Citation Nr: 0710570 Decision Date: 04/11/07 Archive Date: 04/25/07 DOCKET NO. 05-24 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for post- traumatic stress disorder (PTSD), and if so, whether service connection is warranted for the claimed disability. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Associate Counsel INTRODUCTION The veteran had active military service from December 1968 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Oakland, California. A Travel Board hearing was held at the Oakland RO in September 2006 regarding this appeal. A transcript of that hearing is associated with the claims folder. The Board notes that a letter received from the veteran in October 2006 indicates his desire to reopen his claim for service connection for coronary artery disease. Additionally, this letter notes that the veteran is filing claims for increased ratings for his service-connected diabetes mellitus type II, impotence, and peripheral neuropathy. A handwritten notation on the October 2006 letter indicates that a temporary folder has been established, a VA examination has been requested, and a VCAA letter has been sent. In light of the fact that none of this development is indicated in the current claims folder, the Board wishes to refer these issues to the agency of original jurisdiction (AOJ) to ensure that such development was begun. Moreover, the Board observes that the claims folder contains numerous correspondence suggesting that the veteran wishes to file claims for service connection for a skin disorder, a dental problem, sleep apnea, ulcers, a nerve problem in his hip, and anxiety/stress secondary to impotence. There is also some indication that the veteran may wish to reopen his previously denied claims for service connection for hypertension and gout. Seeing as the veteran's language concerning these potential claims is unclear, the Board is referring them to the AOJ. The AOJ is instructed to contact the veteran for the purpose of clarifying what, if any, claims the veteran intended to file. Appropriate development and consideration should follow based on the veteran's response. FINDINGS OF FACT 1. VA properly notified the veteran of a December 2002 rating decision of the RO that denied service connection for PTSD, as well as his appellate rights; however, the veteran did not perfect an appeal of this December 2002 rating decision. 2. Evidence associated with the claims file after the RO's last final denial in December 2002 is new evidence, and when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim and raises the reasonable possibility of substantiating the previously disallowed PTSD claim. 3. VA notified the veteran of the evidence needed to substantiate his claim, explained to him who was responsible for submitting such evidence, and obtained and fully developed all evidence necessary for an equitable disposition of the claim decided herein. 4. The veteran did not engage in combat with the enemy. 5. There is no competent evidence of record corroborating the veteran's claimed in-service stressors. 6. The veteran does not have PTSD as the result of a verified stressor from service. CONCLUSIONS OF LAW 1. The December 2002 rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2006). 2. New and material evidence has been submitted, and the claim of entitlement to service connection for PTSD is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2006). 3. PTSD was not incurred in or aggravated by the veteran's active duty military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)), imposes obligations on VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. A. Duty to Notify For purposes of evaluating the veteran's request to reopen his claim for service connection for PTSD, the Board notes that a lengthy discussion of VCAA notice is unnecessary as the Board is reopening this claim. However, the Board observes that a November 2003 letter to the veteran provided notice regarding the previous final denial and what the evidence must show in order to reopen the veteran's claim of service connection for PTSD. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Although it did not provide notice regarding the meaning of "new and material" evidence, the November 2003 letter advised the veteran of VA's duties under the VCAA and the delegation of responsibility between VA and the veteran in procuring the evidence relevant to his claim to reopen the previously disallowed claim for service connection for PTSD. Quartuccio, 16 Vet. App. at 187. With regard to the veteran's underlying claim of service connection for PTSD, the Board finds that all appropriate VCAA notice was provided. In addition to providing notice regarding reopening the veteran's claim, the November 2003 letter mentioned above notified the veteran of the information and evidence necessary to substantiate his underlying service connection claim. In fact, the November 2003 letter expressly states that the veteran needs to submit competent evidence showing that he performed mortuary duties in Vietnam. At the veteran's September 2006 Travel Board hearing he was also informed that generalized statements, without providing specific information regarding dates, names, places, and details, were not sufficient. See hearing transcript at 20-21. Moreover, following the hearing, the record was held open for sixty days for the specific purpose of allowing the veteran time to submit additional information that might corroborate his claimed in-service stressors. In light of the above, the Board is satisfied that the veteran was fully aware of what was necessary to substantiate his claim. The veteran was also provided notice regarding the information and evidence VA would seek to provide, as well as the information and evidence the veteran was expected to submit. As previously mentioned, such information was contained in the November 2003 letter. Finally, the November 2003 letter essentially notified the veteran of the need to submit any pertinent evidence in his possession. The Board notes that the November 2003 letter was sent to the veteran prior to the February 2004 rating decision. The VCAA notice was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. A March 2006 letter was sent to the veteran providing such notice. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. B. Duty to Assist VA also has a duty under the VCAA to assist the veteran in obtaining evidence necessary to substantiate the claim. After careful review of the record, the Board concludes that VA fulfilled its duty to assist the veteran with respect to his request to reopen his previously disallowed claim and his underlying service connection claim. The veteran's claim for service connection for PTSD had been previously denied on the basis that his claimed stressor of mortuary duty could not be verified. In submitting his request to reopen, the veteran provided additional details regarding this previously claimed stressor and also testified regarding new stressors (rocket and mortar attacks) that might be more easily verified. As discussed below, the Board finds that the information provided by the veteran was sufficient to reopen his claim. Prior to reopening the veteran's claim for service connection for PTSD, VA had no duty to make appropriate attempts to verify these claimed stressors. And seeing as the veteran did not request VA's assistance in obtaining any VA or private medical records, the Board concludes that the duty to assist the veteran in reopening his claim was fulfilled. However, once the veteran's claim was reopened, the duty to assist the veteran in substantiating his underlying claim included making appropriate attempts to verify his claimed stressors if warranted by the evidence of record. The information provided by the veteran regarding his claimed stressors was sufficient to reopen his claim; however, it was not sufficient to verify these claimed stressors. With regard to the veteran's claimed mortuary duty, VA informed the veteran on numerous occasions that it would not be able to independently verify this stressor, and that he would need to provide corroborating evidence. As for the rocket and mortar attacks reported by the veteran, the Board observes that the veteran provided descriptions of these attacks, including the location of the attacks and his unit assignment. However, no specific dates were supplied. Rather, the veteran indicated that these attacks occurred while he was stationed in Phu Loi from December 1969 to December 1970. The U.S. Army and Joint Services Records Research Center (JSRRC) (formerly U.S. Armed Services Center for Unit Records Research (CURR)) requests that VA provide no more than a three-month window of time for an event when asking JSRRC to verify such event. The Board observes that the veteran was expressly informed at his Board hearing that he would need to provide this narrower timeline for his claimed attacks if VA was going to send a verification request to JSRRC. The record was then held open for sixty days, but no further evidence or statements were submitted by the veteran. In light of the above, the Board concludes that VA had no obligation to submit a research request to JSRRC regarding the veteran's claimed stressors. The veteran was given ample opportunity to submit the required information (more specific dates), yet he failed to do so. In the absence of such evidence, there was insufficient information to verify the veteran's claimed stressors. Thus, the Board concludes that VA appropriately assisted the veteran by obtaining his service medical records and service personnel records. However, there was no obligation to make additional attempts to verify the veteran's stressors as the veteran failed to provide the required information. See Wood v. Derwinski, 1 Vet. App. 190 (1991) (the duty to assist the veteran is not a one-way street). A VA examination was not provided in conjunction with the veteran's claim, and the Board notes that the evidence of record does not warrant one because there is sufficient competent medical evidence to decide his claim. See 38 C.F.R. § 3.159(c)(4) (2006); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, the record already contains a diagnosis of PTSD based on DSM-IV criteria that is linked to the veteran's claimed stressors. The issue in this case is therefore whether the veteran's claimed stressors can be verified. The Board notes that a VA examination is not necessary to verify the veteran's claimed stressors, and as such, failure to provide an examination does not violate VA's duty to assist the veteran. As a final note, the Board observes that shortly after this appeal was certified to the Board the veteran submitted evidence in support of his claim without a waiver of AOJ review. Under the circumstances, the Board concludes that a remand is not required. The evidence includes lay statements by the veteran's family regarding his claimed stressor and his symptomatology following service. The Board notes that the information provided in these statements is duplicative of prior statements by the veteran. None of this evidence indicates first-hand knowledge of the veteran's claimed PTSD stressors, and thus, it is redundant of evidence already contained in the claims file. This evidence is not "pertinent" as defined at 38 C.F.R. § 20.1304(c) (2006), and a remand for AOJ consideration is therefore not required. The veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained in order to fairly decide this claim. Furthermore, the veteran was given plenty of opportunity to submit any relevant evidence seeing as the record was left open for an additional sixty days following the veteran's September 2006 Travel Board hearing. Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). The Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations, and the record is ready for appellate review. Analysis The evidence available for review for this appeal includes, the veteran's service medical and personnel records, private and VA outpatient treatment and examination records, and statements and arguments provided by the veteran and his representative in support of the claim. In reaching its decision herein, the Board has carefully reviewed, considered, and weighed the probative value of all of the evidence now contained in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, it is not required to discuss each and every piece of evidence in a case. The relevant evidence, including that submitted by the veteran, however, will be addressed and/or summarized where appropriate. A. New and Material Evidence The veteran asserts that his PTSD is due to experiences that happened while he was in Vietnam. In December 2002, the RO denied the veteran's claim for service connection based largely on the fact that there was no evidence that the veteran was a combat veteran and his claimed stressor regarding mortuary duty could not be verified. The veteran was notified of the decision and of his appellate rights, and did not appeal it. The December 2002 RO decision is final. 38 U.S.C.A. § 7105 (West 2002). Generally, a final VA rating decision may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105(c). Under 38 U.S.C.A. § 5108, VA may reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. "New and material evidence" is defined as evidence not previously submitted which relates to an unestablished fact necessary to substantiate the claim and presents the reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2006). This standard represents a change in the law pertaining to claims filed on or after August 29, 2001. Duty to Assist, 66 Fed. Reg. 45,620 (Aug. 29, 2001). The veteran's application to reopen his claim was initiated in September 2003. Thus, the definition of "new and material evidence" discussed above is applicable to his claim. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). At the time of the December 2002 rating decision, the file contained the following: the veteran's service medical records, service personnel records, a July 2001 stressor statement by the veteran, an October 2001 treatment report from Oakland Vet Center, VA records dated from November 1996 to May 2002, private treatment records from 1991, and statements by the veteran. These records essentially showed that the veteran had a DSM-IV diagnosis of PTSD based on mortuary duty as well as the death of two friends killed on guard duty. However, the veteran's service personnel records did not indicate that he was a combat veteran, nor did they establish that his military occupation was ever guard duty or mortuary duty. Some detail had been provided regarding the veteran's mortuary duty; however, not enough to verify the claimed stressor. As the veteran did not timely appeal the RO's decision, it became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2006). Records received since the December 2002 rating decision include the following: more statements from the veteran, copies of his service medical records, copies of military awards received by the veteran, a map of Vietnam indicating the veteran's locations, and a transcript from the September 2006 Travel Board hearing. Of particular note are the September 2003 statements of the veteran which note his location, unit, and job duties while stationed in Vietnam. Additionally, the veteran indicated that his unit received rocket and mortar fire while stationed at Phu Loi because of its proximity to a large helicopter pad. On review of the record, the Board finds that the additional evidence received, with the exception of the copies of the veteran's service medical records, is new, as it was not previously of record. Since it includes additional information regarding the veteran's claimed stressors, this evidence is so significant that it must be considered in order to fairly decide the merits of this claim. Hence it is material. The Board notes that the RO had informed the veteran that he needed to submit evidence sufficient to verify his mortuary duty in order to reopen his claim. The veteran instead presented evidence regarding alternative stressors. This evidence suggests a reasonable possibility of verification, and thus, a reasonable possibility of substantiating his underlying claim. The Board therefore finds this evidence to meet the criteria for new and material evidence. As new and material evidence has been received, the claim of entitlement to service connection for PTSD may be reopened. B. Service Connection for PTSD The veteran contends that, while serving in Vietnam, he was exposed to numerous traumatic events. Specifically, he alleges that while serving as a mail clerk in the 758th Service and Supply Company in Phu Loi he was exposed to rocket and mortar attacks. The veteran also states that he was put on bunker line duty, and that two of his close friends were killed from attacks related to such duty. Finally, the veteran contends that he worked in mortuary duty when he returned to Vietnam in January 1971. His duties included cleaning the bodies and preparing them for departure home. He claims that such traumatic experiences resulted in his current diagnosis of PTSD. Therefore, the veteran contends that service connection is warranted for PTSD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor, is required. See 38 C.F.R. § 3.304(f). With regard to the second PTSD element as set forth in 38 C.F.R. § 3.304(f), evidence of an in-service stressor, the evidence necessary to establish that the claimed stressor actually varies depending on whether it can be determined that the veteran "engaged in combat with the enemy." See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.303(d) (2006). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary. See 38 C.F.R. § 3.304(f). Where a determination is made that the veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressors. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Once independent verification of the stressor event has been submitted, the veteran's personal exposure to the event may be implied by the evidence of record. A veteran need not substantiate his actual presence during the stressor event; the fact that the veteran was assigned to and stationed with a unit that was present while such an event occurred strongly suggests that he was, in fact, exposed to the stressor event. See Pentecost v. Principi, 16 Vet. App. 124 (2002); Suozzi v. Brown, 10 Vet. App. 307 (1997). An October 2001 treatment report from the Oakland Vet Center reflects that the veteran reported serving in Vietnam on two separate occasions. He indicated that he served on bunker guard duty in Phu Loi. In addition to guard duty, the veteran reported working in the mortuary service with the 229th Supply Service at Long Binh cleaning, dressing, and preparing veterans for shipment back to the United States. The counselor noted that the veteran reported current symptoms of avoiding anything related to death, as well as hypervigilance, recurrent nightmares, constant intrusive thoughts, and survivor guilt. Following five sessions, the counselor noted an Axis I diagnosis of chronic, delayed PTSD, as well as alcohol dependence in full, sustained remission. Based on the foregoing, the Board finds that the veteran has a current diagnosis of PTSD. Additionally, the October 2001 treatment report notes that his current symptoms are directly linked to his survivor guilt and mortuary duty. As such, the Board finds that there is a nexus opinion of record. The remaining element of the veteran's PTSD claim is credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). With regard to this PTSD element, the evidence necessary to establish the claimed stressor actually occurred varies depending on whether it can be determined that the veteran "engaged in combat with the enemy." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The veteran's DD 214 form reveals that he served on active duty from December 1968 to July 1971. Such form indicates that the veteran had one year, seven months, and 29 days of service in the Republic of Vietnam from December 18, 1969 to July 17, 1971. His last duty assignment and major command was the 624th Supply and Service Company, Vietnam. His DD 214 also reflects that he received, as relevant, the Vietnam Service Medal and the Vietnam Campaign Medal. Such medals denote service in support of the campaign, and are not recognized as a decoration that may serve as evidence that the veteran engaged in combat. See Adjudication Procedure Manual, M21-1, Part III, para. 5.14(b)(1). The veteran's DD 214 form also shows that his military occupational specialty (MOS) was a laundry worker. The veteran service personnel records reflect that he was initially stationed with the 610th Maintenance Battalion as a duty soldier upon arrival in Vietnam. However, he was quickly transferred to the 758th Service and Supply Company and assigned an MOS of laundry worker. His MOS remained laundry worker until service separation; however, in January 1970, he was transferred to the 229th Service and Supply Company. His service personnel records reveal that although his MOS is laundry worker, his principal duty was listed as mail clerk in his "record of assignments." Finally, his records indicate that he participated in an unnamed campaign in December 1970. The Board finds that the evidence of record does not support the conclusion that the veteran engaged in combat with the enemy. Specifically, his personnel records are negative for any decoration or award signifying combat and such records indicate a non-combat MOS of laundry worker and principal duty of mail clerk. Based on the foregoing, the Board finds that the veteran did not engage in combat with the enemy. Therefore, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressors. See Moreau, supra; Dizoglio, supra. In such cases, as here, the record must contain service records or other statements as to the occurrence of the claimed stressor. See West, supra; Zarycki, supra. As previously mentioned, the veteran contends that he was exposed to significant traumatic stressors while serving in Vietnam, including rocket and mortar attacks while serving on bunker guard duty and dead bodies while working in the mortuary service. However, the Board finds that there is no evidence of record verifying such stressors. Moreover, the veteran has not offered specific, detailed information regarding his traumatic in-service experiences sufficient for VA to even attempt to verify such claimed stressors. It is true that the veteran has provided us with his unit information, his station assignment, and a description of the event(s). Yet, he was unable to provide any specific dates for these claimed attacks. Rather, he testified that the attacks occurred while he was stationed at Phu Loi sometime between December 1969 and December 1970. As previously mentioned, this time period is too broad, and JSRRC, the organization that researches and verifies military stressors, requests no more than a three-month window of time with respect to a specific event for research purposes. The Board again notes that the veteran was expressly asked to provide a three-month window of time regarding any mortar or rocket attacks that might have occurred while stationed at Phu Loi, including any attacks near the helicopter pad. Furthermore, he has been asked to provide names and current addresses of any person who might have worked with him in the mortuary service. Despite such notice and opportunity, the veteran failed to provide VA with more specific dates regarding specific rocket and mortar attacks, and he testified at his Board hearing that he is unable to identify anyone that can help verify his mortuary duty. The Board notes that the duty to assist the veteran is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). He was given ample opportunity to provide such information, and it is difficult to imagine that providing him with additional time to respond would produce a different result. As previously discussed, VA has assisted the veteran in every way possible at this time, and without more specific information regarding the dates of these claimed attacks, verification is impossible. Therefore, inasmuch as VA is unable to confirm that any of the veteran's alleged stressors actually took place, he is unable to meet one of the criteria necessary in order to establish entitlement to service connection for PTSD. The Board has considered the applicability of the benefit of the doubt doctrine. However, a preponderance of the evidence is against the veteran's claim of entitlement to service connection for PTSD. As such, that doctrine is not applicable in the instant appeal and his claim must be denied. 38 U.S.C.A. § 5107. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for PTSD is reopened, and to this extent the claim is granted. Entitlement to service connection for PTSD is denied. ____________________________________________ STEVEN L. COHN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs