Citation Nr: 1341390 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 08-00 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), and, if so, whether the criteria for service connection for PTSD are met. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA or ADT) from August 1979 to February 1980, and had verified and unverified periods of ACDUTRA and inactive duty for training (INACDUTRA) in a reserve component through 1990. The Veteran has been awarded service connection for a left knee disability incurred while performing INACDUTRA on March 4, 1990, and that service is considered active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board Remanded the appeal in January 2012. During Remand, the Appeals Management Center (AMC) reopened the claim for service connection for an acquired psychiatric disorder and denied the claim on the merits. FINDINGS OF FACT 1. An April 2003 Board decision denied the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a service-connected left knee disorder, and that decision, which was not appealed, became final. 2. The report of April 2012 VA psychiatric examination is new and is material to reopen a claim for service connection for PTSD, and the claim is reopened. 3. The preponderance of the probative and persuasive evidence establishes that the Veteran's PTSD is due to stressors that occurred prior to or following the Veteran's ACDUTRA from August 1979 to February 1980, and establishes that the Veteran's PTSD is not causally related to or aggravated during a period of performance of active service, ACDUTRA, or INACDUTRA. CONCLUSIONS OF LAW 1. Subsequent to the final April 2003 Board decision which denied the Veteran's claim of entitlement to an acquired psychiatric disorder as secondary to a service-connected knee disability, new and material evidence has been received to reopen the claim. 38 U.S.C.A. §§ 7103(a), 7105 (West 2002). 2. The criteria for service connection for PTSD are not met. 38 U.S.C.A. §§ 101(22), (24), 106, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.6, 3.303, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before addressing the merits of this claim, the Board will examine the actions taken by VA to meet its duties to notify and assist the Veteran. VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). This must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specific to requests to reopen, the Veteran must be notified of both the criteria for submitting new and material evidence to reopen the claim and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). As the Board is granting the request to reopen the claim, the Board will address only the duty to notify the Veteran of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. In this case, the RO issued a letter in February 2007 which addressed each element of service connection, and advised the Veteran of specific evidence relevant to claims for service connection for PTSD based on personal trauma. In April 2007, the RO spoke directly with the Veteran, by telephone, regarding the evidence relevant to a claim based on personal trauma. The February 2007 also advised the Veteran of the criteria pertaining to the assignment of a disability rating and effective date. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board acknowledges that communications to the Veteran have assumed that the period of service during which personal trauma is alleged to have occurred was a period of "active" service and that status as a veteran for that period had been established. The Veteran alleged, in arguments prior to April 2012, that sexual trauma was incurred during a period of service from August 1979 to February 1980. The prior Board decision, in April 2003, did not require a determination as to whether that period of service was "active" because the Veteran was seeking service connection for a psychiatric disorder as secondary to a knee disability for which service connection was already in effect. Thus, the Board's notation that the Veteran's service ending in February 1980 was ACDUTRA rather than active service does not conflict with the prior Board decision. However, as discussed below, the outcome of the claim at issue is determined because the probative and persuasive evidence is against the claim, not because of the type of service at issue. The Veteran is not prejudiced by the lack of notice that the period of service from August 1979 to February 1980 would not be considered "active" unless the stressor was established. The record, including the directives in the Board's January 2012 Remand and notices following the Board's January 2012 Remand, and the arguments of the Veteran's representative, demonstrate that the Veteran has actual knowledge of the evidence required to substantiate the claim at issue. See Shinseki v. Sanders, 556 U.S. 396 (2009) (discussing the rule of prejudicial error). VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records. Service treatment records and personnel records are associated with the claims files. The duty to assist requires VA to provide an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Examination was conducted in April 2012. Lay statements have been obtained. In February 2007, VA requested that the Veteran provide information about the occurrences that resulted in PTSD. The Veteran did not return the questionnaire provided with the notice. The Veteran was advised that the information was required to corroborate the in-service assault. (See Notice, February 2007). A report of contact dated in April 2007 reflects that the Veteran responded to the outreach letter by calling the RO. During a subsequent conversation, sources of evidence sufficient to corroborate her claimed stressor were discussed, however, no further information was received from the Veteran. The Veteran was afforded an opportunity to provide additional information following the Board's 2012 Remand. She appeared for VA examination, but did not provide information other than during the examination. No further development of the evidence is required. In 2007, the RO requested records from the Social Security Administration (SSA). SSA responded by indicating that the Veteran was not receiving disability or SSI benefits and that no medical records were on file. No additional evidence that is not associated with the record has been identified. The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained. There has been substantially compliance with the Board's January 2012 Remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The examination afforded the Veteran following the Board's Remand addressed the pertinent questions noted in the remand, including whether the evidence of record indicated that the Veteran sustained a personal assault during service from August 1979 to February 1980, whether a psychological disorder pre-existed service, and whether the Veteran had PTSD or depression that was linked to or aggravated as a result of that period of service. Thus, the Board finds that the medical evidence of record is sufficient to resolve this appeal. Request to reopen A claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). The United States Court of Appeals for Veterans Claims (Court) has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decisionmakers. 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. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final 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 this case, the Appeals Management Center determined that the Veteran's lay statements, clinical records, and report of April 2012 VA examination constituted new and material evidence, and reopened the claim. Notably, the Board has jurisdictional responsibility to determine on its own whether there is new and material evidence to properly reopen the service-connection claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)); see also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); VAOPGCPREC 05-92. The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review on the merits of a previously-denied claim. There is a "low threshold" for determining that additional evidence submitted since a prior final decision provides new and material evidence to reopen a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (explaining the new and material requirements of 38 C.F.R. § 3.156(a). The Board agrees that the evidence submitted since the 2003 Board decision is new and material, and that the claim is reopened. Claims for service connection Applicable law provides that service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military, naval, or air service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. The term "active military, naval, or air service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training." 38 U.S.C.A. § 101(24); 38 C.F.R. §§ 3.1(d), 3.6(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Thus, when a claim is based on a period of ACDUTRA, there must be evidence that the individual concerned died or became disabled during the period of ACDUTRA as a result of a disease or injury incurred or aggravated in the line of duty. In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service" and the Appellant would not achieve Veteran status for purposes of that claim. See 38 U.S.C.A. § 101(22, (24); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). In the context of a psychiatric disability such as PTSD, VA's General Counsel has concluded that a claimant with PTSD resulting from a sexual assault during a period of INACDUTRA may be considered disabled by an "injury" for purposes of section 101(2) and 101(24). VAOPGCPREC 4-2002 (May 14, 2002); VAOPGCPREC 08-2001 (February 26, 2001); VAOPGCPREC 86-90 (July 18, 1990). These opinions reflect that, under the DSM-IV [American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition], which is applicable to determinations by VA, a diagnosis of PTSD requires experiencing a traumatic event. 38 C.F.R. § 4.125. It was also noted that the DSM IV made clear that the reaction to an event causes the symptoms of PTSD and that there is no indication of a latent disease process that becomes manifest as a result of the traumatic experience. As noted above, the service personnel records show that the claimant enlisted in a reserve component. The record includes official records reflecting that the character of the Veteran's separation in February was for "Relief from ADT" (Active Duty for Training). The claimant's personnel record show that she was released from initial ADT upon completion of MOS (military occupational specialty) training. The Board finds that the Veteran had full-time active duty for training August 1979 to February 1980. In short, the official records uniformly demonstrate that the Veteran's service from August 1979 to February 1980 was not designated as active duty. The Veteran contends, including in the Informal Presentation provided by the Veteran's representative just prior to the Board's 2012 Remand, that the Veteran's sexual trauma was incurred during that period of service ending in 1980, when the Veteran was the only woman in her company. By law, ACDUTRA may be considered active duty only if evidence demonstrates that the Veteran was disabled by disease or injury during the period of ACDUTRA and has a current disability resulting from disease or injury incurred during the period of performance of ACDUTRA. VA law defines a sexual assault, such as the circumstances described by the Veteran in this case, as an injury, the Veteran's contention that she is currently disabled due to an injury incurred during ACDUTRA must be considered on the merits. VAOPGCPREC 08-2001; see also VAOPGCPREC 04-2002. Certain evidentiary presumptions, such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service, are provided by law to assist claimants in establishing service connection for a disability or disabilities. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309; Donnellan v. Shinseki, 24 Vet. App. 167 (2010). The Board notes that the advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. See Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (1999). Under 38 C.F.R. § 3.304(f)(5) , if a PTSD claim is based on an in-service personal assault, evidence 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 disease, 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, 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. Such types of alternative evidence are considered because of the recognition that many incidents of personal assault are not officially reported, making it difficult to obtain direct evidence, and requiring that alternative evidence be sought. Facts and analysis, claim for service connection for PTSD During her period of ACDUTRA, the Veteran was treated for athlete's foot, a "female problem" and viral syndrome. The Veteran requested a Pap test and a pregnancy test in November 1979. Medication to treat a vaginal discharge was prescribed. There is no record that the Veteran was again treated for a "female problem" prior to her release from ACDUTRA in February 1980. The Veteran's personnel records reflect that she continued to service in the reserves for about 10 years after her February 1980 release from ACDUTRA, and she completed additional training courses during that period. The Veteran's records of treatment from 1980 to 1988 reflect that she sought no significant medical treatment during a period of performance of military duties until 1988, when she complained of left knee pain. In 1990, she again sought treatment on several occasions for left knee pain. Following surgical treatment which was unsuccessful in reducing the Veteran's left knee symptoms, she was medically discharged from the reserve component. She underwent continuing medical treatment for knee pain. The file reflects that medical records were lost during Hurricane Andrew in 1992. In 1994, the Veteran underwent VA examination when she sought service connection for depression. At that time, she reported difficulty in her marriage, inability to have children, and prior sexual abuse by a sibling during childhood. The Veteran also reported significant drug and alcohol abuse. She subsequently was admitted for hospitalization for polysubstance abuse. The summary of July 1994 to August 1994 six-week program for drug treatment disclose no report of military sexual abuse. The Veteran underwent VA examination in May 1998. No psychiatric diagnosis other than substance abuse, in remission, was assigned at that time. In 2001, she sought evaluation for blackouts. At that time, she reported use of cocaine from 1984 to 1997. In January 2002, the Veteran reported that she had been the victim of military sexual abuse. The Veteran attended several appointments, but did not report for appointments in August 2002 and was discharged from outpatient psychiatric therapy in September 2002. In February 2006, the Veteran reported depression and anxiety, and attributed these symptoms to military sexual trauma. She continued in outpatient therapy for several months. The treatment records note that the Veteran discussed problems with her family of origin, and a history of military sexual abuse, without noting specific details. Subsequent VA treatment records detailed the Veteran's involvement in PTSD group therapy sessions, as well as ongoing PTSD treatment. These records do not reflect details of the alleged stressor. While a current diagnosis of PTSD has been linked to a purported in-service event, or series of events, there is no evidence currently of record to establish an in-service event related to the currently-diagnosed disorder. In a statement received in July 2008, the Veteran's representative noted that the Veteran's unit was predominately comprised of men, and that the Veteran was one of only a few women assigned to that unit. It was further noted that the Veteran did not report her alleged sexual trauma, as evidenced by the lack of information contained within her service treatment or personnel records. The representative argued that the Veteran's behavioral changes, to include self-destructive drug and alcohol use, were well-documented. It was further argued that these changes were a symptom associated with the Veteran's alleged abuse. As to this argument, the Board notes that the Veteran does have a history of polysubstance abuse. A VA examination dated in May 1998 noted that from the mid-1980s to the early 1990's, she was a heavy user of cocaine, marijuana, and alcohol. She received inpatient treatment at the Miami VAMC for 28 days in 1994. At the time of the VA examination, she was diagnosed with polysubstance abuse, in remission. As to the Veteran's failure to provide a detailed account of her alleged in-service assault, the representative requested that the Board remand her appeal so as to provide her with one additional opportunity to substantiate her claim. It was noted that VA did not question her account of the assault. Instead, the claims file simply lacked the evidence necessary to support the conclusion that assault during her period of a ADT resulted in her current diagnosis of PTSD pursuant to 38 C.F.R. § 3.304 (f) . The April 2012 VA examination discloses that the Veteran reported sexual abuse by a male sibling for several years during childhood. She was later raped by a neighbor. She stated that her brothers "beat" the neighbor when she told them what had occurred. She stopped attending high school in the 10th grade when she had to repeat that year because of truancy. She reported that there were family fights because both parents were alcoholic. She reported that she worked at the family grocery store at times and drank wine from the store. She also reported use of "weed." She also reported that, after she married in 1989, her husband was physically and sexually abusive. After he divorce she did not re-marry, but she did have a child. The Veteran moved home in 2005, but her daughter was subjected to sexual abuse. The abuse was reported and a cousin was jailed. She stated that she told a friend about a sexual assault which occurred during a two-week training, but stated she did not otherwise report the assault. The examiner discussed review of the Veteran's service treatment records and other medical records in detail, noting the Veteran's arrest for cocaine possession and reported prostitution. The examiner noted that the Veteran reported childhood sexual abuse and sexual abuse within marriage on several occasions, without report of military sexual trauma until much later. The examiner concluded that the Veteran meets the criteria for a diagnosis of PTSD, but that the origin of the PTSD was prior to the Veteran's enlistment in reserve service and the period of active duty for training ending in February 1980. The records "do not support aggravation" due to military service, the examiner concluded, but do support aggravation during the Veteran's marriage and when the Veteran's daughter was sexually abused by a family member. The Board finds that the April 2012 VA examination report is the most probative evidence of record. The examiner noted that the Veteran's behavior did not change significantly after her period of service in 1979 to 1980; rather, the Veteran successfully completed training programs. The Board agrees with this conclusion. The record reflects that the Veteran began using cocaine in 1994, about four years after her period of service ended in 1980. However, the Veteran established a pattern of use of alcohol before the legal drinking age and use of illegal substances prior to any period of military service. The Veteran herself reported that her cocaine use began at a time when she moved back home and a sister bought cocaine and introduced the Veteran to use of that drug. The Veteran's use of illegal substances prior to her service reduces the probative value of drug use after alleged sexual trauma as a marker of such trauma. The examiner concluded that the pattern of behavior shown by the records was not consistent with the Veteran's report of military sexual trauma. In particular, the examiner noted the Veteran's lengthy period of treatment for knee disability and the 1994 addiction treatment program during which no report of military sexual trauma is noted. No report of military sexual trauma was noted at either VA examination in conjunction with the Veteran's initial claim for service connection for a psychiatric disorder as secondary to service-connected knee disability. The Board finds the lack of a report of military sexual trauma at that time, when it would have been in the Veteran's interests to make such a report, to be significantly adverse to the current claim. This lack of reporting of military trauma, at a time when other significant trauma was reported, is inconsistent with the Veteran's current allegations, and undermines the probative value of the Veteran's current report. The Board also notes that the report of military sexual trauma provided to the examiner in April 2012 varied significantly from the general information previously provided by the Veteran. This inconsistency in the description of what happened significantly decreases the probative value of the Veteran's reports in connection with this claim. There is one item of evidence which supports the Veteran's claim, the November 1979 service treatment record which shows that the Veteran sought a pregnancy test. However, the Veteran has not indicated, at any time, that was a link between her November 1979 medical care and any incident in service, except to the extent that the contention that the Veteran was the only woman in a company of 180 men generally implies that the Veteran was subjected to pressure to engage in sexual activity. However, the Veteran herself has never indicated a link between sexual trauma in service and her November 1979 pregnancy test or other medical care. The examiner's discussion of the sequence of events in the Veteran's life, together with an analysis of the timeline of the onset of PTSD, explaining why the onset of PTSD was unrelated to the Veteran's ACDUTRA or any other reported incident during a period of military service, is of more persuasive evidence against the claim than the favorable weight and persuasive value of the November 1979 medical care, in the absence of assertion from the Veteran as to the facts underlying that care. The Veteran did not attribute her marital discord to military sexual trauma. By the Veteran's own report, she was introduced to alcohol by her family of origin, and began using illegal drugs prior to service. She dropped out of school, then completed her GED later, shortly before she enlisted in the reserves. After her period of ACDUTRA, the Veteran completed additional vocational programs, showing objective increase in educational attainment after her enlistment in the reserves as compared to her behavior prior to enlistment. Thus, the Veteran's pattern of behavior after the alleged sexual trauma, including beginning use of cocaine, as discussed in part above, is not a persuasive marker of a behavior change that his favorable to a finding that sexual trauma was incurred during a period of performance of ACDUTRA or INACDUTRA. The medical opinion rendered in 2012 is the most credible and persuasive evidence of record. That opinion, and the facts summarized in that opinion, is unfavorable to the Veteran's claim, and is more probative and persuasive than the favorable evidence. The preponderance of the evidence is against the claim. There is not reasonable doubt to resolve in the Veteran's favor. Even though there is some favorable evidence, the weight of the probative and persuasive evidence is against the claim. The appeal for service connection for PTSD is denied. ORDER The appeal for service connection for PTSD is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs