BVA9504937 DOCKET NO. 93-09 296 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida 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 ATTORNEY FOR THE BOARD Suzie St. Vil, Associate Counsel INTRODUCTION The veteran had active military service from October 1963 to August 1966. He has been represented throughout his appeal by the Disabled American Veterans. Service connection for post-traumatic stress disorder (PTSD) was originally denied by a rating decision dated in December 1981. The veteran did not appeal that determination within one year of the notification thereof, and that decision became final. Subsequently, the veteran's attempts to reopen his claim for service connection for PTSD were denied by the RO in several occasions. He appealed a June 1986 denial of his claim by the VA, and a January 1990 decision by the Board of Veterans' Appeals (hereinafter Board) upheld the denial on the ground that the above mentioned rating decisions were final, and the evidence of record did not establish a new factual basis warranting a grant of service connection for PTSD. This current matter came before the Board on appeal from a rating decision of April 1991, of the St. Petersburg, Florida Regional Office (RO) of the Department of Veteran's Affairs (VA), which denied the veteran's attempt to reopen his claim of entitlement to service connection for PTSD. The appeal was received at the Board in April 1993. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that he is entitled to service connection for post-traumatic stress disorder which developed as a result of his experiences in Vietnam. The veteran maintains that while attached to the 1st Cavalry "battalion campaign" at Camp Holloway, in Pleiku, Vietnam, from October 1965 to November 1965, he assisted in cleaning up bodies. The veteran further maintains that he also witnessed the deaths of many United States Troops. The veteran indicates that as a result of his experiences in Vietnam, he suffers from nightmares, flashbacks, intrusive thoughts, an inability to establish relationships and an inability to maintain gainful employment. The veteran further points out that he has been diagnosed and treated for PTSD by VA doctors. It is argued that based upon the medical evidence of record, and the history given by the veteran concerning his stressors, the criteria for a diagnosis of PTSD are met. It is further argued that new and material evidence has been submitted which relates directly to the issue. It is requested that the case be considered under all applicable laws and regulations, and that the veteran be accorded the benefit of the doubt. 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 files. 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 new and material evidence has been presented such as to reopen a claim of entitlement to service connection for PTSD. FINDINGS OF FACT 1. The veteran was denied service connection for PTSD by the RO in December 1981; he did not appeal that decision. 2. Although there were subsequent adjudications of this issue, including by the Board in January 1990, the December 1981 rating decision was the last adjudication on the merits of the claim. 3. The evidence submitted since that decision to reopen the claim for entitlement to service connection for PTSD consists of documents not previously of record, which are also both relevant and probative of this issue. CONCLUSIONS OF LAW 1. The RO's December 1981 rating decision which denied service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.302 (1994). 2. The claim for service connection for PTSD is reopened by new and material evidence. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board observes that when this case was originally considered by the RO in December 1981, the record was fairly clear. It showed that the veteran served in Vietnam. His military occupational specialty was power generator operator. The service medical records show that the enlistment examination, conducted in October 1963 was negative for any complaints or findings of a nervous disorder. In September 1964, the veteran was seen at the dispensary for complaints of feeling nervous and jittery; no pertinent diagnosis was reported. Subsequent service medical records were silent with respect to any complaints or findings of a nervous disorder. The separation examination, conducted in August 1966, reported normal neurologic and psychiatric evaluations. The medical evidence of record subsequent to service demonstrates that a VA examination conducted in January 1973 revealed normal psychiatric and neurologic findings. The records reflect that the veteran was hospitalized in November 1976 because he was depressed, anxious and unable to cope with his problems. At that time, he claimed to have had suicidal thoughts but without any plans to carry them out. He was treated with medication and individual therapy. The discharge diagnosis was depressive reaction with anxiety. VA medical records covering the period from 1980 to 1981 show that the veteran and his family were receiving counseling from the mental health clinic; during these sessions, the veteran expressed feelings of anger, depression, low tolerance and frustration. The records show that the veteran was admitted to a hospital in December 1980 for alcohol dependency. A VA hospital report dated in August 1981 indicates that the veteran was admitted to a hospital with complaints of depression for the last 10 years. He indicated that he had been depressed with constant thoughts of suicide ever since his discharge from military service. The attending physician reported that psychological testing was performed which reaffirmed the impression of severe personality disorder with narcissistic and antisocial features. The veteran was afforded a VA examination in October 1981, at which time it was reported that the spent 14 months in Vietnam as a generator mechanic. He described his marriage as "rocky" because of his frequent episodes of depression, during which he left home. The veteran also reported several prior periods of hospitalization for psychological and alcohol related problems. The veteran indicated that upon discharge from his most recent period of hospitalization in August 1981, he attempted suicide on two separate occasions; he stated that he was seen by a private psychiatrist who treated him. The examining physician observed that due to recent treatment of the veteran with electric shock, a diagnosis of depression was difficult to make at the time of the examination. The examiner further stated that the veteran did not meet the criteria for PTSD. He noted that the veteran's responses to an assessment questionnaire for potential PTSD indicated that he was subjected to low combat stress while in Vietnam, but he presented no identifiable anxiety reactions to his Vietnam experiences. Based upon the above evidence, the RO, in its December 1981 rating decision, determined that the claim for service connection for PTSD was denied as the disorder was not shown by the evidence of record. The veteran was notified of that decision and of his right to appeal, and he did not exercise that right. That determination became final when a timely appeal was not filed. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. However, the claim may be reopened on the basis of new and material evidence. 38 U.S.C.A. §§ 5108, 7105. In connection with the veteran's claim to reopen, we initially note that we have found that the claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, we find that he has presented a claim which is not inherently implausible. In Glynn v. Brown, 6 Vet.App. 523, 528 (1994), the United States Court of Veterans Appeals held that the new and material evidence determination on whether to reopen a previously denied claim for veteran's benefits should be based upon all evidence submitted since final denial (on the merits) rather than only upon evidence received after subsequent refusal to reopen for lack of new and material evidence. Consequently, in determining whether new and material evidence has been submitted to reopen the veteran's claim, the Board will consider all evidence submitted since the December 1981 rating action. As we pointed out earlier in this decision, the issue of service connection for PTSD was adjudicated on several subsequent occasions, including by the Board in January 1990. However, those adjudications occurred in the context of whether there was a basis to reopen the claim, rather than in the context of the merits of the claim. The December 1981 rating action was the last determination on the merits. Therefore, pursuant to the Court's holding in Glynn, it is the evidence submitted subsequent to that decision which must be reviewed. With respect to the evidence submitted by the veteran in connection with his attempt to reopen, the Board observes that this evidence includes numerous private hospital reports and VA medical records dated in 1981 and 1982; private medical statements from Frederic B. Will, M.D. and David Y. Kim, M.D., both dated in April 1984, indicating that the veteran had diagnoses of major affective disorder, reactive depression and PTSD; VA medical records dated from 1985 to 1987, including a VA hospital summary in November 1985 which reported a diagnosis of PTSD; private medical statements from Sheldon A. Chicks, M.D. dated in April 1986 and June 1987; testimony offered by the veteran at a hearing before the hearing officer at the RO in August 1987; reports from the Department of the Army; report of a special VA psychiatric examination, conducted in June 1988; additional VA medical records dated from 1986 to June 1992; and a lay statement from D. Huddleston dated in September 1992. The evidence now of record, unlike that in the file at the time of the December 1981 rating decision, contains a number of diagnoses of PTSD, including by VA. Symptoms of PTSD are also noted in the recent VA medical records. In light of the above evidence, the Board has determined that the claim is reopened. The additional evidence is obviously new and both relevant and probative of the issue at hand. It is not merely cumulative of other evidence or record. Furthermore, there is a reasonable possibility that the additional evidence, when viewed in the context of all the evidence, will change the outcome. See Colvin v. Derwinski, 1 Vet.App 171 (1991) and Smith v. Derwinski, 1 Vet.App 178 (1991). Under these circumstances, de novo consideration of the claim by the RO based on review of all of the evidence, both old and new, is required. ORDER The appeal is granted to the extent that the claim of entitlement to service connection for PTSD is reopened, new and material evidence having been submitted. REMAND In view of the above action, the claim is REMANDED to the RO for further adjudication consistent with the Board's finding that the claim is reopened. Furthermore, consistent with the VA's duty to assist the veteran in the development of facts pertaining to his claim under 38 U.S.C.A. § 5107(a) and the Court's decision Bernard v. Brown, 4 Vet.App. 384 (1993), the case is REMANDED to the RO for the following development: 1. The RO should request that the service department provide any additional information relating to the veteran's claimed attachment to the first Cavalry Division during the period from October 1965 to November 1965 to body "clean up" and "detail" duties. Particular attention should be directed to a search for any operational reports or other records of the 52nd Aviation Battalion and 1st Cavalry Division covering the period of October and November 1965, which might show the veteran's participation in the body clean up detail claimed by him. 2. Following the completion of the above actions, this information should be sent to the United States Army and Joint Services Environmental Support Group, located at 7798 Cissna Road, Springfield, Virginia 22150, in order to attempt to corroborate the stressful experience reported by the veteran. 3. All up-to-date VA medical records, as well as any current records of private psychiatric care identified by the veteran, should be obtained and placed in the record. 4. When all the above has been completed, the veteran should be examined by a psychiatrist, in order to determine the correct diagnosis. The psychiatrist should identify the stressors and specific symptoms supporting the diagnosis of PTSD, if found, in accordance with the Physician's Guide for Disability Evaluation Examinations and American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 3rd edition, revised (DSM-III-R). The claims folder should be made available to the examiner for review prior to the examination. 5. Thereafter, the RO should reevaluate the veteran's claim seeking entitlement to service connection for PTSD on a de novo basis, with review of all of the evidence both old and new. If the action taken by the RO remains adverse to the veteran in any way, both he and his representative should be provided with an appropriate supplemental statement of the case and afforded the time to respond, after which the case should be returned to the Board for further appellate review. No action is required of the veteran until he is notified. This REMAND is to ensure that the veteran is afforded due process of law and to procure clarifying data. D. C. SPICKLER 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. While the Board has concluded that the claim of service connection for PTSD has been reopened, this action is not dispositive of the ultimate issue of whether service connection is warranted. Accordingly, this remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).