Monday, August 27, 2012

Single Judge Application, Sexual Trauma; Patton v. West, 12 Vet.App. 272, 277 (1999); Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011);

Excerpt from decision below: "The Court is not persuaded bythe Board's reasoning. Although the SMRs are silent as to the appellant having being raped, the SMRs do not contradict her statement. Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) ("When assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence.")see McLendon v.Nicholson, 20Vet.App. 79,85(2006); see also Forshey v. Principi, 284 F.3d 1335, 1363 (Fed. Cir. 2002) (en banc) (Mayer, C.J., dissenting (distinguishing between the existence of negative evidence and the absence of actual evidence and noting that "[t]he absence of actual evidence is not substantive 'negative evidence'"). It is not surprising that a rape victim would be silent regarding the fact that she had been raped, and there is no medical reason why a doctor would be expected to comment on the reasons why a patient is seeking an abortion. See Buczynski, supra; VA adjudicators are required to consider evidence of behavioral changes to corroborate a stressor involving sexual trauma precisely because there may be little or no direct evidence that the incident occurred. See Patton v. West, 12 Vet.App. 272, 277 (1999) (acknowledging the VA Adjudication Procedures Manual's recognition that, "[b]ecause assault is an extremely personal and sensitive issue, many incidents of personal assault are not officially reported"); YR v. West, 11 Vet.App. 393, 397-98 (1998). The fact that the appellant was sexually active at a time she claims to have been raped is not a sufficient reason to find that the SMRs are inconsistent with her stressor statement. ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-0950 FAYE H. NESBIT-NETCLIFF, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before SCHOELEN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. SCHOELEN, Judge: The appellant, Faye H. Nesbit-Netcliff, appeals through counsel a January 11, 2011, Board of Veterans' Appeals (Board) decision that determined there was no new and material evidence to reopen disability compensation claims for a left foot disability, migraine headaches, and a cervical spine disorder. Additionally, the Board denied disability compensation benefits for post-traumatic stress disorder (PTSD). The Board also denied an increased rating for right ulnar neuropathy and postoperative right hallux valgus of the right toe. Record (R.) at 3-31. Because the appellant makes no argument alleging error regarding the Board's denial of her rating increase claims, the Court considers these matters abandoned on appeal. See Ford v. Gober, 10 Vet.App. 531, 535 (1997)(holding claims not argued on appeal are deemed abandoned). Both parties have filed briefs. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). The Court will vacate the Board decision in part and remand the matters for further adjudication, and the Court will affirm the decision in part. I. PTSD CLAIM A. Background The appellant served on active dutyin the U.S. Armyfrom October 2, 1979, to July 17, 1987. R. at 2237. The appellant's entrance medical examination indicates that she was not diagnosed with any mental disorders. R. at 1688. In January 1981, the appellant was pregnant and had an abortion. R. at 18, 1577. In July 1982, the appellant requested a profile for a nervous condition because she was having difficulty adjusting to a new environment. R. at 1460. She reported that her private medical records would show a history of nervous problems in her family. Id. Although the service medical records (SMRs) indicate that a copy of medical records from her private physician would be obtained, there is no indication that such a request was made for these records. R. at 1460. In July 1986, the appellant was referred for a mental health evaluation by a neurologist who was treating her for back problems.1 R. at 875-76. The neurologist requested the evaluation because the appellant was having difficulty with her supervisor. After undergoing unspecified testing, the mental health department concluded that the appellant was suffering from job-related stress and conflict with her supervisor. Id. at 875. Although she was not diagnosed with any mental disorder, the mental health department determined that she had "interpersonal liabilities and problematic personality/behavioral trai[ts], with somatoform tendencies."2 Id. Approximately, a year after the appellant was discharged from service, she underwent a medical examination in connection with a job application with the U.S. Post Office. R. at 2196-2201. She stated that she had not been treated for a psychiatric disorder, but she indicated that she had taken Elavil, a medication prescribed for treatment of depression. R. at 2198. In July 2003, the appellant was referred to a VA psychologist for depression. R. at 1937. She reported that she was depressed because she was in "chronic pain." Id. at 1937. Her symptoms The SMRs are not in the record, but they are discussed extensively in an August 2006 medical record from a VA psychologist. R. at 875-76. Somatoform disorders are a group of mental disturbances where the patient has physical symptoms that appear to be psychogenic and cannot be attributed to organic diseases. DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 485 (4th ed. 1994) (DSM-IV). 2 2 1 included diminished appetite with weight loss and difficulty staying motivated and focused on activities. Id. She reported that she took Zoloft in the past for depression. Id. She reported that she was sexually harassed in the military, which included inappropriate touching, but she did not answer whether she had been raped. Id. at 1938-39. She was referred for further evaluation and medication management. R. at 1939. The appellant began treatment for depression and was subsequently diagnosed with PTSD. R. at 413, 859. On May25, 2005, the appellant filed a claim for disability compensation benefits for PTSD. She described multiple stressors involving sexual trauma. R. at 216-17. For example, she complained that during basic training drill sergeants would select recruits with whom they would have sex in exchange for drugs, alcohol, and food. Id. When she was assigned to Fort Rucker, she was raped by a staff sergeant. Id. She stated that she did not report the attack to officials because she did not think she would be believed. Id. After she was assigned to Fort Meade, she was groped bya captain who threatened to end her career if she reported that attack. Id. The appellant stated that her PTSD symptoms were aggravated when she encountered this ex-captain at a VA facility many years after she was discharged from the military. Id. Mary Andrews, the appellant's mother, submitted a statement that she would never forget the night her daughter told her that she had an abortion because she had been raped. R. at 84. To support her claim, the appellant submitted several medical reports from Dr. Hoeper, her treating psychiatrist. R. at 50-51, 81-82, 496-98, 579-80. Dr. Hoeper diagnosed the appellant with PTSD and major depression. R. at 50. Her current symptoms included frequent nightmares, difficulty sleeping, social isolation, hyperviligance, and intrusive thoughts. Id. Between August and October 2006, the appellant participated in a 12-week treatment program to assist veterans who experienced multiple sexual trauma (MST). R. at 794, 798-807. She also underwent neuropyschological testing because of concerns surrounding recent memory problems. R. at 874-80. Afterthreehoursofpsychologicaltesting,the appellant was diagnosed with "PTSD, Adjustment Disorder with mixed anxiety and depressed mood ( secondary to physical disability and losses); pain disorder associated with both psychological factors and general medical condition." R. at 878-79. The record also contains evidence that the appellant was awarded 3 disability benefits from the Social Security Administration for PTSD and depression, effective July 7, 2005. R. at 455, 485-86. In March 2006, the regional office (RO) denied entitlement to service connection for PTSD. R. at 966-73. The appellant appealed the decision to the Board, and on January 11, 2011, the Board issued the decision here on appeal. R. at 767-71, 905-24. B. Analysis To establish service connection for PTSD, a claimant must present (1) evidence of a current diagnosis of PTSD; (2) evidence of an in-service stressor, with credible supporting evidence that the claimed in-service stressor occurred; and (3) evidence of a causal nexus between the current symptomatology and the in-service stressor. 38 C.F.R. § 3.304(f) (2012); see Cohen v. Brown, 10 Vet.App. 128, 138 (1997). When a claim for PTSD is based on a noncombat stressor, "the noncombat veteran's testimony alone is insufficient proof of a stressor." Moreau v. Brown, 9 Vet.App. 389, 396 (1996). In claims for PTSD based on an in-service personal assault, "evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident." 38 C.F.R. § 3.304(f)(5); see Bradford v. Nicholson, 20 Vet.App. 200, 205 (2006). The types of corroborating evidence include, but are not limited to " records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy." 38 C.F.R. § 3.304(f)(5). Additionally, "[e]vidence of behavior changes following the claimed assault is one type of relevant evidence that maybe found in these sources." 38 C.F.R. § 3.304(f)( 5). Evidence indicating a change in behavior includes, "but is not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social changes." 38 C.F.R. § 3.304(f)(5). In Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that under § 3.304(f)(5), " medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." See also Patton, 12 Vet.App. at 280 (rejectingthe requirement that "something more than medical nexus 4 evidence is required to fulfill the requirement for 'credible supporting evidence' " in personal-assault cases (quoting Cohen v. Brown, 10 Vet.App. 128, 145 (1997))). Accordingly, the Federal Circuit held that a favorable medical opinion diagnosing PTSD must be weighed against all other evidence of record for purposes of determining whether a claimed in-service sexual assault has been corroborated. Menegassi, 638 F.3d at 1382 n.1. The Court reviews the Board's factual determination as to the sufficiency of corroborative evidence of the in-service stressor under the "clearly erroneous" standard of review. See 38 U.S.C. § 7261(a)(4); Sizemore v. Principi, 18 Vet.App. 264, 270 (2004) (citing Pentecost v. Principi, 16 Vet.App. 124, 129 (2002) (regarding corroborative evidence)). A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, "is left with the definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). The Board must also provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Whatever the type of evidence, it is the Board's province to determine its credibility and weight. See Washington v. Nicholson, 19 Vet.App. 362, 367-68 (2005); Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). The credibilityof a witness can be impeached bya showing of interest, bias, inconsistent statements, or, to a certain extent, bad character. See Caluza, 7 Vet.App. at 511. In this case, the Board denied the appellant's PTSD claim after concluding that her account of MST during service was "not credible because it was inconsistent with the objective evidence of record." R. at 19. The appellant argues that this conclusion by the Board " is unsupportable and in violation of § 3.304(f)(5)." Appellant's Brief (Br.) at 11. The Secretary counters that the Board provided an adequate statement of reasons or bases and plausibly determined that hte appellant was not entitled to disability benefits for PTSD. Secretary's Br. at 5. 5 The Court agrees with theappellant. TheBoardgaveseveral examples for its conclusion that there was an inconsistency between the appellant's stressor statement and the "objective evidence." For example, the Board concluded that even though the appellant's SMRs showed that she had an abortion in 1981,"the pregnancy . . . may not have been due to rape as she now contends" because her SMRs also indicated that she had been "sexually active throughout her entire period of service." R. at 20. Apparently, the Board concluded that the appellant's allegation that her pregnancy was the result of rape was inconsistent with her SMRs. The Court is not persuaded bythe Board's reasoning. Although the SMRs are silent as to the appellant having being raped, the SMRs do not contradict her statement. Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) ("When assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence.")see McLendonv.Nicholson, 20Vet.App. 79,85(2006); see also Forshey v. Principi, 284 F.3d 1335, 1363 (Fed. Cir. 2002) (en banc) (Mayer, C.J., dissenting) (distinguishing between the existence of negative evidence and the absence of actual evidence and noting that "[t]he absence of actual evidence is not substantive 'negative evidence'"). It is not surprising that a rape victim would be silent regarding the fact that she had been raped, and there is no medical reason why a doctor would be expected to comment on the reasons why a patient is seeking an abortion. See Buczynski, supra; VA adjudicators are required to consider evidence of behavioral changes to corroborate a stressor involving sexual trauma precisely because there may be little or no direct evidence that the incident occurred. See Patton v. West, 12 Vet.App. 272, 277 (1999) (acknowledging the VA Adjudication Procedures Manual's recognition that, "[b]ecause assault is an extremely personal and sensitive issue, many incidents of personal assault are not officially reported"); YR v. West, 11 Vet.App. 393, 397-98 (1998). The fact that the appellant was sexually active at a time she claims to have been raped is not a sufficient reason to find that the SMRs are inconsistent with her stressor statement. Although the SMRs do not directly prove that the appellant was raped, this evidence does corroborate her allegation and the Board may not dismiss this evidence because the appellant was sexually active. The Board also pointed to an inconsistency between a statement the appellant made on her separation examination indicating that she did not have "frequent trouble sleeping," and a statement she made to Dr. Hoeper that she began having nightmares during service. Other than note that the 6 appellant's nightmaresbeganduringservice,Dr.Hoeper's reportdoesnotstatethefrequencyofthose nightmares. Because Dr. Hoeper's report is silent on the frequency of the appellant's nightmares during service, there is no inconsistency between her statement on her separation examination that she did not have frequent nightmares and her report to Dr. Hoeper that she began having nightmares during service. The Board also found that the appellant's personnel records did not show signs of behavorial changes such as disciplinary actions or drop in performance. However, the Board did not discuss the July 1986 SMRs, which indicate that the appellant was evaluated by a military psychologist at the recommendation of her neurologist because of difficulty she had getting along with her supervisor. R. at 809-10. The Board had an obligation to discuss this evidence, which is the type of evidence that §3.304(f)(5) recognizes may demonstrate a change in behavior. See 38 C.F.R. § 3.304(f)(5) (directing VA to look at records from mental health counseling). The Board was also persuaded that the appellant was not credible because of an August 2006 report from a VA psychologist, who concluded that the appellant "appeared to be purposefully feigningproblems forsecondarygainorunconsciouslyconvertingstressandexaggeratingsymptoms to obtain security and support from others." R. at 21. However, upon review of the full report, it is clear that the Board took the VA psychologist's statement out of context. On August 3, 2006, the appellant underwent neuropsychological testing because of recent memory deficits. The psychologist noted that the appellant's level of functioning declined after a series of emotionally traumatic events, including the death of her husband and sister. R. at 879. After testing, the psychologist stated: [T]here was evidence in the appellant's medical records to suggest a possibility of somatization as a coping mechanism or that emotional concerns are converted to physical problems. This is not to say that Ms. Nesbitt does not have pain and dysfunction related to her physical injuries and illness. However, it is possible that the losses she has experienced exacerbated the severity of her pain and physical disability. R. at 813. The psychologist also noted that there was a possibility that the appellant was over medicated because she was seeing multiple psychiatrists. The psychologist recommended further testing "to help differentiate between a more psychologicallyhealthyandpurposefulattempt to feign 7 problemsforsecondarygainoramorepathologicalprocess ofeitherunconsciouslyconvertingstress or exaggerating symptoms to obtain security and support from others." Id. Although the psychologist raised several possibilities to explain the appellant's memory and cognitive deficits, he did not reach a conclusion as to the cause of her deficits. Importantly, the VA psychologist never questioned the appellant's alleged stressor as he diagnosed her with PTSD attributedto in-servicesexual trauma. Severalweeksaftertheappellantunderwentthepsychological testing, her treating VA psychologist informed her that the neuropsychological evaluation showed that her cognitive deficits were not secondary to brain damage "but may reflect a combined impact of anxiety[,] depression, and somatization." R. at 807. The appellant's treating psychologist advised her to continue psychotherapy, practice being less impulsive, and perform cognitive exercises. R. at 807. Given the inconclusive nature of the August 2006 psychologist's report, and the subsequent VA psychiatric treatment report indicating that the appellant's cognitive deficits were attributed to anxiety, depression, and somatization, the Board could not have relied on the August 2006 report as "probative" evidence regarding the appellant's credibility. Because the Board provided an inadequate statement of reasons or bases for its conclusion that the appellant's account of her MST stressors was not credible, the Court will vacate the Board's findings on this issue and remand the matter for further proceedings. II. CLAIMS TO REOPEN Pursuant to 38 U.S.C. § 5108, "if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." "New and material evidence" is defined as follows: New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with pervious 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. 8 38 C.F.R. § 3.156(a) (2012); see also Shade v. Shinseki, 24 Vet.App. 110, 117 (2010) (explaining that § 3.156(a) "must be read as creating a low threshold" and that it " suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibilityof substantiating the claim"). This Court has generally reviewed whether the appellant has submitted new and material evidence so as to reopen a prior claim under the "clearly erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4). Elkins v. West, 12 Vet.App. 209, 216 (1999) (en banc); see also Fortuck v. Principi, 17 Vet.App. 173, 178-79 (2003) (Board determinations as to whether new and material evidence has been presented reviewed under the "clearly erroneous" standard of review). "A factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting U.S. Gypsum Co., 333 U.S. at 395). As with other findings, the Board must include in its decision a written statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board's decision as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday, and Gilbert, both supra. Whether evidence is new and material depends on the basis for which the claim was previously denied. See Kent v. Nicholson, 20 Vet.App. 1, 10 (2006); Evans v. Brown, 9 Vet.App. 273 (1996) (holding that evidence is material if it is relevant to and probative of an issue that was a specific basis for denial of the last final disallowance), overruled, in part, on other grounds by Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); see also Anglin v. West, 203 F.3d 1343, 1347 (Fed. Cir. 2000) (stating that Hodge left intact the requirement that the evidence must be relevant to and probative of an issue that was a specified basis for the last final denial). A. Neck Disability In March 2005, the RO denied the appellant's claims for disability compensation benefits for degenerative disc disease and degenerative joint disease of the cervical spine because there was no evidence that, despite being treated in service for cervical strain, the appellant had a chronic neck disability that began during service. R. at 1798-99. In December 2007, the RO determined that no new and material evidence had been submitted to reopen her neck disability claim. R. at 602-12. 9 In the Board decision here on appeal, the Board determined that there was no new and material evidence to reopen the appellant's claim for disability compensation benefits for a neck disability. R. at 13-15. The Board noted that there was medical evidence submitted after the March 2005 RO decision denying the neck claim, which discussed the nature and severity of the appellant's current neck disability. Additionally, the appellant submitted a July 2006 buddy statement that her military job as a baggage handler caused her to suffer injuries during service, but the statement did not specify the type of injuries the appellant suffered. The Board found that none of this evidence was new and material because it did not discuss the relationship between the appellant's current neck disability and service. R. at 13-15. The appellant has the burden of demonstrating that the Board has committed prejudicial error. Marciniak v. Brown, 10 Vet.App. 198, 201 (1997) (remand unnecessary "[i]n the absence of demonstrated prejduice"); see also Sanders v. Shinseki, 129 S. Ct. 1696, 1704 (2009) (holding that the appellant generally bears the burden of demonstrating prejudicial error on appeal). See Coker v. Nicholson, 19 Vet.App. 439, 442 (2006) ("The Court requires that an appellant plead with some particularity the allegation of error so that the Court is able to review and assess the validity of the appellant's arguments."), vacated on other grounds sub nom. Coker v. Peake, 310 F. App'x 371 (Fed. Cir. 2008). The appellant does not demonstrate either that the Board's decision is clearly erroneous or that it failed to support its decision with an adequate statement of reasons or bases. See Coker, supra. B. Left Foot Disability In July 1987, the appellant filed a claim for disability compensation benefits for a bilateral foot disability, including flat feet and hallux valgus. R. at 2241-42. In January1988, the RO granted disability compensation benefits for hallux valgus of the right foot but denied disability compensation benefits for hallux valgus of the left foot and bilateral flat feet after concluding that these conditions preexisted serviceand were not aggravated in service. R. at 2212-15. Theappellant did not appeal that decision. In the Board decision here on appeal, the Board concluded that the appellant had not submitted new and material evidence to reopen his left foot disability claim. R. at 10-11. In doing so, the Board noted that the evidence submitted since January1988 discussed the appellant's current 10 disability but did not discuss the onset of her left foot disability or indicate that this disability was aggravated during service. Id. The Board also noted that a buddy statement, which stated that the appellant had unspecified in-service injuries, was not material because it lacked specificity. The appellant fails to demonstrate that the Board erred in concluding that there was no new and material to reopen her claim. Like the appellant's cervical disability claim, the appellant simply lists the evidence that was added to the record with her reopened claim, but makes no argument as to why the Board's conclusion that the evidence was not new and material is clearly erroneous. The appellant fails to demonstrate either that the Board's decision is clearly erroneous or that it failed to support its decision with an adequate statement of reasons or bases. See Coker, supra. III. ADDITIONAL MATTERS In connection with the appellant's claims to reopen her disabillity compensation benefits for left foot and cervical neck disabilities, the appellant argues that the Board erroneously applied the statutory presumption of soundness. Appellant's Br. at 14-16. The appellant's argument is not persuasive. The only issue before the Board was whether there was new and material evidence to reopen finally denied claims as to these matters. 38 U.S.C. § 5108. It is only after a claim is reopened and adjudicated on the merits, that the issue of the appellant's soundness on entry may be relevant. Accordingly, the appellant's arguments must fail. To the extent that the appellant may be alleging clear and unmistakable error (CUE) in the original RO decisions, she must first raise her CUE arguments and obtain a decision from the RO. See Jarrell v. Nicholson, 20 Vet.App. 326, 331 (2006) (en banc) (holding that neither the Court or the Board has jurisdiction over an allegation of CUE that has not been presented and adjudication by an RO). The appellant also argues that because there is medical evidence indicating that she is unemployable because of her PTSD, the Board erred when it failed to adjudicate her entitlement to a total rating based on individual employability (TDIU). Appellant's Br. at 16. The appellant's argument has no merit. Entitlement to TDIU is a "downstream" issue that is decided by VA only after entitlement to disability compensation has been granted. See Evans v. West, 12 Vet.App. 396, 399 (1999) (effective date is a "downstream matter" to be addressed after the benefit has been 11 awarded). Accordingly,becausetheappellant's entitlementto disabilitycompensation forPTSD has not been established, the issue of TDU was not before the Board. IV. CONCLUSION After consideration of the appellant's and the Secretary's pleadings, and a review of the record, that portion of the Board's January11, 2011, decision related to the PTSD is VACATED and the matter is REMANDED for further proceedings. That portion of the January 11, 2011, Board decision finding no new and material evidence to reopen the left foot disability and cervical spine disorder claims is AFFIRMED . DATED: August 8, 2012 Copies to: Paul M. Goodson, Esq. VA General Counsel (027) 12