Citation Nr: 0007560 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 98-09 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: AMVETS WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Ralph G. Stiehm, Associate Counsel INTRODUCTION The veteran had active service from June 1966 to May 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied the veteran's application to reopen his claim for service connection for PTSD. A November 1991 RO decision denied the veteran's original claim for service connection for PTSD on the basis that there was no medical evidence of a current diagnosis of the claimed disorder. The RO reopened and then denied the veteran's claim in November 1992 and January 1994, on the basis that there was no clear diagnosis of PTSD, and no verification of the veteran's claimed stressors, respectively. The veteran appealed the latter decision but, following the issuance of a statement of the case, he did not perfect the appeal by filing a timely substantive appeal. FINDINGS OF FACT 1. An unappealed RO decision in January 1994 denied service connection for post-traumatic stress disorder. 2. Evidence received since the January 1994 decision, which includes medical evidence of diagnoses of post-traumatic stress disorder based on the veteran's history of stressors while on active duty in Vietnam, was not previously submitted, bears directly and substantially upon the specific matter under consideration, is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 3. There is no objective evidence to show that the veteran engaged in combat with the enemy but there is medical evidence of a current diagnosis of PTSD based on the veteran's claimed stressors while on active duty in Vietnam. CONCLUSIONS OF LAW 1. Evidence received since the January 1994 RO decision, which denied service connection for PTSD, is new and material, and the veteran's claim for that benefit is reopened. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.104, 3.156(a), 20.302 (1999). 2. The veteran's claim of entitlement to service connection for PTSD is well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In November 1991, the RO denied service connection for post- traumatic stress disorder. The November 1991 decision reflects that post-traumatic stress disorder "was not found at the current VA examination" and that "service medical records do not show any treatment for any nervous condition." In December 1991, the RO mailed the veteran a letter notifying the veteran of the adverse decision. In November 1992, the veteran submitted a statement indicating that he wished to reopen a claim for post- traumatic stress disorder. Included with that statement were additional medical records, including a December 1991 records documenting diagnoses which included post-traumatic stress disorder. Thereafter, in November 1992, the RO issued a decision denying service connection for post-traumatic stress disorder, the reason given being that additional evidence submitted by the veteran showed that the veteran was being treated for depression rather than post-traumatic stress disorder. In July 1993, the veteran again submitted a statement indicating that he wished to be service connected for post- traumatic stress disorder. He also requested a VA examination at that time. In August 1993, however, the RO informed the veteran that his claim could not be reopened without new and material evidence. At some point in August 1993, the veteran submitted additional records of treatment, although it is not clear whether it was before or after the RO mailed notification of the adverse decision to the veteran. These included a July 1993 diagnosis of post- traumatic stress disorder. Thereafter, in September 1993, the veteran submitted a statement in which he indicate that he disagreed with the denial of service connection of post- traumatic stress disorder in August of that year. In January 1994, the RO reopened and then denied the veteran's claim for service connection for post-traumatic stress disorder. In so doing, the RO indicated that hospital records documented diagnoses of depressive disorder and personality disorder. The letter continued that by stating that a "clear diagnosis of . . . post[-]traumatic stress disorder is still lacking. The RO added in that letter that the veteran had not provided a clear description of actual stressors claimed. In February 1994, the veteran responded with a statement in which in indicated again that he disagreed with the denial of service connection of post-traumatic stress disorder. He included with that submission a statement of claimed stressors that included seeing a truck hit by a land mine, seeing American soldiers attacking an enemy village, seeing bodies lying along the road side, being the subject of incoming enemy fire, and having once been buried under sand bags when an incoming rocket hit near his foxhole. In March 1994, the RO provided the veteran with a statement of the case. In that statement of the case, the RO pointed out that there was conflicting evidence concerning the presence of post-traumatic stress disorder. The RO indicated that there was no clear diagnosis of post-traumatic stress disorder. The RO also indicated that there was no evidence of a verifiable stressor. In so stating the RO indicated that the veteran had not provided "specific dates, places or names of other personnel involved in [the] claimed stressors." Thereafter, the veteran did not file any submissions with the VA until March 1997. As the veteran did not file a timely substantive appeal, the January 1994 RO decision is final. The veteran's application to reopen his claim was received by the RO in March 1997. Evidence submitted since that time includes a March 1997 VA hospitalization report which documents a diagnosis of post-traumatic stress disorder, and a report of a VA psychiatric examination in May 1997, during which the examiner diagnosed post-traumatic stress disorder. During that examination, the veteran indicated that he feared for his life during service on at least two occasions involving enemy fire. The veteran indicated that one of these occasions occurred November 1967 and involved a direct hit on his bunker which buried him in soil except for his feet. Subsequently received evidence includes medical records that contain a diagnosis of post-traumatic stress disorder, based on a history of the veteran's claimed stressors, while on active duty in Vietnam. Applicable law provides that a claim which is the subject of a prior final decision may be reopened upon presentation of new and material evidence. 38 U.S.C.A. § 5108. The Court has set forth a three-part analysis to be applied when a claim to reopen is presented. Winters v. West, 12 Vet. App. 203, 205-206 (1999); and Elkins v. West, 12 Vet. App. 209, 215-218 (1999). The first step is to determine whether new and material evidence has been presented pursuant to 38 C.F.R. § 3.156(a). If so, there must then be a determination whether the claim presented is well grounded under 38 U.S.C.A. § 5107(a). If the claim is not well grounded, the "adjudication process must come to a screeching halt despite reopening because a claim that is not well grounded cannot be allowed." See Winters, 12 Vet. App. at 206. If the claim is well grounded, then the VA must ensure that the duty to assist has been fulfilled before proceeding to the third step of a merits adjudication. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). For purposes of the first step of the analysis, new and material evidence means evidence not previously submitted, 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 the 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). That is, if the evidence contributes to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability it should be considered, regardless whether it changes the original outcome. See Hodge, 155 F.3d at 1363. 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). Service connection for post-traumatic stress disorder requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in- service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. at 128 (1997). Applying the aforementioned analysis to the evidence submitted by the veteran since the last final rating decision, the Board finds that it is new and material because it is so significant that it must be considered in order to fairly decide the merits of the claim. While the record does not include any objective evidence, such as medals or citations, to indicate that the veteran engaged in combat (a DD-214 indicates that the veteran was a truck driver while in Vietnam), the new evidence is material to the issue of service connection for PTSD because it includes medical evidence of a diagnosis of the disorder based on the veteran's history of his claimed stressors while on active duty in Vietnam, including more specific information regarding being subjected to enemy fire. The Board concludes that the submission of additional stressor information and medical evidence of a diagnosis of PTSD based on this history provides a sufficient basis to reopen the veteran's claim for entitlement to service connection for PTSD and his appeal is granted to this extent only. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156; Hodge, 155 F.3d at 1359, 1363. Having reopened the claim, the Board must next determine whether it is well grounded. See Robinette v. Brown, 8 Vet. App. 69, 75-6 (1995); Winters, 12 Vet. App. at 206. If the claim is well grounded, then the VA must ensure that the duty to assist has been fulfilled before proceeding to the third step of a merits adjudication. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In the instant case, the veteran has established the presence of a well-grounded claim, as he has a current diagnosis of PTSD that has been related to service. However, he must further provide credible evidence to support his contentions that the stressors occurred, although, at this point, the veteran's statements regarding the presence of in-service stressors are presumed credible. See King v. Brown, 5 Vet. App. 19, 21 (1993), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). ORDER New and material evidence having been submitted to reopen a claim for service connection for post-traumatic stress disorder, a claim for service connection for post-traumatic stress disorder is reopened, and that claim is well grounded; the appeal is granted to this extent only. REMAND As the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a), the VA's duty to assist applies. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). There is medical evidence of PTSD but service connection also requires credible evidence of an in-service stressor. 38 C.F.R. § 3.304(f). Since the veteran did not engage in combat, his statements and testimony are inadequate to prove the occurrence of a stressor in service; such a stressor must be established by official service records or other credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994). On a number of occasions the veteran has provided accounts of claimed events (e.g., seeing a truck hit by a land mine, seeing American soldiers attacking an enemy village, seeing bodies lying along the road side, being the subject of incoming enemy fire, and having once been buried under sand bags when an incoming rocket hit near his foxhole), which he alleges have caused PTSD. The RO has not made an effort to corroborate the veteran's statements of stressors with the U.S. Armed Services Center for Research of Unit Records (USASCRUR). In the judgment of the Board, such should be accomplished as part of the duty to assist. Zarycki v. Brown, 6 Vet. App. 91 (1993). In view of the foregoing, this case is REMANED for the following development: 1. The RO should request from the veteran a comprehensive statement containing as much detail as possible regarding the alleged in-service stressors. The veteran should be asked to provide specific details of the claimed stressful events during service, such as the dates, locations, detailed descriptions of events, units involved, and identifying information concerning any other individuals involved in the events, including their names, ranks, units of assignment, or any other identifying details. The veteran is advised that this information is vitally necessary to obtain supportive evidence of the stressful events and that he must be as specific as possible because without such details an adequate search for verifying information cannot be conducted. 2. With this information, the RO should review the file and prepare a summary of all the claimed stressors. This summary must be prepared whether or not the veteran provides an additional statement, as requested above. The RO's attention is directed to the veteran's claims of having been beaten repeatedly by drill instructors during boot camp during the summer of 1974, having been beaten on one occasion by a group of white Marines, and having had someone attempt to rape him. This summary and a copy of the veteran's DD 214 and all associated service documents should be sent to the U.S. Armed Services Center for Research of Unit Records (USASCRUR), 7798 Cissna Road, Suite 101, Springfield, Virginia 22150-3197. USASCRUR should be provided with a copy of any information obtained above, and should be requested to provide any additional information that might corroborate the veteran's alleged stressors. 3. Following the receipt of a response from USASCRUR, the RO must prepare a report detailing the nature of any stressor which it has determined is established by the record. If no stressor has been verified, the RO should so state in its report. This report is then to be added to the claims folder. 4. After completing the above actions, if any stressors are corroborated, the veteran should be afforded a VA psychiatric examination to determine the diagnosis of any and all psychiatric disorders which may be present. All indicated studies, tests and evaluations deemed necessary should be performed. The RO must provide the examiner the summary of any stressors described above, and the examiner must be instructed that only these events may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in the current psychiatric symptoms. The examiner must determine whether the diagnostic criteria to support the diagnosis of post-traumatic stress disorder have been satisfied. If the diagnostic criteria for post- traumatic stress disorder are not satisfied, the examiner should so indicate. If a diagnosis of post- traumatic stress disorder is deemed appropriate, the examiner should comment upon the link between the current symptomatology and one or more of the in- service stressors found to be established by the RO. The report of examination should include a complete rationale for all opinions expressed. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1 (1996), the claims file, must be made available to the examiner for review. When the development requested has been completed, the case should again be reviewed by the RO on the basis of all the evidence. If the benefit sought is not granted, the appellant should be furnished a supplemental statement of the case, and be afforded the appropriate time period to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the appellant unless he is notified. 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). R. F. WILLIAMS Member, Board of Veterans' Appeals