Citation Nr: 1328821 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 09-03 468 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his spouse, P.A. ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty from November 1970 to September 1974. This appeal to the Board of Veterans' Appeals (Board) is from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which declined to reopen his previously denied service-connection claim for PTSD. After the Veteran moved, his claim was transferred to the RO in Salt Lake City, Utah, and that office forwarded the appeal to the Board. The Veteran testified at a videoconference hearing at the RO in July 2010, before the undersigned Acting Veterans Law Judge (AVLJ) of the Board. A transcript of the hearing is associated with the claims file. Following the hearing the Veteran submitted additional evidence and waived his right to have the RO initially consider the evidence not already on file. See 38 C.F.R. §§ 20.800, 20.1304(a) (2012). FINDINGS OF FACT 1. The claim for service connection for PTSD was previously denied in a September 2006 rating decision. The RO notified the Veteran of the decision, and informed him of his right to appeal, but he did not timely appeal the decision. 2. Evidence received since that decision is new in that it is not cumulative and was not previously considered by decision makers. The evidence is also material because it raises a reasonable possibility of substantiating the Veteran's claim. 3. The Board finds there is competent and credible evidence that the Veteran currently has PTSD as a result of suffering military sexual trauma (MST) in 1974, while a patient at a military hospital. CONCLUSIONS OF LAW 1. The September 2006 rating decision denying service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002& Supp. 2012); 38 C.F.R. §§ 3.104(a), 20.1103 (2012). 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 & Supp. 2012); 38 C.F.R. § 3.156 (2012). 3. PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. The Veteran asserts that he developed PTSD as a result of an in-service sexual assault that occurred in June 1974, while the Veteran was a patient at the U.S. Naval Hospital in San Francisco. Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7105. When determining whether a claim should be reopened, the Board performs a two-step analysis. The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new" and "material." See 38 U.S.C.A. § 5108; Smith v. West, 12 Vet. App. 312 (1999). Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of a Veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). In determining whether evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). VA regulation defines "new" as existing evidence not previously submitted. "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. If the evidence is new and material, the next question is whether the evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2011). The Court clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction (AOJ), the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. §§ 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2012). The record reflects multiple previous unappealed denials of the Veteran's PTSD claim, citing no evidence of a confirmed in-service stressor. The RO last denied the Veteran's claim for service connection for PTSD in September 2006 on the grounds that no credible supporting evidence existed reflecting the occurrence of an in-service stressor, or a confirmed, current diagnosis of PTSD. Although not a stated basis of denial of the claim, the evidence of record also did not contain medical evidence linking any current PTSD diagnosis to an alleged in-service stressor. Accordingly, the claim was denied. The RO notified the Veteran of the decision, and informed him of his right to appeal, but he did not timely appeal the decision. This denial of his PTSD claim became final based on the evidence at the time of the September 2006 decision. The evidence before VA at the time of the final denial of PTSD in September 2006 consisted of the Veteran's service treatment and personnel records, post-service VA treatment records, and the Veteran's and his wife's statements and hearing testimony regarding changes in behavior over the years. Newly received evidence includes letters from VA treating clinical mental health treatment providers showing that the Veteran has been diagnosed with PTSD due to MST. These records show that the Veteran reported a history of flashbacks and nightmares related to an in-service sexual assault. In particular at his treatment session on January 26, 2010, the Veteran reported to his VA treating psychiatrist, Dr. R.M., that he was attacked at a Naval hospital by four assailants who forced him into sexual acts under threat of imminent death with a knife. Importantly, the Veteran's submitted a January 26, 2010 letter that diagnosed PTSD and provided a positive medical nexus opinion. Dr. R.M. stated, "After review of his medical and military records, it is greater than 50% likelihood that his PTSD symptoms originated during his military time as a direct result of MST." Other new evidence includes a lay statement from his son, A.T.A., dated in July 2010, attesting to the Veteran's long history of depressive behaviors, nightmares, inability to sleep, and confiding to him in 2001 that he was sexually assaulted while in the military. At the July 2010 Board hearing, the Veteran and his wife also testified that it was not until the last few years that he finally revealed he had suffered in-service sexual trauma. These lay statements by his family members are competent and credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). As the Veteran reports a primary PTSD stressor of an in-service sexual assault, the Board finds that the new medical records documenting diagnoses of PTSD, specifically as due to MST as reported by the Veteran, constitutes evidence that is both new and material. This new evidence suggests that the Veteran has a current PTSD disability that is attributable to a credible sexual assault stressor during active duty service. The new lay and medical evidence have been presumed credible for the purpose of determining whether to reopen the claim. Consequently, the Board finds that the new evidence relates to unestablished facts and raises a reasonable possibility of substantiating the claim. See Shade, 24 Vet. App at 117. The additional evidence is not cumulative or redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. Such evidence is new and material, and the claim for service connection for PTSD is reopened. Having reopened the claim, the Board proceeds to consider whether the Veteran is entitled to service connection for PTSD on the underlying merits. The Veteran has stated that he developed PTSD as a result of an in-service sexual assault that occurred in June 1974, while he was a patient at the U.S. Naval Hospital in San Francisco. He has consistently reported that when he went out to smoke a cigarette that night, he was grabbed from behind by four male hospital orderlies, who held him at knifepoint, sodomized him and forced him to perform oral sex. He was left on the ground bleeding and crying, with his hospital robe pushed over his head, and told to stay there or he would be killed. He notes that he reported the assault to the audiology technician the next morning at his hearing evaluation, but was accused of faking the test. He went home against medical advice, and within a few months thereafter, he had left the service despite earlier wanting a military career. See March 2008 stressor statement; June 2009 Decision Review Officer Hearing Transcript at 2; see also, July 2010 Board Hearing Transcript. The Veteran's wife testified that his personality changed during 1974, the year he alleged assault. She indicated that when she was eight-months pregnant in 1974 that "all of a sudden my husband he wanted to get out of the service" and that he abruptly decided to not pursue his original plan to stay in the service as a long-term career. Board Hearing Transcript at 10. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a link between current symptomatology and the claimed in- service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). Under 38 C.F.R. § 3.304(f)(5), if a PTSD claim is based on in-service personal assault, as it is here, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident, including, but 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 statements from family members, 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 a requests for transfer to another 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. Id. In this case, the Veteran's VA treatment records show several diagnoses of PTSD, and therefore, this element is established. 38 C.F.R. § 4.125(a). Turning to evidence relating to the occurrence of an in-service stressor, the Board finds compelling the evidence indicating a dramatic change in the Veteran's behavior after the reported traumatic incident. In particular, a review of the Veteran's service personnel records shows that in January 1974, prior to the reported MST, the Veteran received a "fitness report" that assigned extremely high performance ratings, with an overall value to the Marines of between "excellent" and "outstanding," and an attitude considered to be of the highest level possible (i.e., "particularly desire" this Marine). Additional comments in a supplemental to the fitness report stated that he is "A fine young NCO who is only beginning to realize his full potential." In contrast, soon after the reported MST in June 1974, the Veteran's subsequent performance evaluation in September 1974 showed a fitness report indicating only marginal performance, with an overall value just between "average" and "above average." His commanding officer remarked, "Having known and worked with this young NCO for over two years, I have noticed a decided shift in his behavior. Never able to accept mediocrity, he has recently become less restrictive in his definition of mediocrity..." That same month, the Veteran separated from service, leaving behind a career in the Marines that was favorably viewed only earlier that year. Such a dramatic shift in behavior supports the Veteran's claim. In addition, the Veteran is competent to attest to the details of his assault, and the Board finds his testimony to be entirely credible. The Veteran's wife similarly offered competent and credible testimony that weighs in favor of the claim, in particular, that she had observed a change in the Veteran's behavior after the reported in-service sexual assault, including rapidly leaving the military and relocating even while she was nearing the end of her pregnancy. She is competent to relate the details of behavioral changes contemporaneous with the alleged assault, as this is capable of lay observation. The Veteran's and his wife's accounts of what occurred are uncontroverted, consistent, and corroborated by behavioral changes documented in his in-service performance evaluations in 1974, both before and after the sexual assault. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Accordingly, the Board determines that the in-service stressor occurred. See 38 C.F.R. § 3.304(f)(5). Finally, VA medical providers have provided positive nexus opinions linking current diagnoses of PTSD to the Veteran's in-service MST. In particular, the Veteran's VA treating psychiatrist, Dr. R.M., has indicated that "After review of his medical and military records, it is greater than 50% likelihood that his PTSD symptoms originated during his military time as a direct result of MST." In addition, the record contains several letters from clinical social worker/sexual trauma specialist, S.A., dated in November 2005, January 2008, and June 2009, that find that the Veteran was a victim of MST, consistent with the details he provided about the assault; and indicate that he meets the full diagnostic criteria of PTSD, as due to his MST. Finally, a November 2005 letter from a clinical nurse specialist agreed with S.A.'s assessment and provided a positive nexus opinion relating his PTSD to the reported MST. These overwhelmingly favorable medical findings serve to further support the Veteran's claim. Accordingly, having satisfied all elements necessary to establish this claim, the Board determines that service connection for PTSD is warranted. ORDER The claim for service connection for PTSD is reopened and granted. ____________________________________________ BARBARA C. MORTON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs