Citation Nr: 0004288 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 98-02 056A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for post- traumatic stress disorder. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant, V.V. ATTORNEY FOR THE BOARD T. Stephen Eckerman, Associate Counsel INTRODUCTION The veteran served on active duty from November 1966 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied the veteran's claim seeking entitlement to service connection for post-traumatic stress disorder (PTSD). In July 1997, a Notice of Disagreement was received, and a statement of the case was issued in December 1997. Since the veteran addressed this issue at the RO hearing in February 1998, and there is a transcript of his testimony on file, the hearing transcript is a timely Substantive Appeal. See 38 C.F.R. § 20.202 (1999); see also Tomlin v. Brown, 5 Vet. App. 355 (1993) (when oral remarks (i.e., hearing testimony) are transcribed, a statement becomes written). FINDINGS OF FACT 1. In a decision, dated in June 1994, the RO denied the veteran's claim for service connection for PTSD. 2. The evidence received since the RO's June 1994 decision with regard to PTSD which was not previously considered is not cumulative of other evidence of record, is probative of the issue at hand, and, in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the veteran's claim. 3. The appellant does not have PTSD attributable to military service or to any incident of active duty. CONCLUSIONS OF LAW 1. The RO's June 1994 decision, denying a claim of entitlement to service connection for PTSD, was final. 38 U.S.C.A. § 7104(b) (West 1991). 2. New and material evidence has been received since the RO's June 1994 decision denying the appellant's claim for PTSD, and the claim for PTSD is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 3. PTSD was not incurred or aggravated by the appellant's service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material As an initial matter, the Board notes that in a June 1994 decision, the RO denied a claim of entitlement to service connection for PTSD. A review of that determination reveals that the RO found that the evidence did not show that the veteran had PTSD. The was no appeal, and the RO's June 1994 decision became final. 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. 38 U.S.C.A. § 5108. Subsequent to the RO's June 1994 decision, VA medical records and other evidence was received, and in June 1997, the RO apparently determined that new and material evidence had been received to reopen a claim for service connection for PTSD. The RO denied the claim on the merits, for lack of a verified stressor. Notwithstanding the RO's denial of the claim on the merits, the Board will consider whether new and material evidence has been submitted. 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. 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. 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. 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 June 1994 decision. In this case, the Board notes that in June 1994 it denied the veteran's claim after finding that the evidence did not show that the veteran had combat, or that there was a verified stressor. A review of the evidence of record at the time of the Board's decision shows that although there was medical evidence of PTSD, there was no verified stressor to support the PTSD diagnoses. Evidence received since the RO's June 1994 decision is remarkable for a cover letter from the U.S. Armed Service Center for Research of Unit Records (USASCRUR), dated in September 1998, and a VA examination reports, dated in May 1997 and May 1998. The USASCRUR letter is accompanied by operational reports for the veteran's battalion which generally discuss that unit's activities while in Vietnam, to include several instances of enemy action. The VA examination reports show that the veteran was diagnosed with PTSD that was related to his service. Based on the foregoing, the Board finds that as this evidence was not of record at the time of the RO's June 1994 decision, and as this evidence contains service records of the veteran's battalion which documents enemy action during the time the veteran was in Vietnam, this evidence is not cumulative, and is "new" within the meaning of Elkins, supra. The Board further finds that as this evidence directly relates to the basis for the RO's denial of the veteran's claim in June 1994, this evidence is probative of the issue at hand, and, in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the veteran's claim. Accordingly, the Board finds that new and material evidence has been submitted. The claim for PTSD is therefore reopened, and the Board proceeds with its review of the evidence on a de novo basis. II. Service Connection A review of the veteran's written statements shows that he essentially asserts that he has PTSD as a result of stressors witnessed during service in Vietnam. The Board initially notes that in June 1994, the RO denied the veteran's claim on the merits after finding that there was no verifiable stressor to support a diagnosis of PTSD. The veteran has appealed. As competent evidence of a diagnosis of PTSD, and a nexus to active duty, has been presented, the appellant's claim for PTSD is well grounded within the meaning of 38 U.S.C.A. § 5107(a)(West 1991). The Board is satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). With regard to the medical evidence, the veteran's service medical records show that he was treated for complaints that included headaches and nervousness in December 1968, and that there were "no real problems." The remainder of the service medical records are silent as to complaints, treatment or a diagnosis involving an acquired psychiatric disorder. The veteran's separation examination report, dated in October 1969, shows that his psyche was clinically evaluated as normal. The post-service medical evidence includes VA examination reports, dated in September 1993, May 1997 and May 1998 which contain Axis I diagnoses of PTSD. The veteran's DD Form 214 shows that the veteran's awards include the Vietnam Service Medal and the Vietnam Campaign Medal. His military occupation specialty was carpenter. The veteran's personnel file (DA Form 20) shows that he served in the principal duty of heavy construction carpenter with Company C, 84th Engineering Battalion (Construction) (hereinafter 84th EB), from March 20, 1968 until March 8, 1969. The service personnel records show that the veteran did not receive any medals or decorations evincing combat. See 38 C.F.R. § 3.304(f). The Board initially finds that there is insufficient objective evidence to warrant a preliminary finding that the veteran participated in combat with the enemy. See Cohen v. Brown, 10 Vet. App. 128, 145 (1997). A letter from the USASCRUR, dated in September 1998, discussed infra, shows that they did not verify any particular claimed stressor, and does not show that the veteran or his unit participated in combat during any time at which he was a member. In addition, the USASCRUR's letter was accompanied by operational reports (OR's) for the 84th EB show that the battalion's "letter" companies were spread out in different locations, and do not contain objective evidence to show that the veteran was wounded, or that any member of Company C was killed or wounded due to enemy action at anytime during the veteran's service in Vietnam. See Ashley v. Brown 6 Vet. App. 52, 56 (1993) (noting that unit casualties may serve as proof of combat). Finally, although the veteran's DA 20 lists a "Tet Counter Offensive" campaign, the nature and extent of the veteran's participation in this operation is not described, and the Board declines to afford this entry the same weight as the commendations or awards which may show combat. See 38 C.F.R. § 3.304(f). In addition, the Board finds that this notation is of less weight when considering the other evidence in the veteran's service records, which contain specific information as to his duty as a heavy construction carpenter with a construction engineering unit. Based on the foregoing, the Board finds that the evidence does not show that the veteran participated in combat. See Cohen v. Brown, 10 Vet. App. 128, 145 (1997). Where VA determines that the veteran did not engage in combat with the enemy, and was not a POW, or the claimed stressor is not related to combat or POW experiences, the veteran's lay statements, by themselves, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other credible evidence which corroborates the stressor. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d), (f); Gaines v. West, 11 Vet. App. 353, 357-58 (1998); see also Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996); M21-1, Part IV, paragraph 11.38(b)(3) (Change 65, October 28, 1998). In this case, a review of the veteran's statements shows that, broadly stated, the veteran alleges that he has PTSD as the result of exposure to sniper fire, enemy shelling, and seeing dead bodies. However, the Court has held 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. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In this case, a review of the evidence shows that, with one exception, the veteran has not provided useful names, dates and/or places, or other useful identifying information, which would allow for verification of exposure to sniper fire, enemy shelling, and seeing dead bodies. Accordingly, further development is not required with regard to this "stressor." See Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993); see also M21-1, Part IV, paragraph 11.38(f)(2) (Change 65, October 28, 1998). In this case, the only stressor for which any appreciable detail has been provided involves the veteran assertion that he saw dismembered bodies of Viet Cong sappers the day after they blew up one or more fuel tanks at an unidentified installation at an unspecified time. He testified that there were no U.S. casualties. He has submitted a picture of himself posing next to what appears to be either a glove or a human hand. The Board finds that there is no verified stressor which could serve as a basis for granting the veteran's PTSD claim. Initially, the Board finds that the veteran is not a credible historian. Specifically, although a review of his VA mental disorders examination report, dated in May 1998, shows that he claimed that he witnessed "buddies of his being wounded and killed," he has never provided any names, and he did not claim such a stressors during either one of his hearings, or in his June 1994 stressor statement. In addition, during his hearing, held in February 1998, he testified that he was not responsible for policing up body parts at the time he saw dead bodies following a sapper attack on a fuel dump. However, at his hearing in November 1999, the veteran described describing pulling hands and arms off of bodies, and moving bodies, after he was asked, "[C]ould you tell us more about what happened as you were policing up body parts?" Accordingly, given the inconsistencies and contradictions in the veteran's assertions, the Board finds that the veteran is not a credible historian. As for the other evidence, the claims file contains a letter from the USASCRUR, dated in September 1998, which shows that it did not verify any of the claimed stressors. The USASCRUR's letter is accompanied by OR's for the 84th EB which show, in general, that Company C was involved in a variety of construction projects in various locations. Of particular note, the OR for the period ending in April 1968 shows that both Company C, and the 84th EB, were attacked at the base camp in Qui Nhon, and that Company C took casualties. In addition, the OR for the quarter ending in April 1969 states that, "There were no incidents of enemy action against base camps of this Battalion," and notes that there was an attack on a facility identified as "Tank Farm #2." The Board finds that none of the claimed stressors have been verified. With regard to the notations attacks for the period ending in April 1968, the OR indicates that these attacks took place in February 1968, prior to the veteran's arrival in Vietnam. With regard to the notation of an attack on Tank Farm #2, the Board finds that this notation, even when combined with the veteran's testimony and his photograph, is insufficient to verify the claimed stressor involving seeing dead bodies subsequent to an attack on a fuel dump. Specifically, the veteran has not identified the general area, or even the month, of this claimed stressor, and the Board has determined that he is not a credible historian. In addition, the OR merely indicates that the 84th EB supported the 134th Quartermaster Company with several heavy vehicles after an attack on Tank Farm #2 (emphasis added). However, the veteran's principal duty is shown to be a heavy construction carpenter. Finally, when read in context the OR appears to show that Tank Farm #2 belonged to the Quartermaster Corps, and was not located at an 84th EB base camp. In summary, the objective evidence does not show that any of the claimed stressors have been verified. The Board parenthetically notes that in its September 1998 letter, the USASCRUR stated that it required much more specific information regarding the claimed stressors. However, the veteran indicated that he was unable to provide such details at his most recent hearing, held in November 1999. Although the record contains a diagnoses of PTSD linked to his service, there is no official verification of the claimed stressors. As such, the diagnoses contain unsupported conclusions which are insufficient to warrant a grant of service connection for PTSD. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996) (something more than medical nexus evidence is required to fulfill the requirement for "credible supporting evidence"); see also Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Based on the foregoing, the veteran's claim for service connection for PTSD fails on the basis that there is no verified stressor; that all elements required for such a showing have not been met; and that the preponderance of the evidence is against the veteran's claim for entitlement to service connection for PTSD. Accordingly, service connection for PTSD must be denied. The Board 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 Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for PTSD is denied. BRUCE KANNEE Member, Board of Veterans' Appeals