Citation Nr: 0004074 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 94-25 195 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been submitted to reopen a 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 C. Schlosser, Associate Counsel INTRODUCTION The veteran had active military service from May 1964 to May 1967. By rating decision of July 1986, the RO denied the veteran's claims for service connection for PTSD and for residuals of a head injury. The veteran did not thereafter initiate an appeal and the decision became final. A subsequent rating decision in December 1989 found that new and material evidence had not been submitted to reopen the claim for service connection for PTSD. The present appeal first came before the Board on appeal from a March 1993 rating decision in which the RO found that new and material evidence had not been submitted to reopen claim for service connection for PTSD and for residuals of a head injury. The veteran appealed and was afforded a hearing at the RO before the undersigned member of the Board in May 1996. By decision of October 1996, the Board found that new and material evidence had not been submitted to reopen the veteran's claims for entitlement to service connection for PTSD and residuals of a head injury. The veteran appealed to the United States Court of Appeals for Veterans Claims (Court). This matter now comes before the Board pursuant to a March 1999 order of the Court vacating and remanding that part of the October 1996 Board decision which found that new and material evidence had not been submitted to reopen a claim for service connection for PTSD, based on a change in the law concerning new and material evidence. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); Elkins v. West, 12 Vet. App. 209 (1999). (That part of the October 1996 Board decision which found that new and material evidence had not been submitted to reopen a claim for service connection for residuals of a head injury was affirmed.) REMAND 38 U.S.C.A. § 5108 (West 1991) allows for a reopening of a previously denied claim, but only on the presentation of new and material evidence. "New and material" evidence is that 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. 38 C.F.R. § 3.156(a) (1999). In September 1998, the United States Court of Appeals for the Federal Circuit issued an opinion which overturned the test for materiality previously established by the Court in Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) (the so-called "change in outcome" test). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Federal Circuit in Hodge mandated that materiality be determined solely in accordance with the definition provided in 38 C.F.R. § 3.156(a), as noted above. Subsequent to Hodge, the Court held that the decision of the Federal Circuit in Hodge, supra, now requires a three-step process for reopening claims. Elkins v. West, 12 Vet. App. 209 (1999). Under the new Elkins test, VA must first determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a); second, if new and material evidence has been presented, immediately upon reopening the VA must determine 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); and third, if the claim is well-grounded, the VA may then proceed to evaluate the merits of the claim but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. The Board is required to review all of the evidence submitted by an appellant since the last final denial of a claim on any basis, to include decisions by the RO or the Board which had refused, after having considered newly presented evidence, to reopen a previously disallowed claim because of a lack of new and material evidence. Evans v. Brown, 9 Vet. App. 273 (1996). A review of the record in the present case reveals that, in the December 1989 RO rating decision and the subsequent October 1996 Board decision, the now-invalidated Colvin test was used when addressing the veteran's claim to reopen. Specifically, it was held that evidence associated with the claims folder since the last final decision failed to include cognizable evidence showing that the veteran had PTSD due to in-service stressors and that, therefore, the evidence did "not raise a reasonable possibility of a change in the prior adverse decision." (Emphasis added.) The Court has held that, when the Board proposes to address in its decision a question that has not been adequately addressed by the RO, the Board must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on the question, whether he has been given an adequate opportunity to actually submit such evidence and argument, and whether the SOC and/or SSOC fulfills the regulatory requirements. See 38 C.F.R. § 19.29 (1999). If not, the matter must be remanded in order to avoid prejudice to the claimant. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Inasmuch as the decision regarding whether the veteran has submitted new and material evidence to reopen his claim for service connection for PTSD was based on the standard which was struck down in Hodge, supra, a remand is warranted to allow the RO to apply the standards set forth therein, prior to consideration of the issue on appeal by the Board. The Board notes that the veteran has submitted a large amount of evidence since the last final rating decision in December 1989. On remand, the RO is advised that all evidence submitted since December 1989, to include lay statements, medical records and hearing testimony, must be considered based on whether it meets the requirements of new and material evidence based on 38 C.F.R. § 3.156 and Hodge, supra. In this regard, evidence submitted for purposes of reopening a claim is presumed credible; there is no consideration on the merits prior to the reopening of the claim. See Justus v. Principi, 3 Vet. App. 510 (1992). The case is REMANDED to the RO for the following action: 1. The RO should review the record and re-adjudicate the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to PTSD. In so doing, the RO should consider and apply only the provisions of 38 C.F.R. § 3.156(a) and the holding of the United States Court of Appeals for the Federal Circuit in Hodge. If it is determined that the veteran has not submitted new and material evidence to reopen his claim for service connection for PTSD, he and his representative should be furnished with a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for appellate action. 2. If the RO determines that the veteran has submitted new and material evidence to reopen a claim for service connection for PTSD, the RO should consider whether the veteran has presented a well-grounded claim for service connection for PTSD. See Elkins, supra. 3. In the event the claim for service connection for PTSD is found to be well-grounded, the RO should undertake any necessary development, consistent with the duty to assist the veteran and the holding of the Court in Cohen v. Brown, 10 Vet. App. 128 (1997). 4. Thereafter, the RO should adjudicate the issue of entitlement to service connection for PTSD on the merits. The adjudication of the issue on the merits should include a credibility determination based on the evidence of record. If the determination remains adverse to the veteran, both the appellant and his representative should be provided with a supplemental statement of the case. The veteran and his representative should be given the opportunity to respond within the applicable time. Thereafter, the case should be returned to the Board, if in order. The appellant need take no action unless otherwise notified, but he has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. 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 or by the Court for further 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. N.R. ROBIN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the Court. 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) (1999).