Citation Nr: 0007151 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 98-09 967A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for Posttraumatic Stress Disorder (PTSD). 2. Entitlement to a permanent and total disability rating for pension purposes. ATTORNEY FOR THE BOARD S. L. Wright, Associate Counsel INTRODUCTION The veteran served on active duty from March 1968 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) from an August 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which reopened and then denied the veteran's claim for service connection for PTSD. An unappealed RO decision in January 1990 denied the veteran's original claim for service connection for PTSD. By adjudicating the issue as one of entitlement to service connection for PTSD, and reaching the question of whether the veteran's claim was well grounded, the RO effectively found that new and material evidence had been presented to reopen the claim for service connection for PTSD. The Board has a legal duty to address the "new and material evidence" requirement regardless of the actions of the RO. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd 83 F.3d 1380 (Fed. Cir. 1996); see also McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). Therefore, the Board must first determine whether new and material evidence FINDINGS OF FACT 1. An unappealed RO decision in January 1990 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. 2. Evidence added to the record since the January 1990 RO decision, which includes the veteran's stressor statements and medical evidence of a diagnosis of PTSD based on those claimed stressors, is neither cumulative nor redundant and is of sufficient significance that it must be considered in order to fairly decide the merits of the veteran's claim for service connection for PTSD. CONCLUSIONS OF LAW 1. Evidence received since the January 1990 unappealed RO decision that denied service connection for PTSD is new and material, and the veteran's claim for service connection for PTSD is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). 2. The veteran's claim of entitlement to service connection for PTSD is well grounded. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991); 38 C.F.R. § 3.303, 3.304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, a final decision issued by a RO may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. See 38 U.S.C.A. § 7105(c) (West 1991). The exception to this rule is 38 U.S.C.A. § 5108 (West 1991), which states, in part, that "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). 38 C.F.R. § 3.156(a) (1999) provides that "new and material evidence" means evidence not previously submitted to agency decisionmakers which bears "directly and substantially" upon the specific matter under consideration. Such evidence must be neither cumulative nor redundant and, by itself or in connection with evidence previously assembled, such evidence must be "so significant that it must be considered in order to fairly decide the merits of the claim." See generally Hodge v. West, 155 F. 3d 1356 (Fed. Cir.1998). The Court has set forth a three-part analysis to be applied when a claim to reopen is presented. See Elkins v. West, 12 Vet. App. 209 (1999) (en banc); Winters v. West, 12 Vet. App. 203 (1999) (en banc). Under the Elkins test, the first step is to determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) to reopen the prior claim. If so, then the second step, whereby immediately upon reopening the claim the Secretary must determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, see Justus v. Principi, 3 Vet. App. 510 (1992), the claim as reopened (and as distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107(a), must be undertaken. 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." Winters v. West, 12 Vet. App. at 206. If the claim is well grounded, then VA must ensure that the duty to assist has been fulfilled before proceeding to the third step, a merits adjudication. Id. The additional evidence in question includes the veteran's claimed stressors. Specifically, he reported that sometime after July 5, 1970, he witnessed four men blown up by an incoming mortar blast. He indicated that he helped clean up the body parts. He further claims that he was subjected to rocket and mortar attacks and was involved in covert helicopter missions into Laos and North Vietnam. He also notes that he had guard duty while based at Camp Eagle while in Vietnam with Company B, 101 Aviation Battalion, 101 Aviation Group, 101 Airborne Division. The additional medical evidence shows that the veteran has been diagnosed with PTSD on several occasions, including at a series of neuropsychological examinations in April and May 1996. There, Peter B. Sorman, Ph. D diagnosed the veteran with PTSD and found that the veteran's symptoms of nightmares and depression appeared to be correlated with flashbacks of experiences from Vietnam. Similarly, in August 1996, the veteran underwent a VA medical examination wherein he described events during service in Vietnam and was diagnosed with PTSD, if verifiable combat stressors were revealed in the military history. The Board finds that, in view of the additional medical evidence that shows a diagnosis of PTSD based on the veteran's claimed stressors, the evidence received since the January 1990 unappealed RO decision that denied service connection for PTSD is new and material, and the veteran's claim for service connection for PTSD is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). In making a claim for service connection, however, the veteran has the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). A well-grounded claim for service connection for PTSD has been submitted where there is 1) medical evidence of a current diagnosis of PTSD, 2) lay evidence (presumed to be credible for these purposes) of an in-service stressor, and 3) medical evidence of a nexus between service and the current PTSD disability. Cohen v. Brown, 10 Vet. App. 128 (1997). Service connection may be granted for a disability resulting from a disease or injury which was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in-service stressors actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in- service stressors. If a claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed service stressor. 38 C.F.R. § 3.304(f). Initially, the Board notes that the veteran's DD 214 does not show that he received a Purple Heart Medal, Combat Infantryman Badge or other citation that is conclusive evidence of combat. 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). However, the veteran's claimed stressors while on active duty in Vietnam are presumed true for purposes of determining whether the claim is well-grounded. King v. Brown, 5 Vet App. 19, 21 (1993). In view of the veteran's claimed stressors and the medical evidence of a diagnosis of PTSD based on those claimed stressors, the Board finds that the veteran has presented a well grounded claim for service connection for PTSD. ORDER New and material evidence having been presented, the veteran's claim for service connection for PTSD is reopened; and that claim is well grounded; to that extent only, the appeal is granted. REMAND A number of examination and treatment reports since 1990 show a PTSD diagnosis, but service connection also requires credible evidence of an in-service stressor. 38 C.F.R. § 3.304(f). As noted above, 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, supra; Doran,supra. The veteran alleges that sometime after July 5, 1970, he witnessed four men blown up by an incoming mortar blast. He indicated that he helped clean up the body parts. He further claims that he was subjected to rocket and mortar attacks while on active duty with Company B, and that he was involved in covert helicopter missions into Laos and North Vietnam. He also notes that he had guard duty while based at Camp Eagle while in Vietnam with Company B, 101 Aviation Battalion, 101 Aviation Group, 101 Airborne Division. 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). As to the claim for a permanent and total disability rating for pension purposes,, under the provisions of 38 U.S.C.A. § 1521, pension is payable to a veteran who served for ninety (90) days or more during a period of war and who is permanently and totally disabled due to non-service connected disabilities which are not the result of the veteran's willful misconduct. Permanent and total disability will be held to exist when an individual is unemployable as a result of disabilities that are reasonably certain to last throughout the remainder of that person's life. Talley v. Derwinski, 2 Vet. App. 282, 285 (1992); 38 C.F.R. §§ 3.340(b), 4.15. There are three alternative bases upon which a finding of permanent and total disability for pension purposes may be established. The first way is to establish that the veteran has a lifetime impairment which is sufficient to render it impossible for the "average person" to follow a substantially gainful occupation under the appropriate diagnostic codes of the VA Schedule for Rating Disabilities (rating schedule). This method involves rating each of the veteran's nonservice connected disabilities to determine whether, upon adding of all the evaluations, a 100 percent evaluation is reached. Alternatively, a veteran may establish permanent and total disability for pension purposes absent a combined 100 percent schedular evaluation by proving that the individual (as opposed to the average person) has a lifetime impairment precluding the veteran from securing and following substantially gainful employment. 38 U.S.C.A. § 1502, 1521(a); 38 C.F.R. § 4.17. Under this analysis, if there is only one such disability, it must be ratable at 60 percent or more, and; if there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, with a combined disability rating of at least 70 percent. However, even if a veteran cannot qualify for permanent and total disability under the above rating scheme following applicable schedular criteria, a permanent and total disability rating for pension purposes may be granted on an extra-schedular basis if the veteran is subjectively found to be unemployable by reason of his or her disabilities, age, occupational background, and other related factors. 38 C.F.R. §§ 3.321(b)(2); 4.17(b). The issue of entitlement to pension turns on whether the veteran is found to be permanently and totally disabled. In this regard, the United States Court of Veterans Appeals (Court) has provided specific guidance on how a permanent and total disability rating for pension purposes should be adjudicated. Brown v. Derwinski, 2 Vet. App. 444 (1992); Abernathy v. Derwinski, 2 Vet. App. 391 (1992); Roberts v. Derwinski, 2 Vet. App. 387 (1992); and Talley v. Derwinski, 2 Vet. App. 282 (1992). Among the instructions provided in the decisions of the Court is a requirement that the Board review the assignment of percentage ratings for each disability identified. In instances where percentage ratings for one or more of the veteran's disabilities have not been assigned by the originating agency, further development is required so that the Board can undertake the review process set out by the Court. Additionally, even where the RO has identified a disability and assigned a rating, further development may be required in order to properly apply the rating criteria by which the disability is evaluated. The VA has a duty to assist the veteran in the development of facts pertaining to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1999). The Court has held that the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran that takes into account the records of prior medical treatment. Green v. Derwinski, 1 Vet. App. 121 (1991). This is to ensure that the evaluation of a disability is a fully informed one. The Court has also held that each disability in a claim for pension benefits must be assigned a percentage rating, that the RO should discuss the diagnostic codes from the VA Schedule for Rating Disabilities used in denying a claim, and that a rating decision may not be based on an examination which was conducted before all relevant evidence was added. See Robert, supra. In this case, the veteran claims that he is precluded from working due to several physical and mental disabilities, including a multiple joint disorder and PTSD. A review of the claims file shows that he has not undergone a general medical or orthopedic examination in recent years to evaluate his medical disabilities. The Board also notes that, since the propriety of a permanent and total disability rating for pension purposes cannot be decided until each of the veteran's disabilities is rated, the Board finds that the veteran's pension claim is inextricably intertwined with the claim for service connection for PTSD, and therefore must be addressed together. Harris v. Derwinski, 1. Vet. App. 180 (1991). The Board also notes that the relevant medical evidence does not include all relevant clinical findings pertaining to the veteran's multiple joint disorder, including the presence or absence of painful motion and muscle fatigue. That is, the medical evidence does not answer some of the points raised in DeLuca v. Brown, 8 Vet. App. 202 (1995), which requires that functional loss be fully portrayed. It is essential that the examination adequately portray the degree of functional loss. 38 C.F.R. §§ 4.40, 4.45 (1999); DeLuca, supra. In view of the foregoing, this case is REMANDED for the following development: 1. With the specific information provided in the veteran's written statement in November 1998, the RO should review the claims file and prepare a summary of all the claimed stressors. The RO should also refer to the stressor information as discussed above. This summary and a copy of the veteran's DD Form 214, and all associated service documents, should be sent to USASCRUR. USASCRUR should also be requested to furnish the unit history for Company B, 101 Aviation Battalion, 101 Aviation Group, 101 Airborne Division at Camp Eagle for the period that the veteran was assigned to those units. 2. After completing the above actions, and only if the RO determines that one or more inservice stressors have been verified, the RO should schedule the veteran for a psychiatric examination. The RO must provide the examiner with the summary of the verified stressor(s), and the examiner must be instructed that only these events may be considered for the purpose of determining whether exposure to an inservice stressor has resulted in the current psychiatric symptoms. If a PTSD diagnosis is deemed appropriate, the examiner should offer an opinion as to whether it is at least as likely as not that the veteran's PTSD is the result of one or more of the verified inservice. The examination report(s) should include the complete rationale for all opinions expressed. 3. The veteran should be afforded an orthopedic examination to evaluate his claimed disabilities, to include a multiple joint disorder. The evaluation should include full range of motion studies of all affected joints, as well as any other tests or examinations (i.e., a general medical examination) that are deemed necessary. The claims file should be made available to the examiner for his or her review in conjunction with the examination. The orthopedic examiner should also determine whether the veteran's joints exhibit weakened movement, excess fatigability, or incoordination; and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. The examiner should express an opinion on whether pain could significantly limit functional ability during flare-ups. This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. 4. Thereafter, the RO should review the examination reports. If the reports are not in compliance with the instructions provided above, appropriate action should be taken. Thereafter, the RO should readjudicate the issues of service connection for PTSD and a permanent and total disability rating for pension purposes. If either determination remains unfavorable to the veteran, the RO should furnish the veteran and his representative a supplemental statement of the case and provide an opportunity to respond. The purpose of this REMAND is to obtain additional development and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. 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