BVA9504505 DOCKET NO. 93-12 279 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for acquired psychiatric disability to include post-traumatic stress disorder, and, if so, whether the reopened claim may be granted. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Alberto H. Zapata, Associate Counsel INTRODUCTION The veteran served on active duty from August 1968 to February 1970. The Board notes that the veteran's form DD-214 indicates that he was awarded the Combat Action Ribbon for his service in Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In a July 1988 decision, the Board denied service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). The veteran made a request to reopen his claim in January 1992 and the RO subsequently found in February and March rating decisions that new and material evidence had not been submitted by the veteran to warrant reopening his claim. After appropriate development, the veteran was given a hearing at which he submitted further evidence in July 1992; the Hearing Officer's decision dated December 1992 confirmed the RO's previous decisions not to reopen the claim. The veteran has properly appealed the RO's February 1992 decision to the Board. The Board will address the veteran's request to reopen his claim for PTSD in this decision; the veteran's request to reopen his claim for psychosis will be addressed in the REMAND to follow this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that since his separation from service he has suffered from PTSD which is manifested by a variety of symptoms including: nightmares, hallucinations, increased startle response, and flashbacks. He asserts that private and VA treatment records along with written statements given by both him and his relatives constitute new and material evidence sufficient to reopen his claim. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that evidence added to the record since its July 1988 decision is new and material, therefore, the veteran's claim for service connection for PTSD is reopened. FINDINGS OF FACT 1. The Board denied entitlement to service connection for PTSD in July 1988. 2. Evidence added to the record since that time is not merely cumulative of evidence of record in July 1988 and is sufficiently relevant and probative, when viewed in conjunction with the evidence previously of record to establish a reasonable possibility of a different outcome. CONCLUSION OF LAW Evidence received since the July 1988 Board decision denying entitlement to service connection for PTSD is new and material, and the veteran's claim is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Except as provided in 38 U.S.C.A. § 5108, when a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed and a claim based upon the same facts may not be considered. 38 U.S.C. § 7104(b) (West 1991). The exception to section 7104 provides that when new and material evidence is presented and secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. The United States Court of Veterans Appeals (Court) has articulated a two- step process which must be followed in disposing of attempts to reopen a previously denied claim. First, the Board must determine whether the evidence added to the record is new and material. Second, if the claimant has produced new and material evidence, the case is reopened and the Board must evaluate the merits of the claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). In determining whether new and material evidence has been submitted, all of the evidence received since the last decision on the merits must be analyzed. Glynn v. Brown, 6 Vet.App. 523, 529 (1993). As part of the first step in the required analysis, the proffered evidence must be viewed in the context of all the evidence of record, and a determination must be made as to whether the proffered evidence is new, i.e., whether it is not merely cumulative of other evidence of record. Cox v. Brown, 5 Vet.App. 95, 98 (1993). If the proffered evidence is determined to be new, the analysis proceeds with a determination as to whether it is relevant to and probative of the issue at hand, and whether it presents a reasonable possibility of changing the outcome of the prior decision. Colvin v. Derwinski, 1 Vet.App 171, 174 (1991). The evidence of record at the time of the July 1988 Board decision consisted of numerous private treatment records, medical summaries, and VA examination reports detailing the veteran's mental disabilities. Those medical records demonstrate that the veteran was diagnosed with chronic schizophrenia, including both the undifferentiated and paranoid types; they also indicate that the veteran was under psychoactive medication for much of the period following his separation from service. A Lane County Mental Health Clinic report from December 1971, stated that the veteran had a psychological examination which resulted in a diagnosis of borderline psychosis with personality disorders. Also of record at the time of the 1988 Board decision was a social industry survey in which the veteran was said to be severely industrially impaired due to his ongoing psychotic symptomatology. A November 1985 VA examination report mentions that the veteran had chronic undifferentiated schizophrenia, and that he also exhibited symptoms consistent with PTSD but his underlying psychosis made a diagnosis of PTSD problematic. There is indication in that report that the VA psychiatrist did not have available to him or did not review the 1971 medical evaluation from the Lane County Mental Health Clinic in Oregon which is currently of record and which indicates that the veteran was diagnosed as being in a borderline psychotic state. Since the 1988 Boards decision, numerous pieces of evidence have been received. That evidence includes the veteran's own statements concerning the stressors witnessed while serving in Vietnam along with descriptions of the symptoms associated with his claimed PTSD. Further lay statements concerning the veteran's behavior upon his return from Vietnam were also submitted, including those of his sister, brother, and brother- in-law who assert that the veteran exhibited signs of anxiety and nervousness upon his discharge from the service; they also state that he was undergoing psychiatric evaluation in Linn County Oregon in 1970, the summer of his return from Vietnam. Lay witnesses' statements may be considered competent insofar as they speak to the behavior of the veteran, and these lay statements are to be taken as credible for the purposes of deciding whether the claim may be reopened. However, since these lay statements are duplicative of lay statements of record at the time of the 1988 Board decision, they are merely cumulative of the existing record and are therefore not "new" evidence. The most significant piece of evidence submitted since the prior Board decision includes a January 1992 psychological evaluation submitted by Arthur J. Van Cara, Ph.D., in which the psychologist commented that the veteran had one of the worst case scenarios of PTSD that the psychologist had seen since 1975. The psychologist also stated that the veteran had been hospitalized at least 14 times for his mental disorders. Moreover, the psychologist characterized the veteran's PTSD as being secondary to his combat experiences in Vietnam, and concluded that the veteran's PTSD exacerbated and made him more vulnerable to his episodes of paranoid schizophrenia. In conclusion, the psychologist noted that the veteran was severely socially and industrially impaired and that he would remain so for the rest of his life. Also received since the 1988 Board decision is a November 1992 VA Compensation and Pension examination report in which the examiner diagnosed the veteran with schizo-affective disorder, rule out obsessive compulsive disorder, alcohol dependence in remission, personality disorder, and a host of physical ailments. Significantly, the examiner's addendum to his report mentions that when asked about the criteria for PTSD specifically, the veteran gave responses sufficient to meet the definition of PTSD, however, when the veteran was asked about the PTSD criteria spontaneously, his responses were not sufficient to make that diagnosis. The examiner stated that a diagnosis of PTSD in this veteran was complicated by the existence of a schizophrenic spectrum disorder and pre-existing personality disorder along with severe obsessive compulsive symptomatology. The examiner recounted the history given by the veteran concerning a prior diagnosis of borderline psychosis which was made upon his return from Vietnam (as mentioned previously a Lane County Medical Health Clinic report from December 1971 which is of record confirms this assertion). The examiner concluded that the veteran's level of disability was severe and as a result he was heavily medicated; furthermore, all these factors indicate that he would have great difficulty in holding a job. It is important to note that the examiner states that it would be advisable to repeat a PTSD scale in the future if a final diagnosis of PTSD was still of concern after review of this report. No follow-up PTSD studies or evidence that they were performed are of record. The evidence received most recently since the 1988 Board decision consists of copies of treatment records from Chartiers Mental Health and Retardation Center, Inc., in Bridgeville, Pennsylvania covering the period 1979-1990. Those records indicate that the veteran was under heavy anti-psychotic medication throughout the period. Further, an April 1984 report shows that the veteran was diagnosed with schizo-affective and borderline personality disorders. July 1990 psychiatric case notes also detail that PTSD and tardive dyskinesia comprise part of the history of the veteran's mental disorders. As mentioned, of record at the time of the 1988 Board decision is a November 1985 VA medical examination report which states that the examiner did not feel that the veteran met the criteria for PTSD at that time. However, the examiner went on to add the qualification that "it would certainly be difficult if not impossible to make a clear diagnosis of post-traumatic stress disorder" given his current diagnosis of schizophrenia. Plainly, the examiner creating this 1985 VA examination report could not be rule out the possibility that the veteran was suffering from PTSD. In light of this inconclusive diagnosis, the evidence that was submitted since the 1988 Board decision is certainly new in that it contains a conclusive diagnosis of PTSD coupled with further diagnoses which state that the veteran has symptoms consistent with PTSD. Moreover, this new evidence is also material in that it is probative and relevant to the issue of determining whether the veteran has PTSD and there is a reasonable possibility that, when analyzed, it would change the disposition of the case. Moray v. Brown, 5 Vet.App. 211, 214, (citing Espiritu v. Derwinski, 2 Vet, 492 (1992)). ORDER New and material evidence having been submitted, the veteran's claim for entitlement to service connection for PTSD is reopened. REMAND Having determined that the veteran's claim of entitlement to service connection for PTSD has been reopened, the merits of his claim must be evaluated in light of all evidence, both new and old. Manio at 146. However, before that issue is reached, the Board believes that further development, to include psychiatric examination of the veteran, should be undertaken. With regard to the veteran's claim for entitlement to service connection for psychosis, the Board is of the opinion that further development pursuant to the VA's duty to assist is warranted. The Board notes that in the veteran's original claim for PTSD received at the RO in August 1985 he listed his previous treatment for a "nervous condition" at 3 private hospitals: Westview Psychiatric, Mayview State Hospital, and Mercy Hospital. There are no treatment records from these facilities in the claims file. However, the RO was placed on notice by the veteran that private medical records existed pertinent to his claim for a psychosis. Although the claim for service connection of the veteran's psychosis was denied by the RO in a 1972 rating decision which was final, the RO in an October 1986 Supplemental Statement of the Case reopened the veteran's claim for service connection for psychosis. The Board addressed and subsequently denied the veteran's claims for both PTSD and psychosis. In light of the Court's directions to the Board concerning its duty to assist the veteran in his bid to obtain new and material evidence for his claim by obtaining previously referenced private medical records, the Board believes that the duty to obtain the above-mentioned private medical records was triggered once it was put on notice of their existence. Ivey v. Derwinski, 2 Vet.App. 320 (1992). Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran again and request that he again identify the names, addresses, and approximate dates of treatment for all health care providers from whom he has received treatment for psychiatric disorders including PTSD at any time since service. Then, with authorization from the veteran, the RO should attempt to obtain copies of all treatment records identified by the veteran which are not currently of record. In particular the RO should attempt to obtain and associate with the claims file treatment records from Westview Psychiatric from January 1975, Mayview State Hospital from May 1978, and Mercy Hospital from March 1985; all these facilities are reportedly located in Pittsburgh, Pennsylvania. 2. The RO should arrange for a VA psychiatric examination of the veteran by a board certified psychiatrist, if available, who has not previously examined the veteran, to determine the nature and extent of any current psychiatric disorder. All indicated studies should be performed, and it is requested that the psychiatrist specifically confirm or rule out a diagnosis of PTSD. If PTSD is diagnosed, the examiner should identify the criteria to specifically include stressor(s) that support such a diagnosis. The veteran's claims file should be made available to the psychiatrist prior to the examination. 3. After undertaking appropriate development, the RO should then readjudicate the issue ofwhether new and material evidence has been added to the file since the July 1988 Board decision denying service connection for an acquired psychiatric disorder (psychosis). If so, the veteran's claim for entitlement to service connection for psychosis should be reopened and adjudicated on a de novo review of al the evidence, both new and old. Manio v. Derwinski, 1 Vet.App. 140 (1991); Colvin v. Derwinski. 1 Vet.App. 171 (1991). The RO should also adjudicate on a de novo basis the veteran's claim for entitlement to service connection for PTSD. If the benefits sought on appeal are not granted to the veteran's satisfaction, the veteran should be provided a Supplemental Statement of the Case on all issues in appellate status and afforded a reasonable opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action, if otherwise in order. No action is required of the veteran until he is otherwise notified by the RO. By this remand the Board intimates no opinion as to the final decision warranted. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.