Citation Nr: 0721004 Decision Date: 07/13/07 Archive Date: 07/25/07 DOCKET NO. 05-09 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for post-traumatic stress disorder (PTSD) and, if so, whether entitlement to service connection is warranted. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The veteran had active service from July 1990 to May 1991. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of March 2004 by the Department of Veterans Affairs (VA) New Orleans, Louisiana, Regional Office (RO). The RO previously denied the veteran's claim for service- connected PTSD in June 2002 on the basis that she had not replied to a letter requesting information about her in- service stressors. The appeal period for that decision subsequently expired and the decision became final. The veteran sought reconsideration of this claim and filed "new and material evidence" in the form of additional information regarding her claimed stressors. The RO reopened the claim, but again denied the veteran's claim in a Rating Decision dated March 2004. Specifically, the RO indicated that the veteran had failed to provide adequate evidence of required in-service stressors. The veteran filed a timely notice of disagreement in July 2004 and requested a hearing before a decision review officer (DRO). The veteran testified at the hearing in August 2005. Regardless of the RO's actions, the Board must still determine de novo whether new and material evidence has been submitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the veteran's previously and finally denied claims). As the Board concludes below that the claim was properly reopened based on the receipt of new and material evidence, the issue of whether entitlement to service connection is warranted is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. In June 2002, the RO denied service connection for post- traumatic stress disorder (PTSD). The veteran was notified of that decision in a letter dated June 28, 2002, and did not appeal. 2. Some of the evidence received since June 2002, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the PTSD claim, or raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The June 2002 rating decision that denied service connection for PTSD is final. 38 U.S.C.A. § 7105(b), (c) (West 2002); 38 C.F.R. §§ 3.160(d), 20.201, 20.302 (2006). 2. New and material evidence has been received, and the claim for service connection for PTSD is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence submitted by the veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c). The veteran was notified of the June 2002 denial of her claim for service connection for PTSD. A notice of disagreement (NOD) must express dissatisfaction or disagreement with a denial of a claim and a desire to contest the result. 38 C.F.R. § 20.201. Although any communication from the claimant will be liberally construed, it still must be expressed in terms that can reasonably be construed as disagreement with a denial and desire for appellate review. Id. After the June 2002 denial, the RO did not receive additional statements or documents pertaining to the PTSD claim from the veteran or her representative until December 2003. Since she did not express disagreement with the prior denial within the one-year appeal period, the June 2002 RO determination became final. As noted above, in December 2003, the RO received another claim from the veteran which indicated that she was seeking service connection for PTSD. Since the claim had been previously denied, the claim was properly characterized as a claim to reopen. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The March 2004 RO decision appears to have reopened the veteran's service connection claim and then denied it on the merits. The Board has jurisdiction to consider the issue of whether new and material evidence has been submitted because that issue is part of the same "matter" of whether the appellant is entitled to service connection for the disability. Bernard v. Brown, 4 Vet. App. 384, 391 (1993) (interpreting the provision contained in 38 U.S.C.A. § 7104(a) that the Board has jurisdiction to decide "all questions in a matter" on appeal). When a claimant submits a claim for service connection for a disability, the question of whether there is new and material evidence to reopen the claim is implicated where there is a prior final decision regarding that claim. Id. at 392. Although these are two separate questions, they are components of a single claim for service connection. Id. With claims to reopen filed on or after August 29, 2001, such as this one, "new" evidence is defined as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (2006). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claims sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The evidence received subsequent to the June 2002 RO rating decision is presumed credible for the purposes of reopening a claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). The Board concludes that there is new and material evidence in this case. Specifically, VA received a completed form and narrative from the veteran concerning her claimed stressors in March 2004. In addition, the veteran testified at a hearing at the RO in August 2005. The statement and the testimony provided new and potentially verifiable stressor information that was not previously of record that if verified could substantiate her claim for service connection for PTSD. Prior to the March 2004 submission, the veteran had not provided the RO with potentially verifiable stressor information. Assuming the credibility of this evidence, see Justus, supra, the additional evidence 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 finds that the evidence received subsequent to June 2002 is new and material and serves to reopen the claim for service connection for PTSD. The Board can, at this point, now remand the claim, as the RO also appeared to reopen the claim and consider it on the merits in the March 2004 RO decision and in the February 2005 statement of the case (SOC). The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2006), imposes obligations on VA in terms of its duties to notify and assist claimants. Initially, the Board observes that in light of the favorable outcome of this appeal with respect to the issue of whether new and material evidence has been submitted to reopen the claim, any perceived lack of notice or development under the VCAA should not be considered prejudicial. ORDER The appeal to reopen a claim of entitlement to service connection for post-traumatic stress disorder (PTSD) is granted. REMAND VA medical records on file document that the veteran has been diagnosed with PTSD. There is no evidence in the file showing the veteran participated in combat, such as a combat- related military occupational specialty (MOS) or award. The veteran's record of assignments indicates that while she was in Saudi Arabia, she had a principal duty as a clerk typist. She was assigned to a unit designated as "HHC 1/10 1AVN BDE FT RUCKER AL." The veteran's military occupational specialty is listed as "71L10." The veteran also testified before the DRO that once arriving in Saudi Arabia, her primary responsibilities involved attachment to a fire fighting unit. The veteran provided evidence of four in-service stressors in support of her service-connection claim: (1) a January 1991 incident at Khobar Towers in which the veteran reports that "the alarm that signals incoming bombs went off" and that she became terrified when she had extreme difficulty putting on a gas mask; (2) a February 1991 incident while the veteran was staying at "Tent City" in which her unit was called to put out a smoldering fire and she saw burned body parts; (3) a February 1991 incident in which the veteran saw the burned bodies of Iraqi soldiers while riding in a convoy; (4) a February 1991 incident while the veteran was staying at an airplane hangar in "Ad Dammon ? Port" where she was "scared half to death" because she could not differentiate between constantly operating forklifts and possible attacks. The Board notes that no effort has been made to verify any of the claimed stressors because the RO determined there was insufficient detail to seek verification of the alleged stressors. However, the veteran was only in Saudi Arabia for three months and, at a minimum, unit records from that period of time should be obtained as they may assist in the corroboration of the stressors. The claims file indicates that the veteran had applied for disability benefits from the Social Security Administration (SSA). Although these records may not provide any additional information concerning her stressors, VA is required to obtain evidence from the Social Security Administration, including any decisions by an administrative law judge, and give the evidence appropriate consideration and weight. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996). Therefore, attempts should be made to determine if she is in receipt of SSA disability benefits and if so the AMC should attempt to obtain these records. In addition, the veteran reported in her original claim that she received treatment for PTSD from the New Orleans VA Medical Center from July 1994 on. The RO has only obtained recent VA medical records in connection with the claim. On remand, VA should attempt to obtain additional treatment records that are not of record. The VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990). Accordingly, the case is REMANDED for the following action: 1. The RO should request the veteran's medical and adjudication records from the Social Security Administration. All efforts to obtain these records should be fully documented, and the Social Security Administration should provide a negative response if the records are unavailable. 2. The RO should obtain those VA medical records pertaining to the veteran, which have not already been obtained and made a part of the claims folder, from the New Orleans VA Medical Center from July 1994 to the present. All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. The RO should also seek to obtain any other evidence that is identified by the veteran as relevant while the case is in remand status, provided that any necessary release form is completed. 3. The RO should send a letter to the veteran, notifying her that she can submit alternate sources of records, to include but not limited to "buddy statements" or letters / diaries that were written by her contemporaneous to the claimed events in support of her claim. "Buddy statements" refer to letters or other correspondence from other veterans who served with the veteran in this case. Such service "buddies" may be able to assist in corroboration of the veteran's in-service stressors. 4. The RO should prepare a letter asking the United States Army and Joint Services Records Research Center (JSRRC) to provide any information that might corroborate the veteran's alleged stressors in service (threat of an attack on the Khobar Towers in January 1991, a fire at "Tent City" in February 1991, riding past dead bodies in a convoy in February 1991, and a possible attack on "Ad Dammon" in February 1991). Copies of the veteran's personnel records, DD214, and information concerning the claimed stressors should be enclosed with that request. Any available unit records and unit histories pertaining to service in Saudi Arabia from January 19, 1991 to April 16, 1991, should be requested from the JSRRC. If indicated by the JSRRC, the RO should contact the National Personnel Records Center (NPRC) and/or the National Archives and Records Administration (NARA). VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. 5. If there is at least one objectively confirmed stressor (or sufficient evidence of combat such that a stressor does not need to be independently verified), the RO should also make arrangements with an appropriate VA medical facility for the veteran to be examined by VA in order to ascertain the nature of all psychiatric disabilities and proper diagnoses thereof, to include PTSD as set forth in the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Any psychological testing should also be conducted at that time. If the examiner concludes that the veteran meets the criteria for a PTSD diagnosis, the examiner is asked to express an opinion as to whether the PTSD is at least as likely as not (i.e., 50 percent or greater possibility) related to the veteran's military service, and specifically, to a confirmed stressor. (Note: only a confirmed stressor, or a combat stressor not needing to be independently verified, can serve as a viable basis for the diagnosis). The claims folder should be made available to the examiner for review. 6. Thereafter, the RO should readjudicate the veteran's claim. If the benefit sought on appeal remain denied, the veteran should be provided a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable laws and regulations considered pertinent to the issue currently on appeal. The SSOC should also include a discussion of any and all relevant evidence submitted by the veteran's representative since the January 2006 SSOC--in particular evidence received by BVA in May 2007. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ S. S. Toth Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs