Citation Nr: 0007504
Decision Date: 02/17/00	Archive Date: 09/08/00

DOCKET NO. 98-21 213               DATE FEB 17, 2000

On appeal from the Department of Veterans Affairs Regional Office
in Los Angeles, California

THE ISSUE

Whether new and material evidence has been presented to reopen a
claim for entitlement to service connection for post-traumatic
stress disorder.

REPRESENTATION

Appellant represented by: California Department of Veterans Affairs

ATTORNEY FOR THE BOARD

L. Spear Ethridge, Associate Counsel

INTRODUCTION

The veteran had active duty from September 1965 to November 1968.

This matter comes before the Board of Veterans' Appeals (Board) on
appeal from rating actions by the Los Angeles, California Regional
Office (RO) of the Department of Veterans Affairs (VA).

The United States Court of Appeals for Veterans Claims
(hereinafter, "the Court") was known as the United States Court of
Veterans Appeals prior to March 1, 1999.

A VA Form 21-4138, received on September 28, 1998, has been
accepted as the veteran's perfected substantive appeal on this
matter.

It is also noted that the RO initiated this claim as one for new
and material evidence. However, in its June 1999 supplemental
statement of the case, the RO characterized the issue on appeal as
one for direct service connection. It appears as the RO has
reopened the claim based on the additional evidence of record.
However, regardless of the RO's disposition of the veteran's
claim., the Board is precluded from considering the merits of his
claim for service connection in the absence of new and material
evidence. Hickson v. West, 12 Vet. App. 247 (1999) (a finding that
new and material evidence has been submitted is a prerequisite to
the Board's jurisdiction of the merits of the claim). Accordingly,
the issue is as stated on the title page of this decision.

Regarding claims for new and material evidence, the Board notes
that the United States Court of Appeals for the Federal Circuit has
held that the Court erred in adopting the test articulated in
Colvin v. Derwinski, 1 Vet. App. 171 (1991). See Hodge v. West, 155
F.3d 1356, 1363-64 (Fed. Cir. 1998). In Colvin, the Court adopted
the following test with respect to the nature of the evidence which
would constitute "material" evidence for purposes of reopening of
a previously denied claim: "there must be a reasonable possibility
that the new evidence, when viewed in the context of all the
evidence, both new and old, would change the outcome of the claim
on the merits." Colvin, 1 Vet. App. at 174.

In light of the holding in Hodge, the Board in its decision below
will instead analyze the evidence submitted in the instant case
according to the standard articulated in 38 C.F.R. 3.156(a) (1999).
In view of the fact that the Court has

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held in Fossie v. West, 12 Vet. App. 1 (1998), that the standard
articulated in 38 C.F.R. 3.156(a) is less stringent than the one
previously employed by Colvin, the Board determines that no
prejudice will result to the veteran by the Board's consideration
of this matter. See Bernard v. Brown, 4 Vet. App. 384, 393- 94
(1993).

As indicated in the discussion below, further development is
necessary for this claim pursuant to the remand that follows this
decision.

FINDINGS OF FACT

1. In an October 1993 rating decision, the RO denied service
connection for post- traumatic stress disorder; and after being
notified of the decision and his appellate and procedural rights,
the veteran did not thereafter file an appeal.

2. Evidence added to the record since the October 1993 rating
decision bears directly and substantially upon the subject matter
now under consideration (i.e., whether there is a diagnosis of
post-traumatic stress disorder) and, when considered alone or
together with all of the evidence, both old and new, has a
significant effect upon the fact previously considered.

3. A current assessment of post-traumatic stress disorder serves to
well ground the veteran's claim.

CONCLUSIONS OF LAW

1. The October 1993 rating decision, which denied service
connection for post traumatic stress disorder, is final. 38
U.S.C.A. 5108; 7105(c) (West 1991); 38 C.F.R. 3.104(a) (1999).

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2. New and material evidence has been submitted to reopen the claim
for entitlement to service connection for post-traumatic stress
disorder. 38 U.S.C.A. 5108 (West 1991); 38 C.F.R. 3.156 (1999).

3. The claim for service connection for post-traumatic stress
disorder is well grounded. 38 U.S.C.A. 5107 (West 1991).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Procedural history reveals that in an October 1993 rating decision,
the RO denied the veteran entitlement to service connection for
post-traumatic stress disorder. That decision was predicated on the
fact that there was no diagnosis of post- traumatic stress disorder
found on post-service examination, and that service medical records
were negative for any neuropsychiatric disorder. In October 1993,
the veteran was provided notice of this adverse decision, and of
his appellate rights, but an appeal was not initiated. 38 U.S.C.A.
7105(a), (b)(1) (West 1991); 38 C.F.R. 20.200, 20.302(a).
Therefore, the October 1993 rating decision became final when the
veteran did not file a notice of disagreement (NOD) within one year
of the date of mailing of the notice of that unfavorable
determination. 38 U.S.C.A. 7105(c) (West 1991 & Supp. 1998).

Pursuant to 38 U.S.C.A. 7105(c), a final decision by the RO may not
thereafter be reopen and allowed. The exception to this rule is 38
U.S.C.A. 5108, which provides that "[i]f new and material evidence
is presented or secured with respect to a claim which has been
disallowed, the [Board] shall reopen the claim and review the
former disposition of the claim." Therefore, once a RO decision
becomes final under section 7105(c), absent the submission of new
and material evidence, the claim cannot be reopened or adjudicated
by the VA. 38 U.S.C.A. 5108, 7105(c); Barnett v. Brown, 83 F.3d at
1383.

"New and material evidence" means evidence not previously submitted
to agency decision makers, which bears directly and substantially
upon the specific matter under consideration, which is neither
cumulative or redundant, and which by itself

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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(a).

With regard to petitions to reopen previously and finally
disallowed claims, the Board must conduct a three-step analysis.
Winters v. West, 12 Vet. App. 203, (1999) (explaining the holding
in Elkins v. West, 12 Vet. App. 209 (1999)). First, the Board must
determine whether the veteran has submitted new and material
evidence under 38 C.F.R. 3.156(a). If the Board determines that the
submitted evidence is not new and material, then the claim cannot
be reopened. Second, if new and material evidence has been
presented, then immediately upon reopening the claim the Board must
determine whether, based on all the evidence of record in support
of the claim, presuming the credibility, see Robinette v. Brown, 8
Vet. App. 69, 75-76 (1995), the claim as reopened (and as
distinguished from the original claim) is well grounded pursuant to
38 U.S.C.A. 5107(a). Third, if the claim is well grounded, the
Board may then proceed to evaluate the merits of the claim but only
after ensuring that the VA's duty to assist under 38 U.S.C.A.
5107(b) has been fulfilled. Winters and Elkins, both supra; see
also Manio v. Derwinski, 1 Vet. App. 140, 145-46 (1991).

The evidence of record at the time of the October 1993 RO decision
included the veteran's service medical records, service records,
Social Security Administration Records, and VA hospital and
examination records. The service medical records included a July
II, 1968 record showing that the veteran had a passive aggressive
personality, for which separation from the military was
recommended. The veteran's DD Form 214, showed that the veteran had
foreign service and decorations including a Vietnam Service Medal
with 2 Bronze Stars. Social Security Administration records showed
that the veteran was in receipt of Supplemental Security income
effective January 1988. In September 1992, the veteran was
hospitalized at VA with a primary diagnosis of cocaine
abuse/dependence. Therein it was noted that evaluation of the
veteran revealed no evidence of depression or a cognitive disorder,
and that there was no evidence suggesting the presence of post-
traumatic stress disorder. A March 1993 VA psychiatric examination
revealed the diagnosis of Axis 1, alcohol abuse, and schizophrenia,
undifferentiated.

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Additional evidence received in conjunction with the veteran's
claim to reopen includes a VA outpatient treatment records, two
Compensation and Pension examination performed on a fee basis by
private physicians for VA, and the veteran's contentions.

Most of the VA outpatient treatment records, dated from December
1995 to August 1997, show that the veteran was treated and
counseled for medical concerns other than psychiatric. The
psychiatric notations describe the veteran's symptoms of hearing
voices, feelings of humiliation, and irritability.

On October 29, 1998, the veteran underwent a compensation and
pension evaluation by Dr. Tamiry, at the request of VA, for other
purposes. Noteworthy is on the mental status portion of the
examination, the veteran's memory and behavior were normal.
Comprehension and coherence of response was normal. Emotional
reaction and tension were normal. Otherwise, the social and
occupational capacity and the capability of the veteran to handle
his own funds were deferred to the examining psychiatrist.

On November 6, 1998, the veteran underwent a general psychiatric
evaluation by Dr. Shnaider, at the request of VA. It was noted that
the veteran was considered a questionable historian. The evaluation
report consisted of 8 typed pages. Therein, the physician covered
the veteran's history of present illness, past psychiatric history,
family and environmental history, current medications, and current
level of functioning. The physician indicated that the veteran was
a questionable historian and the sole source of information
provides, as there were not medical records available for review.
The physician also conducted a mental status examination and
considered VA rating criteria. The diagnosis by Diagnostic and
Statistical Manual IV, was Axis I, psychosis, not otherwise
specified; anxiety disorder, not otherwise specified, polysubstance
abuse, in questionable remission, and alcohol dependence, in
questionable remission; Axis II, antisocial personality disorder;
and Axis IV, stressors, mild to moderate. In the assessment
section, Dr. Shnaider noted that the veteran appeared to be under
the influence of alcohol throughout the evaluation. He stated:

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If the patient's self-description is to be taken at face value and
it is to be believed that he is entirely abstinent from drugs and
alcohol, then the patient may be diagnosed with post-traumatic
stress disorder and chronic paranoid schizophrenia. He does meet
the criteria for PTSD (post-traumatic stress disorder), having been
exposed to multiple traumatic situations in Vietnam that have
resulted in intrusive memories, nightmares, hyper- vigilance, and
paranoia. According to the patient, this resulted in subsequent
drug and alcohol abuse, limiting his professional and social
functioning. In addition, the patient's auditory hallucinations and
paranoia are also consistent with DSM-IV criteria for chronic
paranoid schizophrenia.

Also submitted were the veteran's contentions as set forth in his
notice of disagreement, substantive appeal, and representative's
statement. The veteran contends that he was involved in two
helicopter crashes in service, which he feels were not considered
for his claim. No other specific contentions were forthcoming.

New and Material Analysis

The Board at this time has reviewed all of the additional evidence
received for the record since the RO's October 1993 rating
decision. In reviewing this evidence, the Board highlights Dr.
Shnaider's assessment of the veteran. Although he did not include
a diagnosis of post-traumatic stress disorder in his evaluation
diagnoses, Dr. Shnaider described that, if the veteran's
questionable history was believed, then, the veteran's
symptomatology met the diagnostic criteria for post-traumatic
stress disorder. The Board is mindful that for the limited purpose
of determining whether to reopen a claim, the credibility of the
evidence is to be presumed; however, this presumption no longer
applies in the adjudication that follows reopening. Justus v.
Principi, 3 Vet. App. 510, 513 (1992). Based on this principle the
Board finds that a the "assessment" of post-traumatic stress
disorder rendered by Dr. Shnaider in November 1998 bears
substantially upon the subject matter now under consideration,
which is whether there is a diagnosis of post-traumatic stress
disorder. 38 C.F.R. 3.156. When considered alone or together with
all of the

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evidence, both old and new, this "assessment," albeit not a firm
diagnosis of post- traumatic stress disorder, has a significant
effect upon the fact previously considered. This evidence
constitutes "new and material" evidence which allows the reopening
of the veteran's claim. Accordingly, the evidence is new and
material to reopen the claim for service connection for post
traumatic stress disorder. To this extent, the appeal is granted.

Well Grounded Claim

Next, the Board finds that the November 1998 medical report is also
sufficient evidence to the find the veteran's claim for service
connection for post-traumatic stress disorder is well grounded. In
this context, the Board observes that the December 1996 medical
report indicates a plausible relationship between service and a
possible post-traumatic stress disorder, that the veteran may have.
See Mattern v. West, 2 Vet. App. 222, 226 (1999) (this relationship
need not be conclusive, but only plausible for purposes of
establishing a well grounded claim).

However, it was explicitly stated that the veteran was under the
influence of alcohol at the time of the November 1998 psychiatric
evaluation, and that he was a 44 questionable" historian, and that
the records were not reviewed at that time by the examining
physician. It is clear that Dr. Shnaider was constrained while
making his &@assessment" that the veteran "may" have post-traumatic
stress disorder. Likewise, Dr. Shnaider saw it fit not to actually
diagnose the veteran with post-traumatic stress disorder when
making his evaluation diagnoses. Therefore, the Board determines
that additional development in accordance with the VA's duty to
assist under 38 U.S.C.A. 5107(a) must be accomplished before the
Board can proceed to evaluating the merits of this claim. See
Elkins and Winters, both supra.

ORDER

New and material evidence having been presented to reopen a claim
for entitlement to service connection for post-traumatic stress
disorder, the claim is reopened.

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REMAND

Having found that the veteran has successfully reopened and
established a well grounded claim for service connection for post-
traumatic stress disorder, the Board must now consider the claim on
the merits in order to ascertain whether a grant of the requested
benefit is warranted.

Based on the most recent medical evidence, is not clear what
diagnoses the veteran has; since the physician, in November 1998
did not diagnose the veteran with post- traumatic stress disorder,
but gave an "assessment" of the same. Also pertinent is that the
physician did not have the veteran's records for review at the time
of his evaluation in November 1998. The Board determines that a VA
examination, to include a medical opinion clarifying the veterans
psychiatric diagnoses, would be of assistance to the Board in
rendering a decision on this claim.

To ensure that VA has met its duty to assist the claimant in
developing the facts pertinent to the claim and to ensure full
compliance with due process requirements, the case is REMANDED to
the RO for the following development:

1. The RO should obtain the names and addresses of all medical care
providers who treated the veteran for a psychiatric disorder since
August 1997. After securing the necessary release(s), the RO should
attempt to obtain these records.

2. The veteran should be afforded another VA psychiatric
examination to clarify his current psychiatric ailments and
diagnoses. If possible, the RO should arrange for the veteran to be
seen again by Dr. Shnaider, as he was in November 1998. Dr.
Shnaider should be allowed to review the veteran's claims folder,
and any other pertinent medical documentation received for the
record, in conjunction with his assessment of the

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veteran. If Dr. Shnaider is available, he is asked to clarify
whether the veteran's symptomatology lends itself to a diagnosis of
post-traumatic stress disorder, and if so, to so state. If Dr.
Shnaider is not available, the examining physician should be
allowed to review the veteran's claims folder, and any newly
acquired medical documentation. The examining physician is asked to
render a diagnosis of post-traumatic stress disorder, if the
veteran has that disorder. If he does not have post-traumatic
stress disorder, the examining physician should so state.

3. After the development requested above has been completed to the
extent possible, the RO should again review the record. If any
benefit sought on appeal, for which a notice of disagreement has
been filed, remains denied, the veteran and his representative
should be furnished a supplemental statement of the case and given
the opportunity to respond thereto.

4. The RO should, and the Board takes this opportunity to, advise
the veteran that the conduct of the medical examination as directed
in this remand is necessary for a comprehensive and correct
adjudication of his claim. 38 C.F.R. 3.655(b) (1999). The veteran's
cooperation in reporting for the examination, not intoxicated as
was indicated at examination in November 1998, is critical. The
veteran is further advised that his failure to report for the
examination without good cause, or otherwise cooperating fully in
the efforts of the RO to develop this claim, including reporting to
the examination in a sober condition, may result in the claim being
considered on the evidence now of record or denied.

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Thereafter, the case should be returned to the Board, if in order.
The Board intimates no opinion as to the ultimate outcome of this
case. The veteran need take no action until otherwise notified

The veteran/appellant has the right to submit additional evidence
and argument on the matter or matters the Board has remanded to the
regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999).

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 Appeals for
Veterans Claims 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, 465 8 (1994), 38 U.S.C.A. 5101 (West Supp. 1999)
(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.

Deborah W. Singleton 
Member, Board of Veterans' Appeals

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