BVA9504390 DOCKET NO. 93-12 457 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether there is new and material evidence to reopen a claim for service connection for anxiety reaction to include post- traumatic stress disorder. 2. Entitlement to an increased evaluation for lichen simplex, chronic, currently evaluated as 30 percent disabling. 3. Entitlement to a total disability evaluation on the basis of individual unemployability due to service-connected disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Wayne A. Tonkins, Associate Counsel INTRODUCTION The veteran had active service from April 1971 to January 1974. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a June 1991 rating decision of the St. Petersburg, Florida, Regional Office (hereinafter the RO) which confirmed the 30 percent evaluation for lichen simplex, chronic; determined that new and material evidence to reopen a claim for service connection for a psychiatric disability had not been submitted; and that the veteran's service-connected disability did not preclude all forms of substantially gainful employment. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts on appeal that the RO erred in failing to reopen and grant the claim for service connection for an anxiety reaction to include post-traumatic stress disorder, as he has submitted new and material evidence into the record which establishes the claimed disabilities resulted from active duty service. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that the veteran has submitted new and material evidence sufficient to reopen his claim for service connection for anxiety reaction to include post-traumatic stress disorder. For the reasons and bases discussed below, the veteran's claims are remanded to the RO for further action. FINDINGS OF FACT 1. In March 1981, the RO denied service connection for anxiety reaction. The veteran was notified in writing of the denial and of his appellate rights in April 1981. The veteran did not perfect a substantive appeal within one year of notice of the adverse decision. 2. The additional documentation received since the March 1981 rating decision includes clinical diagnosis of post-traumatic stress disorder and letters of appreciation from what appears to be combat units the veteran served with while in Vietnam which could, when viewed with other evidence, lead to a decision favorable to the veteran. CONCLUSION OF LAW The additional documentation received since the March 1981 RO decision constitutes new and material evidence sufficient to reopen the veteran's claim for service connection for anxiety reaction to include post-traumatic stress disorder. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a) (West 1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine if the veteran has submitted well-grounded claims within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and, if so, whether the Department of Veterans Affairs (hereinafter "VA") has properly assisted him in the development of his claims. "Well grounded" claims are ones which are not implausible. A review of the record indicates the veteran's claims are plausible, and that all relevant facts have been properly developed as to the issue of whether new and material evidence has been submitted to reopen the veteran's claim for service connection. I. Prior RO Decision The veteran presented a claim for service connection for a "nervous condition" in 1981. The RO denied the claim in March 1981, and in April 1981 the RO sent the veteran a letter notifying him of the decision and of his appellate rights. The veteran did not file a notice of disagreement within one year after the notification letter of April 1981. Although the veteran has attempted to reopen the claim subsequent to 1981, these requests to reopen the claim have been denied. Thus, the decision of March 1981 was the last final decision in which the question of the veteran's entitlement to service connection for a psychiatric disability was denied on the basis of a review of the entire record. For this reason, the veteran's current request to reopen his claim for a psychiatric disability must be assessed on the basis of the evidence added to the record after March 1981. Glynn v. Brown, 6 Vet.App. 523 (1994). II. New and Material Evidence Absent the filing of a notice of disagreement within one year of the date of mailing of the notification of the initial review and determination of an appellant's claim, a rating determination is final and is not subject to revision upon the same factual basis. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104(a) (1993). 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. 38 U.S.C.A. § 5108 (West 1991). Therefore, the issue presently before the Board is whether new and material evidence has been submitted since the RO's March 1981 decision. The RO has determined that the claim has not been reopened. Title 38 of Code of Federal Regulations (1993) states, in pertinent part, that: "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 the evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the case. 38 C.F.R. § 3.156(a) (1993). The United States Court of Veterans Appeals (hereinafter "the Court") has elaborated on what constitutes "new and material evidence." New evidence is not that which is merely cumulative of other evidence already present in the record. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991) citing Williams v. Sullivan, 905 F. 2nd 214, 216 (8th Circuit 1990). When evidence is material, it means that there is a reasonable possibility that consideration of the new evidence, when viewed in the context of all of the evidence, would change the outcome of the appeal. Smith v. Derwinski, 1 Vet.App. 178, 179 (1991). The evidence received since the March 1981 RO decision includes the following: (a) A Board of Veterans' Appeals informal hearing presentation conducted in September 1981 in Washington, D.C. (b) VA outpatient clinic records. (c) Military occupational specialty records received in July 1992. (d) Copies of service awards and unit letters of appreciation. (e) Health services progress notes from the Jacksonville Jails and Prisons Division. (f) A VA psychiatric examination report dated in October 1992. After thoroughly weighing this additional documentation, the Board observes that it contains a medical examination report indicating a diagnosis of post-traumatic stress disorder, letters of appreciation for services rendered from combat units in Vietnam, and specific details pertaining to stressors that may be verifiable. This evidence raises a reasonable possibility that a review of the claim on the basis of the entire record would result in a different outcome. The evidence is, therefore, sufficient to reopen the veteran's claim. ORDER The veteran's application to reopen his claim of entitlement to service connection for anxiety reaction to include post-traumatic stress disorder is granted. REMAND In light of the reopening of the veteran's claim, the Board observes that the veteran's entitlement to service connection for anxiety reaction to include post-traumatic stress disorder is to be determined following a de novo review of the entire record. Because the RO has reviewed this claim on the basis of the evidence added to the record after the final decision of 1981, and not on the basis of the entire record, the veteran has not had an opportunity to make a fully informed presentation regarding the question of whether the entire record establishes a basis for the grant of service connection. Accordingly, the veteran would be prejudiced by a decision on this claim without additional development. For this reason, based on the record on appeal and the Court's holding in Bernard v. Brown, 4 Vet.App. 384, 394 (1993) it is concluded that further development is necessary. Therefore, the case is REMANDED for the following action: 1. The veteran indicated that he witnessed people killed around the battalion headquarters perimeter by infiltrators, that he saw one of his friends decapitated by the tail rotor of a helicopter, he mentioned guard duty assignments which required carrying a weapon, and a missile that failed to detonate landing two barracks from his assigned barracks. The RO should obtain from the veteran detailed descriptions of the traumatic events he contends caused his post-traumatic stress disorder. These descriptions should include, but not be limited to, the specific dates, places, types of incidents, names, rank and unit of parties involved. Once this information is obtained it should be submitted to the United States Army and Joint Services Environmental Support Group in an attempt to verify the occurrence of the incidents. All contact with the veteran should be through his representative. 2. The RO should obtain information from the United States Army and Joint Services Environmental Support Group, if available, indicating the degree of combat the veteran's units experienced while he was assigned to them and whether the veteran ever had an active combat role, and, if so, to what extent if ascertainable. 3. The veteran received letters of appreciation for services rendered from Robert E. Linberg, First Sergeant, 203d Aviation Company and Theo S. Epperson, Major In Commanding 203d Assault Helicopter Company. The RO should locate these persons and inquire if they have any knowledge of the veteran's alleged involvement in combat-related activities and/or any knowledge of the incidents the veteran proffered as stressors. 4. The RO should schedule the veteran for a comprehensive VA psychiatric examination by a board of two psychiatrists for the specific purpose of ascertaining as precisely as possible the diagnosis of all psychiatric disorders the veteran might have, with special attention to the question of whether a diagnosis of PTSD is warranted. This study must be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. All indicated tests, including appropriate psychological studies with applicable subscales, must be conducted. The claims file must be made available to and reviewed by the examiner prior to the requested study. The examiner must assign a Global Assessment of Functioning Score consistent with the American Psychiatric Association's Diagnostic and Statistical Manual For Mental Disorders (3d ed. rev., 1987), and explain what the assigned score represents. A complete rationale for any opinion expressed must be provided. 5. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the requested examination does not include all test reports, special studies or opinions requested, appropriate corrective action is to be implemented. 6. The RO should schedule the veteran for an examination by the appropriate specialists to assess and express an opinion regarding the current degree of impairment of his lichen simplex, chronic disability, and its impact if any on his ability to work. The examiner must be provided with the veteran's claims folder for review prior to the examination, and the examination must be consistent with the appropriate Physicians Guide for Disability Evaluation Examinations. All diagnostic tests deemed necessary by the examiner should be conducted. When the above development has been completed, the case should again be reviewed by the originating agency. If the decision remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case and afforded a reasonable period to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action unless he is further informed. The purpose of this REMAND is to obtain additional evidence and no inference should be drawn regarding the final disposition of the claim. G. H. SHUFELT Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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. 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).