Citation Nr: 0006995 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 98-13 089 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina 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) and, if so, whether the reopened claim may be granted. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael P. Vander Meer, Counsel INTRODUCTION The veteran served on active duty from April 1969 to November 1970, and from January 1975 to May 1977. In April 1995, the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, denied entitlement to service connection for PTSD. Following pertinent notice to the veteran the same month, a Notice of Disagreement was not received within the subsequent year. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 1997 rating decision of the RO. The appeal was docketed at the Board in 1998. In light of the disposition reached by the Board in its decision hereinbelow, the veteran's claim for service connection for PTSD, in addition to being addressed in such decision, is also addressed in a remand appearing at the end of the decision. FINDINGS OF FACT 1. In April 1995, the RO denied service connection for PTSD. The veteran did not file a Notice of Disagreement within one year of notice of that decision. 2. The additional evidence received since the April 1995 rating denial of service connection for PTSD includes evidence which is not cumulative and, in addition, is so significant that it must be considered in order to decide the claim. CONCLUSION OF LAW Evidence received since the unappealed April 1995 rating denial of service connection for PTSD is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). The April 1995 rating denial of service connection for PTSD is final, based upon the evidence then of record. 38 U.S.C.A. § 7105 (West 1991). However, if new and material evidence is submitted, a previously denied claim must be reopened. 38 U.S.C.A. § 5108. Therefore, the issue for appellate determination is whether the evidence received since the April 1995 decision is new and material under the provisions of 38 C.F.R. § 3.156(a). In accordance with 38 C.F.R. § 3.156(a), "[n]ew and material evidence means evidence not previously submitted to agency decisionmakers 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." In denying service connection for PTSD in April 1995, the RO observed that the veteran was not assessed as having PTSD. Evidence of record in April 1995 included the veteran's service medical records, which are negative for any assessment of PTSD. Subsequent to service, a report pertaining to the veteran's presentation for VA outpatient treatment in February 1994 reflects that the veteran had "PTSD Symptoms". A May 1994 statement from Thomas H. Byrnes, Jr., M.D., reflects the physician's view that the veteran had "significant elements of" PTSD. Also of record in April 1995 were several lay statements, including one from the veteran's parents, which were, collectively, to the effect that the veteran was psychiatrically disabled due to his stressful experiences in Vietnam. Further included of record in April 1995 were reports pertaining to the veteran's psychiatric examination by VA in January 1995, in the course of which PTSD was not diagnosed. Evidence added to the record since April 1995, in addition to duplicate xerox copies of items referred to in the preceding paragraph inclusive of the lay statement from the veteran's parents as well as the May 1994 statement from Dr. Byrnes, includes a report pertaining to the veteran's March-April 1996 VA hospitalization, on which the diagnoses included PTSD. Also of recent receipt is a report pertaining to the veteran's examination by VA in September 1997, on which the pertinent assessment is PTSD due to "alleged traumas" experienced in Vietnam. In considering whether new and material evidence has been submitted to reopen the veteran's claim for service connection for PTSD, the Board has determined that some of the evidence added to the record since April 1995 is new and material. To be sure, the above-cited recently received xerox copies comprise evidence which is duplicative of that which was in the RO's possession in April 1995. These items, therefore, are not 'new'. See 38 C.F.R. § 3.156. At the same time, the Board cannot disregard that, in contrast to the absence of any documentation in the RO's possession in April 1995 reflecting a confirmed diagnosis of PTSD, the veteran has now submitted two items, each of VA origin, which reflect a clear diagnosis of PTSD. As such, these items are new and material, i.e., they are so significant that they must be considered in order to fairly decide the merits of the veteran's related claim. Therefore, since new and material evidence has been submitted, the veteran's claim for service connection for PTSD must be, and is, reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER New and material evidence having been submitted, the application to reopen a claim for service connection for PTSD is granted. REMAND In consideration of the Board's disposition above, reopening the veteran's claim for service connection for PTSD, such claim, which is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991) and in accordance with Manio v. Derwinski, 1 Vet. App. 140 (1991), must be adjudicated on a de novo basis. With respect to his claim for service connection for PTSD, the veteran asserts, as the stressors (based on the report pertaining to his March-April 1996 period of VA hospitalization and on the report of his September 1997 VA examination, respectively) upon which he predicates such claim, that (1) while stationed in Vietnam as a member of the 27th Engineer Battalion, his unit was "ambushed" in the A Shau Valley and that he "was one of only four people in his" unit to survive the attack; and (2) that, during an episode of incoming enemy fire while he was in a convoy on a truck, his leg became lodged between two oil drums, rendering him unable to assist the people ahead of him in the convoy who had begun to get hit. The Board notes that the record does not reflect that the veteran has been awarded any service decoration, such as the Purple Heart or Combat Infantryman Badge, which is consistent with active engagement in combat. The Board acknowledges the veteran's above-enumerated assertions relative to claimed stressful experiences in service in Vietnam (to which he attributes his diagnosed PTSD). However, in the absence of any evidence (as opposed to his mere assertions) that the above-enumerated stressful events did in fact transpire, it becomes incumbent on him to provide "credible supporting evidence" from any source (such as a statement from a former service comrade) demonstrating that at least one of his claimed stressors (the Board observes that no stressor claimed by the veteran has, as of yet, been verified by the U.S. Armed Services Center for Research of Unit Records) in fact occurred. See Cohen v. Brown, 10 Vet. App. 128 (1997). Further development bearing on the foregoing is, therefore, specified below. Accordingly, the case is REMANDED for the following: 1. The RO should request the veteran to provide, relative to the two above- addressed enumerated stressors (i.e., the ambush in the A Shau Valley and the convoy incoming fire episode) as well as any additional stressor(s) he may elect to allege in support of his claim for service connection for PTSD, a statement describing in detail each stressor, including specific information concerning the related circumstances, such as the approximate date(s) and location(s) of the stressful event(s), as well as his unit assignment at the time of each claimed stressor. As to all stressors claimed by the veteran, the RO should further inform the veteran of his obligation to submit 'credible supporting evidence,' such as a statement from a former service comrade, demonstrating that such stressor(s) actually occurred. 2. The RO should provide a copy of the veteran's response (if any) to the preceding directive to the U. S. Armed Services Center for Research of Unit Records, 7798 Cissna Road, Springfield, Virginia 22150, and request it to verify the stressors claimed by the veteran. 3. If the above-addressed development does not result in verification of any stressor alleged by the veteran, then the RO, in such event, need not undertake any additional action. In the event that the above-addressed development results in confirmation of either of the two above- enumerated stressors claimed by the veteran to which he made reference, respectively, when hospitalized by VA in March-April 1996 and when examined by VA in September 1997, the RO need not have the veteran undergo reexamination by a VA psychiatrist. However, if the above- addressed development results in confirmation of a stressor to which the veteran did not make reference when hospitalized by VA in March-April 1996 or when examined by VA in September 1997, the RO should, in such event, then schedule the veteran to be examined by a VA psychiatrist for the purpose of determining whether such stressor(s) alone is sufficient to account for a diagnosis of any ascertained PTSD. 4. Then, after undertaking any development deemed necessary in addition to that specified above, the RO should, on a de novo basis, adjudicate the veteran's reopened claim for service connection for PTSD. 5. If the benefit sought on appeal is not granted to the veteran's satisfaction, or if he expresses disagreement pertaining to any other matter, both he and his representative should be provided with an appropriate Supplemental Statement of the Case. The veteran should be provided appropriate notice of the requirements to perfect an appeal with respect to any issue(s) addressed therein which does not appear on the title page of this decision. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. In taking this action, the Board implies no conclusion, either legal or factual, as to the ultimate outcome warranted. No action is required of the veteran unless he is otherwise notified. F. JUDGE FLOWERS Member, Board of Veterans' Appeals