Citation Nr: 0007389 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 97-08 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan 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: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Howard M. Scott, Associate Counsel INTRODUCTION The veteran had active duty from February 1969 to September 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied entitlement of the veteran to service connection for PTSD. The veteran appealed and the case was thereafter referred to the Board for appellate review. The Board notes that after perfecting his appeal, the veteran in June 1996 submitted a statement that he wished to withdraw his appeal. He did not specify which issues he was withdrawing, and subsequently continued to submit evidence relating to his claim for service connection for PTSD. The Board therefore construes the veteran's actions as a withdrawal of his claims for service connection for right thigh and face wounds, low back pain and left sided numbness, while continuing his appeal on the issue of PTSD. Only the issue of the veteran's entitlement to service connection for PTSD was certified by the RO for the Board's review at this time. FINDINGS OF FACT 1. An unappealed rating decision of the RO in March 1995 denied entitlement of the veteran to service connection for PTSD. 2. Since entry of the March 1995 determination, the veteran has submitted medical evidence showing the presence of PTSD related to combat in service. 3. The veteran was engaged in combat with the enemy. CONCLUSIONS OF LAW 1. The March 1995 RO decision, denying the veteran's claim of entitlement to service connection for PTSD, is final. 38 U.S.C.A. § 7105(c) (West 1991). 2. The evidence received since entry of the March 1995 rating decision is new and material, and the veteran's claim for service connection for PTSD 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) (West 1991). 4. Resolving the benefit-of-the-doubt in the veteran's favor, PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 5107(b) (West 1991); 38 C.F.R. §§ 3.303, 3.304(f) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In March 1995, the RO denied service connection for PTSD. The RO at that time determined that the veteran had not presented competent current evidence of the existence of PTSD. Among the evidence then of record were service medical records, a VA examination report of January 1995 containing diagnoses of major depression and rule out PTSD, and VA treatment records from September 1994 that, according to the rating sheet, reported diagnoses of major depression (the Board notes that the September 1994 records referred to in the March 1995 rating decision are not included in the claims file). The veteran was notified of the RO's decision in March 1995, but no timely appeal was filed and the decision became final. See 38 U.S.C.A. § 7105(b)(1), (c); 38 C.F.R. § 20.302 (1999); Person v. Brown, 5 Vet. App. 449, 450 (1993). A final decision under the provisions of 38 U.S.C.A. § 7105(c) cannot be reopened and reconsidered by VA unless new and material evidence is presented in connection with a request that the previously denied claim be reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Suttman v. Brown, 5 Vet. App. 127, 135 (1993). When it is determined that new and material evidence has been submitted, VA must reopen a previously denied claim. See Spencer v. Brown, 4 Vet. App. 283, 286-87 (1993); see also 38 U.S.C.A. § 7104(b). 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 to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); see generally Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). When a veteran seeks to reopen a final decision based on new and material evidence, a three-step analysis musts be applied. See Elkins v. West, 12 Vet. App. 209, 214-5 (1999); Winters v. West, 12 Vet. App. 203, 206-7 (1999); Hodge, supra. The first step is to determine whether new and material evidence has been received, under 38 C.F.R. § 3.156(a). Second, if new and material evidence has been presented, then immediately upon reopening the veteran's claim, VA must determine whether the claim is well grounded, under 38 U.S.C.A. § 5107(a). In making that determination, all of the evidence of record is to be considered and presumed to be credible. See Robinette v. Brown, 8 Vet. App. 69, 75-6 (1995). Third, if the claim is found to be well grounded, then the merits of the claim may be evaluated, after ensuring that the duty to assist under 38 U.S.C.A. § 5107 has been met. The evidence to be reviewed is that which has been submitted since the last decision that disallowed the claim on any basis. Since the March 1995 decision, the veteran has submitted statements from friends and relatives attesting to his current condition, a statement from a service colleague who reported that he witnessed the veteran get injured by enemy fire in service, and numerous medical records inclusive of ones containing diagnoses of PTSD. In addition, since March 1995, VA has received the veteran's service personnel records, demonstrating that he was an infantryman in Vietnam, and that he received the Combat Infantryman Badge (CIB). The newly submitted evidence establishes that the veteran has been diagnosed with PTSD. As there was no competent evidence of PTSD when the claim was denied in March 1995, the Board finds that the veteran has submitted new and material evidence sufficient to reopen his claim. Accordingly, the issue of entitlement to service connection for PTSD is to be addressed de novo. The Board notes that the RO, in rating decisions dated in June 1996 and February 1997, and in various statements of the case since then, did not address the issue of new and material evidence, but considered the veteran's claim on a de novo basis instead. Nevertheless, the issue of whether new and material evidence has been submitted to reopen a previously denied claim is a jurisdictional issue that must be addressed by the Board before proceeding to the merits of the claim. See Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). The Board, however, finds that the RO's failure to address the issue of new and material evidence to be harmless error since the practical result remains the same; the Board, having reopened the veteran's claim, shall adjudicate it on a de novo basis, as did the RO. A determination as to whether a claim is well grounded is the next step in the adjudication process after a previously denied claim has been reopened. See Winters, Elkins, supra. In view of the evidence regarding the veteran's service in Vietnam, his alleged stressors while engaged in combat, and the various medical opinions that the veteran has PTSD related to combat experiences in service, the Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Murphy v. Derwinski 1 Vet. App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). That is, the Board finds that the veteran has presented a claim which is not implausible when his contentions and the evidence of record are viewed in the light most favorable to that claim. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of a preexisting injury or disease contracted in line of duty. 38 U.S.C.A. § 1110. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA regulations recognize that symptoms attributable to PTSD often do not appear in service. Service connection for PTSD requires (1) medical evidence establishing a diagnosis of the condition, (2) credible supporting evidence that the claimed in-service stressor actually occurred, and (3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). 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, the veteran's lay testimony alone my suffice to establish the occurrence of the claimed in-service stressor, provided that the claimed stressor is consistent with the circumstances, conditions or hardships of the veteran's service. Id. Where the claimed stressor is not related to combat, "credible supporting evidence" means that "the appellant's testimony, by itself, cannot as a matter of law, establish the occurrence of a noncombat stressor." Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Service medical records note no complaints of or treatment for any psychiatric disorder, and the veteran's separation examination report shows no psychiatric abnormality. The awards and decorations listed in his service personnel records indicate that the veteran was awarded the CIB. His service personnel records further show that his military occupational specialty while in Vietnam was as an infantryman. In May 1995, a service colleague submitted a statement reporting that, while in Vietnam, he was onboard a helicopter that evacuated the veteran from a combat zone after the veteran had been wounded in the buttock and face, and that he personally witnessed these injuries. During testimony at a personal hearing before the RO April 1997, and in an April 1999 videoconference hearing held at the RO before the undersigned, the veteran reported being in various combat situations. He testified that he had been injured in combat, but that, because he received treatment in the field, he had not been awarded the Purple Heart. He essentially repeated the details regarding his combat experiences during his psychiatric treatment sessions and VA examinations. In view of the service records that show receipt of the CIB, the statement from the veteran's service colleague, and the credible statements from the veteran, the Board finds that the veteran was engaged in combat with the enemy. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 145 (1997); VAOPGCPREC 12-99. VA psychiatric examinations were conducted in January 1995, May 1996, December 1996, and May 1997. The examiners all concluded that the veteran did not have PTSD, and that his symptoms were more likely due to major depression, dysthymia, and polysubstance abuse. The record also contains VA psychiatric treatment records from September 1994 to November 1997, with such records containing numerous entries endorsing a diagnosis of PTSD, including multiple periods of VA hospitalization during which treating mental health professionals offered diagnoses of PTSD. There are, as well, other entries in VA treatment records rejecting such a diagnosis. Records from the Social Security Administration reflect an award of benefits based in part on a diagnosis of PTSD, as set forth by a private examiner in September 1995. In addition, in correspondence, dated in June 1996, a private psychologist states that he had diagnosed the veteran with PTSD secondary to his Vietnam experiences. An October 1996 private medical report contains a diagnosis of PTSD, chronic, delayed. In two letters from the veteran's VA therapist, both received in April 1997, it is stated that the veteran has PTSD due to his combat experiences in Vietnam. In November 1997, the Chief of the VA Psychology Section, Mental Health Services, submitted a "therapy summary" of the veteran's VA treatment, also signed by the veteran's VA therapist and psychologist, wherein it was concluded that the veteran's Axis I diagnosis was PTSD, severe, prolonged, with chronic depression and survivor guilt. On one hand, there are the veteran's involvement in combat and the numerous diagnoses of PTSD linked to combat, and, on the other hand, there are the medical records rejecting a diagnosis of PTSD, but it is the Board's finding, based on the foregoing, that the evidence concerning whether PTSD is present and was incurred in service to be in equipoise. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, Board resolves the benefit of the doubt in the veteran's favor and concludes that PTSD was incurred in service. ORDER Subject to the rules and regulations governing the award of benefits, service connection for PTSD is granted. BRIAN J. MILMOE Acting Member, Board of Veterans' Appeals