Citation Nr: 1326435 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 11-15 048A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and dysthymic disorder. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney at Law ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from August 1972 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the VA Regional Office (RO) in Indianapolis, Indiana. The Veteran has submitted new evidence in the form of a stressor statement and a positive nexus opinion, which relates to the issue on appeal. The Veteran specifically waived her right to have the RO consider this evidence in the first instance. 38 C.F.R. § 20.1304(c) (2012). The Board observes that the Veteran filed a claim for PTSD. As the pertinent evidence shows diagnoses of other psychiatric disorders, to include dysthymic disorder, the issue has been characterized as set forth on the title page. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Furthermore, as discussed in detail below, the Veteran was previously denied service connection for PTSD in June 2000. As the current claim is premised upon the same in-service stressor event, the Board considers the claim to be a petition to reopen as the Veteran is ultimately seeking service connection for a psychiatric disorder, however diagnosed, due to an in-service sexual assault. The Board also observes that the Veteran was recently denied a total rating based on individual employability due to service-connected disability (TDIU) in a March 2013 rating decision. The Veteran is reminded that she has one year from the date of the letter notifying her of the decision to appeal. FINDINGS OF FACT 1. In an unappealed June 2000 decision, the Board denied service connection for PTSD. 2. Evidence received after the June 2000 denial, when considered 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. 3. The Veteran has dysthymic disorder that is as likely as not related to her active duty. CONCLUSIONS OF LAW 1. The Board's June 2000 denial of service connection for PTSD is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.104, 20.1100 (2012). 2. Evidence received since the final June 2000 decision is new and material. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). 3. The criteria for service connection for dysthymic disorder have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the fully favorable determination in this case, no discussion of compliance with VA's duty to notify and assist is necessary. A. New and Material Service connection for PTSD was denied in June 2000 because the evidence did not show a diagnosis of PTSD. After receiving notice of the June 2000 decision, the Veteran did not initiate an appeal of the denial of this issue. Later, in July 2008, however, she applied to have her claim reopened. A decision of the Board is a final decision, effective as of the date stamped on the face of the decision. 38 C.F.R. § 20.1100 (2012). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 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 that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384. Butler v. Brown, 9 Vet. App. 167, 171 (1996). "New" evidence is evidence not previously submitted to agency decision makers. "Material" evidence is 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 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). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Prior to the Veteran's current claim, VA revised 38 C.F.R. § 3.156(c) which addresses service department records. See Fed. Reg. 52,455-52, 457 (Sept. 6, 2006) (as codified at 38 C.F.R. § 3.156(c) (2012)). 38 C.F.R. § 3.156(c) was revised to clarify VA's current practice. When VA receives service department records that were unavailable at the time of the prior decision, VA may reconsider the prior decision, and the effective date assigned will relate back to the date of the original claim, or the date entitlement arose, whichever is later. The pertinent revisions include removal of the "new and material" requirement in 38 C.F.R. § 3.156(c). Effective on or after October 6, 2006, 38 C.F.R. § 3.156(c)(1) provides that, notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Further, an award based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § 3.156(c)(3) (2012). Here, relevant evidence of record at the time of the June 2000 decision consisted of the Veteran's service treatment records (STRs), some personnel records, a January 1998 VA examination, a buddy statement received in January 1999, and the Veteran's contentions. Her STRs did not show any treatment for, or diagnosis of, a psychiatric disorder. In her January 1997 claim, the Veteran reported that she was raped by a fellow serviceman that she was dating when she went to visit him in February 1973. The January 1998 VA examiner diagnosed the Veteran with dysthymia; no opinion regarding the etiology was provided. The January 1999 buddy statement from one of the Veteran's service roommates shows that the Veteran was withdrawn following the reported assault and that the Veteran confided in her about the assault. The statement indicated that she convinced the Veteran to speak to the chaplain about what happened. No treatment records showing a diagnosis of PTSD were of record. Accordingly, at the time of the denial of the claim for service connection for PTSD in June 2000, the claims folder contained no competent evidence of a current diagnosis of PTSD. Thus, the Board, in June 2000, denied service connection for PTSD. The Veteran did not appeal the Board's decision, and that denial became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1100 (2012). In reaching the conclusion that the June 2000 decision is final, the Board is cognizant of the holding of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Bond v. Shinseki, 659 F.3d 1362 (2011). In that case, the Federal Circuit found that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions during relevant time periods to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. Bond v. Shinseki, 659 F.3d 1362 (2011). However, 38 C.F.R. § 3.156(b) refers to evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed. 38 C.F.R. § 3.156(b) (2012). Here, the June 2000 Board decision was the appellate decision for a claim filed in January 1997. As such, the Board concludes that the June 2000 Board decision is final. The relevant evidence received since the denial consists of additional personnel records, VA treatment records dated through June 2012, private treatment records dated from August 1999 to January 2003, Social Security Administration (SSA) records, an April 2011 VA examination, a private April 2013 evaluation and the Veteran's contentions. The Veteran's treatment records show diagnoses of PTSD, bipolar disorder, depressive disorder and major depression. Her treatment records show that the Veteran consistently reported the 1973 rape. The April 2011 VA examination and April 2013 private evaluation both show a diagnosis of dysthymic disorder. The VA examiner was unable to provide an opinion as to whether the Veteran's psychiatric disorder was due to the in-service sexual assault without resorting to mere speculation as the Veteran had a significant childhood history for ongoing emotional and verbal abuse and one possible instance of physical abuse. That abuse history coupled with her strict upbringing played a significant role in the development of dysthymic disorder. The April 2013 private examiner provided a positive nexus opinion. The evidence of record obtained since the June 2000 rating decision shows that the Veteran has a current psychiatric disorder, namely dysthymic disorder, that is related to an in-service sexual assault, in addition to a diagnosis of PTSD. Thus, this newly received evidence does relate to unestablished facts necessary to reopen the previously denied claim of service connection for PTSD because it shows that the Veteran has a psychiatric disorder that is related to her military service. Accordingly, and based on this evidentiary posture, the Board grants the Veteran's application to reopen this previously denied claim. In finding that new and material evidence has been received, the Board acknowledges that additional personnel records available-but that had not been obtained-at the time of the previous final decision are now of record. As noted above, reconsideration as opposed to reopening is warranted if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. However, the additional personnel records obtained are not relevant as they do not serve to verify the Veteran's stressor, nor do they show an in-service psychiatric disorder or that a current disorder is related to her military service. Thus, the Board concludes that such additional records are not relevant to the Veteran's claim and that reconsideration is not warranted. B. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Entitlement to service connection for PTSD requires medical evidence diagnosing PTSD in accordance with the DSM-IV, 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); 4.125(a). Where the claimed stressor is not related to combat, the Veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates the Veteran's account as to the occurrence of the claimed stressor. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f) (2012); Cohen v. Brown, 10 Vet. App. 128 (1997). If a PTSD claim is based on claimed 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; pregnancy tests or tests for sexually transmitted diseases; and roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are 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 behavior changes. VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 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) (2012). In Patton v. West, 12 Vet. App. 272 (1999), the Court held that special consideration must be given to claims for PTSD based on personal assault. In particular, the Court held that the provisions in M21-1R, Part IV, Subpart ii, Section D, Chapter 17, which address PTSD claims based on personal assault, are substantive rules that are the equivalent of VA regulations and must be considered. See also YR v. West, 11 Vet. App. 393, 398-399 (1998). M21-1R, Part IV, Subpart ii, Section D, Chapter 17 states that, in cases of sexual assault, development of alternate sources for information is critical. There is provided an extensive list of alternative sources competent to provide credible evidence that may support the conclusion that the event occurred, to include medical records, military or civilian police reports, reports from crisis intervention centers, testimonial statements from confidants, and copies of personal diaries or journals. Id. Also of particular pertinence are the provisions of 38 C.F.R. § 3.304(f)(3) which state that behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor. The Court in Patton stated that such changes in behavior should be examined and clinically interpreted to determine whether they constitute evidence of "(v)isits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment." The Veteran contends that she has a psychiatric disorder that is related to an in-service sexual assault. Throughout this appeal, the Veteran has been consistent in regards to her report of the 1973 sexual assault, both in her contentions to VA as well as in her pertinent treatment records. She has also submitted a buddy statement from a roommate confirming a change in behavior following the assault. Therefore, the Board concedes the Veteran's stressor of an in-service sexual assault. Post-service treatment records show diagnoses of various psychiatric disorders, to include dysthymic disorder. Although the April 2011 VA examiner was unable to provide a nexus opinion without resorting to mere speculation, a private examiner in April 2013 provided a positive opinion. The private examiner's opinion was premised upon a review of the Veteran's claims file, as well as a telephone interview with the Veteran. In providing a positive opinion, the examiner noted that the Veteran did not seek out the chaplain in service due to childhood abuse, but for reasons of sexual assault. Likewise, the follow-up treatment after military service was most assuredly directly related to her service-connected trauma, all of which was consistent with the symptomatology that was ongoing and which was documented both in the VA examination and in that mental status evaluation. It was the examiner's opinion that the Veteran's dysthymic disorder was more likely than not due to her military experience. Based on a review of the evidence, the Board concludes that service connection for dysthymic disorder is warranted. The Veteran has a confirmed in-service stressor of a military sexual assault as well as a positive nexus opinion linking the current dysthymic disorder to the in-service stressor. Therefore, the medical evidence of record supports a finding that the Veteran's dysthymic disorder is related to her military service. Thus, after considering all of the evidence of record, specifically the positive nexus opinion from the April 2013 examiner, the Board concludes that a finding of service connection is warranted. Service connection for dysthymic disorder is, therefore, granted. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER Entitlement to service connection for dysthymic disorder is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs