para. 50.45(c) (1989), VAOGCPREC 10-95. Cohen v. Brown, 10 Vet. App. 128, 140 (1997). The VA cannot use the DSM provisions themselves as a basis for rejecting the veteran’s favorable medical evidence as to sufficiency of a stressor or adequacy of symptoms but must rely on independent medical evidence, even if the clarification needed or sought is not provided by the original examiner. Thus, if a stressor in an examination report does not fit within the description of a PTSD stressor under the applicable DSM, then medical clarification is required. Cohen v. Brown, 10 Vet. App. 128, 140 (1997). There are significant differences between DSM, Third Edition- Revised (III-R) and DSM IV as to PTSD stressors. The DSM- III-R criteria for PTSD (incorporated into M21-1) required that a stressor be outside the range of usual human experience and be markedly distressing to almost anyone, e.g., a serious threat to one’s life or physical integrity or seeing another seriously injured or killed. However, DSM-IV deletes the “outside the range of usual human experience” and being markedly distressing to almost anyone. Rather, DSM-IV requires only that a stressor invoke a sense of intense fear, helplessness or horror. Thus, DSM-IV criteria no longer are based solely on the usual experience and response of people but are individualized (geared to the specific person’s actual experience and response). Thus, a predisposition or hypersensitivity is irrelevant. Cohen v. Brown, 10 Vet. App. 128, 141 (1997). Moreover, M21-1 provides that “[a] stressor is not to be limited to just one single episode. A group of experiences also may affect an individual, leading to a diagnosis of PTSD. M21-1, Part VI, para. 7.46(b)(2) (1995) and M21-1, Subch. XII, para. 50.45(f)(2) (1989). Cohen, at 142. Thus, in light of the subjective nature of the DSM-IV criteria for assessing the sufficiency of a PTSD stressor, the question of the sufficiency of stressors (in terms of the two DSM-IV criteria) is a medical question requiring examination and assessment by a mental-health professional. VA can reject favorable medical evidence as to stressor sufficiency only on the basis of independent medical evidence, and only after first seeking clarification of an incomplete examination report. Cohen, at 142. As to this, the Board notes that (as reflected on page 11 of the July 1996 Board decision) on VA psychiatric examination in July 1995 (after the 1983 Board denial) it was felt that the veteran had PTSD. In the reopening context, the benefit of the doubt doctrine in 38 U.S.C.A. § 5107(b) (West 1991) is not applicable unless the threshold burden of submitting new and material evidence to reopen has been met. While the benefit of the doubt doctrine lowers the reopening threshold, it cannot take the place of the standard for reopening. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Nevertheless, in all fairness to the veteran, in light of the changes in the evidentiary considerations relative to claims for service connection for PTSD, additional assistance in evidentiary development should be considered. Here, he has previously indicated that he has no additional evidence or information pertaining to the PTSD claim and there is no suggestion in the record that he is receiving private psychiatric or psychological treatment. However, the RO may wish to obtain any recent additional VA outpatient treatment (VAOPT) or hospitalization records and afford the veteran a psychiatric examination in light of the DSM IV changes. Accordingly, the case is remanded to the RO for the following: 1. The RO should obtain all outstanding VAOPT records as well as any discharge summaries of any VA hospitalizations for psychiatric treatment, evaluation or observation which are not now on file. 2. The RO should schedule the appellant for a comprehensive VA psychiatric examination to determine the diagnoses of all psychiatric disorder that are present. The claims folders and a copy of this remand must be provided to the examiner prior to the examination. The examiner should determine the true diagnoses of any currently manifested psychiatric disorder(s). The diagnosis(es) must be based on examination findings, all available medical records, complete review of comprehensive testing for PTSD, and any special testing deemed appropriate. A multiaxial evaluation based on the current DSM-IV diagnostic criteria is required. If a diagnosis of PTSD is deemed appropriate, the examiner should specify (1) whether each alleged stressor found to be established by the record was sufficient to produce PTSD, either alone or in combination; (2) whether there is a link between the current symptomatology and one or more of the inservice stressors found to be established by the record and found, either alone or in combination, to be sufficient by the examiner to produce PTSD. A complete rationale for all opinions expressed must be provided. In this respect, the psychiatric diagnoses and/or assessments of record based on his/her review of all of the evidence of record, particularly with respect to any diagnostic impressions of PTSD entered on various medical records of record. Further, for any other psychiatric disorder diagnosed, it is requested that the examiner comment on the etiology of such disorder(s) relative to any incident of the appellant’s military service. The report of the examination should be associated with the claims folder. The appellant should be given adequate notice of this examination, which includes advising him of the consequences of a failure to report for the examination. If he fails to report for the examination, that fact must be noted in the claims folder and a copy of the scheduling of the examination notification or any written refusal to report, whichever is applicable, should be obtained by the RO and associated with the claims folder, if possible. Any reason for failure to accomplish this development should be documented in the claims folder. 3. Following completion of the above actions, the RO must review the claims folders and ensure that all of the foregoing development has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the examination report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Abernathy v. Principi, 3 Vet. App. 461, 464 (1992); and Ardison v. Brown, 6 Vet. App. 405, 407 (1994). 4. After the development requested has been completed, the RO should readjudicate the claim with consideration given to all of the evidence of record, including all “new” evidence to determine if the “new” evidence is “material” and, if so, whether it is so ‘significant’ that it ‘must be considered in order to fairly decide the merits of the case.’ In reaching this determination the RO must, as indicated above, specifically adjudicate whether the veteran served in combat in Vietnam and whether any stressors are related to such combat. If the application to reopen the claim for service connection for PTSD is not granted, i.e., the claim is not reopened, an SOC must be issued on that issue. If the application to reopen the claim for service connection for PTSD is granted, the claim should then be adjudicated on a de novo basis. The readjudication of the claim de novo should include relevant discussion and consideration of the law and applicable regulations, in particularly 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) within the analytical framework provided by the Court. If the evidence is not in equipoise the RO should explain why. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991). 5. The appellant is hereby informed that he may furnish additional evidence and/or argument while the case is in remand status. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109, 112 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995). The appellant is further advised that he should assist the RO in the development of his claim. Wood v. Derwinski, 1 Vet. App. 191, 193 (1991). 6. The RO should then issue the veteran an SOC which should address whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for PTSD or, if the claim is reopened, entitlement to service connection for PTSD. The RO must provide with the SOC a VA Form 9 by which the veteran may perfect his appeal. The RO should inform the veteran, and the veteran hereby is informed, that he has 60 days from the issuance of the SOC within which to file a substantive appeal in order to perfect the appeal and that if the appeal is not perfected the Board will be without jurisdiction to adjudicate the claim. If within the 60 day period, the veteran should request an extension of time within which to file his substantive appeal and the RO rejects the request; or if the RO determines that the substantive appeal was not filed in a timely manner, the veteran must be notified of that determination. He should be, and hereby is, informed that any such determination as to the timeliness of filing a substantive appeal or timely request for an extension for filing a substantive appeal is appealable. If either of these events occur the RO should give the veteran an explanation of his appellate rights, e.g., that an appeal may be initiated as to such a determination by the filing of an NOD. This is to put the veteran on notice, and in keeping with the VA’s duty to assist, as announced in Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991), that at least in part the purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (1996) failure to cooperate by attending the requested VA examination may result in an adverse determination. “[A] remand [by the Court or the Board] confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders . . . a remand [] imposes upon [VA] a concomitant duty to ensure compliance with the terms of the remand [and] [i]t matters not that the agencies of original jurisdiction as well as those agencies of the VA responsible for evaluations, examinations, and medical opinions are not under the Board as part of a vertical chain of command which would subject them to the direct mandates of the Board.” Stegall v. West, 11 Vet. App. 268, 271 (1998) (in which a VA examination at which the claims file was made available had not been conducted as instructed in a Board remand). Thereafter, the case should then be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND the Board intimates no opinion, either factual or legal, as to the ultimate determination warranted in this case. No action is required of the appellant until further notice is received. 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. 1998) (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. HOLLY E. MOEHLMANN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This 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) (1997). - 2 -