Citation Nr: 9935296 Decision Date: 12/20/99 Archive Date: 12/23/99 DOCKET NO. 97-12 853 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington 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). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Vito A. Clementi, Counsel INTRODUCTION The appellant had active duty from March 1969 to November 1974. This matter was last before the Board of Veterans' Appeals (Board) in July 1998, on appeal from an April 1996 rating decision of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO). Upon its last review, the Board found that the appellant had not submitted new and material evidence that was sufficient to warrant the reopening of his claim of entitlement to service connection for PTSD, previously denied by the Board in May 1989. By order dated March 31, 1999 and pursuant to the unopposed motion of VA, the United States Court of Appeals for Veterans Claims (Court) remanded the appellant's claim for readjudication under the Federal Circuit Court of Appeals decision in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). FINDINGS OF FACT 1. In May 1989, the Board denied service connection for PTSD based upon the factual finding that the evidence did not support the occurrence of a verified non-combat stressor. 2. The evidence obtained since May 1989 does not bear directly and substantially on the specific matter under consideration, is either cumulative or redundant and is not, by itself or in combination with other evidence, so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSION OF LAW New and material evidence has not been submitted sufficient to reopen the claim of service connection for PTSD. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. §§ 3.156(a), 20.1100 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant seeks entitlement to service connection for PTSD. Initially, he seeks to reopen a claim of entitlement to service connection for PTSD, last denied by Board decision in May 1989. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. In the interest of clarity, the Board will first briefly discuss the law and regulations which are relevant to this case. The factual background of the case will then be reviewed. Finally, the Board will analyze the claim and render a decision. At the outset, the Board wishes to make it clear that it is cognizant of the instruction of the United States Court of Appeals for Veterans Claims in Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991): "A remand is meant to entail a critical examination of the justification for the decision. The Court expects that the BVA will reexamine the evidence of record, seek any other evidence the Board feels is necessary, and issue a timely, well-supported decision in this case." Relevant Law and Regulations Service connection Pertinent law and VA regulations generally provide that service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury or disease in line of duty. 38 U.S.C.A. § 1110 (West 1991 & Supp. 1998); 38 C.F.R. § 3.303 (1999). Under the governing regulation, 38 C.F.R. § 3.304(f), service connection for PTSD requires the presence of three elements: (1) A current 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 specific claimed in- service stressor. See also Cohen v. Brown, 10 Vet. App. 127, 138 (1997). The appellant's claim was denied in March 1989 because the evidence of record did not show the presence of a verified stressor. Finality/new and material evidence Because the appellant's claim of entitlement to service connection for a psychiatric disorder had been previously denied by the May 1989 Board decision, it can only be reopened by the presentation of "new and material evidence." 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a) (1999); see Stanton v. Brown, 5 Vet. App. 563, 566-567 (1993). By "new and material evidence" is meant that which was not previously submitted to agency decisionmakers which bears directly and substantially on the specific matter under consideration, which is neither cumulative nor redundant and which is, by itself or in combination with other evidence, so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1999). The law provides that the submission of new and material evidence is a jurisdictional prerequisite to the Board's review of a previously denied and final claim. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). With regard to petitions to reopen previously and finally denied claims, the Board must conduct a three-step analysis. Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203 (1999). First, the Board must determine whether the evidence presented or secured since the prior final denial of the claim is "new and material." Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened, and the Board will determine, based on all the evidence of record in support of the claim, and presuming credibility thereof, whether the claim is well-grounded pursuant to 38 U.S.C.A. § 5107(a). If the claim is well-grounded, the case will be decided on the merits, but only after the Board has determined that the VA's duty to assist under 38 U.S.C.A. § 5107 has been fulfilled. The Court noted in Elkins and Winters that the ruling in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), the Federal Circuit Court "effectively decoupled" the determinations of new and material evidence and well- groundedness. Thus, if the Board determines that additionally submitted evidence is "new and material," it must reopen the claim and perform the second and third steps in the three-step analysis, evaluating claim for well- groundedness in view of all the evidence, both new and old, and, if appropriate, evaluating the claim on the merits. See Elkins and Winters, supra. In Hodge, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that decisions as to whether evidence can be considered as new and material must be based on a factual determination as to whether the evidence is new (not merely cumulative or redundant) and material (relevant and probative with respect to an issue) and so significant that it must be considered in order to fairly decide the merits of the claim. Decisionmakers must apply the regulatory provisions of 38 C.F.R. § 3.156(a) to all attempts to reopen a claim. Generally, decisionmakers must determine if the new evidence bears directly on the reasons for the prior denial of the issue and is so significant that it must be considered. In determining the issue of whether the additional evidence submitted is new and material, the credibility of the evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The Court has held that this presumption of credibility is not unlimited. Specifically, the Court has stated that Justus does not require VA to consider patently incredible evidence (e.g. the inherently false or untrue) to be credible. Duran v. Brown, 7 Vet. App. 216 (1994); see Samuels v. West, 11 Vet. App. 433, 436 (1998); see also Godfrey v. Brown, 7 Vet. App. 398, 407 (1995) (Where the report of the Social Security Administration [SSA] reflected that its findings were based on the veteran's disability encompassing "twenty-year history of back problems," as evidenced by "medical evidence" and the medical evidence as evidenced in the SSA file did not reflect such history, the SSA statement cannot be presumed to be credible when on its face it conflicts with the lack of substantiation for it in the very medical evidence on which it is expressly premised). This presumption of credibility is accorded solely for the purpose of determining whether the case should be reopened. If the evidence is found to be new and material and the case is reopened, the presumption that it is credible and entitled to full weight no longer applies. In the adjudication that follows the reopening, the Board, having accepted provisionally for reopening purposes the credibility of the new evidence, then must determine, as a question of fact, both the weight and credibility of the new evidence in the context of all the evidence, new and old. Justus, 3 Vet. App. at 512-513. Factual Background By law, the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990); 38 U.S.C.A. § 7104(d)(1) (West 1991). With these requirements of law, and in light of the appellant's contentions, the Board will review the evidence of record at the time of the Board's decision in May 1989 and the evidence submitted to reopen the claim. The Board will then analyze the evidence in the context of the determination of whether the claim should be reopened. The "Old" Evidence The appellant initially sought service connection for PTSD in December 1985. He reported that he served for two months in Vietnam as a dog handler performing air base perimeter guard. He reported that since returning from Vietnam, he was very suspicious of other people and that he had "an exaggerated startle response." The appellant reported that he had been participating in a "PTSD Rap Group" since June 1985. By letter dated in February 1986, the appellant was requested to provide a complete statement of the specific traumatic incidents which he alleged led to his claimed PTSD. The appellant was requested to provide the necessary information by letter dated in July 1986. In August 1986, the appellant responded that he was in "Phu Cat, Vietnam," and that he was a security dog handler. He stated that he did not recall the unit's designation. The appellant provided no other information. The appellant's service personnel record reveals that he was qualified to perform duties as a Security Policeman and a dog handler. His record of foreign service assignments reflects that he was in Vietnam from October to December 1969. His record of awards indicates that he is the recipient of the National Defense Service Medal, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal. In that portion of his personnel record designated for the recordation of combat activities, there are no entries. The appellant's service medical records reveal that in October 1974, he was recommended for separation after being diagnosed with an inadequate personality. It was noted that the appellant then had no other psychiatric disorder. The examiner noted that the appellant had outlined a long history of immature, impulsive behavior that had resulted in marginal adjustment. The appellant reported dropping out of high school because of chronic fighting with teachers, and enlisting in the Air Force after a "chronic bout of dissidence with his parents." The appellant's in-service adjustment was noted to be marginal, and he characteristically responded to stress with "easy rage, naivete, poor judgment, and maladaptive behavior." It was further noted that the appellant was then angry and depressed over his wife's infidelity. Also of record is an October 1974 statement from T.O.M., the appellant's commanding officer. In the statement, the appellant's commander reported that the appellant was having difficulty, and that "most of [the appellant's] problems appear to stem from his wife, whose actions have caused him to be on the brink of divorce and subsequent separation from his two children." The commander further reported that the appellant's wife had twice complained in personal interviews that the appellant had not been selected for a "more prestigious position," and that the appellant had been relieved of duty for mistreating his dog. The appellant's report of separation from active duty reflects he was involuntarily discharged because of unsuitability, apathy, defective attitude, and an inability to expend effort constructively. In March 1987, it was reported that PTSD had been "ruled out" at the American Lake VA Medical Center (VAMC). The appellant underwent a VA Social and Industrial History examination during a VA hospitalization from September to November 1987. He reported that in basic training, he was raped by Staff Sergeant W. He further reported that he was raped while in Vietnam by another canine security specialist, who he did not name. The appellant also claimed that in November 1969, while on security duties, he underwent machinegun fire by a newly arrived bunker guard. The appellant reported that approximately one week later, he fell into a hole while on duty and severely injured his knee. While hospitalized, the appellant reported that he was exposed to severely injured soldiers who were awaiting transport back to the United States. The appellant also stated that after his return to the United States, he learned that his assigned patrol dog had been killed during an attack on the base where he was previously stationed. The examiner reported that the appellant reexperienced his claimed Vietnam traumas while he was driving, and that he regularly had nightmares. A number of these nightmares were of the traumatic experiences of being raped. The appellant's account of his claimed stressors was similarly outlined in treatment records from the American Lake VAMC. During an October 1987 psychosocial and social work assessment, the appellant reported that he was not exposed to enemy incoming fire or other combat experiences. With regard to the claimed in-service rapes, the appellant was not able to describe the facts and circumstances of these incidents. He also reported that while hospitalized, he met a soldier who had sustained multiple amputations. He also reported that he witnessed an A-7 fighter plane exploding in flight and crashing approximately one mile away. It was noted in a medical record progress note dated October 8, 1987 that the appellant disclosed, for the first time, the claimed in-service rapes during a group therapy session. The appellant informed the group that while in basic training, he was alone in his barracks with a training non-commissioned officer (NCO) who he described as being a large African- American man. According to the appellant, the training NCO accused him of "sabotaging the group's efforts," and forced the appellant against a wall locker. The NCO then cursed and shouted at the appellant, and pushed him down on a bunk, pulled the appellant's trousers down and sexually assaulted him. In December 1987, PTSD "pre-military and military" was diagnosed. The report reflects that the appellant also claimed that he was molested between the ages of 8 and 14 by a family friend. In an October 1988 substantive appeal, the appellant reported that he had been subjected to hostile mortar fire while in Vietnam on many occasions. The May 1989 Board decision In May 1989, the Board denied the appellant's claim, based on a specific finding that the appellant was not exposed to a verified stressor or other traumatic event in service. The Board observed in part that the appellant's account of his claimed stressors had been vague or generalized. The additional evidence In February 1990, the appellant sought to reopen his claim. He suggested that an Air Force security log for November 10, 1969 would verify that he was exposed to friendly fire while on guard duty. Upon the RO's inquiry, the U.S. Army and Joint Services Environmental Support Group (ESG) [presently, the U.S. Armed Services Center for Research of Unit Records (USASCRUR)], reported in August 1990 that it research failed to support the appellant's statement regarding the November 10, 1969 incident as well as the death of his assigned patrol dog. The ESG reported that information in support of the appellant's claim of sexual assault would not be in its possession unless the individuals concerned were tried by court-martial. During the course of the development of the appellant's attempt to reopen his claim, a record of hospitalization from April to May 1990 was received, reflecting diagnoses of continuous alcohol dependence and probable dysthymic disorder versus PTSD. An October 1994 psychiatric report authored by Ronald G.E., Ph.D., M.D. was obtained. Dr. E. apparently reviewed records by the Department of Health and Human Services, Social Security Administration, relative to the appellant's overall disability. In particular, Dr. E. reviewed reports of July and October 1987 and March 1988 by Charles B. of "Community Counseling Services" outlining the appellant's then current illness and inability to relate to co-workers and supervisors; a multi-specialty panel report of March 1990; an August 1990 report by James M., M.D., relative to the appellant's then current multiple diagnoses; and an undated further multi-specialty panel report relative to recent diagnostic testing. Other reports were noted, all relating to the appellant's diagnosed psychiatric disorders. Dr. E. noted that the appellant had attempted a variety of medications over the course of time in an attempt to manage his diagnosed PTSD and intermittent explosive disorder. With regard to the appellant's "psychosocial history" during his military service, Dr. E. only reported the appellant's account of pre-service sexual abuse and the two claimed in- service rapes. Dr. E. observed that the appellant had been diagnosed to have a personality disorder, an anxiety disorder, and a substance abuse disorder. Dr. E. further observed that the appellant also had an affective disorder. He further observed that while it was "never possible to determine if an individual [was] being truthful," it was possible to examine reports over the course of time and determine if there was a consistent pattern of complaints and diagnoses. Dr. E. opined that the appellant's mental impairments were genuine, profound and incapacitating. He observed that the appellant had a "profound personality disorder," and that it was not manufactured for financial remuneration. He opined that the appellant was not malingering. Dr. E. diagnosed the appellant to have PTSD, polysubstance abuse, dysthymia, an intermittent explosive disorder, and a mixed personality disorder with histrionic, dependency, paranoid, and borderline traits. An April 1995 Division of Disability Determination Services psychiatric report by Dr. M. reflects diagnoses of recurrent, severe, and chronic PTSD; polysubstance abuse; dysthymia; and a mixed personality disorder. In his report, Dr. M. stated that the appellant reported he had "survival anxiety and guilt, recurrent nightmares, flashbacks, increased anxiety and autonomic over arousal." Dr. M. observed that in addition to "combat experience in Vietnam," the appellant was "raped on several occasions during basic training and later while in the service," and that he was abused as a child. At a March 1997 personal hearing before a hearing officer at the RO, the appellant reiterated that he was raped in basic training by Staff Sergeant W. (Transcript [hereafter T.], 2). The appellant added that the incident interfered with his ability to complete his training "as far as being around any blacks," because his assailant was African-American. He stated that he did not report the incident to police or medical authorities, (T. 3), and did not tell anyone of the rape until 15 years later, when he informed his parents after his treatment for PTSD. (T. 5). He also reported that he was raped by a fellow airman, P.M., after performing guard duties. (T. 6-7). With regard to his claimed exposure to friendly fire, the appellant stated that he was enroute to speak with a bunker guard one evening when he was fired upon by the bunker guard. (T. 7-10). The appellant did not know the name of the guard, and he was not questioned about the incident. (T. 11). Following these incidents, the appellant stated that he injured his knee after he stepped in a hole while performing guard duties. (T. 12). He reiterated that during his convalescence, he was hospitalized in a ward with severely injured soldiers, awaiting transport to the United States. (T. 15-18). The appellant reported that he learned of the death of his patrol dog after he left Vietnam. (T. 18). The appellant stated that he did not know the identity of the person who informed him of the death of his dog, but that it was an individual who was later assigned to Wright Patterson Air Force Base with him. (T. 19). The appellant stated that over the course of a one-night stay at a hospital, he met a severely wounded soldier who had been burned and had several of his fingers and his leg amputated in combat. (T. 24). The appellant reported that he had thoughts and dreams of this individual, but did not know his name. (T. 25). Analysis The Board has carefully examined all of the evidence submitted in support of the appellant's attempt to reopen his claim, and presumed it credible. Having done so, the Board does not find that any of this evidence bears directly and substantially on the specific matter under consideration, which is neither cumulative nor redundant and which is, by itself or in combination with other evidence, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). In other words, new and material evidence that is sufficient to reopen the claim has not been submitted. As a preliminary matter, the Board notes that shortly before the RO's April 1996 denial of the appellant's attempt to reopen his claim, VA established special evidentiary procedures for PTSD claims based upon personal assault. See VA Adjudication Procedure Manual M21-1, ("M21), Part III, § 5.14c (Feb. 20, 1996). The Court has previously held that the predecessor M21 provisions that dealt with PTSD were substantive rules that are the equivalent of VA regulations. See, e.g., YR v. West, 11 Vet. App. 393, 398-399 (1999); Cohen, 10 Vet. App. at 139; see also Fugere v. Derwinski, 1 Vet. App. 103, 109 (1990), aff'd, 972 F 2d 331 (Fed.Cir. 1992). Generally, where a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to an appellant applies unless Congress provided otherwise or permitted the Secretary to do otherwise and the Secretary does so. Marcoux v. Brown, 9 Vet. App. 289 (1996); Karnas v. Derwinski, 1 Vet. App. 308 (1991). However, in Routen v. West, 142 F.3d 1434 (Fed.Cir. 1998), the Federal Circuit held that a regulatory amendment altering the burden of producing evidence did not constitute "new and material evidence," but was instead a procedural change. Routen, 142 F.3d at 1443. The amendments to M21 do not therefore constitute "new and material evidence," in and of themselves, to warrant the reopening of this claim. See Anglin v. West, 11 Vet. App. 361 (1998). However, the Board has examined all of the recently proffered evidence to ascertain if any information has been adduced that would generate further inquiry in accordance with the M21 amendments. Cf. Patton v. West, 12 Vet. App. 272, 278 (1999) (Observing that in an original claim of entitlement to service connection for PTSD, where a claim of service connection for another psychiatric disorder had previously been denied and unappealed, the M21 amendments would not have been sufficient to reopen the claim had the former claim been for service connection for PTSD.). The pertinent facts of record before the Board in May 1989 may be summarized as follows: 1. While serving on active military duty, the appellant was diagnosed to have an "inadequate personality," and was noted to have reported a long history of immature, impulsive behavior including chronic fighting with his teachers and conflict with his parents; 2. The appellant was separated from active service because of unsuitability, apathy, and a defective attitude after becoming angry and depressed about his wife's infidelity; 3. The appellant's service personnel records, and his personal accounts, revealed that he was not a combat veteran; 4. In November 1987, the appellant reported that he had been sexually assaulted in basic service training by Staff Sergeant W. and, on another occasion, an unnamed fellow airman; 5. The appellant reported that while in service, he had been fired upon by a guard with a machinegun; that he had been subjected to numerous mortar attacks; that he had witnessed a fighter plane exploding and crashing about a mile away from him, and that he had been exposed to individuals who were severely injured as he was being transported back to the continental United States; 6. The appellant reported that he was sexually assaulted as a child by a family friend; 7. The appellant was diagnosed to have "pre-military and military" PTSD in December 1987. Clearly "new" is the August 1990 report of USASCRUR. However, it does not add any further information with regard to the appellant's claimed stressors, nor does it suggest that there may be other evidence in existence that would tend to substantiate the appellant's claimed stressors by itself or in combination with other evidence already of record. As is noted above, the USASCRUR reported that it would not have any information in its archives relating to the appellant's claimed sexual assaults unless his assailants were tried by courts-martial. The appellant has reported that he did not relate the incidents to anyone until many years after service, and further inquiry with a view towards substantiating the events would not likely produce any further substantiation. Similarly, the agency specifically reported that it could not substantiate the appellant's account of being the target of "friendly fire," nor could it confirm the death of his patrol dog. To the extent that the appellant reported being subject to numerous mortar attacks while in Vietnam, the Board finds this information is not "new," as it was previously alleged in the appellant's substantive appeal submitted prior to the Board's May 1989 review. Records of continuing psychiatric care and psychological counseling dated subsequent to the Board's May 1989 are also plainly "new," in that they were not previously of record. However, the information contained in these medical reports is either not "new," in that it reiterates the appellant's prior accounts, and it is not material in that it does not relate any further information or suggest the existence of additional information that would substantiate the appellant's claimed stressors. Specifically with regard to the reports of Drs. M. and G.E., the Board notes that the physicians based their opinions upon the appellant's account of being sexually assaulted in service. In this regard, this information was already of record at the time of the Board's May 1989 review and is not "new." The recordation of a claimant's account by a medical examiner does not, in and of itself, alter the account to medical fact. LeShore v. Brown, 8 Vet. App. 406 (1995); see Swann v. Brown, 5 Vet. App. 229 (1993); see also Reonal v. Brown, 5 Vet. App. 458 (1993) As is noted above, Dr. G.E. has reported that the appellant is not malingering, and that he has multiple psychiatric disorders including PTSD, polysubstance abuse, dysthymia, an intermittent explosive disorder and a mixed personality disorder. However, the physician's opinion as to the veracity of the appellant's complaints is not material to the issue of corroboration of his claimed stressors, nor does it suggest the existence of any other information that would assist in the reopening of the claim. Although the credibility of proffered factual evidence is generally presumed, (i.e., in this instance, the Board presumes that Dr. G.E. is being truthful in reporting the nature of his opinion as to a fact), a physician's opinion that the appellant is being truthful is not germane. Gaines v. West, 11 Vet. App. 353 (1998); Moreau v. Brown, 9 Vet. App. 389 (1996). In other words, Dr. G.E.'s opinion as to the appellant's veracity does not in and of itself corroborate the appellant's account for purposes of reopening this claim, especially in light of the appellant's pre-May 1989 accounts of his in-service stressors. Examination of the appellant's March 1997 personal hearing testimony does not reveal that the appellant proffered any additional material information relevant to his claim, beyond that previously of record. The appellant's reports of being raped by Staff Sergeant W.; the incident where he reportedly was fired upon by an unnamed bunker guard; the death of his patrol dog after he left Vietnam; and his interactions during his convalescence with badly wounded soldiers (whose names he could not recall) were reiterative of previously submitted information. Although the appellant did recall the name of his other alleged sexual assailant (that of fellow airman P.M.,), he proffered no additional information that would lead to corroboration of the claimed stressor, and examination of the hearing transcript reveals that no other information that would suggest the existence of information not of record that would substantiate his claim. Investigation of the appellant's allegation (i.e., P.M. having assaulted the appellant) would amount to the mounting of a criminal investigation, from its onset, into a sexual assault allegedly occurring approximately 30 years ago. Such an undertaking is not contemplated in VA's duty to assist. See Myore v. Brown, 9 Vet. App. 498, 505-506 (1996). The duty to assist is not a license for a "fishing expedition" to ascertain whether there might be unspecified information which could possibly support a claim. Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). Reiterating, there is nothing in the appellant's account that would suggests that his naming of P.M. would lead to other substantiating information with regard to the claimed stressor. See 38 C.F.R. § 3.156(a) (Recognizing that the newly submitted evidence may be sufficient, "by itself or in combination with other evidence," so as to be of such significance that it must be considered in order to fairly decide the merits of a claim.). In short, the Board finds that the appellant has not submitted new and material evidence that is sufficient to warrant the reopening of the claim of entitlement to service connection for PTSD. The benefit sought on appeal accordingly remains denied. Additional Matter When the Board addresses in its decision a question that has not been addressed by the RO, in this case the adjudication of the claim under the provisions of 38 C.F.R. § 3.156(a) and Hodge, supra, it must consider whether the appellant has been given adequate notice to respond and, if not, whether he has been prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board concludes, however, that the appellant has been accorded ample opportunity to fully present his claim under both the previously applicable and current law relative to the reopening of claims. The Board's present adjudication of this matter without regard to the previously applicable Colvin criterion does not prejudice the appellant. The Board notes that in a February 1997 Statement of the Case, the appellant was specifically advised of the provisions of 38 C.F.R. § 3.156 pertaining to the submission of new and material evidence. He made no argument as to this provision. Following a March 1997 personal hearing, the appellant was advised in a Supplemental Statement of the Case that he had not submitted new and material evidence sufficient to reopen this claim, because he had essentially proffered evidence cumulative to that of record in May 1989. The Board further notes that in VA's unopposed motion to remand this matter, granted by the Court in May 1999, the appellant was advised that his claim would be readjudicated by the Board pursuant to the Hodge decision and the provisions of 38 C.F.R. § 3.156(a). Through his representative in October 1999, the appellant referenced his submission of June 1998, and argued that he was "definitely assaulted and raped while on active duty," and that he "very clearly stated" the names and duty assignments of his alleged assailants. The appellant has not argued either the previously applicable criteria under Colvin or the currently applicable criteria under the provisions of 38 C.F.R. § 3.156(a) and Hodge. His primary contention throughout the course of these proceedings is that he was subjected to stressful experiences while in service, and that these experiences led to PTSD. The appellant so argued without regard to either the previously or currently applicable law relative to the reopening of claims. The Board finds that no prejudice attaches from its consideration of this matter under Hodge. It must be emphasized that the operative regulation, 38 C.F.R. § 3.156, has not changed, and that the appellant was provided with notice of such regulation. For the reasons stated immediately above, the Board concludes that the appellant has been accorded ample opportunity to fully present his claim, and the Board's adjudication of the claim using the new, more lenient Hodge standard is not prejudicial to the appellant. ORDER New and material evidence not having been submitted to reopen the claim of service connection for PTSD, the appeal is denied. Barry F. Bohan Member, Board of Veterans' Appeals As is noted above, the submission of new and material evidence by the appellant is a jurisdictional requirement prior to the Board's review of a previously denied claim. In this regard, the Board must examine the newly proffered evidence in light of the relevant part of M21 to ascertain if there has been submitted evidence that either falls within or, in combination with other evidence, suggests the existence of other evidence as is set forth in the relevant portions of M21. In relevant part, paragraph 5.14c of the M21 provisions recognize that: (5) The service record may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities. Therefore, development to alternative sources for information is critical. Alternative sources that may provide credible evidence of the in- service stressor include: (a) Medical records from private (civilian) physicians or caregivers who may have treated the veteran either immediately following the incident or sometime later; (b) Civilian police reports; (c) Reports from crisis intervention centers such as rape crisis centers or centers for domestic abuse; (d) Testimonial statements from confidants such as family members, roommates, fellow service members, or clergy; (e) Copies of personal diaries or journals. . . . (8) Rating board personnel must carefully evaluate all the available evidence. If the military record contains no documentation that a personal assault occurred, alternative evidence might still establish an in-service stressful incident. Behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor. Examples of behavior changes that might indicate a stressor are (but not limited to): (a) Visits to medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; (b) Sudden requests that the veteran's military occupational series or duty assignment be changed without other justification; . . ., (e) Lay statements describing episodes of depression, panic attacks or anxiety but no identifiable reasons for the episodes; . . . . (h) Evidence of substance abuse such as alcohol or drugs; . . . . See M21-1, Part III, 5.14c, (5), (8).