Citation Nr: 0118553 Decision Date: 07/17/01 Archive Date: 07/24/01 DOCKET NO. 99-10 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been submitted to reopen the veteran's claim for service connection for post traumatic stress disorder (PTSD). 2. Entitlement to service connection for dyshydrotic eczema. 3. Entitlement to service connection for dermatophytosis. 4. Entitlement to service connection for chronic obstructive pulmonary disease. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Cynthia A. Skow, Counsel INTRODUCTION The veteran served on active duty from September 1969 to April 1971. This matter came before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. Service connection for PTSD was denied in an April 1994 rating decision. The veteran was notified of this decision and no timely disagreement was received. 2. The evidence submitted in support of the veteran's petition to reopen his claim for service connection for PTSD is cumulative and redundant of that previously submitted. 3. The veteran has not submitted evidence which must be considered in order to fairly decide the merits of the claim of service connection for PTSD. CONCLUSIONS OF LAW 1. The April 1994 decision denying service connection for PTSD is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 20.302(a), 20.1103 (2000). 2. Evidence submitted pursuant to the veteran's petition to reopen his claim for service connection for PTSD is not new and material, and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, the Board notes that there was a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has conducted a complete and thorough review of the veteran's claims folder. In this regard, the Board notes that, by virtue of a May 1999 letter and a June 1999 statement of the case, the veteran and his representative were notified of the information (e.g., medical, or lay, evidence) necessary to substantiate his new and material claim. Service medical records were previously obtained and associated with the claims folder, and the National Personnel Records Center previously indicated that all available records have been forwarded. Additionally, the veteran has not specified any outstanding records. Consequently, then Board concludes that the RO has met its duty to assist the veteran in the development of his new and material claim under the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). Prior unappealed decisions of the RO are final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. § 20.1103 (2000). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App 145 (1991). The United States Court of Appeals for Veterans Claims (Court) has held that, when determining whether additional evidence is new and material, the VA must determine whether such evidence has been presented under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108 (West 1991). Specifically, under 38 C.F.R. § 3.156(a), new and material evidence is defined as evidence not previously submitted to agency decisionmakers 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 evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. The Court has held that the Board is under a legal duty in such a case to determine if there was new and material evidence to reopen the claim, regardless of the RO's action. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Here, the RO denied the veteran's claim for service connection for PTSD in April 1994. At that time, the evidence included the veteran's claim, service personnel records, service medical records, a private medical statement from Central Appalachia Services, VA treatment records, and report of March 1994 VA psychiatric examination. Service personnel records show that the veteran served in the Republic of Vietnam from roughly March 1970 to April 1971 as a cannoneer. His Form DD 214 reflects that he received the National Defense Service Medal, Vietnam Service Medal, and Vietnam Campaign Medal. He did not receive any awards or citations indicative of combat service. Service medical records are negative for combat related injuries and do not reflect any complaints or treatment of PTSD. VA treatment records dated July 1990 to November 1993 are negative for complaints or findings for PTSD. The January 1994 letter from the Central Appalachia Services reflects that the veteran was a client since June 1993 and that he presented with complaint of nightmares and sleep difficulty. According to this letter, the veteran was given the diagnosis of PTSD. In March 1994, VA psychiatric examination, the veteran denied having ever been wounded in service and reported that he was an assistant artillery helper. He reported that he experienced frequent incoming mortar attacks, enemy fire, sniper fire, and small arms contact. He reported that he lost 2 close friends during a rocket attack only days before they were to return to the United States. He reported that he began to use alcohol heavily in Vietnam and until about 2 years ago. He denied major close enemy contacts and combat exposure. The diagnosis was generalized anxiety disorder and depressive disorder, not otherwise specified. Based on this evidence, the RO, by an April 1994 rating decision, denied service connection for PTSD because the evidence of record did not establish the presence of PTSD due to a verified in-service stressor. The veteran was notified of this decision, but a notice of disagreement was not received. Thus, the decision was final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 20.302(a), 20.1103 (2000). Evidence received since the April 1994 decision includes a letter from the U.S. Army Environmental Support Group (ESG), dated June 1994. Enclosed with the letter were extracts of Operational Reports-Lessons Learned, which document the veteran's unit's combat operations and enemy activity in the unit's area of operations. Specific combat incidents or casualties could not be verified absent more detailed information from the veteran. While this report was not of record at the time of the previous decision, it is not material to the issue of service connection for PTSD because it neither verifies any of the alleged stressor nor does it provide a diagnosis for PTSD based on verified stressors. It merely confirms that the veteran served in Vietnam, a fact which was already considered. Thus, the ESG report is cumulative, it does not provide information that bears directly and substantially upon the specific matter under consideration, and it is not so significant that it must be considered in order to fairly decide the merits of this case. Additional evidentiary submissions include VA treatment records from December 1996 to March 2000, and a September 1993 letter from Central Appalachia Services. The VA treatment records are not material as they do not contain any complaints, findings, or diagnoses of PTSD. The letter from Central Appalachia Services is essentially identical in substance of the content of the January 1994 letter previously and thus, it is not new. See Colvin v. Derwinski, 1 Vet.App. 171, 174(1991), citing Williams v. Sullivan, 905 F.2d 214, 216 (8th Cir. 1990). Accordingly, the Board concludes that the evidence submitted since the April 1994 denial is cumulative, does not bear directly and substantially upon the specific matter under consideration, and is not so significant that it must be considered in order to decide fairly the merits of the veteran's claim for service connection for PTSD. Thus, the Board must deny his petition to reopen his previously denied claim for service connection for PTSD. As noted above, VA has a duty under 38 U.S.C.A. § 5103(a) to advise a claimant of the new and material evidence needed to complete his claim. Graves v. Brown, 8 Vet. App. 522, 525 (1995). This obligation depends on the particular facts of the case and the extent to which VA has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69, 77-80 (1995). Although the Board found that the RO met this duty, the Board notes that also, by this decision, the Board informs the veteran of the type of new and material evidence needed to reopen his claim. ORDER The veteran's petition to reopen his claim for service connection for PTSD is denied, as new and material evidence has not been submitted. REMAND As noted above, there was a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This law also eliminates the concept of a well grounded claim and supersedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099- 2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). Because of the change in the law brought about by the VCAA, a remand in this case is required for compliance with the notice and duty to assist provisions contained in the new law. In addition, because the RO has not yet considered whether any additional notification or development action is required under the VCAA, it would be potentially prejudicial to the appellant if the Board were to proceed to issue a decision at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)). In an effort to assist the RO, the Board has reviewed the claims file and identified certain assistance that must be rendered to comply with the VCAA. However, it is the RO's responsibility to ensure that all appropriate development is undertaken in this case. In this case, the veteran claimed service connection for dyshydrotic eczema, dermatophytosis, and chronic obstructive pulmonary disease secondary to exposure to Agent Orange. Service personnel records show that the veteran was stationed in Vietnam from March 1970 to April 1971. VA medical records show current diagnoses of eczema and chronic obstructive pulmonary disease. However, there have been no opinions as to the etiology of such disorders. Accordingly, the veteran should be afforded VA examinations to determine whether, due to a disease or injury incurred in service, including exposure to Agent Orange, he has dyshydrotic eczema, dermatophytosis, and chronic obstructive pulmonary disease. VA's duty to assist the veteran includes obtaining recent medical records and a thorough and contemporaneous examination in order to determine the nature and extent of the veteran's disabilities. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). In view of the above, this case is REMANDED for the following: 1. The RO must review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475 is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107) are fully complied with and satisfied. 2. The RO should schedule the veteran for a VA examination to determine the nature and etiology of the veteran's skin and respiratory disorders. The claims folder must be made available to the examiner for review prior to the examination. The examiner should provide opinions as to whether the has dyshydrotic eczema, dermatophytosis, and chronic obstructive pulmonary disease and if so, whether it is as likely as not that such disorder(s) are due to a disease or injury incurred in service, to include Agent Orange exposure. A complete rationale for all opinions expressed must be provided. 3. Thereafter, the RO should readjudicate the claims. If the benefit sought on appeal remains denied, the veteran and his representative 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 law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. However, the veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2000). The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2000) (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. CHERYL L. MASON Acting Member, Board of Veterans' Appeals Error! Not a valid link.