BVA9504346 DOCKET NO. 93-08 335 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence has been presented to reopen a claim for service connection for a psychiatric disability, including post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert A. Leaf, Counsel INTRODUCTION The veteran served on active duty from May 1966 to April 1968. A November 1972 rating decision denied service connection for a psychiatric disability; an August 1982 rating decision denied service connection for a psychiatric disability, including PTSD. A May 1989 rating decision most recently denied service connection for a psychiatric disability, including PTSD, on the merits. The veteran was informed of each of these rating decisions and did not file timely appeals. An April 1992 rating decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA) determined that new and material evidence had not been presented to reopen a claim for service connection for a psychiatric disability, including PTSD. This appeal to the Board of Veterans' Appeals (Board) is taken from that rating decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in substance, that the veteran has PTSD attributable to the veteran's experiences in service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence has been presented to reopen a claim for service connection for a psychiatric disability, including PTSD. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the current appeal has been obtained by the RO. 2. An unappealed rating decision of May 1989 denied service connection for a psychiatric disability, including PTSD. 3. Evidence received subsequent to the May 1989 rating decision is not solely cumulative or redundant, is relevant and probative, and presents a reasonable possibility that the new evidence, when viewed in the context of all the evidence, would change the outcome. CONCLUSION OF LAW 1. A May 1989 rating decision denying service connection for a psychiatric disability, including PTSD is final. 38 U.S.C.A. § 7105 (West 1991). 2. New and material evidence has been presented since the May 1989 rating decision and the claim is reopened. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. § 3.156 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the appellant's petition to reopen a claim for service connection for a psychiatric disability, including PTSD is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a petition which is plausible. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Under applicable legal criteria, an unappealed decision of the RO is final. 38 U.S.C.A. § 7105. However, a claim may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. When determining whether new and material evidence has been submitted to warrant reopening under 38 U.S.C.A. § 5108, consideration must be given to all of the evidence submitted since the last final denial on the merits, rather than only the evidence submitted since the most recent refusal to reopen the claim for lack of new and material evidence. Glynn v. Brown, 6 Vet.App. 523 (1994). The May 1989 rating decision was the last final denial of the veteran's claim on the merits. 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). To justify reopening on the basis of new and material evidence, there must be a reasonable possibility that the additional evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The RO denied a claim for service connection for a psychiatric disability, including PTSD, in a rating decision of May 1989, and the appellant did not timely appeal following notification of that determination. In the absence of such appeal, the decision by the RO became final. Evidence which was of record at the time of the May 1989 rating decision included service medical records, a report of VA hospitalization from October 1972 to January 1973, a report of VA psychiatric examination in performed in May 1982, a January 1989 statement from the veteran, and a report of VA psychiatric examination performed in April 1989. Service medical records disclosed complaints of nervousness, but no psychiatric abnormalities were demonstrated When the veteran was admitted to VA hospitalization in October 1972, he complained of fainting spells, nervousness, insomnia and recurrent nightmares surrounding a battle incident in Vietnam. He also admitted to bizarre bodily sensations. The diagnostic impression from psychological testing was schizophrenia, paranoid type. Discharge diagnoses included paranoid state and passive dependent personality. A VA psychiatrist, who examined the veteran in May 1982, commented that the veteran did not recount the history of recurrent nightmares which he had provided during earlier VA hospitalization. It was observed that an underlying psychosis was still present, and the diagnosis was schizophrenia, residual type. In a statement, dated in January 1989, the veteran related that he was nervous because of combat duty in Vietnam when he was subjected to enemy mortar fire. A VA psychiatrist, who examined the veteran in April 1989, observed that he was unable to elicit symptoms of PTSD or of a psychosis. The diagnosis was generalized anxiety disorder. Evidence added to the claims file since the May 1989 rating decision includes a report of VA hospitalization from September to October 1991 and a February 1992 report of a VA social survey. During hospitalization, the veteran reported bad dreams and flashbacks of Vietnam experiences, and the diagnoses included Axis I PTSD. When interviewed for the social survey, the veteran described not being able to work or rest as a result of PTSD. The social worker commented that the account of experiences in the war zone seemed very real when matched with the veteran's presenting symptoms. The Board believes that the evidence received since May 1989 is new, since it was not previously of record and since it provides the first confirmed diagnosis of PTSD. It is material because it raises a reasonable possibility of a change in the prior adverse outcome. Although it is not dispositive of the issue of entitlement to service connection for a psychiatric disability, including PTSD, it is sufficient to reopen the claim. ORDER New and material evidence has been presented to reopen a claim for service connection for a psychiatric disability, including PTSD, and to this extent, the appeal is granted. REMAND At a VA psychological evaluation in January 1990, the veteran reported that he had worked in graves registration while stationed in Vietnam where he once saw the remains of a soldier with half a head. However, in a subsequent statement of September 1991 describing Vietnam stressors, he related that he had observed a decapitated body when he stopped at a graves registration facility to fill a canteen, indicating only coincidental contact with a graves registration unit. The veteran had a military occupation specialty as a supply handler, a noncombat position, but claims extensive combat exposure because his duties reportedly involved guarding ammunition dumps which were under enemy mortar fire. An April 1989 statement from a private physician indicates that the veteran may not be a reliable historian, and the record suggests inconsistencies in the veteran's account of his Vietnam experiences. At the most recent VA psychiatric examination in March 1992, the examiner commented that the veteran's symptomatology did not meet PTSD criteria and rendered a diagnosis of chronic paranoid type schizophrenia. In view of the foregoing, the case is REMANDED for the following actions: 1. The RO should request the veteran to provide as many details as possible about stressful experiences he related earlier in various statements submitted during the course of this appeal. Specific dates, places and names of individuals should be sought. The RO should forward any information secured from the veteran to the United States Army and Joint Services Environmental Support Group (ESG), 7798 Cissna Road, Springfield, Virginia, 22150, for verification of the claimed stressors. Any response from ESG should be placed in the claims folder. 2. The RO should ask the veteran to provide the names and addresses of medical providers from whom he has received psychiatric treatment since service. Of particular interest are records from Dr. W.O. Green, Jr., (most recent address, in 1972, reported as Chicksawba Street, Blytheville, Arkansas). After securing the necessary authorization, the named records not already associated with the claims file should be obtained. 3. The RO should obtain copies of all VA outpatient and hospital records of the veteran's treatment not already on file. Of particular interest is a report of psychological evaluation performed by a Mr. Dalton during hospitalization from September to October 1991. 4. The RO should then arrange for the veteran to be examined by a board of two psychiatrists to determine the nature and extent of psychiatric disability now present. The board should be composed of psychiatrists who have not previously examined the veteran. Psychological testing should also be performed. If the veteran is found to have PTSD, the specific stressor(s) and symptoms relied upon to support the diagnosis should be identified. The examiners should provide a complete rationale for any opinions expressed. The claims file should be made available to the examiners for review prior to the examination. 5. After the above development has been completed, the RO should adjudicate the issue of entitlement to service connection for a psychiatric disability, including PTSD, on a de novo basis. If the decision remains adverse to the veteran, a supplemental statement of the case should be furnished and he and his representative provided an opportunity for response. Thereafter, the case should be returned to the Board for further consideration, if in order. The Board intimates no opinion as to the final outcome warranted. No action is required of the appellant until he receives further notice. D. C. SPICKLER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.