Citation Nr: 0003776 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 97-21 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether new and material evidence has been presented reopen a claim for service connection for an acquired psychiatric disorder, to include schizophrenia and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Mainelli, Associate Counsel INTRODUCTION The appellant had active service from August 1966 to August 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 1997 rating decision, in which the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA) declined to reopen the appellant's claim for service connection for an acquired psychiatric condition including PTSD and schizophrenia. The Board also notes that, in a Form 9 statement dated in June 1997, the appellant contended that he received treatment for chest pain, back pain, shoulder pain, side pain, prostate problems, and ringing in the ears during service. He also alleged exposure to radiation and/or chemicals. In March of 1998, he further alleged hand contact with "smoking" metal. It is not clear, however, whether he intended to raise claims for service connection for any, or all, of these maladies. As such, these issues are referred to the RO for appropriate action. The appellant was informed in October 1999 that the Board had denied his motion for reconsideration of Board decisions in September 1984, March 1991 and May 1996. This motion had been made in July 1999. There are, in addition, earlier statements in the record made by and on his behalf that may constitute motions for review of prior Board decisions on the grounds of clear and unmistakable error pursuant to 38 U.S.C.A. § 5109A and 7111. If the appellant wishes to file such a motion, he is referred to 38 C.F.R. § 20.1404, pertaining to the filing and pleading requirements for such motions. FINDINGS OF FACT 1. In a decision dated in May 1996, the Board declined to reopen the appellant's claim for service connection for an acquired psychiatric disorder, to include schizophrenia and PTSD. That decision is final. 2. Additional evidence submitted since the Board's May 1996 decision declining to reopen the claim for service connection for an acquired psychiatric disorder, to include schizophrenia, is not material. 3. Additional evidence submitted since the Board's May 1996 decision declining to reopen the claim for service connection for PTSD is both new and material. 4. The appellant has submitted a plausible claim for service connection for PTSD, and VA has a further duty to assist the appellant in the development of the claim. CONCLUSIONS OF LAW 1. The Board declined to reopen the appellant's claim for service connection for an acquired psychiatric disorder, to include schizophrenia and PTSD, in May 1996. That decision is final. 38 U.S.C.A. § 7104(b) (West 1991 & Supp. 1995); 38 C.F.R. § 20.1100 (1999). 2. The evidence received subsequent to the Board's May 1996 decision declining to reopen the claim for service connection for an acquired psychiatric disorder, to include schizophrenia, is not new and material and does not serve to reopen this claim. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. The evidence received subsequent to the Board's May 1996 decision declining to reopen the claim for service connection for PTSD is new and material and serves to reopen the claim. 38 U.S.C.A. §§ 1154(b), 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 4. The claim for service connection for PTSD is well grounded, and VA has a further duty to assist the appellant in the development of this claim. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Summary The appellant contends that the newly submitted lay evidence is so significant as to warrant reopening of his previously denied claims for service connection for schizophrenia and PTSD. He further claims that such evidence makes his claims for service connection plausible and, thus, warrants evaluation of the merits of these claims with consideration given to review of all the evidence of record. In a decision dated in September 1984, the Board originally denied service connection for an acquired psychiatric disease, to include PTSD. The Board declined to reopen claims for service connection for schizophrenia and PTSD in decisions dated in March 1991 and May 1996. These decisions are final. 38 C.F.R. § 20.1100(a) (1999). Accordingly, the Board, in its independent review of the case, finds that the Board last finally denied the appellant's claims in the May 1996 rating decision. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the new and material standard must be applied with respect to the adjudication of these claims. As a general rule, once a claim has been disallowed, that claim shall not thereafter be reopened and allowed based solely upon the same factual basis. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). However, if the claimant can thereafter present new and material evidence of the previously disallowed claim, then the claim shall be reopened and the former disposition of the claim shall be reviewed. 38 U.S.C.A. § 5108 (West 1991). The U.S. Court of Appeals for Veterans Claims has outlined a three- step process for the reopening of claims. See Elkins v. West, 10 Vet.App. 209 (1999) (en banc); Winters v. West, 10 Vet.App. 203 (1999) (en banc). First, it must be determined whether the appellant has submitted new and material evidence in support of reopening the claim. Winters, 10 Vet.App. at 206. Evidence is new when it is not merely cumulative or redundant of other evidence previously of record. Material evidence is evidence which bears directly and substantially upon the specific issue at hand, 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); see also Hodge v. West, 155 F.3d 1356 (Fed.Cir. 1998). Evidence is presumed credible for the purposes of reopening unless it is inherently false or untrue. Duran v. Brown, 7 Vet.App. 216, 220 (1994); Justus v. Principi, 3 Vet.App. 510, 513 (1992). The evidence relied upon in reopening the claim must be both new and material, and the failure to satisfy either prong ends the inquiry and requires that the claim be denied. Smith v. West, 12 Vet.App. 312 (1999). If new and material evidence has been presented, immediately upon reopening it must be determined whether, based upon all the evidence of record in support of the claim, the claim as reopened is well grounded. Winters v. West, 10 Vet.App. 203, 206 (1999) (en banc). For purposes of a well groundedness analysis, the credibility of the evidence is presumed. Robinette v. Brown, 8 Vet.App. 69, 75-76 (1995). A well grounded claim for service connection requires evidence of 1) a current disability as provided by a medical diagnosis; 2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and 3) a nexus, or link, between the in- service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet.App. 498 (1995); see also 38 C.F.R. § 3.303 (1999); Layno v. Brown, 6 Vet.App. 465 (1994); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). A psychosis that is manifested to a compensable degree within one year of separation from service may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). However, eligibility for PTSD service connection award requires (1) medical evidence establishing a clear diagnosis of the condition; (2) credible supporting evidence that the claimed in- service stressor actually occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed in- service stressor. Cohen v. Brown, 10 Vet. App 128, 138 (1997) and Gaines v. West, 11 Vet.App. 353 (1998). Finally, if a well grounded claim has been submitted, then the claim must be evaluated on the merits, but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Winters, 10 Vet.App. at 206; see also Epps v. Brown, 126 F.3d 1464 (Fed.Cir. 1997); cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998). Determining what the "issue at hand" is for the purposes of reopening a finally denied claim depends on what evidence was before the adjudicator when the final decision was made and the reasons that were given for the denial of the claim. See Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). At the time of the 1996 denial, the Board reviewed service medical records which were negative for complaint, treatment or diagnosis of a psychiatric disorder. The appellant, however, did voice complaint of sleeping difficulty and nightmares upon his separation. VA and private clinical records first showed treatment for poly- drub abuse in March 1975. He was first diagnosed with paranoid schizophrenia in May 1979. He was diagnosed with PTSD in December 1982, but a VA examiner questioned this diagnosis in January 1983. Subsequent diagnoses included schizophrenia, schizo- affective disorder, PTSD and substance abuse (alcohol, marijuana and cocaine). There was no medical opinion linking the diagnoses of schizophrenia and schizo- affective disorder to active service. The appellant's Department of Defense Form 214 revealed that he served as a combat engineer. He was the recipient of the National Defense Service Medal, the Vietnam Combat Medal, the Parachute Badge, the Bronze Star, the Vietnam Service Medal and the Army Commendation Medal. The Board also considered the appellant's lay testimony and statements of record which alleged that his schizophrenia and PTSD stemmed from events which occurred during active service. He indicated that he served as a gunner for artillerymen while stationed in Vietnam. He had been subjected to rocket and mortar attacks as well as "RPG" rounds in the field. He came under attack from small arms fire during helicopter airlifts. He came under friendly- fire attack from a B- 52 bomber. He saw dead soldiers from the "319th." He had witnessed a close friend being shot by another American soldier and an enemy soldier falling from a helicopter without a parachute. He had been threatened at gunpoint by a military policeman. He began using drugs in service to calm his nerves and bad dreams. In connection with the current appeal, the appellant submitted his personnel file which indicates that he served as a cannoneer with the "BtryC2dHowBn319thArty" from December 1967 to June 1968, and with the "C/2/319thArty101AirCavDiv" from July 1968 to November 1968. He served during Vietnam Counter Offensive Phase III, TET Counter Offensive and unnamed campaigns. His awards included the "VCM w/device 1960." He provided additional detail that his unit came under friendly fire at Doc Peck sometime "between June thru [sic] Sept of 1968." During this incident, he claims to have caught a piece of "smoking" shrapnel. He contended that his auditory hallucinations began during service. II. New and material - schizophrenia The appellant's newly submitted lay statements are largely cumulative of statements previously of record. In essence, he argues that he first manifested schizophrenic symptomatology during service. In any event, such statements are not "material." In this regard, the Board notes that the opinions of laypersons are not competent to arrive at a medical diagnosis by comparing symptomatology manifested prior to, during, and subsequent to service. See Moray v. Brown, 5 Vet.App. 211 (1993) (lay assertions of medical causation cannot serve as the predicate to reopen a claim under 38 U.S.C.A. § 5108); see also Savage v. Gober, 10 Vet.App. 488 (1997); 38 C.F.R. § 3.303(b) (1998). As such, the Board concludes that the additional evidence submitted since the Board's May 1996 decision does not constitute "material" evidence and, therefore, the claim is not reopened. The Board has decided this case pursuant to 38 C.F.R. § 3.156(a) consistent with the holding in Hodge. Prior to Hodge, reopening of a claim was warranted where the evidence suggested a reasonable possibility that the new evidence, when viewed in context of all the evidence, both old and new, would change the outcome of the case. See Colvin, at 174. This is the standard applied by the RO. The current regulatory standard, according to Hodge, is more liberal than that applied by the RO. In this case, the Board has not had to reach this analysis as the appellant has failed to submit evidence which is both new and material. Smith, 12 Vet.App. 312 (1999). As such, the Board finds no prejudice to the appellant in the adjudication of this case. Although VA does not have a statutory duty to assist a claimant in developing facts pertinent to his claim where that claim has previously been denied and has not been reopened, VA may be obligated under 38 U.S.C.A. § 5107(a) to assist an appellant in limited situations. See White v. Derwinski, 1 Vet.App. 519, 520- 21 (1991) and Ivey v. Derwinsky, 2 Vet.App. 320, 323 (1992). Review of the record does not reveal any further sources of information which may constitute new and material evidence sufficient to justify reopening this claim. As such, the Board is of the opinion that the duty to assist him in the application of his claim has been satisfied. Furthermore, the Board notes that the appellant has not raised any specific arguments as to whether CUE was committed in evaluating this claim. See Fugo v. Brown, 6 Vet.App. 40, 44 (1993). Accordingly, the Board is of the opinion his CUE claim is limited to his PTSD claim. Id. III. New and material - PTSD Subsequent to the Board's May 1996 final decision, the appellant has submitted personnel records which further detail his duties and accomplishments while stationed in the Republic of Vietnam during the Vietnam Era, to include earning the Vietnam Combat Medal "w/ device." He has also provided additional information concerning the approximate date that he was subjected to a friendly fire attack. For purposes of a well grounded analysis, the truthfulness of his newly submitted statements regarding exposure to in- service combat stressors is presumed. Robinette, 8 Vet.App. at 75- 76. There is also an unequivocal diagnosis of PTSD of record. See Cohen, at 139-40 (for purposes of a well grounded claim, the appellant need only submit an "unequivocal" diagnosis of PTSD). Accordingly, he has provided evidence sufficient to both reopen and well ground his claim. For the reasons cited in the remand discussion below, the Board is of the opinion that further development of the claim is necessary. ORDER The claim for service connection for an acquired psychiatric disorder, to include schizophrenia, is not reopened. The claim for service connection for PTSD is reopened and well grounded. REMAND The appellant contends that his PTSD stems from his exposure to traumatic events during service. He contends that he was exposed to a friendly fire attack at Doc Peck in June- September of 1968. He alleges being subjected to enemy fire by rocket and mortar attacks and "RPG" rounds in the field. He further alleges small arms fire exposure during helicopter airlifts. He indicates that he saw dead American soldiers from the "319th." His service personal records reveal that he served as a cannoneer with the "BtryC2dHowBn319thArty" from December 1967 to June 1968, and with the "C/2/319thArty101AirCavDiv" from July 1968 to November 1968. He was awarded the Vietnam Combat Medal "w/ device." Additionally, he alleges non- combat stressors of witnessing a "close friend" being shot by another American soldier and an enemy soldier falling from a helicopter without a parachute. He was also threatened at gunpoint by a military policeman. In view of the above, the Board is of the opinion that the RO should contact the appellant for any further detailed information he may desire to provide regarding these stressors, to include specific information regarding the alleged friendly fire attack at Dok Peck, approximate dates and locations he came under enemy fire, and the name of his "close friend" who was shot to death in a domestic dispute. Thereafter, the RO should prepare a summary of all stressors claimed, and refer this stressor summary, the appellant's service personnel records, and any other supporting documents to the U.S. Armed Services Center for Research for Unit Records (USASCRUR) for verification. Upon readjudicating the PTSD claim, the RO is referred to recent VA revisions to 38 C.F.R. § 3.304(f) which are substantive in nature. 64 Fed.Reg. 117, p. 32807-32808 (June 18, 1999). This regulatory provision governs the type(s) of evidence required to establish service connection for PTSD. The holding of the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) in Karnas v. Derwinski, 1 Vet.App. 308 (1991), requires that the appellant's claimed exposure to combat related stressors be considered under both the old and the new criteria, and the most favorable version applied. But see Rhodan v. West, 12 Vet.App. 55 (1998). The Board also notes that the Court has made it clear that, where a claimed stressor is alleged to have incurred during combat, VA must make a specific finding as to whether or not the claimant was involved in combat. Gaines, 11 Vet. App. at 359. See also VA O.G.C. Prec. 12-99 (Oct. 18, 1999) (wherein VA General Counsel provided a guideline for determining whether a veteran "engaged in combat with the enemy"). Combat status may also be established by service records or "other supportive evidence." See West v. Brown, 7 Vet. App. 70, 76 (1994). VA is not required to accept the appellant's assertions that he was engaged in combat but, in arriving at its findings of fact, the credibility of the veteran's testimony and statements of record must be addressed. Cohen, 10 Vet. App. at 145- 46. "Credible supporting evidence" of a non- combat stressor may be obtained from service records or other sources, to include lay testimony. Gaines, 11 Vet. App. at 353; Moreau v. Brown, 9 Vet. App. 389 (1996). However, the Court has held that the regulatory requirement for "credible supporting evidence" means that the appellant's testimony, or the medical opinion based upon post-service examination, alone cannot, as a matter of law, establish the occurrence of a non-combat stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996); Moreau, 9 Vet. App. at 396-96. Examples of "other supportive evidence" includes, but is not limited to, incidents of a plane crash, ship sinking, explosion, rape or assault, or duty in a burn ward or graves registration unit. VA Manual M21-1, Part VI (1998). In view of the foregoing, the case is REMANDED for the following: 1. The RO should once again ask the appellant for an account containing as much detail as possible regarding the specific stressors to which he was exposed in service, to include specific information regarding the alleged friendly fire attack at Dok Peck, the approximate dates and locations that he came under enemy fire, and the name of his "close friend" who was shot to death in a domestic dispute. He should be asked to provide information as to whether he incurred a shrapnel wound injury to his hand. He is hereby advised that this information may be necessary in order to conduct a meaningful search for verification of his claimed stressors, and that his failure to respond may result in an unfavorable outcome of his claim. 2. The RO should obtain the appellant's current private and VA medical treatment records, both inpatient and outpatient, and associate those records with the claims folder. 3. The appellant is hereby informed that he has a right to present any additional evidence or argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999). 4. The RO should then prepare a summary of all stressors claimed, regardless of whether or not the appellant responds to the information request. This summary, the supporting documents and the service personnel records should be sent to USASCRUR, 7798 Cissna Road, Suite 101, Springfield, Virginia, 22150-3197, which should be requested to provide any information which might corroborate the existence of any of the claimed stressors. Any further information submitted by the appellant pursuant to his remand should be included. Any leads mentioned by USASCRUR should be followed up by the RO. 5. Following the completion of the preceding steps, the RO should identify the stressor(s) to which the appellant was exposed in service. 6. If, and only if the RO determines the existence of a stressor or stressors, the RO should then arrange for the appellant to be examined by a board of at least two VA psychiatrists (board certified, if available) in order to determine the diagnoses of all psychiatric disorders that are currently present. The RO must specify for the examiners the stressor or stressors to which it has determined that the appellant was exposed in service, and the examiners must be instructed to consider only those events in determining whether the appellant currently has PTSD. The examination report should reflect review by the examiners of all pertinent information in the claims folder. If an acquired psychiatric disorder other than PTSD is present, the examiners should express an opinion as to whether it began in service or was caused by an incident or incidents in service. If PTSD is currently present, the examiners should specify (1) whether each stressor specified by the RO was of sufficient gravity to produce PTSD; (2) whether the remaining diagnostic criteria to support a diagnosis of PTSD have been satisfied; and (3) whether there is a link between the current symptomatology and the stressor or stressors in service whose existence has been established by the RO. The examination report should include a complete rationale for all opinions expressed. All necessary special studies or tests, including psychological testing and evaluation, should be accomplished as part of this examination. The claims folder and a copy of this remand must be made available to the examiners for their review prior to the examination. 7. The appellant is hereby advised that, in the event he fails to report for a scheduled VA examination without good cause, his reopened claim shall be denied. 38 C.F.R. § 3.655(b) (1999). 8. After completion of the above- referenced development, the RO should readjudicate the issue of service connection for PTSD on the merits with consideration given to all of the evidence of record and any additional evidence obtained by the RO pursuant to this remand. In so doing, the RO should make a specific finding as to whether the appellant was engaged in combat at the time his stressor(s) occurred, as required by Gaines, and consideration must be given to the old and new criteria of 38 C.F.R. § 3.304(f) and VA O.G.C. Prec. 12-99 (Oct. 18, 1999). The credibility of the appellant's contentions should also be assessed, as required by Cohen. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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. NANCY I. PHILLIPS Member, Board of Veterans' Appeals