Citation Nr: 0003399 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 94-19 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fetty, Associate Counsel INTRODUCTION The veteran served on active duty from August 1967 to August 1969. In March 1989, the Department of Veterans Affairs (VA) Regional Office and Insurance Center in Philadelphia, Pennsylvania (RO), denied service connection for PTSD and for a skin condition and genital pain claimed to be caused by Agent Orange exposure. The veteran submitted a notice of disagreement in July 1989. In July 1989, the RO notified the veteran that further action on his Agent Orange claim would be deferred. In February 1991 the Board of Veterans' Appeals (Board) denied service connection for PTSD. In a May 1994 rating decision, the RO denied service connection for genital pain or impotency and a skin condition based on exposure to herbicides in Vietnam. The RO issue a supplemental statement of the case (SSOC) addressing the issue in June 1994. The attached cover letter advised the veteran to submit a substantive appeal, VA Form 9, within 60 days. The veteran did not respond to that letter. In April 1999, the RO advised the veteran that, because he had not submitted a substantive appeal following the June 1994 SSOC, his appeal concerning his claim for service connection for residuals of exposure to Agent Orange was deemed to be abandoned. In September 1998, the veteran requested that his claim for service connection for "Agent Orange" be reopened. The RO issued an SSOC in February 1999, that considered and denied a claim for service connection for a skin condition, genital pain, and impotency due to Agent Orange exposure. No further communication indicating the veteran's disagreement with that decision has been received from him on that issue. Therefore, no issue relating to service connection for disorders due to exposure to herbicide is in appellate status. The veteran has not requested a hearing on any issue. FINDINGS OF FACT 1. In a February 1991 decision, the Board of Veterans' Appeals (Board) denied a claim for service connection for a chronic acquired psychiatric disorder, to include PTSD, on the basis that then-diagnosed schizophrenia was first shown years after service separation and was unrelated to service, and PTSD was not demonstrated. 2. Evidence added to the record since February 1991 is so significant that it must be considered to fairly decide the merits of the veteran's claim. 3. The veteran's claim for service connection for PTSD is plausible. CONCLUSIONS OF LAW 1. The February 1991 Board decision denying service connection for a chronic acquired psychiatric disorder is final. 38 U.S.C.A. § 7104(b), (c) (West 1991 & Supp. 1999). 2. Evidence received subsequent to the February 1991 Board decision is new and material, and the veteran's claim for service connection for PTSD is reopened. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.156(a), 20.1100 (1999). 3. The claim for service connection for PTSD is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Reopening Because the present appeal for service connection for PTSD does not arise from an original claim, but rather comes from an attempt to reopen a previously denied claim, the Board must bear in mind the important distinctions between those two types of claims. Except as provided in 38 U.S.C.A. § 5108, when the Board disallows a claim, the claim may not thereafter be reopened and allowed and a claim based on the same factual basis may not be considered. 38 U.S.C.A. §§ 5108, 7104(b); 38 C.F.R. §§ 3.156(a), 3.160, 20.1100. If new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New and material evidence means evidence not previously submitted to agency decision makers, 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). The United States Court of Appeals for Veterans Claims (Court) summarized the analysis in determining whether evidence is new and material in Evans v. Brown, 9 Vet. App. 273 (1996). VA must first determine whether the newly presented evidence is "new," that is, not of record at the time of the last final disallowance of the claim and not merely cumulative of other evidence that was then of record. If new, the evidence must be "probative" of the issue at hand. However, there is no longer a requirement that, in order to reopen a claim, the new evidence, when viewed in the context of all the evidence, both new and old, must create a reasonable possibility that the outcome of the case on the merits would be changed. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) (expressly rejecting the standard for determining whether new and material evidence had been submitting sufficient to reopen a claim set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991)). Finally, for the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a February 1991 decision, the Board denied service connection for a chronic acquired psychiatric disorder, to include PTSD. The relevant evidence of record at the time of that decision included the veteran's service medical records (SMRs) and other service documents, VA and private clinical reports, letters from the veteran's mother and from his employer, and claims and assertions made by the veteran himself. His claimed stressor at that time was being shelled and rocketed by the enemy at Camp Carroll during 1967 and 1968. He claimed that he served as a substitute infantryman assigned to perimeter defense and he claimed that he was attacked while driving on two or three different convoys. He reported that he returned fire with his M-16, which then jammed. He claimed that a comrade was wounded while riding in the veteran's truck. The evidence of record at the time of the February 1991 Board decision indicated that schizophrenia was first shown years after service and was unrelated to service and that the evidence failed to show a diagnosis of PTSD. The additional evidence submitted since the February 1991 Board decision consists of the veteran's application to reopen the claim, more recent VA and private clinical reports, additional letters from the veteran's mother and employer, and additional information supplied by the veteran. In reviewing this evidence, the Board finds that some of it is new and material. Most noteworthy is an October 1998 VA PTSD examination report that offers a diagnosis of chronic PTSD due to experiences in Vietnam. That evidence was not of record at the time of the previous denial, it bears directly and substantially upon the specific matter under consideration, and it is sufficiently significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). Accordingly, the Board concludes that the veteran has submitted evidence that is new and material; the claim for service connection for PTSD is reopened. II. Well Groundedness In Elkins v. West, 12 Vet. App. 209 (1999) and Winters v. West, 12 Vet. App. 203 (1999), the Court held that if new and material evidence to reopen the claim is received, the next step in the adjudication process is determining whether a well-grounded claim has been presented. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). In regard to establishing a well-grounded claim, the Board notes that the elements for establishing well groundedness are satisfied in this case. There is a medical diagnosis of PTSD. The veteran's PTSD has been linked by medical evidence to active service, and, although PTSD generally does not require a showing of the disorder during active service, in this case, the medical evidence also indicates that a psychiatric disorder may have been manifested even before leaving active service. Therefore, the Board finds that the veteran has presented evidence of a well-grounded claim for service connection for PTSD. This claim will be addressed further in the REMAND portion of the decision. ORDER New and material evidence having been presented, the claim for service connection for PTSD is reopened. The claim for service connection for PTSD is well grounded. REMAND Because the claim for service connection for PTSD is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § Sec. 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (1999). Recently, a diagnosis of PTSD due to active service was given by a VA examiner. The claims file reflects that the veteran has reported stressors related to incidents that he regarded as combat against an armed enemy force. However, the record does not conclusively establish that the veteran served in combat, i.e., it does not show that he has was awarded any medal establishing his participation in combat and his service documents reflect only that he was a heavy truck driver. Therefore, although his personal reports suffice for purposes of well grounding the claim, credible supporting evidence that the claimed in-service stressor(s) occurred is still necessary for grant of service-connection. In July 1989, the veteran reported that his entire truck unit was "pulled" for defending the fire base perimeter at Camp Carroll and "the rockpile." In July 1990, the veteran reported that he had to fire his M-16 from his truck window during an ambush. He submitted a photo showing bullet holes in the right side door and fuel tank of a Marine Corps truck. In June 1992, the veteran reported that the brakes on his truck were sabotaged causing his truck to runaway on a hill. He reported seeing corpses along a road at other times. He reported that his M-16 jammed and/or fired only single shots when he needed it. The veteran stated that his base received over 100 incoming rounds in one attack. He reported dreams of these events. In June 1993, the veteran reported that he recalled many rocket and mortar attacks. He reported that he drove a truck into a river during one convoy mission. The veteran stated that he was affected by memories of the severely wounded soldiers that he met while hospitalized for malaria. He reported current nightmares, flashbacks, and increased startle response. In November 1998, the RO requested that the veteran supply more specific information concerning his claimed stressor. In December 1998, the veteran reported that three members of his unit received the Purple Heart and that he ran off the road into river during a convoy. In June 1999, the veteran reported that he served with A Battery, 1st Battalion, 12th [Brigade], 3rd Marine Division. He reported that he served at Camp Carroll in Vietnam during 1967 and 1968. He described frequent rocket and mortar attacks at that location during his tour. The veteran stated that he frequently saw corpses and that mortar fragments hit his truck, although he did not supply a specific date for such an event. Because the veteran's PTSD claim is well grounded, the RO must send a stressor inquiry to the Marine Corps. A VA psychologist in October 1999 provided a definite diagnosis of PTSD, while noting that symptoms of schizophrenia were also present. That examiner also stated that the veteran's symptoms of psychiatric illness began during service. Other examiners have indicated that a diagnosis of paranoid schizophrenia is most appropriate, while stating that he did exhibit some symptoms of PTSD. In view of the apparent conflict among examiners as to proper psychiatric diagnosis and as to the date of onset of the disorder, an additional examination is needed to resolve this conflict. This case is therefore remanded to the RO for the following actions: 1. With any needed signed releases from the veteran, the RO should request copies of up-to- date records of any examination or treatment, VA or non-VA, that the veteran has received for a psychiatric disorder. All such records that are received should be associated with the claims file. 2. The RO should again request that the veteran submit a detailed description of his claimed stressors, including exact dates and locations of claimed events and the names of other individuals that were involved. The RO should then request that the appropriate Marine Corps office attempt to verify the veteran's claimed stressors. Unit reports and morning reports for appropriate periods for the veteran's unit during his tour of duty in Vietnam should be requested. 3. The RO should then schedule the veteran for an examination by a board of two psychiatrists. The claims file must be made available to and be reviewed by the examiners in conjunction with their examination. All special tests that are indicated by the record, including psychological testing, should be completed. The examiners' report should describe in detail all current psychiatric symptomatology, clinical findings, and diagnoses. The examiners should be requested to provide an opinion as to whether a current diagnosis of PTSD is substantiated by their own findings and based on in-service stressors that have been verified. To the extent possible, the examiners should reconcile their opinion with any contrary opinions that are contained in the record. The examiners' opinions should be supported by reference to pertinent evidence in the claims file. 4. Upon completion of the requested development of the record, the RO should again review the veteran's claim for service connection for PTSD. If the decision remains adverse to the veteran, the RO should issue an SSOC, a copy of which should be provided to the veteran and his representative and they should be given an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The veteran need take no action until otherwise notified, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). By this REMAND, the Board intimates no opinion, either legal or factual, as to any final determination warranted in this case. The purpose of this REMAND is to obtain clarifying information and to provide the veteran with due process. 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. William Harryman Acting Member, Board of Veterans' Appeals