Citation Nr: 0006929 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 97-29 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from October 1966 to February 1968. He served in Vietnam from April 1967 to February 1968. The issue of entitlement to service connection for PTSD was previously before the Montgomery, Alabama, Department of Veterans Affairs (VA), Regional Office (RO) in March 1995. While the veteran submitted a timely notice of disagreement with this decision, he failed to perfect the appeal by submitting a timely substantive appeal. This appeal arose from a March 1997 rating action of the Montgomery, Alabama, RO, which refused to reopen the veteran's claim for service connection for PTSD. In June 1998, the Board of Veterans' Appeals (Board) remanded this case for additional development. On January 25, 2000, the veteran testified at Video Conference before a member of the Board. FINDINGS OF FACT 1. The RO denied the veteran's claim for entitlement to service connection for PTSD in March 1995. The veteran initiated, but did not perfect, an appeal of this denial. 2. The evidence added to the record since the March 1995 denial, to include the veteran's unit history, bears directly and substantially upon the specific matter under consideration, is neither cumulative nor redundant, and by itself or with evidence previously assembled is so significant it must be considered in order to decide fairly the merits of the claim. 3. The veteran has presented credible evidence that he currently suffers from PTSD that is related to his period of service. CONCLUSIONS OF LAW 1. The RO's March 1995 decision denying service connection for PTSD is final. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 20.1103 (1999). 2. The evidence submitted since the March 1995 denial is new and material; thus, the requirements to reopen the claim of entitlement to service connection for PTSD have been met. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. The veteran's claim for entitlement to service connection for PTSD is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The issue before the Board is whether the veteran has submitted new and material evidence to reopen his previously denied claim of entitlement to service connection for PTSD. The RO had decided in March 1995 that the veteran had not proven that he had experienced any verifiable stressor that would justify the diagnoses of PTSD made in the record. In March 1995, he had submitted a notice of disagreement, to which the RO responded with a statement of the case in August 1995. The veteran failed to perfect his appeal by submitting a timely substantive appeal. The RO's March 1995 denial is thus final. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 20.1103 (1999). Once an RO decision becomes final under 38 U.S.C.A. § 7105(c), absent submission of new and material evidence, the claim may not thereafter be reopened or readjudicated by VA. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999); Suttman v. Brown, 5 Vet. App. 127, 135 (1993). New and material evidence means evidence not previously submitted to agency decisionmakers 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 submitted is so significant that it must be considered to decide fairly the merits of the claim. 38 C.F.R. § 3.156(a) (1999). A three-pronged analysis is used to determine whether evidence is "new and material" as defined by 38 C.F.R. § 3.156(a) (1999). First, it must be determined whether the newly presented evidence "bears directly and substantially upon the specific matter under consideration," i.e., whether it is probative of the issue at hand. Secondly, the evidence must be shown to be "new," i.e., not of record when the last final decision denying the claim was made, and finally, a determination must be made as to whether the evidence "is so significant that it must be considered in order to fairly decide the merits of the claim." See Hodge v. West, 155 F.3d 1356, 1359 (Fed. Cir. 1998). New evidence, submitted to reopen a claim, will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If all three tests are satisfied, the claim must be reopened. See Hodge, supra. Upon reopening the claim, a determination must then be made as to whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). If the claim is well grounded, the claim may then be evaluated on the merits after ensuring that the duty to assist pursuant to 38 U.S.C.A. § 5107(b) (West 1991) has been fulfilled. See Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203 (1999). Pertinent evidence submitted since the March 1995 denial by the RO included the history of the veteran's unit, as well as his hearing testimony. This evidence was submitted in order to verify his claimed inservice stressor. This evidence bears directly and substantially upon the specific matter under consideration, and was not considered by the RO when it made its rating decision in March 1995. Moreover, it is so significant that it must be considered in order to decide fairly the merits of the claim. This evidence therefore constitutes new and material evidence under 38 C.F.R. § 3.156(a), and the claim is thus reopened. The Board must now determine whether the veteran's claim is well grounded. According to the applicable regulation, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); 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. 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. If the evidence establishes that the veteran was a prisoner-of-war under the provisions of 38 C.F.R. § 3.1(y) and the claimed stressor is related to that prisoner-of-war experience, 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). In this case, the veteran has asserted that he was exposed to traumatic incidents while participating in convoys that took ammunition to the frontline soldiers, particularly, the death of his closest friend. These assertions are presumed credible for the purpose of determining whether his claim is well grounded. Considering these assertions in conjunction with the diagnoses of PTSD of record, which has been related to his claimed stressor, it is found that his claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The Board also finds that additional development by the RO is needed before the Board can proceed in adjudicating the veteran's claim on the merits. ORDER Having submitted new and material evidence, the veteran's claim of entitlement to service connection for PTSD is reopened, and found to be well grounded, and to this extent only, granted. REMAND Once the veteran has submitted a claim that is well grounded, VA has a duty to assist him in developing his claim. In this case, it is found that additional assistance would be helpful. The veteran has consistently asserted that his best friend was killed during a convoy in the early part of 1968. The previous remand had requested that a unit history be obtained. However, the history provided only covers the period of January to December 1967. Thus, this history could not provide information concerning the veteran's claimed stressor which reportedly occurred the following year. Moreover, it is found that all pertinent morning reports from the applicable time period should also be obtained. Therefore, this case will be REMANDED to the RO for the following: 1. The RO should contact the U.S. Armed Services Center of Research of Unit Records (formerly the U.S. Army and Joint Services Environmental Support Group), and request copies of the unit history of the 363rd and 261st Transportation Company covering the period of January to April 1968. All attempts to obtain this information must be documented for the record. 2. The RO should contact the appropriate documents center and obtain all pertinent records and morning reports relative to the veteran's units during his Vietnam service (the 543rd, 261st, and 363rd Transportation Companies). 3. Once the above-requested records have been obtained and associated with the claims folder, the RO should readjudicate his claim for service connection for PTSD. If the decision remains adverse to the appellant, he and his representative should be provided an appropriate supplemental statement of the case, and an opportunity to respond. 4. Following completion of the foregoing, the RO must review the claims folder and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. C. P. RUSSELL Member, Board of Veterans' Appeals