Citation Nr: 0126340 Decision Date: 11/14/01 Archive Date: 11/20/01 DOCKET NO. 99-10 016 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for post- traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and R.G. ATTORNEY FOR THE BOARD H. Roberts, Counsel INTRODUCTION The veteran served on active duty from October 1956 to October 1959 and from March 1960 to August 1966. This appeal arises before the Board of Veterans' Appeals (Board) from a May 1998 rating decision of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for post- traumatic stress disorder. FINDINGS OF FACT 1. The March 1994 and February 1996 rating decisions that denied service connection for post-traumatic stress disorder are final. 2. The evidence submitted subsequent to the February 1996 rating decision bears directly and substantially upon the specific matter under consideration and by itself and in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the veteran's claim of entitlement to service connection for post-traumatic stress disorder. 3. The evidence shows that the veteran has post-traumatic stress disorder as a result of an inservice personal assault. CONCLUSIONS OF LAW 1. The March 1994 and February 1996 rating decisions that denied service connection for post-traumatic stress disorder are final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104 (2001). 2. The evidence received subsequent to the February 1996 rating decision is new and material and serves to reopen the veteran's claim of entitlement to service connection for post-traumatic stress disorder. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (2001). 3. The veteran has been diagnosed with post-traumatic stress disorder as the result of a sexual assault incurred during active duty. 38 U.S.C.A. §§ 1110, 1153, 5103A (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.310 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for post- traumatic stress disorder. Prior decisions of the Board and the RO are final and may be reopened only upon receipt of additional evidence which, under applicable statutory and regulatory provisions, is both new and material so as to warrant revision of the previous decision. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 1991 & Supp. 2001). "New" evidence means more than evidence that has not previously been included in the claims folder, and must be more than merely redundant and cumulative, in that it presents new information. Colvin v. Derwinski, 1 Vet. App. 171 (1990). When determining whether the claimant has submitted new and material evidence to reopen the claim, consideration must be given to all of the evidence submitted since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996); Glynn v. Brown, 6 Vet. App. 523 (1994). The evidence received subsequent to the last final decision is presumed credible for the purposes of reopening the appellant's claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). New and material evidence means evidence not previously submitted to VA decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative or 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. 38 C.F.R. § 3.156(a) (2000). A two-step analysis is conducted on appeals attempting to reopen a finally denied claim. The Board must first determine whether the claimant has presented new and material evidence 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). Then, if new and material evidence has been submitted to reopen the claim, the Board may then proceed to evaluate the merits of the claim but only after ensuring that the duty to assist has been fulfilled. Manio v. Derwinski, 1 Vet. App. 140 (1991); see also Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203, 206 (1999). The Board recognizes that the regulation regarding new and material evidence has been amended, effective August 29, 2001. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001). However, that regulatory amendment applies only to claims filed on or after August 29, 2001. The veteran's claim to reopen his claim of entitlement to service connection for post-traumatic stress disorder was received prior to August 29, 2001. Therefore, the regulatory amendment does not apply to consideration of this case. The Board will consider the claim under the version of 38 C.F.R. § 3.156(a) set forth above. The claimant did not perfect an appeal of the March 1994 or February 1996 denials of his claim of entitlement to service connection for post-traumatic stress disorder. Those rating decisions are final. 38 U.S.C.A. § 7105 (West 1991). Therefore, pursuant to the Court's holding in Evans v. Brown, 9 Vet. App. 273 (1996), the Board will consider whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for post-traumatic stress disorder subsequent to the February 1996 rating decision. Service connection may be established for a disease or injury incurred in or aggravated by active service, resulting in a current disability, or for an injury incurred in or aggravated in inactive duty training. 38 U.S.C.A. § 101, 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (2000). Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2001). Special evidentiary procedures for post-traumatic stress disorder claims based on personal assault that were established in February 1996 in VA Adjudication Procedure Manual M21-1, Part III, 5.14(c) (Feb. 20, 1996), and that are a substantially expanded version of former Manual M21-1, Part III, 7.46(c)(2) (Oct. 11, 1995). The Court had previously held that the former 7.46 and the current 5.14(c) are substantive rules that are the equivalent of VA regulations. See YR v. West, 11 Vet. App. 393 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997). The general M21-1 provisions on post-traumatic stress disorder claims in 5.14 require: "In cases where available records do not provide objective or supportive evidence of the alleged in-service stressor, it is necessary to develop for this evidence." Manual M21-1, Part III, 5.14(b)(3). As to personal-assault post-traumatic stress disorder claims, more particularized requirements are established regarding the development of "alternative sources" of information as service records "may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities." Manual M21-1, Part III, 5.14(c)(5). Further, of particular pertinence to this case are the provisions of subparagraphs (8) and (9), which, respectively, indicate that "[b]ehavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor," and that "secondary evidence may need interpretation by a clinician, especially if it involves behavior changes" and that "[e]vidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician." When read together, the Court stated that subparagraphs (8) and (9) show that in personal-assault cases the Secretary has undertaken a special obligation to assist a claimant. The Court also felt that the evidence should be examined and clinically interpreted to determine whether it constituted evidence of "[v]isits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment," "[s]udden requests that...duty assignments be changed," "[l]ay statements describing episodes of depression, panic attacks or anxiety," and "[e]vidence of substance abuse such as alcohol or drugs" that "may indicate the occurrence of an in[-]service stressor" pursuant to Manual M21-1, Part III, 5.14(c)(8), (9). Patton v. West, 12 Vet. App. 272 (1999). As to statements contained in prior Court decisions indicating that "something more than medical nexus evidence is required to fulfill the requirement for 'credible supporting evidence,'" and that "[a]n opinion by a mental health professional based on a post-service examination of the veteran cannot be used to establish the occurrence of the stressor," the Court states that these quoted categorical statements were made in the context of discussing post- traumatic stress disorder diagnoses other than those arising from personal assault. See Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996). VA has provided in Manual M21-1 for special evidentiary- development procedures, including interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis, for personal-assault cases. To that extent, the Court held that the above categorical statements in Cohen and Moreau, and other cases where they may have been echoed, are not operative. Patton v. West, 12 Vet. App. 272 (1999). The new evidence received subsequent to the February 1996 rating decision includes medical evidence showing a diagnosis of post-traumatic stress disorder. The basis of the February 1996 denial of service connection for post-traumatic stress disorder was that the veteran had not been diagnosed with post-traumatic stress disorder. Therefore, the Board finds that the medical evidence submitted subsequent to the February 1996 rating decision is new and material because it bears directly and substantially on the specific matter of the claim and must be considered in order to fairly decide the merits of the veteran's claim of entitlement to service connection for post-traumatic stress disorder. The new evidence addresses the specific reason for the previous denials of the veteran's claim. Accordingly, the Board finds that new and material evidence has been received to reopen the claim of entitlement to service connection for post-traumatic stress disorder and that claim is reopened. II. Entitlement to service connection for post-traumatic stress disorder. This claim arises from the veteran's application for service connection for post-traumatic stress disorder. There is no issue as to substantial completeness of the application. See 38 U.S.C.A. § 5102 (West Supp. 2001). VA has secured all VA and private medical records that the veteran has indicated are available and pertinent to his claim, and VA has satisfied its duty to assist with respect to such records. See 38 U.S.C.A. § 5103A (West Supp. 2001); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. § 3.159). In addition, the veteran has been advised of the evidence necessary to substantiate his claims, by means of the statement of the case, the supplemental statements of the case, and the rating decisions issued regarding the claim. See 38 U.S.C.A. § 5103(a) (West Supp. 2001). Therefore, the Board finds that the statutory and regulatory requirements with regard to notice and development of the veteran's claim, have been satisfied. The evidence shows that the veteran served on active duty from October 1956 to October 1959 and from March 1960 to August 1966. The veteran has provided written statements and testimony at personal hearings at the RO in August 2000 and before the undersigned at the RO in August 2001. He asserts that on May 27, 1966, he was on leave in Da Nang, Vietnam and was abducted at gunpoint by four Vietnamese men who took him to a building and forced him to perform oral sex and then sodomized him. The veteran stated that he was pistol-whipped and that he complied with their demands because he feared for his life. He states that when he returned to the barracks that he lied and said that he had been in a fight to explain his absence and condition and that he bathed and brushed his teeth for about an hour. He also states that he did not tell anyone of the incident until 1991 when he told a physician who he asked not to put that information in his medical records. Only much later, in 1997, did he tell his current treating counselor. A January 1998 letter from the veteran's treating counselor shows that the veteran was referred for sexual trauma counseling regarding an incident that occurred while serving in Vietnam. The veteran reported that he had been gang raped on May 27, 1966, in DaNang while on pass. The veteran had provided this information to a physician in 1992, but had requested that it be kept confidential and not be entered in his chart. However, the counselor notes that the records does refer to an incident in Vietnam that left the veteran feeling "helpless and abused," and "inadequate as a man." Those notes were made on October 13, 1992, and on November 20, 1992. The veteran had requested to speak specifically to that physician because he could tell him things that he could tell no one else. Another treatment note by another treatment provider showed that the veteran was unable to verbally express an incident that occurred in Vietnam. The treating counselor stated that even though there was no documentation of the sexual assault until 1996, documentation throughout the chart indicated that the veteran had suffered from chronic, severe post-traumatic stress disorder for many years. The veteran suffered with the following post- traumatic stress disorder symptoms: nightmares, intrusive thoughts regarding the trauma, sleep disturbance, and the inability to maintain interpersonal relationships. The veteran stated that his suicide attempts in 1990 occurred when intrusive thoughts of the rape were experienced. There was documentation of obsessive compulsive behavior, irritable bowel disease, nausea, vomiting, crying spells, helplessness, hopelessness, and guilt. The counselor stated that these were symptomatic problems associated with sexual trauma and suggested that the veteran's accounts of the sexual assault were valid. In an August 1998 letter, the veteran's treating counselor stated that the veteran had a clear diagnosis of post- traumatic stress disorder since 1991 and that the diagnosis had been confirmed by every clinician seen by the veteran since that time, including the psychiatrists treating the veteran at two VA facilities. The treating counselor stated that she had treated the veteran for nineteen months and concurred with that diagnosis. The counselor stated that the evidence supported a change in the veteran's character after his return from Vietnam. She also stated that the medical evidence supported a claim of sexual assault with the physical symptoms from which the veteran suffered. She stated that although the veteran had lost a son in 1983, he had processed that loss and did not show any signs that his symptoms of post-traumatic stress disorder stemmed from that accident. She stated that the evidence highlighted that he had stated to different clinicians that he felt guilty and "less of a man" by reason of something that happened to him in Vietnam that was too shameful for him to discuss. She stated that even though the veteran did not verbalize the sexual assault, clinicians who had evaluated and treated him believed that his symptoms were consistent with a diagnosis of post-traumatic stress disorder, due to the sexual trauma experienced while serving in Vietnam. A June 2000 VA medical report shows that the physician had treated the veteran for seven years for post-traumatic stress disorder. The trauma occurred in Vietnam when the veteran was kidnapped and sexually assaulted by Vietnamese. He suffered flashbacks, intrusive thoughts, and nightmares about the event. He avoided talking about the incident. His temper, memory, and concentration were causing him problems in day to day functioning. He had recurrent suicidal thoughts. The resulting psychopathology from the trauma had gravely disabled a once productive person. He was no longer able to concentrate on his work and subsequently lost jobs. At worst, he attempted to commit suicide with a gun. In the opinion of the physician, the only cause for his psychopathology was the physical and psychological torture he experienced while held captive. The physician summarized that the veteran suffered a terrible trauma while in service in Vietnam and that the resulting mental condition from the trauma had caused his mental deterioration and thus financial and social deterioration. At his August 2000 RO hearing, the veteran stated that he had tried to commit suicide in 1990 by shooting himself with a 12-guage shotgun. He was hospitalized in 1990 after exhibiting bizarre behavior. The veteran stated that he suffered from intrusive thoughts of the rape. In an August 2001 letter, the veteran's spouse stated that she had been married to the veteran since March 14, 1976. She stated that she found out soon after getting married that he had problems. He was easily startled and not able to control his anger. He attempted to kill himself and exhibited other bizarre behavior, including threatening her and the children. She was separated from the veteran and the veteran had not talked to her about anything that happened in Vietnam. An August 2001 VA medical report includes the opinion of a medical doctor that the only cause for the veteran's mental condition was the physical, psychological, and sexual torture that he experienced while being held captive by the Vietnamese. The physician stated that he reacted as most sexually traumatized people do. He did not inform anybody in his unit or even seek medical attention after the incident. He destroyed the clothes he was wearing. He showered and bathed, especially his mouth. He experienced the usual shame and guilt associated with that type of sexual trauma. He was afraid that his comrades would find out. He lied to them about the bruising from the pistol whipping of his face. The physician stated that this was very typical of sexual trauma. He remained fearful and hypervigilent for the next two months that the rape might occur again. The physician stated that there was no other mental diagnosis that accounted for his severe psychiatric history. The physician summarized that the veteran suffered a terrible sexual trauma while in service in Vietnam and that the resulting mental condition from that trauma had caused his mental deterioration over the last thirty-five years and his financial and social deterioration also. The physician recommended that the veteran remain in treatment to prevent further suicide attempts. At an August 2001 hearing before the undersigned the veteran reiterated his previous allegations regarding his sexual assault while in service and provided details of his troubled employment and marital history after service. The veteran's treating counselor also provided testimony and expert opinion. She stated that she had been treating the veteran for five or six years. She stated that she had no doubt as a physician that the veteran was sexually assaulted in Vietnam and that was the cause of his post-traumatic stress disorder. She felt that he met the criteria for a diagnosis of post- traumatic stress disorder since his first treatment in 1990 or 1991. She noted that all of the veteran's treating physicians concurred in the diagnosis of post-traumatic stress disorder and that the veteran was receiving Social Security benefits based on that diagnosis of post-traumatic stress disorder. The treating counselor also addressed the issue of behavior changes indicative of a past sexual assault. She stated that the veteran was self-medicating with alcohol. His first wife was unable to stay in the marriage. His second wife refused to speak with the counselor, but would not let the veteran live in the house. The counselor also thought there were sexual dysfunctions in both marriages, which pointed to a sexual assault. Whenever the veteran was hospitalized for post-traumatic stress disorder, the symptoms manifested with physical dysfunctions, which the counselor said was typical for males who were sexually assaulted or raped. There were problems with hemorrhoids, diarrhea, active bowel, and they triggered the physical thoughts. The counselor thought those signs were a flag that indicated sexual trauma to counselors with appropriate training. The counselor also stated that she did not buy into everyone who came in claiming sexual harassment and did a very lengthy and intense assessment. She felt that if the veteran had been treated by physicians with appropriate training in recognizing the signs of sexual trauma in 1990, the veteran's stressor would have been treated at that time. Analysis All competent opinion currently of record, is to the effect that the veteran meets the criteria for a diagnosis of post- traumatic stress disorder. These opinions are also unanimous in concluding that the current post-traumatic stress disorder is the result of a sexual assault in service. The mental health professionals have also concluded that there is evidence of behavioral changes that support the veteran's account of the inservice sexual assault. Therefore, pursuant to the Court's holding in Patton, and the provisions of Manual M21-1 discussed therein, the Board finds that the criteria for entitlement to service connection for post-traumatic stress disorder, as the result of an inservice sexual assault, are met. Thus, service connection for post- traumatic stress disorder is granted. 38 U.S.C.A. §§ 1110, 1153, 5103A (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.310 (2001). ORDER Entitlement to service connection for post-traumatic stress disorder is granted. Mark D. Hindin Member, Board of Veterans' Appeals