Citation Nr: 0005698 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 98-11 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served as a U.S. Marine on active duty from December 1965 until December 1968, including service in Vietnam. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a rating decision of December 1993 from the St. Louis, Missouri Regional Office (RO) which found that new and material evidence had not been received to reopen a claim of entitlement to service connection for PTSD. The record reflects that service connection for PTSD was originally denied by an RO rating decision dated in January 1988. The veteran was notified of this determination, and his appellate rights, by letter dated in February 1988, but did not subsequently perfect a timely appeal, and the decision became final. 38 U.S.C.A. § 7105 (West 1991). More recently, a December 1993 RO rating decision found new and material evidence had not been received to reopen the claim for service connection for PTSD. Notice of the determination, and his appellate rights, were provided to the appellant that same month. In a statement dated and received in January 1994, the veteran expressed disagreement with that determination. However, a statement of the case (SOC) has not been issued in this regard. Rather, a RO determination in April 1994 confirmed the denial of new and material evidence to reopen the claim, and a March 1998 RO determination failed to consider the January 1988 prior final denial on the merits, in readjudicating the claim for service connection for PTSD. As such, the SOC issued the veteran and his representative in May 1998 failed to reference RO adjudication of whether new and material evidence had been received to reopen a prior finally denied claim. However, in view of the Board's decision herein, finding new and material evidence has been received to reopen the claim for service connection for PTSD, the Board finds that no benefit to the veteran would be served by Remanding the case for issuance of a SOC reflecting RO adjudication of the issue of whether new and material evidence had been received to reopen the claim for service connection for PTSD. A remand is inappropriate where there is no possibility of any benefit flowing to the veteran. Soyini v. Derwinski, 1 Vet. App. 540 (1991). FINDINGS OF FACT 1. In an unappealed rating decision dated in January 1988, the RO denied entitlement to service connection for PTSD. 2. Evidence received since the RO's decision in January 1988 is so significant, when considered with evidence previously of record, that it must be considered in order to fairly decide the merits of the claim. 3. The claim of entitlement to service connection for PTSD is plausible. 4. The veteran had combat service. 5. PTSD due to stressors of combat service has been demonstrated. CONCLUSIONS OF LAW 1. The unappealed January 1988 rating decision which denied entitlement to service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.302 (1999). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). 3. The claim of entitlement to service connection for PTSD is well grounded. 38 U.S.C.A. § 5107 (West 1991). 4. PTSD with depression and agitation was incurred in active service. 38 U.S.C.A §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304(f) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. New and material evidence to reopen the claim of service connection for PTSD. As note above, the RO initially denied entitlement to service connection for PTSD in January 1988. The veteran was notified of this decision, and his appellate rights, by letter dated in February 1988. The appellant did not fulfill the requirements for a timely appeal and that decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302 (1999). The evidence of record at the time of the January 1988 RO decision included service medical records which are negative for any complaints or findings relative to a psychiatric abnormality. His DD Form 214 reflected his military awards and decorations included the Presidential Unit Citation, and that he served in Vietnam. Also at the time of the January 1999 RO decision, clinical evidence showed that the veteran was hospitalized at a VA facility from December 1976 to April 1977, and that a diagnosis of situational adjustment reaction was rendered upon discharge. The veteran reported he had committed himself because of inability to cope with a family situation. He reported he had had several previous psychiatric admissions for "nervous breakdowns." He complained of social and family problems, and claimed he could not adjust to social pressure on him. VA clinical records dated between 1987 and 1988 showed that he received regular treatment as an outpatient where it was indicated that he had had depression for many years and had a history of an adjustment disorder. In October 1987, a diagnosis of major depression was rendered. In November 1987, the veteran reported he had not seen a private physician, and that all his psychiatric treatment had been at the Leavenworth, Kansas VA medical center. On VA hospitalization from October to November 1987, the diagnosis was adjustment disorder with mixed emotional features and history of polydrug abuse. The January 1988 RO decision denied service connection for PTSD on the basis that there was no diagnosis of current disability in this regard. As the January 1988 RO denial was not timely appealed, it is final. 38 U.S.C.A. § 7105. Subsequent to the January 1988 RO decision additional evidence has been submitted, including a VA outpatient clinic note dated in November 1993 which recorded an assessment of depression - probable PTSD, mild. A VA mental health clinic note dated in December 1997 recorded a clinical impression of PTSD. Additionally, extensive unit records dated in May 1967 reflect that the appellant's Marine Division, the Third Battalion, had exposure to instances of incoming hostile fire, engaged in dangerous field missions and participated in a number of operations against the enemy. Military records also established the veteran served in Vietnam from August 4, 1966 to April 5, 1967, and from May 16, 1967 to August 26, 1967. A VA fee basis examiner reported in February 1998 that the veteran did not give sufficient symptoms to warrant a diagnosis of PTSD. The veteran was afforded a VA examination for PTSD purposes in July 1998 whereupon the VA examiner indicated that the records had been reviewed, and a detailed clinical and stressor history, and recitation of current psychiatric symptomatology, were recorded. Following evaluation, a diagnosis of PTSD with depression, agitation and history of polysubstance abuse was rendered Service connection is granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). If a claim for service connection was previously denied, a veteran must submit new and material evidence in order to reopen his claim. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decision makers that 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. 38 C.F.R. § 3.156. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and an inservice stressor. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (1999). Under the test established by Elkins v. West, 12 Vet. App. 209 (1999) (en banc), it must first be determined whether the veteran has presented new and material evidence to reopen his claim. See Winters v. West, 12 Vet. App. 203 (1999) (en banc). The record reflects that prior to the January 1988 denial there was no competent medical evidence of record of a diagnosis of PTSD, combat activity with the enemy, or a verified stressor. In Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998), it was noted that while "not every piece of new evidence is 'material'; we are concerned, however, that some new evidence may well contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Considering this, the Board concludes that the new medical evidence, which shows that the veteran now has a diagnosis of PTSD, and the records of the veteran's military unit activity in Vietnam during his service, contribute "to a more complete picture of the circumstances surrounding the origin of" the veteran's psychiatric disability. Id. Therefore, new and material evidence has been submitted and the claim of entitlement to service connection for PTSD is reopened. 38 U.S.C.A. § 5108. 2. Whether the reopened claim of service connection for PTSD is well-grounded. Having determined that new and material evidence has been presented to reopen the claim for service connection for the disability at issue, it must next be determined if the veteran's appeal for service connection for PTSD is well grounded under 38 U.S.C.A. § 5107(a). Winters v. West, 12 Vet.App. 203 (1999). A well- grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). There must be more than a mere allegation, the claim must be accompanied by evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Moreover, where a determinative issue involves a diagnosis or a medical causation, competent medical evidence to the effect that the claim is plausible is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In order for the claim for service connection for PTSD to be considered well grounded, there must be competent evidence of a current disability, demonstration of the disease or injury in service, and an etiological relationship between the current disability and service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). The evidence and governing law and regulation, previously have been set forth. Competent clinical evidence of record demonstrates that the veteran has a current diagnosis of PTSD. Documents of record establish that his military unit engaged in combat activity with the enemy during his period of service, and the veteran has alleged stressors related to such combat service. As the necessary elements of the claim for service connection have been met, it is deemed to be plausible and capable of substantiation. Accordingly, the Board finds that the claim for service connection for PTSD is well grounded. 3. De Novo Merits Adjudication of Reopened Claim Because the claim of entitlement to service connection for PTSD has been determined to be well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Board notes that the record reflects that when the veteran was hospitalized at a VA facility from December 1976 and April 1977, it was noted that he had had several previous psychiatric admissions for nervous breakdowns. The veteran indicated in a statement dated in November 1987 that all his treatment had been at the Leavenworth, Kansas VA Medical Center and that he first been seen there about 1970. Records of VA psychiatric treatment prior to December 1976 have not been obtained. However, in light of the decision contained herein, the veteran is deemed to be not adversely impacted by the failure to obtain such records, and in light of the current diagnosis of PTSD, no benefit to the veteran may be obtained by Remanding the case to the RO to acquire such records. A remand is inappropriate where there is no possibility of any benefit flowing to the veteran. Soyini v. Derwinski, 1 Vet. App. 540 (1991). As such, VA's duty to assist under 38 C.F.R. § 5107 has been met. As noted above, the veteran was afforded a VA examination for PTSD purposes in July 1998 whereupon the veteran provided a detailed account of participating in search and destroy missions and being subject to heavy hostile fire from mortar, missiles and rockets. He stated that he himself that almost gotten killed when he had gone to the latrine and the person who replaced him was killed. Following evaluation, and review of the veteran's medical record, the reported diagnoses included PTSD with depression and agitation. Military documents of record, as well as the award of a Presidential Unit Citation, establish that the veteran engaged in combat activity with the enemy. His alleged stressors, upon which the July 1998 diagnosis of PTSD was based, are related to and consistent with his combat service. As such, the Board finds that the criteria for a grant of service connection for PTSD under 38 C.F.R. § 3.304(f) have been met. Hence, the evidence supports a grant of service connection for PTSD with depression and agitation. ORDER New and material evidence having been received, the appeal to reopen the claim of entitlement to service connection for PTSD is granted. The claim of entitlement to service connection for PTSD is well grounded; to this extent the appeal is granted. Service connection for PTSD with depression and agitation is granted. U. R. POWELL Member, Board of Veterans' Appeals