Citation Nr: 0724209 Decision Date: 08/06/07 Archive Date: 08/20/07 DOCKET NO. 05-11 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for post-traumatic stress disorder (PTSD), and if so, whether service connection should be granted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Linda E. Mosakowski, Associate Counsel INTRODUCTION The veteran served on active duty from October 1953 to March 1957. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The veteran's representative argued that if service connection for PTSD could not be granted, the veteran should be granted service connection for anxiety disorder. Since the representative made this as an alternative argument, and since service connection for PTSD has now been granted, the alternative claim for service connection for anxiety disorder is not being referred to the RO for any action. If, however, it was not the intent of the veteran to make that argument in the alternative, he will need to file a claim for service connection for anxiety disorder. FINDINGS OF FACT 1. An unappealed September 1962 rating decision denied the veteran's claim for service connection for a nervous condition. 2. The evidence received since the last final denial on any basis, in September 1962, considered in conjunction with the record as a whole, constitutes existing evidence not previously submitted to agency decisionmakers, relates to unestablished facts necessary to substantiate the claim, is not cumulative nor redundant of the evidence previously considered, and raises a reasonable possibility of substantiating the claim. 3. The August 2004 consultation report provides credible supporting evidence that the veteran's claimed inservice stressor of a personal assault occurred. 4. The medical evidence establishes that the veteran has a current diagnosis of PTSD that was made in accordance with 38 C.F.R. § 4.125(a). 5. Medical evidence in the record establishes a link between the diagnosed PTSD and the verified inservice stressor. CONCLUSIONS OF LAW 1. The unappealed RO rating decision in September 1962, which denied service connection for a nervous condition, is final. 38 U.S.C. § 4005 (Supp. V Jan. 1959 to Jan. 1964) (effective January 1, 1962). 2. New and material evidence has been received to reopen the claim for service connection for PTSD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156, 3.303, 3.304, 4.125 (2006). 3. The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303, 3.304, 4.125 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist VA has certain duties to notify and to assist claimants concerning the information and evidence needed to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.159 and 3.326(a); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). When the appeal involves an issue whether VA has received new and material evidence sufficient to reopen a previously-denied claim, the veteran must also be given notice of: the meaning of "new and material evidence;" the kind of evidence that would overcome the deficiency in the prior decision; and the evidence necessary to establish the underlying claim through any of the legal theories available. Kent v. Nicholson, 20 Vet. App. 1 (2006). Although notice complying with Kent has not been given here, the veteran was not prejudiced because, as discussed below, the veteran's claim to reopen has been granted. Similarly, since the veteran's claim for service connection for PTSD has been granted, any errors VA might have made in its duties to notify and to assist the veteran would necessarily be harmless. The RO will have the opportunity to advise the veteran about the assignment of a disability rating and effective date when it effectuates this decision. Accordingly, no discussion of how VA met those duties will be addressed here. New and material evidence Following an adverse determination by the RO, a notice of disagreement must be filed within one year from the notification of that determination. 38 U.S.C. § 4005(b)(1) (notice of disagreement shall be filed within one year from the date of mailing of the notice of initial determination). Generally, in the absence of clear and unmistakable error, RO determinations that are not timely appealed are final and may not be reconsidered. See 38 U.S.C. § 4005(c) (if no notice of disagreement is filed within the prescribed period, the determination will become final). In August 1962, the veteran filed a claim for service connection for a nervous condition. The RO denied that claim in September 1962, explaining that the veteran's discharge examination was negative as to a nervous condition and that there was no evidence of a nervous condition existing from the time of discharge to the time the claim was filed. The RO notified the veteran of the adverse decision in October 1962. The veteran did not file a notice of disagreement, so the decision became final. 38 U.S.C. § 4005(c) If new and material evidence is submitted or secured with respect to a previously-denied final claim, however, VA must reopen that claim and evaluate the merits of the claim in light of all the evidence, both new and old. 38 U.S.C.A. § 5108; Spalding v. Brown, 10 Vet. App. 6, 10 (1997). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last, prior, final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Since the September 1962 rating decision, the veteran submitted to the RO a diagnosis of PTSD that conforms to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) criteria and is supported by findings in the examination report, a consultation report containing a medical opinion that certain evidence-namely, the aggression resulting in a court martial, being absent without leave (AWOL), and an inservice diagnosis of passive-aggressive personality-constituted clear secondary evidence of a military personal assault, and a medical opinion that the veteran's current PTSD is related to his inservice stressor. Since that existing evidence was not previously submitted to the RO, it is "new" evidence. That evidence is also material because it relates to the unestablished facts necessary to substantiate the claim. As discussed more fully below, not only must a PTSD service connection claimant establish that there is a current PTSD diagnosis that conforms to the DSM-IV criteria and is fully supported by findings, but there must also be credible evidence that the stressor incident occurred, and, medical evidence establishing a link between the diagnosed PTSD and the inservice stressor. 38 C.F.R. § 3.304(f). The diagnosis of PTSD submitted by the veteran conformed to the DSM-IV criteria and was supported by a report with medical findings with respect to each of the criteria. And the August 2004 consultation report containing a medical opinion constitutes credible evidence that the stressor incident occurred. That medical opinion also provides a nexus opinion linking the veteran's current PTSD to his claimed inservice stressor. Thus, the evidence relates to the unestablished facts necessary to substantiate the claim so that it is material within the meaning of 38 C.F.R. § 3.156(a). The claims file in 1962 contained no medical diagnosis of PTSD, no corroboration of an inservice stressor event, and no medical nexus opinion. As a result, this new and material evidence is neither cumulative nor redundant of the evidence of record in September 1962 (the time of the last, prior, final denial of the claim sought to be reopened). With respect to the final requirement, since the evidence is sufficient to warrant granting the claim, the requirement that the evidence raise a reasonable possibility of substantiating the claim has been fulfilled as well. The standard under 38 C.F.R. § 3.156(a) for new and material evidence has been met. The claim is reopened, and to that extent, the claim is granted. Service connection 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, 1131; 38 C.F.R. § 3.303(a). Special rules identify the evidence needed to establish service connection for PTSD: (1) credible supporting evidence that the claimed inservice stressor occurred; (2) medical evidence establishing a diagnosis of PTSD made in accordance with 38 C.F.R. § 4.125(a); and (3) medical evidence establishing a link between the diagnosed PTSD and inservice stressor. 38 C.F.R. § 3.304(f) (specific evidentiary rules for PTSD). The evidence as to the first and third requirements is undisputed. And while there is conflicting evidence with respect to the second requirement, since the evidence of a current PTSD diagnosis is accorded more weight than the evidence against that diagnosis, the record as a whole establishes that the veteran is entitled to service connection for PTSD. The special regulations for establishing PTSD require that a claimed stressor be supported by credible evidence that the stressor incident occurred. 38 C.F.R. § 3.304(f). The veteran's own lay evidence is insufficient to verify an alleged stressor. Stone v. Nicholson, 480 F.3d 1111, 1114 (Fed. Cir. 2007) (Board correctly interpreted 38 C.F.R. § 3.304(f)(3) as meaning that a veteran's lay statements cannot serve as corroboration of his alleged inservice stressor). If a PTSD claim is based on inservice personal assault, as this one is, 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)(3). Examples of such evidence include, but are not limited to, records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians, and statements from family members. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. 38 C.F.R. § 3.304(f)(3). VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(3). The veteran's personnel record is not available and his service medical records (SMRs) contain no direct evidence that the claimed personal assault occurred. The SMRs do show, however, that after the date of the claimed stressor, the veteran exhibited rage and aggressive behavior. He was court-martialed twice and threatened to harm himself. He was AWOL on at least one occasion. He was disciplined for insubordination. During service, he reported to mental health care professionals that he had feelings of nervousness, of being in an intolerable situation, and of fear that a gun was at his back. He was given a diagnosis of passive-aggressive personality during service. In August 2004, a Licensed Clinical Social Worker working as a Sexual Trauma Therapist at the Boston Vet Center prepared a consultation report and gave a medical opinion that aggression of this type, being AWOL, and a service diagnosis of passive aggressive personality were clear secondary evidence of a military personal assault. Although the RO requested an opinion from another medical professional as to whether any evidence in the claims file indicated that a personal assault had occurred, the February 2005 compensation and pension (C&P) examiner did not address that issue. Since the August 2004 opinion is uncontroverted, the first requirement for service connection for PTSD-credible evidence that the claimed inservice stressor occurred-has been met on this record. As for the second requirement, there must be a current diagnosis of PTSD that conforms to the DSM-IV criteria and is supported by the findings in the examination report. There is conflicting evidence about whether the veteran currently has PTSD. On the one hand, the February 2005 C&P examiner determined that the veteran did not meet all the DSM-IV criteria for PTSD and concluded that he had major depressive disorder with post-traumatic stress disorder features. The examiner did not clearly explain in his report which DSM-IV criteria were, or were not, met. His only support for that conclusion is one sentence that the veteran's military trauma did not seem to adversely affect him for many years, until he reported he discovered this traumatic event. In the background history portion of the report, he acknowledged that the veteran had been seen on a regular basis at the VA National Center for PTSD and that he had been seeing a psychiatrist in relationship to his sleeping disorder and PTSD symptoms. But despite the inclusion in the claims file of the April 2004 assessment report diagnosing the veteran with PTSD and the August 2004 consultation report from the Sexual Trauma Therapist providing an opinion that the veteran's PTSD was related to an inservice stressor, the C&P examiner failed to address those medical opinions at all in his report. In fact, it is not clear from his report that he reviewed the claims file before making a diagnosis. On the other hand, a different mental health professional diagnosed the veteran with PTSD. In early 2004, a psychology intern saw the veteran on six different days, conducted several psychometric tests (the Clinician Administered PTSD Scale (CAPS) test, Beck Depression Inventory, and Mississippi Scale for PTSD), and produced an April 2004 Outpatient PTSD Assessment Report that was co-signed by a clinical psychologist. After recording the veteran's behavior, mental status, history, and psychometric test results, she addressed each of the criteria for PTSD in turn and explained how the veteran met each of those criteria. She concluded with a diagnosis of chronic PTSD, a severe, single-episode, major depressive episode without psychotic features, and alcohol dependence, sustained in full remission. In weighing these competing reports, there is no doubt that each report was prepared by a competent medical professional and that each report constitutes credible evidence to be considered. But it is the responsibility of the Board to weigh the evidence, including the medical evidence, and to determine where to give credit and where to withhold the same. Evans v. West, 12 Vet. App. 22, 30 (1998) (Board may accept one medical opinion and reject another in weighing the evidence). In so doing here, the Board finds that the March 2005 C&P examination report is not entitled to as much weight as the April 2004 PTSD assessment report for three reasons. First, as noted above, the examiner failed to explain in a clear manner how his diagnosis followed the DSM-IV criteria, whereas the April 2004 assessment report addressed each of the criteria in turn. Second, his conclusion was only minimally supported by findings in his report, whereas the April 2004 assessment report identified the findings to support the diagnosis. Third, the March 2005 C&P report is at odds with the rest of the post-service medical evidence and the examination report does not provide any explanation for that isolated opinion. In contrast, the April 2004 assessment report is supported by other medical evidence in the record. There are more than three years of treatment records for PTSD in the claims file. In March 2007, the veteran's treating psychiatrist wrote to VA to support the veteran's claim for service connection for PTSD. While she did not specifically say that she had made a diagnosis of PTSD for the veteran that conformed to the DSM- IV criteria, she did state that she fully concurred with the April 2004 comprehensive PTSD assessment report because it fully summarized the results of hours of rigorous state-of-the-art psychological testing and a thorough psychological history. She pointed out that she had diagnosed and treated approximately 400 veterans with diagnoses of PTSD and that this veteran's post-trauma history was completely consistent with that of other veterans who have experienced military sexual trauma perpetrated by their superiors. So, too, in the notes for a February 2005 individual psychotherapy session with the veteran, his treating clinician stated that she disagreed with the statement in the C&P examination report that the veteran does not meet all the criteria for PTSD as defined in DSM-IV. She pointed out that the results from the April 2004 thorough PTSD assessment, as well as her own diagnosis and that of a psychiatrist she does not identify indicate otherwise. That note was co-signed by a clinical psychologist. Given that the April 2004 PTSD assessment report provides a better analysis in following the DSM-IV criteria, has a diagnosis fully supported by findings in the report, and is consistent with the majority of medical evidence in the claims file, it is accorded more weight than the March 2005 C&P examination report. Thus, the requirement of having a current diagnosis of PTSD has been met on this record. The last requirement for establishing service connection for PTSD is medical evidence establishing a link between the diagnosed PTSD and inservice stressor. In her August 2004 consultation report, the Sexual Trauma Therapist stated that while the veteran's childhood was difficult, it was her clinical opinion that his PTSD is secondary only to his claimed inservice stressors. As there is no contrary opinion in the record, the third requirement for service connection for PTSD has been established. There is credible supporting evidence that the veteran's claimed inservice stressor of a personal assault occurred. The medical evidence establishes that the veteran has a current diagnosis of PTSD that was made in accordance with 38 C.F.R. § 4.125(a). Medical evidence in the record establishes a link between the diagnosed PTSD and verified inservice stressor. Accordingly, all requirements of 38 C.F.R. § 3.304(f) have been met and service connection for PTSD is granted. ORDER New and material evidence having been received, the veteran's claim for entitlement for service connection to PTSD is reopened. Service connection for PTSD is granted. ____________________________________________ STEVEN L. COHN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs