Citation Nr: 0713239 Decision Date: 05/04/07 Archive Date: 05/15/07 DOCKET NO. 04-36 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Paul S. Rubin, Associate Counsel INTRODUCTION The veteran had active military service from March 1969 to October 1970. The veteran served in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The issue of service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The RO denied service connection for PTSD in March 1985 and September 2002 rating decisions; it notified the veteran of the denials but he did not initiate an appeal in either instance. 2. The evidence received since the September 2002 rating decision is new, relevant, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The rating decisions of March 1985 and September 2002 are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2006). 2. New and material evidence has been received since the September 2002 rating decision to reopen a claim for service connection for PTSD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence The RO denied service connection for PTSD in March 1985 and September 2002 rating decisions. It gave the veteran notice of these denials, but he did not initiate an appeal. Therefore, these RO rating decisions are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2006). The veteran's claim to reopen service connection for PTSD was received in September 2003. 38 C.F.R. § 3.156, the regulation which governs determinations as to whether new and material evidence has been received, was revised effective August 29, 2001, and the amended regulation is effective for claims received on or after August 29, 2001. Therefore, the amended regulation is for application. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO denied service connection for PTSD in prior March 1985 and September 2002 rating decisions because it found that there was no competent evidence of PTSD or any verified stressors. Although a December 1984 VA inpatient record provided a diagnosis of PTSD at intake, upon discharge in January 1985 this diagnosis was changed to dysthymic disorder. In this case, presuming the credibility of the evidence, and in consideration of the fact that the RO reopened the claim per the February 2004 rating decision on appeal, the Board finds that new and material evidence has been received since the September 2002 rating decision. Specifically, the Board finds that the stressor statements provided by the veteran as part of PTSD questionnaires in September 2003 and January 2004 provide new and material information regarding the circumstances of his alleged in-service stressors. If this new information is eventually corroborated and considered with evidence previously of record, it may relate to an unestablished fact necessary to substantiate the claim and may raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board agrees with the RO's determination that new and material evidence has been received, and the claim for PTSD is reopened. 38 U.S.C.A. § 5108. Once a claim is reopened, the claim may be considered on the merits, if adequate development has been conducted and the duties to notify and assist have been met. The Board finds that further development, as discussed in the Remand below, is required. ORDER As new and material evidence has been received, the claim for service connection for PTSD is reopened; the appeal is granted to this extent only. REMAND Before addressing the merits of the claim, the Board finds that additional development is required. First, with regard to Veterans Claims Assistance Act of 2000 (VCAA) notice, VA must ask the veteran to provide any evidence in his possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). Such notice is absent in the September 2003 and November 2003 VCAA letters. The VCAA notice should also be compliant with Dingess v. Nicholson, 19 Vet. App. 473 (2006). The veteran has alleged various several types of combat and noncombat-related stressors. Although the veteran served in Vietnam from October 1969 to October 1970, the veteran's service personnel records (SPRs) do not reflect receipt of medals, badges, or decorations that specifically denote combat with the enemy. There is also no evidence of any wounds from combat. His military occupational specialty is listed as an aviation mechanic. He has alleged that bases he was stationed at came under enemy attack, including during the Tet offensive, while he was stationed at Phu Bai, including mortar and rocket attacks, and that the locations were subject to fire fights and other attacks on the perimeter. A copy of the veteran's personnel record showing his unit of assignment while in Vietnam (131st SAC, 212th CAB (Combat Aviation Battalion) and dated in Vietnam (October 1969 to October 1970) should be provided to the U.S. Army and Joint Services Records Research Center (JSRRC) (formerly, the U.S. Armed Services Center for Unit Records Research (CURR)), to determine whether the unit or higher command history is consistent with the veteran's description of stressors. Although the veteran has provided the unit of assignment and locations of the alleged stressors, he has still not provided sufficient information for verification of such specific stressors as participating in picking up remains of a superior officer who was killed in a crash. The veteran should again be afforded the opportunity to provide the date of this or other stressors within a 2-month time frame, or the full names of those service members killed or involved in the incidents. Consequently, there is currently not enough information to send a request to the U.S. Army Joint Services and Research Center (JSRRC) to verify this particular incident. However, in the new VCAA letter, the RO should once again request that the veteran provide the approximate dates of his alleged stressors within two months and the full names of service members involved or killed in the incidents. In addition, the RO should advice the veteran to submit any buddy statements from other former service members who could confirm that these stressors actually occurred. Second, the claims folder contains VA outpatient treatment records from the VA Medical Center (VAMC) in Asheville, North Carolina, dated October 2003 through January 2004. None of these records contains a diagnosis of PTSD. However, the veteran, his Congressman, and his representative have indicated that the veteran has received treatment and counseling for PTSD after January 2004 at the VAMC in Asheville. See October 2004 substantive appeal, March 2005 authorization form submitted by Congressman, and March 2007 Appellant's Brief. At present, the medical evidence does not provide a basis to grant the veteran's claim. However, VA's duty to assist includes obtaining records of relevant VA medical treatment identified by the veteran. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive knowledge of evidence generated by VA). As these VA records may be pertinent to the claim, the RO should take appropriate steps to determine whether relevant VA medical records exist, and if so, to obtain them on remand. Finally, although the veteran and his representative have requested a VA examination to determine if the veteran has PTSD, absent a verified in-service stressor, a VA examination is not warranted at this time. In this respect, after-the- fact medical nexus evidence cannot also be the sole evidence of the occurrence of the claimed stressor. Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). Accordingly, the case is REMANDED for the following action: 1. The RO should send the veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that asks the veteran to provide any evidence in his possession that pertains to the claim. In this regard, the notice must comply with 38 U.S.C.A. § 5103(a) and any applicable legal precedent, including the recent case of Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this letter, the RO should also ask the veteran to provide any information regarding any outstanding VA, governmental, private, or occupational records related to treatment for PTSD. The RO should also notify the veteran that he must provide the approximate dates of the alleged stressors within a two-month time frame and the full names of any service members who were involved or killed during the alleged stressors, or submit buddy statements from other former service members who could verify the alleged stressors. If, and only if, the veteran provides the requested information, a summary of the stressors should be forwarded to the JSRRC with a request for any information, to include unit records, which would assist in verifying alleged in-service stressors. 2. The RO should provide the JSRRC with a copy of the personnel record showing the veteran's unit assignment while in Vietnam (131st SAC, 212th CAB). JSRRC should be asked to provide the unit history, or higher command history, for the veteran's unit. A summary of the veteran's allegations as to specific stressors should be provided. 3. The RO should contact the VAMC in Asheville, North Carolina, and attempt to secure all of the veteran's medical records from that location, dated from January 2004 to the present. All attempts to secure these records, and any response received, must be documented in the claims folder. The RO should also secure any private records that the veteran authorizes VA to obtain by way of an authorization for the release of records (VA Form 21-4142). The veteran is asked to assist, if possible, in obtaining these records or to provide the records himself if he has them in his possession. 4. After ensuring proper completion of this development, the RO should readjudicate the PTSD issue on appeal, considering any new evidence secured in the claims folder since the August 2004 SOC. If there is corroboration of any stressor(s) alleged by the veteran, to include the allegations that locations the veteran was stationed at were subject to enemy attacks by mortar or rockets, a summary of corroborated stressors should be prepared and provided to the VA examiner, if VA examination is needed. 5. If the disposition remains unfavorable, the RO should furnish the veteran and his representative a supplemental statement of the case (SSOC) and afford the applicable opportunity to respond. Thereafter, the case should be returned to the Board for final appellate review, if in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). ______________________________________________ Tresa M. Schlecht, Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs