Citation Nr: 0001019 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 97-20 280A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois 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: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Douglas E. Massey, Associate Counsel INTRODUCTION The veteran served on active duty from November 1964 to October 1966 and from February 1967 to August 1972. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a November 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which declined to reopen a claim of entitlement to service connection for PTSD on the basis of new and material evidence. In June 1998, the Board remanded the case to the RO for additional development. That development has been completed by the RO, and the case is once again before the Board for appellate review. FINDINGS OF FACT 1. An unappealed October 1994 rating decision declined to reopen the veteran's claim of entitlement to service connection for PTSD on the basis of new and material evidence. 2. Since the October 1994 rating decision, the veteran has submitted evidence which includes diagnoses of PTSD as well as lay statements and documents pertaining to his alleged inservice stressors. 3. The veteran is not shown to have engaged in combat with the enemy during his period of active military service. 4. The veteran does not have PTSD that is related to service or any other event which occurred therein. CONCLUSIONS OF LAW 1. The October 1994 rating decision which declined to reopen the veteran's claim of entitlement to service connection for PTSD on the basis of new and material evidence is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1999). 2. The evidence received since the October 1994 rating decision is new and material, and the veteran's claim for that benefit is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. The veteran's claim of entitlement to service connection for PTSD is well grounded. 38 U.S.C.A. § 5107(a). 4. Post-traumatic stress disorder was not incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.302, 3.303, 3.304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection for PTSD requires the following three elements: [1] medical evidence establishing a clear diagnosis of the disorder; [2] credible supporting evidence that the claimed in-service stressor actually occurred; and [3] a link, established by the medical evidence, between current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 137 (1997). In this case, an original claim for service connection for PTSD was denied by the RO in a rating decision rendered in September 1992. The evidence at that time included a diagnosis PTSD, but no evidence of a verified inservice stressor had been submitted. The veteran responded several years later by submitted additional evidence. In October 1994, the RO declined to reopen that claim on the basis that the evidence submitted was not new and material. The veteran was notified of the October 1994 rating decision and of his appellate rights that same month but failed to seek appellate review within one year of notification. Therefore, that decision is final and is not subject to revision upon the same factual basis. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See 38 U.S.C.A. § 5108. Reviewing a final decision based on new and material evidence is potentially a three-step process. See Elkins v. West, 12 Vet. App. 209, 214-9 (1999). First, the Board must determine whether the evidence submitted since the prior decision is new and material, which will be discussed below. If "the Board finds that no such evidence has been offered, that is where the analysis must end." Butler v. Brown, 9 Vet. App. 167, 171 (1996). Second, if new and material evidence has been presented, the claim is reopened and must be considered based upon all the evidence of record, to determine whether it is well grounded. See Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). Finally, if the claim is well grounded, and if VA's duty to assist under 38 U.S.C.A. § 5107(a) has been fulfilled, the Board may evaluate the merits of the claim. See Winters v. West, 12 Vet. App. 203, 206-7 (1999). The question of whether evidence is "new and material" is analyzed under 38 C.F.R. § 3.156(a), and also requires a three-step analysis. The first step requires determining whether the newly presented evidence "bears directly and substantially upon the specific matter under consideration," i.e., whether it is probative of the issue at hand. Cox v. Brown, 5 Vet. App. 95, 98 (1993). Evidence is probative when it "tend[s] to prove, or actually prov[es] an issue." Routen v. Brown, 10 Vet. App. 183, 186 (1997), citing Black's Law Dictionary 1203 (6th ed. 1990). Second, the evidence must be shown to be actually "new," that is, not of record when the last final decision denying the claim was made. See Struck v. Brown, 9 Vet. App. 145, 151 (1996). The third and final question is whether the evidence "is so significant that it must be considered in order to fairly decide the merits of the claim." Hodge v. West, 155 F.3d 1356, 1359 (Fed. Cir., 1998), citing 38 C.F.R. § 3.156(a). This need not mean that the evidence warrants a revision of the prior determination, but is intended to ensure the Board has all potentially relevant evidence before it. See Hodge, 155 F.3d at 1363, citing "Adjudication; Pensions, Compensation, Dependency: New and Material Evidence; Standard Definition," 55 Fed. Reg. 19088, 19089 (1990). New evidence will be presumed credible at this point solely for the purpose of determining whether a claim should be reopened. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). If all three tests are satisfied, the claim must be reopened. The October 1994 rating decision which declined to reopen the veteran's claim for service connection for PTSD is final, as it was the last disposition in which the claim was finally disallowed on any basis. The relevant evidence at that time consisted of the veteran's service medical records; service personnel records; and VA hospitalization and outpatient treatment reports, several of which included diagnoses of PTSD. Consequently, the evidence that must be considered in determining whether the claim may be reopened based on new and material evidence is that added to the record since the October 1994 rating decision. Since that rating decision, a report of a VA examination performed in July 1996 was submitted which includes a diagnosis of PTSD. In rendering the diagnosis, the examiner considered the veteran's accounts of stressful events he experienced while serving in Vietnam. In particular, the veteran reported that he had engaged in combat with enemy forces on numerous occasions, that he had sustained injuries to his right eye and legs during combat, that he had been exposed to dead bodies, and that he had escorted his brother- in-law's body, identified as [redacted], back home from Vietnam where he had been killed in an airplane accident. Evidence has also been submitted which supports the veteran's claim that he escorted his brother-in-law's body back home from Vietnam. In a November 1998 letter, the United States Armed Services Center for Research of Unit Records (USASCRUR) verified that Staff Sergeant [redacted] was killed in action in an aircraft incident in September 1967. The letter went on to add that it was unable to verify weather this was the same person referred to by the veteran. However, the veteran's sister submitted a letter in August 1998 stating that the veteran did in fact escort her husband's body home from Vietnam in September 1967. The record now contains a diagnosis of PTSD based on a verified inservice stressor, which was the basis for the RO's denial in September 1992 and October 1994. Accordingly, the Board finds that new and material evidence has been submitted since the October 1994 rating decision, and thus, the claim for service connection for PTSD must be reopened. II. Service Connection Having reopened the veteran's claim, the next question is whether the Board is permitted to conduct a de novo review at this time. In Bernard v. Brown, 4 Vet. App. 384 (1994), the United States Court of Appeals for Veterans Claims (Court) held that before the Board can address a question that has not been decided by the RO, it must determine whether the veteran has been given adequate notice of the need to submit evidence or argument on that question, and an opportunity to address the question at a hearing, and, if not, whether the veteran is prejudiced thereby. In the instant case, the Board finds that the veteran will not be prejudiced by proceeding to adjudicate this issue on a de novo basis. Following the Board's June 1998 REMAND, the RO issued a Supplemental Statement of the Case in June 1999 in which it denied the veteran's claim for service connection for PTSD on the merits based on a de novo review. At that time, the veteran was notified off all applicable laws and regulations pertaining to service connection for PTSD. Under these circumstances, the Board may proceed to adjudicate this claim without prejudice to the veteran. The Board finds that the veteran's claim of entitlement to service connection for PTSD is plausible and capable of substantiation and is therefore well grounded within the meaning of 38 U.S.C.A. § 5107(a). As a result, the VA has a duty to assist the veteran in developing facts which are pertinent to the claim. See 38 U.S.C.A. § 5107(a). As will be discussed, the Board finds that all relevant facts have been properly developed to the extent possible and no further action by the VA is warranted. As noted, service connection for PTSD requires three elements: [1] medical evidence establishing a clear diagnosis of the disorder; [2] credible supporting evidence that the claimed in-service stressor actually occurred; and [3] a link, established by the medical evidence, between current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f); Cohen, 10 Vet. App. at 137. In adjudicating a claim for service connection for PTSD, the Board is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by the veteran's military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.304(f); Hayes v. Brown, 5 Vet. App. 60, 66 (1993). The evidence necessary to establish the occurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the veteran was "engaged in combat with the enemy." Id. If the VA determines that the veteran engaged in combat with the enemy and his alleged stressor is combat related, then the veteran's lay testimony or statement is accepted as conclusive evidence of the occurrence of the claimed stressor, and no further development or corroborative evidence is required, providing that such testimony is found to be "satisfactory," i.e., credible and "consistent with the circumstances, conditions, or hardships of service." See 38 U.S.C.A. § 1154(b); 38 C.F.R. 3.304(f); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If, however, the VA determines either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor is not combat related, the veteran's lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the veteran's testimony or statements. See Moreau v. Brown, 9 Vet. App. 389 (1996). The record reflects that the veteran has been diagnosed with PTSD on several occasions based on his own accounts of stressful incidents which he claims occurred while serving in Vietnam. Therefore, the central issue in this case is whether the diagnoses of PTSD are reliable. After a careful review of the evidence, the Board finds that the preponderance of the evidence is against the veteran's claim. During the veteran's first period of service, records show that he was assigned to the 595th Signal Company (Support) and Company A44, 36th Signal Battalion in the area of Long Binh, Vietnam, from April 1967 to April 1968. He served as a telephone and central office switchboard operator. During his second period of service, the veteran served in Vietnam where he worked in communications. He was assigned to the U.S. Army Strategic Communications Command at Long Binh from January 1971 to January 1972, where he served as a Dial Central Office Repairman. The service records contain DD Forms 214 for the veteran's periods of service from 1964 to 1966 and from 1969 to 1972. The veteran's Department of the Army (DA) Forms 20 document his service in the infantry from 1964 to 1966 and then in communications from 1967 to 1972. These records also list the veteran's awards and decorations as the National Defense Service Medal (NDSM), Vietnam Service Medal, Vietnam Campaign Medal, three overseas bars, Expert Badge for the M-14, and Marksman Badge for the M-16. The DD Forms 214 only list the NDSM, the M-14 Expert Badge and two overseas bars. None of these documents lists the Combat Infantryman Badge, the Purple Heart Medal, or any other award evidencing combat with the enemy. The veteran's service medical records do not contain any evidence of combat-related injuries such as shell fragment wounds. These records are also negative for any complaint, treatment or finding for any psychological problems. A Medical Board report reveals that the veteran was medically retired from the Army in 1972 after his right eye was surgically removed. However, this injury was not the result of combat but occurred in December 1971 when a bedspring apparently hit the veteran in the right eye while home on leave. The veteran has alleged a number of stressors in seeking to establish service connection for PTSD. The veteran has submitted several written statements and testified at a videoconference hearing in March 1998 before the Board. A number of the alleged stressors involved actions associated with the North Vietnamese TET Offensive, particularly at the Bien Hoa Air Base. The veteran claimed that he was sent to secure the Bien Hoa Air Base in 1967, which was being overrun by Viet Cong. According to the veteran, the U.S. responded with air strikes and by dropping Napalm, severely burning and killing many soldiers from his unit. He identified one casualty as Staff Sergeant [redacted], but was unable to recall the names of any other casualties from his unit. He reported that he was involved in cleaning up dead bodies several days after the attack. Another stressful event reported by the veteran involved escorting the remains of his brother-in-law, Sergeant [redacted], back home from Vietnam after he had been killed in a airplane accident. The veteran denied witnessing Mr. [redacted]'s death, but claimed that this incident was one of several incidents underlying his PTSD. The record shows that the veteran received extensive treatment by the VA for various psychiatric disorders, including alcohol and heroin abuse, major depression, and a passive-dependent personality disorder. Several of these treatment reports also include diagnoses of PTSD, namely VA outpatient treatment reports dated in May 1992, September 1993, and March 1999, as well as VA hospitalization reports dated from August to September 1993, September to October 1993, and October 1998. The only mention of an underlying stressor contained in these reports, however, is the VA hospitalization report dated from August to September 1993, which included the veteran's history of having been wounded in combat while serving in Vietnam. No other stressor was identified in any of the remaining reports. The veteran was afforded a VA psychiatric examination in July 1997 to determine whether he currently suffered from PTSD. During the interview, the veteran explained that he had experienced numerous stressful events during both periods of his military service. The veteran stated that he had engaged in combat during his entire first tour in Vietnam. He claimed that he was involved in the TET Offensive in 1967, where U.S. air strikes killed many soldiers from his unit. He told the examiner that he was involved in retrieving charred bodies after the attack. The veteran also said that his PTSD was related to the incident in which he escorted his brother-in-law's body back home from Vietnam. In addition, the veteran claimed that he injured his eye while engaged in combat after a spring from his rifle malfunctioned, and that he received shrapnel wounds to his legs. Following the interview and mental status examination, the examiner concluded with diagnoses of chronic post-traumatic stress disorder, bipolar disorder by history, and chronic opiate dependence. The Board remanded the case in June 1998 and instructed the RO to send the veteran's stressor summary to the U.S. Armed Services Center for Research of Unit Records (USASCRUR), in order to verify the veteran's claimed stressors. In November 1998, that agency responded and included a unit history of the 595th Signal Company and of the 36th Signal Battalion to which the veteran was assigned. In its letter, USASCRUR reported that the 595th Signal Company was located at Di An, and that the 36th Signal Battalion, Company A44, was located at Bien Hoa. Enclosed was the 1968 TET Offensive report, which lists combat activities, encountered in the areas of Long Binh, Bien Hoa and Tan Son Nhut? The letter further noted that available Army casualty data lists many individuals with the last name "[redacted]," and that the veteran's name was not included in the casualty data. However, it was also noted that casualty data lists a Staff Sergeant [redacted] as killed in action in an aircraft incident in September 1967. As data did not list Sergeant [redacted]'s headquarters, USASCRUR was unable to verify that that was the same Sergeant [redacted] the veteran was referring to. In a letter submitted in August 1998, however, the veteran's sister verified that the veteran had in fact escorted the remains of her husband back home from Vietnam in 1967. The veteran was afforded a VA psychiatric examination in June 1999 to determine whether he suffered from PTSD as a result of a verified inservice stressor. The veteran identified his Vietnam stressors as handling dead bodies and escorting the remains of his brother-in-law from Vietnam. The examiner noted that the stressor involving the retrieval of dead bodies had not been confirmed. Based on a review of the claims file and findings from mental status examination, the examiner provided Axis I diagnose of (1) schizoaffective disorder, chronic, and (2) substance abuse, alcohol and opiates. The examiner commented that it was impossible to establish PTSD as a separate diagnosis. Applying the above criteria to the facts of this case, that Board finds that the preponderance of the evidence is against a finding that the veteran suffers from PTSD as a result of a verifiable inservice stressor. Initially, the Board finds that the objective evidence demonstrates that the veteran did not engage in combat with the enemy. The veteran, for example, was not awarded the Combat Infantryman Badge, the Purple Heart Medal, or any other award associated with valor or heroism shown while engaged with an enemy force. The veteran's service personnel records also do not reflect that the veteran was ever engaged in combat, and service medical records do not disclose any combat related injuries. Accordingly, the Board finds that there is no credible evidence that the veteran actually "engaged in combat." Although the veteran was assigned to the Long Binh area, which was adjacent to the Bien Hoa AFB, during the TET offensive of 1968, serving in a combat zone is not the same as engaging in combat with the enemy. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, independent corroboration of the stressors reported by the veteran must be shown. The Board also finds that none of the PTSD diagnoses are based on a verifiable inservice stressor. In this respect, the Board notes that the only verified inservice stressor is the incident in which the veteran escorted the remains of his brother-in-law back home from Vietnam. The letter and unit history provided by the USASCRUR are unable to confirm that the veteran was ever engaged in combat during the TET Offensive or involved in the retrieval of dead bodies during its aftermath. The veteran was assigned to the Long Binh area during the TET Offensive, which was adjacent to the Bien Hoa Air Based. Nevertheless, this is insufficient to confirm the veteran's claimed stressors involving combat. See Wood, supra. Furthermore, the veteran's claim that he sustained injuries in combat is contradicted by the evidence of record. The veteran maintained that he lost his eye after his rifle malfunctioned while engaged in combat. However, the record shows that this injury was caused by a bedspring while the veteran was home on leave. This inconsistency clearly raises the issue of the veteran's credibility and the probative value which may be attached to the veteran's statements and testimony. As the incident involving the veteran's brother-in-law is the only verified inservice stressor, the Board can only consider those PTSD diagnoses which includes this stressor. Here, the only PTSD diagnosis which mentions this verified stressor is the July 1996 VA psychiatric examination report. However, the examiner who performed that examination also included the veteran's alleged stressors involving combat and combat related injuries. As these stressors are either unverified or contradicted by the evidence, the Board places little probative value on this report. On the other hand, the examiner who performed the June 1999 VA examination only considered the verified inservice stressor involving the veteran's brother-in-law. The examiner also reviewed the entire claims file, including the letter and unit history submitted by the USASCRUR. Bases on that review and findings from mental status examination, the examiner opined that it was impossible to establish PTSD as a separate diagnosis. Instead, the examiner attributed the veteran's psychiatric symptoms to a chronic schizoaffective disorder and substance abuse involving alcohol and opiates. As this opinion is based on a thorough review of the claims file, the Board finds this opinion to be of greater probative value than the opinion found in the July 1996 VA examination report. See Swann v. Brown, 5 Vet. App. 177, 180 (1993) (without a review of the claims file, an opinion as to etiology of an underlying condition can be no better than the facts alleged by the veteran); see also Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (rejecting a medical opinion as "immaterial" where there was no indication that the physician reviewed the claimant's service medical records or any other relevant documents which would have enabled him to form an opinion on service connection on an independent basis). In the absence of confirmation of a stressful incident which supports a diagnosis of PTSD, any diagnosis of PTSD cannot be considered reliable. "Just because a physician or other health care professional accepted the veteran's description of his Vietnam experiences as credible and diagnosed the appellant as suffering from PTSD does not mean that the BVA was required to grant service connection for PTSD." Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). " The BVA [is] not bound to accept the appellant's uncorroborated account of his Vietnam experiences...." Swann v. Brown, 5 Vet. App. 229, 233 (1993); Wood, 1 Vet. App. at 192. While the veteran, as well as several family members, may well believe that his PTSD is related to service, as laypersons without medical expertise, they are not qualified to address questions requiring medical training for resolution, such as a diagnosis or medical opinion as to etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Hence, the veteran's claim of entitlement to service connection for PTSD must be denied. In conclusion, as the veteran has failed to prove that his PTSD is related to a verified inservice stressor, the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for PTSD. The Board also has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for PTSD is denied. RAYMOND F. FERNER Acting Member, Board of Veterans' Appeals