Citation Nr: 1326299 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 11-10 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for a psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a psychiatric disorder, claimed as PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and her father ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1974 to February 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Muskogee, Oklahoma. In December 2011, the Veteran testified via videoconference before a Veterans Law Judge seated in Washington, D.C. A written transcript of this hearing has been associated with the claims file. FINDINGS OF FACT 1. In a September 2007 rating decision, the RO denied reopening service connection for PTSD. The Veteran did not perfect a timely appeal to this decision. 2. Evidence received since the September 2007 rating decision is new and material regarding the issue of service connection for PTSD, as it contains evidence not previously considered that has some tendency to corroborate the claimed in-service stressor. 3. The competent evidence of record indicates that the Veteran has PTSD based on an in-service stressor. CONCLUSIONS OF LAW 1. The September 2007 rating decision that denied reopening service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). 2. The criteria for reopening the Veteran's previously denied claim of service connection for PTSD have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for service connection for PTSD are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. In Kent v. Nicholson, 20 Vet. App. 1, 11-12 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, in the context of claims to reopen, VCAA notice (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. With respect to the Veteran's claim decided herein, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions under Kent. Moreover, there can be no prejudice to the Veteran in proceeding with the current action because of the favorable nature of the Board's decision to reopen service connection for a psychiatric disorder, and the subsequent grant of the benefit sought on appeal. Reopening of Service Connection for PTSD In the current claim on appeal, the Veteran seeks to reopen service connection for a psychiatric disorder, claimed as PTSD. In a September 2007 rating decision, the prior denial of service connection for PTSD was confirmed and continued, as the RO found no new and material evidence had been received to reopen this claim. The RO found that the evidence of record did not corroborate her claimed in-service stressor, a military sexual trauma (MST). The Veteran did not perfect an appeal of this determination, or submit any new and material evidence prior to the expiration of the appeal period, and her claim therefore became final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156(b), 20.1103 (2012). Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c), (d)(3); 38 C.F.R. § 20.1103. An exception to this rule is 38 U.S.C.A. § 5108, which provides that 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. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g, 8 Vet. App. 1 (1995)). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384. Any finding entered when new and material evidence has not been submitted "is a legal nullity." Butler v. Brown, 9 Vet. App. 167, 171 (1996) (applying an identical analysis to claims previously and finally denied, whether by the Board or the RO). See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). In the September 2007 rating decision, the RO determined that the evidence then of record did not verify the claimed in-service stressor. The evidence considered at that time included service treatment records as well as post-service VA and private treatment records. Since the prior denial of the claim in September 2007, recent evidentiary submissions have included the Veteran's own written and oral contentions, as well as statements from several lay parties. Specifically, August 2010 written statements from the Veteran's father and ex-husband were received. Both parties stated that the Veteran informed them of her MST shortly after the assault took place in service. Having reviewed the recent evidentiary submissions, the Board finds that new and material evidence to reopen service connection for PTSD has been received. The August 2010 statements from her father and former spouse are new, in that they were not of record at the time of the prior final denial. These records are also not cumulative and redundant of evidence already of record, and are material, as they provide corroborative evidence of an in-service stressor, the lack of evidence of which was the basis of the prior final denial. This evidence is also material because it relates to the unestablished fact that is necessary to substantiate the claim. Specifically, this evidence addresses the basis for the prior denial by corroborating the claimed in-service stressor. See 38 C.F.R. § 3.307(a)(6)(iii). The Court has held that 38 C.F.R. § 3.156(a) "must be read as creating a low threshold" which "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 possibility of substantiating the claim." Shade, 24 Vet. App. at 117-18 (2010). Given this standard, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of service connection for PTSD. At the time of the 2007 denial, the record lacked corroborative evidence of an in-service stressor. The more recent lay statement evidence addresses this prior deficit in the record. For this reason, the Board finds that the additional evidence received since the September 2007 decision is new and material to reopen service connection for a psychiatric disorder. 38 C.F.R. § 3.156(a). Service Connection - PTSD The Veteran's service connection claim for PTSD having been reopened, it may now be considered on the merits. Service connection may be awarded for a current disability arising from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. Service connection for PTSD generally requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). 38 C.F.R. § 3.304(f)(3) provides that if a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. 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; tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavioral changes following the claimed assault is one type of relevant evidence that may be found in the sources. Examples of behavioral changes that may constitute credible evidence of a stressor include, but are not limited to: request for 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 behavioral changes. In cases involving personal assault, the existence of a stressor in service does not have to be proven by the "preponderance of the evidence" because this would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C.A. § 5107(b). YR v. West, 11 Vet. App. 393, 399 (1998); Patton v. West, 12 Vet. App. 272, 279-280 (1999). As an initial matter, the Board notes that the record reflects various diagnoses of PTSD. The Veteran has received VA outpatient treatment for various psychiatric symptoms since approximately 2005, and has been diagnosed as having PTSD on several occasions. For example, a July 2007 clinical notation reflects the Veteran's reported history of a MST, resulting in feelings of "nerves and stress," according to the Veteran. After taking the Veteran's reported history and symptomatology, the examiner diagnosed PTSD. Overall, VA medical treatment evidence indicates a diagnosis of PTSD is warranted, and thus a current diagnosis of PTSD is accepted by the Board. Next, the Board must consider whether the Veteran has presented evidence of an in-service stressor event subject to corroboration. In her statements to VA, the appellant has recounted experiencing a MST during military service. She has testified that while stationed in a predominantly-male barracks, she was raped. When she reported this to her immediate supervisor, no action was taken. The service treatment records include a September 1974 triage note indicated a complaint of nerves and noted personal problems. Lay statements have been received from the Veteran's father and her ex-husband, who she married while in service. Both parties confirmed that she reported the MST to them within a few days afterward, while still on active duty. The Veteran's father also made this same contention under oath at the videoconference hearing. Based on this evidence, the Board finds the appellant's alleged stressor to be verified by sufficient corroborating evidence. In the absence of evidence to the contrary, the August 2010 lay statements from the Veteran's father and former spouse are accepted as credible. Additionally, this evidence tends to corroborate her claim, as it reflects her reports to them of her MST shortly after the stressor occurred, while still on active duty. The Board finds her alleged stressor of a MST during service to be sufficiently confirmed in the record. As noted above, the appellant has been diagnosed by competent medical experts as having PTSD based on her reported in-service stressor event of military sexual trauma. Competent evidence to the contrary is not found within the record. Therefore, in light of 38 U.S.C.A. § 5107, service connection for PTSD is warranted. ORDER The Veteran having submitted new and material evidence, her claim for service connection for PTSD is reopened. Service connection for PTSD is granted. ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs