Citation Nr: 0618862 Decision Date: 06/27/06 Archive Date: 06/30/06 DOCKET NO. 03-07 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been submitted sufficient to reopen a service connection claim for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and a friend ATTORNEY FOR THE BOARD S. B. Mays, Associate Counsel INTRODUCTION The veteran served on active duty from November 1978 to August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2002 rating decision of the Montgomery, Alabama Regional Office (RO) of the Department of Veterans Affairs (VA), which determined that new and material evidence had not been submitted sufficient to reopen a service connection claim for an acquired psychiatric disability, to include PTSD. In August 2003, the veteran testified at the RO before a Veterans Law Judge who is no longer employed at the Board. In January 2006, the veteran testified before the undersigned Veterans Law Judge sitting at the RO. Transcripts of the hearings are associated with the claims folder and have been reviewed. In the decision below, the Board reopens the previously denied service connection claim for an acquired psychiatric disability, to include PTSD. The reopened service connection claim is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A January 2001 rating decision declined to reopen a claim of service connection for an acquired psychiatric disability, to include PTSD, on the bases that there is no evidence of a PTSD diagnosis, and there was no evidence of any other psychiatric disability related to service; the veteran did not file a timely appeal following appropriate notice, and that decision became final. 2. The veteran petitioned to reopen her service connection claim for an acquired psychiatric disability, to include PTSD, prior to August 29, 2001. 3. Evidence received since the January 2001 rating decision is so significant that it must be considered in order to fairly decide the merits of the veteran's service connection claim for an acquired psychiatric disability, to include PTSD. CONCLUSIONS OF LAW 1. The January 2001 rating decision declining to reopen a service connection claim for an acquired psychiatric disability, to include PTSD, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2000, 2005). 2. Evidence received since the January 2001 rating decision that declined to reopen a service connection claim for an acquired psychiatric disability, to include PTSD, is new and material, and the veteran's service connection claim for an acquired psychiatric disability, to include PTSD, is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004). This law eliminated the concept of a well- grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. Without deciding whether the notice and development requirements of VCAA have been satisfied in the present case, it is the Board's conclusion that the new law does not preclude the Board from adjudicating this portion of the veteran's service connection claim. This is so because the Board is taking action favorable to the veteran by reopening her service connection claim for an acquired psychiatric disability, to include PTSD and a decision at this point poses no risk of prejudice to the veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993). Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160, 20.201, and 20.302. In a January 2001 decision, the RO declined to reopen the veteran's application for entitlement to service connection claim for an acquired psychiatric disability, to include PTSD, and the veteran was notified of this decision in the following month. The veteran did not file a timely appeal and that decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2000, 2005). Since the January 2001 rating decision is final, the veteran's service connection claim for an acquired psychiatric disability, to include PTSD, may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. See 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2004); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The Board notes that the regulation regarding new and material evidence was amended. See 38 C.F.R. § 3.156(a) (2005). This amendment applies only to claims to reopen a finally decided claim received on or after August 29, 2001. The veteran sought to reopen her service connection claim for an acquired psychiatric disability, to include PTSD, prior to August 29, 2001, therefore the amended regulation is not applicable. New and material evidence means evidence not previously submitted to agency decision makers 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. 38 C.F.R. § 3.156(a) (2001); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. As the last final disallowance of the veteran's service connection claim for an acquired psychiatric disability, to include PTSD, was a January 2001 rating decision, the Board must now determine whether new and material evidence sufficient to reopen the claim has been received subsequent to the January 2001 decision. The RO, in its January 2001 rating decision, declined to reopen a service connection claim for an acquired psychiatric disability, to include PTSD, because there was no evidence of a PTSD diagnosis, and the medical evidence also failed to show a nexus between any other psychiatric disability and service. Thus, in this case, to be new and material, the evidence would need to be probative of the question of whether the veteran currently has PTSD, or whether there is a nexus between any other diagnosed psychiatric disability and her military service. Evidence received since the January 2001 rating decision includes VA medical evidence, the veteran's statements, and hearing transcripts of the veteran's personal testimony. Significantly, a January 2006 letter by a VA psychologist reflects that the veteran meets the DSM-IV criteria for PTSD. This evidence was not previously of record and bears directly and substantially upon the specific matters under consideration. It 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 an acquired psychiatric disability, to include PTSD. 38 C.F.R. § 3.156 (2001). Accordingly, the veteran's service connection claim for an acquired psychiatric disability, to include PTSD, is reopened. ORDER New and material evidence having been received, the veteran's service connection claim for an acquired psychiatric disability, to include PTSD, is reopened. REMAND The veteran asserts that she is entitled to service connection for an acquired psychiatric disability, to include PTSD. She has been diagnosed with various psychiatric disabilities to include, generalized anxiety disorder, depression, dysthymia, personality disorder, and PTSD. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125; 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. 38 C.F.R. § 3.304(f). The veteran attributes her PTSD to sexual trauma sustained in service. Initially, she contended that she was sexually abused in service. Service medical records fail to show that that the veteran was sexually abused in service. More recently, the veteran asserts that she was not actually sexually abused during service, but that she felt tricked, harassed, or pressured into having sex with male service members. The veteran also indicates that she developed urinary tract infection (UTI's) as a result of her sexual encounters with male service members. Service medical records show treatment for UTI's, pelvic inflammatory disease, right lower quadrant pain, and gonorrhea. From May 1979 to June 1979, the veteran did not make formation on numerous occasions, and as a result, in June 1979, she was found to be in violation of Article 15. In July 1979, it was recommended that the veteran be discharged from the service due to her lack of self-discipline, inability to adapt socially to the military environment, and her lack of motivation to conduct herself in a military manner during off-duty time. As discussed above, medical evidence of record suggests a relationship between the veteran's PTSD and her reported in- service sexual trauma (see January 2006 letter). The veteran also indicates that the sound of sirens triggers PTSD symptoms. There is no evidence of record suggesting a relationship between any currently diagnosed psychiatric disability, other than PTSD, and service. Following a review of the record, the Board finds that there is an additional duty to assist the veteran with the development of her service connection claim. Specifically, the RO must consider all of the special provisions of VA Adjudication Procedure Manual M21-1 (M21-1), Part III, regarding personal assault. M21-1 notes that: "Personal assault is an event of human design that threatens or inflicts harm. Examples of this are rape, physical assault, domestic battering, robbery, mugging, and stalking." M21-1, Part III, 5.14c. M21-1 identifies alternative sources for developing evidence of personal assault, including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals. M21-1, Part III, 5.14c(4)(a). When there is no indication in the military record that a personal assault occurred, alternative evidence, such as behavior changes that occurred at the time of the incident, might still establish that an in-service stressor incident occurred. Examples of behavior changes that might indicate a stressor include: visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; sudden requests that the veteran's military occupational series or duty assignment be changed without other justification; lay statements indicating increased use or abuse of leave without apparent reason; changes in performance or performance evaluations; lay statements describing episodes of depression, panic attacks or anxiety with no identifiable reasons for the episodes; increased or decreased use of prescription medication; evidence of substance abuse; obsessive behavior such as overeating or under eating; pregnancy tests around the time of the incident; increased interest in tests for HIV or sexually transmitted diseases; unexplained economic or social behavior changes; treatment for physical injuries around the time of the claimed trauma but not reported as a result of the trauma; breakup of a primary relationship. M21-1, Part III, 5.14c(7)(a)-(o). See also 38 C.F.R. § 3.304(f)(3) (2003); Patton v. West, 12 Vet. App. 272 (1999) (holding that certain special M21 manual evidentiary procedures apply in PTSD personal assault cases). Finally, during her January 2006 hearing, the veteran identified outstanding treatment records from the following: VA Medical Center (VAMC) in Tampa; Central Alabama Veterans Health Care System West Campus (Montgomery) and East Campus (Tuskegee); and Community-Based Outpatient Clinic (CBOC) at Lakeland and Zephyrhills. Accordingly, the case is REMANDED for the following action: 1. The RO should request all outstanding psychiatric treatment records from the following: a). Tampa VAMC; b). Central Alabama Veterans Health Care System West Campus in Montgomery, and East Campus in Tuskegee; c). CBOC at Lakeland and Zephyrhills. 2. The veteran should be afforded the opportunity to identify potential alternative sources of information to verify the claimed sexual assault as set forth in M21-1, part III, 5.14(c). She should be informed that these alternative sources could include, but are not limited to, private medical records; civilian police reports; reports from crisis intervention centers; testimonials from family members, roommates, fellow service members, or clergy; and copies of any personal diaries or journals. 3. Following the above, the RO must make a specific determination, based upon the complete record, with respect to whether the veteran was exposed to a stressor(s) in service, and if so, what was the nature of the specific stressor(s). In rendering this determination, the attention of the RO is directed to the law cited in the discussion above. If official service records or alternative records discussed in M21-1, Part III, Sec. 5.14c corroborate the veteran's allegations of stressors occurring, the RO should specify that information. The RO should also indicate whether any behavioral changes that occurred at or close in time to the alleged stressor incidents could possibly indicate the occurrence of one or more of the alleged in-service stressors and if so should decide whether this evidence needs the interpretation by a clinician. See M21- 1, Part III, 5.14c (9). In this regard, the RO should comment on the veteran's multiple visits for UTIs, and other urinary/gynecological infections; the veteran's behavior from May to June 1979 which led to the June 1979 violation of Article 15, and ultimately, to her discharge from service. If the RO determines that the record establishes the existence of a stressor or stressors, the RO must specify what stressor(s) in service it has determined are established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 4. Upon completion of the above, the RO should schedule a comprehensive VA psychiatric examination to determine the diagnoses of all psychiatric disorders that are present. If feasible, this examination should be conducted by a psychiatrist who has not previously examined, evaluated or treated the veteran. The examiner should review the entire claims folder, to include the service medical records, service personnel records, and all VA medical evidence. A copy of this remand must be provided to the examiner prior to the examination. The examiner should determine the true diagnoses of any currently manifested psychiatric disorder(s). Any diagnosis must be based on examination findings, all available medical records, complete review of comprehensive testing for PTSD, and any special testing deemed appropriate. A multi-axial evaluation based on the current DSM-IV diagnostic criteria is required. If a diagnosis of PTSD is deemed appropriate, the examiner should specify (1) whether each alleged stressor found to be established by the record was sufficient to produce PTSD; and (2) whether there is a 50 percent probability or greater that the current symptomatology is linked to one or more of the in- service stressors found to be established by the record and found sufficient to produce PTSD. The examiner should reconcile any PTSD diagnosis based on an in-service stressor with the various psychiatric diagnoses in the claims folder. Any conclusion regarding the etiology of PTSD should be reconciled with the January 2006 opinion by a VA clinical psychologist. In addition, the examiner must comment on the approximate date of onset and etiology of any diagnosed psychiatric disorder as shown by the evidence of record. Further, in line with the M21-1 provisions, the examiner is requested to provide detailed medical analysis and interpretation of the diagnoses found present on examination in light of all the evidence of record for the purpose of addressing whether any behavioral changes that occurred at or close in time to the alleged stressor incidents could possibly indicate the occurrence of one or more of the alleged in-service stressors. A complete rationale for all opinions expressed must be provided. The copy of the examination report and all completed test reports should thereafter be associated with the claims folder. 5. Thereafter, the RO should complete any additional development that is indicated and readjudicate the issue of entitlement to service connection for an acquired psychiatric disability, to include PTSD. If the benefit requested on appeal is not granted, the RO should issue a supplemental statement of the case, which must contain notice of all relevant action taken on the claim. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs