Citation Nr: 0004052 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 95-08 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for post- traumatic stress disorder. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Associate Counsel INTRODUCTION The veteran had active military service from April 1967 to February 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 1993 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the veteran's claim of entitlement to service connection for post-traumatic stress disorder (PTSD), and granted an increased rating for service-connected lumbosacral strain. A notice of disagreement was filed only as to the denial of the claim for PTSD. FINDINGS OF FACT 1. In an unappealed decision, dated in May 1986, the RO denied a claim by the appellant for entitlement to service connection for PTSD. 2. The evidence received since the RO's May 1986 decision is evidence that was not previously of record, which bears directly and substantially upon the specific matter under consideration, is not cumulative of other evidence of record, and is so significant that it must be considered in order to fairly decide the merits of the claim. 3. The claims file includes medical evidence indicating that the veteran may have PTSD that is related to his service in Vietnam. CONCLUSIONS OF LAW 1. The RO's May 1986 decision, denying a claim of entitlement to service connection for PTSD, is final. 38 U.S.C.A. § 7105(b) (West 1991). 2. New and material evidence has been received since the RO's May 1986 decision denying the appellant's claim PTSD, and the claim for PTSD is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 3. The claim for PTSD is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material As an initial matter, the Board notes that in a May 1986 decision, the RO denied a claim of entitlement to service connection for PTSD. A review of that determination reveals that the RO's basis is unclear, but that it appears to have found that the evidence did not show that the veteran had PTSD. There was no appeal, and the RO's May 1986 decision became final. See 38 U.S.C.A. § 7105(b). However, applicable law provides that a claim which is the subject of a prior final decision may nevertheless be reopened upon presentation of new and material evidence. See 38 U.S.C.A. § 5108. In December 1992, the veteran filed an application to reopen his claim. In April 1993, the RO apparently reopened the veteran's claim and denied it on the merits. The veteran appealed. Despite the RO's denial of this claim on the merits, the Board must consider the threshold question of whether new and material evidence has been submitted to reopen the claim. See Barnett v. Brown , 83 F.3d 1380 (Fed. Cir. 1996). After reviewing the record from a longitudinal perspective, the Board finds that new and material evidence has been received to reopen the veteran's claim for service connection for PTSD. When a claimant seeks to reopen a claim based upon additional evidence, VA must perform a three-step analysis. See Elkins v. West, 12 Vet. App. 209 (1999) (en banc). First, VA must determine whether the evidence is new and material under 38 C.F.R. § 3.156(a). Under 38 C.F.R. § 3.156(a), 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 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. See also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Further, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the second step of the Elkins analysis requires VA to reopen the claim and determine whether the claim is well grounded pursuant to 38 U.S.C.A. § 5107 (a). Finally, the third step of the Elkins analysis requires VA to evaluate the claim on the merits after ensuring the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. The U.S. Court of Appeals for Veterans Claims (Court) has indicated that in order to reopen a claim, there must be new and material evidence presented or secured since the last determination denying the benefit sought. See Elkins v. West, 12 Vet. App. at 213-214. Accordingly, the Board must consider whether new and material evidence has been received since the RO's May 1986 decision. In this case, the Board notes that in May 1986, the RO denied the veteran's claim after finding that the medical evidence did not show that he had PTSD. However, evidence received since the RO's May 1986 decision includes several VA hospital reports, dated between 1987 and 1994, and a VA PTSD examination report, dated in August 1998, which show that the veteran has been diagnosed with PTSD related to his service in Vietnam. As this evidence was not of record at the time of the RO's May 1986 decision, and as this evidence contains competent opinions indicating that the veteran may have PTSD related to his service in Vietnam, this evidence is not cumulative, and is "new" within the meaning of Elkins, supra. The Board further finds that this evidence is probative of the issue at hand, and is material. Accordingly, the Board affirms the RO's implicit finding that new and material evidence has been submitted. The claim for PTSD is therefore reopened, and the Board proceeds with its review. II. Service Connection Applicable regulations provide that service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125, a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). As stated previously, several VA hospital reports, dated between 1987 and 1994, and a VA PTSD examination report, dated in August 1998, include diagnoses of PTSD. Several of the reports link such PTSD to the veteran's claims of stressors encountered during service in Vietnam. Although the Board notes that these opinions suffer from deficiencies, to include the fact that they do not appear to have been based on a review of the veteran's C-file, the Board finds that they are sufficient to constitute medical evidence of a diagnosis of PTSD, and a nexus to active duty, such that the veteran's claim for PTSD is well grounded within the meaning of 38 U.S.C.A. § 5107(a)(West 1991). ORDER New and material evidence has been received in connection with the veteran's claim of entitlement to service connection for PTSD, and his claim for this benefit has been reopened. Evidence of a well-grounded claim for service connection for PTSD having been submitted, to this extent, the appeal is granted subject to the following development. REMAND Having submitted a well-grounded claim for PTSD, a remand is required in order to assist the veteran in developing the facts pertinent to his claim. The veteran's personnel file (DA Form 20) indicates that while in Vietnam he served as a "pioneer" with HHC (headquarters and headquarters company), 588th Engineering Battalion (588th EB), from February 16, 1968 to May 1, 1968. Also of note to this claim, he served in Korea as a pioneer with Company C, 13th Engineering Battalion (13th EB), 7th Infantry Division, between May and December of 1968. His DD Form 214 lists his military occupation specialty as "31GP4," tactical communications chief. He received no decorations evincing combat service, see 38 C.F.R. § 3.304(f), and there is nothing currently in the claims file which establishes participation in combat. A review of the transcript from the veteran's hearing, held in December 1999, and a written brief, received in August 1994, shows that he argues that he has PTSD as a result of combat, and stressors encountered during his service in Vietnam and Korea. Specifically, he has claimed the following as stressors encountered during service in Vietnam: 1) he worked in graves registration, to include transporting a dead body of a man who was killed by a sniper; 2) he worked as a combat medic; 3) he was shelled while stationed at Tay Ninh, at which time his unit (which he identified as A or C Company, 588th Engineering Battalion) suffered men killed in action (KIA) and he received shrapnel injuries; 4) he witnessed a soldier kill a Vietnamese national; 5) in about March 1968, he sustained brain damage after he was hit in the head with a board; 6) he was shelled and hit by shrapnel while on perimeter guard duty; 7) in February or March of 1968, he witnessed the sight of three dead bodies of soldiers who had been ambushed after they were sent out to dump trash; and 8) he saw an officer in his unit thrown out of a helicopter. The Board notes that the veteran also reported that while in Vietnam, his unit took "75 percent" casualties, and that this happened "all the time." Furthermore, while in Korea, he asserts that on November 22, 1968, while stationed in Korea, he was in a truck accident in which a Republic of Korea (ROK) soldier (identified "[redacted] [redacted]") and an American soldier (identified as "[redacted]") were killed. In addition, the veteran asserted that, contrary to notations in his personnel file (DA Form 20) and other service records which show that he was assigned to HHC (headquarters and headquarters company) of the 588th EB during his entire time in Vietnam, he argued that he was a member of Company "A" and/or Company "C" of the 588th EB. The Board further notes that a review of a brief submitted by the veteran's representative, received in August 1994, the veteran claimed that he had PTSD as a result of stressors encountered during service in Vietnam which included: 1) accidentally killing a civilian woman and her child after he was ordered to throw a grenade; and 2) seeing a friend die in combat as the veteran was attempting to carry him to safety. However, these stressors were not claimed at the veteran's December 1999 hearing, and at present he has not provided details such as names, dates or locations which would allow for an attempt at verification. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (stating that it is not an impossible or onerous task for appellants who claim entitlement to service connection for PTSD to supply the names, dates and places of events claimed to support a PTSD stressor). In addition, review of a written statement, received from the veteran in February 1997, shows that he stated that, "[after serving] in Vietnam about four months I was told my brother had been killed in country." However, at his December 1999 hearing, the veteran essentially stated that his brother was born in 1966, and that at the time he first arrived in Vietnam he did not even know that he had a brother. He also testified that his brother was currently about 33 or 34 years old. Therefore, at present, and in the absence of the submission of additional details from the veteran, no further attempt to verify these stressors is warranted. Absent confirmatory evidence of participation in combat, the record must contain service records or other corroborative evidence which substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressors. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993); Cohen v. Brown, 10 Vet. App. 138 - 150 (1997). In this case, the Board notes that the veteran's service medical records include a report, dated November 22, 1968, which states that the veteran was in a five-ton truck and that he jumped clear just before it turned over. He landed on his lower back. The Board is convinced that, at present, to the extent that the veteran has claimed that he was involved in a truck accident in November 1968, this stressor is sufficiently supported by the evidence such that this stressor has been verified. However, there is nothing currently in the record to substantiate the veteran's assertion that a ROK soldier and an American soldier were killed in this accident, and this aspect of the claimed stressor requires verification. The Board further notes that the claims file contains medical evidence which shows that the veteran has been diagnosed with a number of acquired psychiatric disorders other than PTSD, to include schizo- affective disorder, major depression, an anxiety disorder, alcohol and drug dependence, and several personality disorders. In addition, all of the PTSD diagnoses are based on unverified stressors claimed to have been witnessed during service in Vietnam. At present, the evidence is therefore conflicting as to whether the veteran has PTSD, and, if so, whether it is due to a verified stressor. Therefore, on remand, and regardless of whether any stressors are verified (other than the November 1968 truck accident), the veteran should be afforded a VA psychiatric examination to determine whether he has PTSD, and, if so, whether it is as a result of his verified inservice stressor(s). In addition to attempting to verify the claimed deaths arising out of the November 1968 truck accident, the Board has determined that the RO should also attempt to verify the other claimed stressors. In this regard, the claims file includes a letter from the National Archives and Records Administration (NARA), dated in January 1996, which states that it possessed Operational Reports-Lessons Learned (ORLL's) for the 588th EB for the time period in issue, and that the fees for such records were $21.25. The Board notes that in a precedential opinion by the VA General Counsel, which is binding upon the Board pursuant to 38 U.S.C.A. § 7104(c) (West 1991), it was held that NARA may charge a fee to provide VA with copies of records requested in connection with benefits claims, and that VA may require claimants to assume responsibility for such a fee. VAOPGCPREC 7-95, 60 Fed. Reg. 19809 (1995). In this case, it is unclear whether the veteran has been notified of the contents of NARA's January 1996 letter, and on remand the RO should ensure that it has notified the veteran that he is responsible for submitting the fee for NARA's cost of reproducing the requested documents, and that this fee is $21.25. Furthermore, an attempt should be made to obtain the Morning Report (MR) for the 13th EB for November 1968, in order to determine whether the claimed death of an American soldier named "Oswald" in a truck accident on that date can be verified. The RO should also attempt to obtain any report concerning the accident which occurred in November 1968 Based on the foregoing, additional development is required. Therefore, this case is REMANDED for the following action: 1. The veteran should be provided a copy or the January 1996 letter from the National Archives and Records Administration which states that it possessed Operational Reports-Lessons Learned (ORLL's) for the 588th EB for the time period in issue, and that the fees for such records were $21.25 and that such fees were the veteran's responsibility. 2. The RO should contact the National Archives and Records Administration and ask that facility to search for "Morning Reports" (DA Form 1) for November 1968 for Company C, 13th Engineering Battalion, 7th Infantry Division. The RO should also request any report concerning the November 1968 accident. Any information received must be associated with the claims folder. 3. The RO should then review the claims file and prepare a detailed list of all specifics reported by the veteran regarding the claimed stressors (date, names of individuals, veteran's unit, locations, etc.). This information should be furnished to the U.S. Armed Service Center for Research of Unit Records (USASCRUR), 7798 Cissna Road, Springfield, Virginia 22150-3197 with a request that that they attempt to verify the veteran's stressors. The RO should also request any report concerning the November 1968 accident. Any additional action deemed necessary by the RO to verify the claimed stressors should also be accomplished. 4. The RO should then prepare a report detailing the nature of any claimed stressor(s) which it has determined is verified by the record, to include jumping off of a truck during an accident in November 1968, unless the RO's development subsequent to this REMAND results in new evidence which shows that this stressor as reported by the veteran is not verified. If any death(s) or injuries are verified as a result of the November 1968 truck accident, the RO should include such details in its report. 5. After completing the above actions, the veteran should be afforded a VA psychiatric examination to determine the diagnosis of any and all psychiatric disorders which may be present. All indicated studies, tests and evaluations deemed necessary should be performed, but should include psychological testing including PTSD sub scales. The RO must provide the examiner with the summary of the verified stressors described above, and the examiner must be instructed that only these events may be considered for the purpose of determining whether exposure to an inservice stressor has resulted in the current psychiatric symptoms. The examiner should also determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should comment upon the link between the current symptomatology and one or more of the inservice stressors found to be established by the RO. The report of examination should include the complete rationale for all opinions expressed. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1 (1999), copies of all pertinent records in the veteran's claims file or, in the alternative, the claims file, must be made available to the examiner for review. 6. After undertaking any additional development deemed appropriate, the RO should review the expanded record and adjudicate the issue of service connection for PTSD, to include a formal determination as to whether the veteran was engaged in combat. If the RO's decision is adverse to the veteran, then he and his representative should be furnished an appropriate Supplemental Statement of the Case and be afforded an opportunity to respond. The case should then be returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant is free to submit any additional evidence or argument he desires to have considered in connection with his current appeal. No action is required of the appellant until he is notified. RAYMOND F. FERNER Acting Member, Board of Veterans' Appeals