Citation Nr: 9920749 Decision Date: 07/27/99 Archive Date: 08/03/99 DOCKET NO. 97-20 308A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Whether new and material evidence has been submitted to reopen a claim of service connection for a post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Neil T. Werner, Associate Counsel INTRODUCTION The veteran served on active duty from June 1966 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) following an April 1997 decision of the Winston- Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the veteran's application to reopen a claim of service connection for PTSD. A claim of service connection for PTSD was previously denied by the Board in April 1990. Therefore, the first issue that now must be addressed is whether the claim ought to be reopened. 38 U.S.C.A. § 5108 (West 1991). If the Board finds that new and material evidence to reopen the claim has not been submitted, it is unlawful for the Board to adjudicate the underlying merits. See McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). FINDING OF FACT Evidence received since an April 1990 Board decision includes new information, but this evidence relative to PTSD is not so significant that it must be considered in order to fairly decide the merits of the claim of service connection. CONCLUSION OF LAW Evidence submitted since an April 1990 Board decision is not new and material evidence; the claim of service connection is not reopened. 38 U.S.C.A. §§ 1110, 5108, 7104 (West 1991); 38 C.F.R. §§ 3.156, 3.303, 20.1100 (1998). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran asserts that he developed PTSD as a result of stressful events experienced while stationed in the Republic of Vietnam. Initially, the Board notes that the veteran's current claim of service connection for PTSD is not his first such claim. As noted above, in April 1990, the Board denied a claim of service connection for PTSD. As a result, the veteran's current claim of service connection may now be considered on the merits only if "new and material evidence" has been submitted since the time of the prior final denial--April 1990. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1998); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). Turning to the question of whether the veteran's claim should be reopened, the Board notes that VA must review any newly received evidence "in the context of" the old. See Jones v. Derwinski, 1 Vet. App. 210, 215 (1991). New and material evidence is "evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant and which by itself or in connection 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 (1998). It should also be pointed out that, in determining whether evidence is new and material, "credibility of the evidence must be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the veteran's case, evidence available prior to the final April 1990 Board denial included service medical records, service personnel records, VA examination reports and treatment records dated from December 1971 to April 1989, and private treatment records dated from July 1978 to October 1976. The veteran's service medical records, including an April 1970 separation examination, were negative for complaints, diagnoses, and/or treatment for a psychiatric disorder. Service personnel records show that the veteran served in the Republic of Vietnam from July 1967 to July 1968. His military specialty was as a supply specialist (while in Vietnam he worked as a wheel vehicle mechanic and armorer), and his decorations included the National Defense Service Medal, Vietnam Counteroffensive Phase III, IV, V, Vietnam Service Medal, Vietnam Campaign Medal, and Tet Counteroffensive badge. A VA hospital discharge summary, for the period from November 1987 to May 1988, as well as a May 1988 VA treatment record, included a diagnosis of PTSD. A December 1988 VA examination report indicated that objective testing supported the probability of the veteran having PTSD, but it was noted that there were no substantiated stressors to support the symptoms (nightmares) he was experiencing. The diagnostic impression was a possible generalized anxiety disorder. Private treatment records from the North Carolina Division of Mental Health, dated from September 1976 to October 1976, showed that the veteran was diagnosed with an emotionally unstable personality and a neurotic reaction. A July 1978 statement by a private physician contained a diagnosis of a borderline personality disorder. The private treatment records from Wayne County Mental Health Center, dated from August 1988 to October 1988, included diagnoses of depressive and personality disorders. The foregoing treatment records, as well as the veteran's written statements to the RO, included references to the veteran's claims that his stressors included being subject to periodic rocket, mortar, and sniper fire while stationed in Vietnam. The veteran also claimed that he had traveled with convoys while in Vietnam that had been ambushed and were subject to landmine explosions. See September 1992 VA PTSD evaluation and April 1989 letter from the veteran's VA Therapist. Evidence received since the April 1990 denial by the Board included written statements by the veteran to the RO, a February 1989 Social Security Administration (SSA) decision, a December 1995 SSA letter, March 1995 to July 1996 private treatment records from Wayne County Mental Health Center, a February 1997 statement from Dr. Edwin W. Hoeper, March 1995 to November 1997 medication logs, a July 1997 VA examination report, March 1998 and July 1998 diagnostic assessments, and a November 1998 VA progress note. As with the evidence available in April 1990, these records also include some evaluations wherein PTSD was found. Additionally, as was the case at the time of the April 1990 Board decision, these records indicate that the veteran claimed that his PTSD was caused by being subject to periodic rocket, mortar, and sniper fire while stationed in Vietnam, as well as having convoys he had traveled with ambushed and subject to landmine explosions. See April 1996, August 1996, and January 1997 treatment records from Wayne County Mental Health Center; February 1997 statement from Dr. Hoeper; March 1998 and July 1998 diagnostic assessments; and November 1998 VA progress note. Interestingly, the treatment records once again show that, when specifically evaluated by VA for PTSD, the diagnosis was dysthymic and personality disorders, not PTSD. See July 1997 VA examination. Moreover, the Board notes that the February 1989 SSA award reports the veteran was disabled, at least in part, because of a mixed personality disorder, not PTSD. The Court in Grottveit v. Brown, 5 Vet. App. 91, 93 (1993), indicated that evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence." Moreover, the Court in Godfrey v. Brown, 8 Vet. App. 113, 121 (1995), said that the Board is not required to accept doctors' opinions that are based only upon the appellant's recitation of medical history. Also see Jones (Wayne L.) v. Brown, 7 Vet. App. 134 (1994). Therefore, because the forgoing treatment records merely provide VA with an occasional assessment of PTSD, as well as a list of claimed stressors, both of which existed in the record at the time of the April 1990 Board decision, they do not constitute new and material evidence. In short, the newly received evidence appears to include recitations of the veteran's diagnoses and his contentions as previously presented. This sort of evidence is not so significant that it must be considered in order to fairly decide the merit of his claim. In short, the new evidence tends to prove nothing beyond what was previously shown in April 1990. Absent the presentation of new and material evidence, the Board does not have jurisdiction to review the former disposition. Butler v. Brown, 9 Vet. App. 167 (1996). Even consideration of whether the claim of service connection for PTSD is well grounded and whether VA should assist the veteran under 38 C.F.R. § 5107 (West 1991) is not permitted. Id. It has also been suggested that the Board should determine whether the RO complied with M21-1, Part III, 1.03(a) (Change 50) (Feb. 23, 1996) and M21-1, Part VI, 2.10(f) (Change 48) (Aug. 5, 1996). The provisions of M21-1 Part VI, 2.10(f) provide that "the duty to assist will prevail while development is undertaken." A careful reading of this provision clearly shows the initiation of this "development" is predicated on the claim being "potentially plausible on a factual basis." Essentially, "potentially plausible on a factual basis" means the claim is well grounded. Epps, supra. Consequently, development is undertaken pursuant to M21-1 Part VI, 2.10(f) only after the veteran has presented a well-grounded claim. As the question of whether the veteran has presented a well-grounded claim is not reached until after the question of whether new and material evidence is decided in the veteran's favor, Elkins v. West, 12 Vet. App. 209 (1999), M21-1 Part VI, 2.10(f) is not applicable to his case. M21-1 Part III, 1.03(a) provides that "[b]efore a decision is made about a claim being well-grounded, it will be fully developed." However, only when a claim is well grounded does VA have an obligation to assist the claimant in "developing the facts pertinent to the claim." Robinette v. Brown, 8 Vet. App. 69, 77-74 (1995) (emphasis added) (referring to evidentiary development required by the duty to assist under 38 U.S.C.A. § 5107(a)); Epps, supra; Beausoleil v. Brown, 8 Vet. App. 459, 465 (1996); Morton v. West, No. 96-1517 (U.S. Vet. App. July 14, 1999). In contrast to the evidentiary development referred to in 38 U.S.C.A. § 5107(a), the provisions of M21-1, Part III, 1.03(a) refer to development of the claim. The requirement to fully develop a claim - as compared to development of the evidence underlying the claim - merely demands that VA ensure that the veteran has not filed a defective or incomplete application. See 38 U.S.C.A. § 5103 (West 1991); Robinette, 8 Vet. App. at 78. See 38 C.F.R. §§ 3.1(p), 3.160(a) (1997)(defining a claim as an application for VA benefits); see also M21-1, Part III, 1.01(a) (discussing development of pertinent facts "concerning a well-grounded claim"); M21-1, Part VI, 2.10(f) (discussed, supra); compare M21-1, Part III, 2.01(c) (during initial screening stage of claims processing, the RO shall review all applications and evidence immediately to determine if "a claim" is incomplete and requires "further development"). Indeed, M21-1, Part III, 1.03(a) relies upon Grottveit v. Brown, 5 Vet. App. 91 (1993), in which the Court stated that, "[i]f the claim is not well grounded, the claimant cannot invoke the VA's duty to assist [under 38 U.S.C.A. § 5107(a)] in the [evidentiary] development of the claim." Grottveit at 93, citing 38 U.S.C.A. § 5107(a). Therefore, until a veteran has submitted a well-grounded claim, VA is under no duty to assist the veteran in establishing the evidentiary elements of his claim. Morton, supra. In other words, the requirement to "fully develop" a claim pursuant to M21-1, Part III, 1.03(a) is not identical to the duty to assist which arises after a well-grounded claim has been submitted; instead, it appears to merely reiterate the duty to inform under 38 U.S.C.A. § 5103. Consequently, ensuring that a claim is "fully developed" under M21-1 Part III, 1.03(a) means that, where the veteran's application for benefits is incomplete, VA shall notify the veteran of the evidence necessary to complete the application. Id. at 80. As there is no indication in the present case that the veteran's application is incomplete, the Board finds that the RO complied with 38 U.S.C.A. § 5103 and 1.03(a). ORDER Absent the presentation of new and material evidence, the application to reopen a claim of service connection for PTSD is denied. MARK F. HALSEY Member, Board of Veterans' Appeals