Citation Nr: 1617769 Decision Date: 05/03/16 Archive Date: 05/13/16 DOCKET NO. 11-20 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for posttraumatic stress disorder (PTSD), and if so, whether the claim should be reopened. 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from January 1980 to September 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, in March 2010 that declined to reopen the claims for service connection for PTSD. The Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge in August 2014. A transcript is of record. In January 2015, the Board, in pertinent part, declined to reopen the Veteran's claim for service connection for PTSD. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand, in September 2015 the Court vacated the Board's decision and remanded the appeal to the Board for appropriate action in accordance with the Joint Motion for Remand. In February 2016 the appellant submitted additional evidence in support of her claim and waived the right to have the evidence initially considered by the RO. 38 C.F.R. § 20.1304(c) (2015). The Veteran initially submitted a claim for entitlement to service connection for PTSD. Evidence associated with the claims file includes diagnoses for psychiatric disabilities other than PTSD, to include anxiety, not otherwise specified (NOS). Although the Veteran sought service connection only for PTSD, a claim "cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In essence, a veteran does not file a claim to receive benefits for a particular psychiatric diagnosis that is named on a claims form, such as PTSD, but instead makes a general claim for compensation for the difficulties posed by the mental condition. Id. Accordingly, the Board has reframed the issues on appeal, as shown on the title page. In that regard, the Board again notes that the Veteran was denied entitlement to service connection for PTSD in a final rating decision dated in May 2005, in February 2006 the RO declined to reopen the claim for service connection for PTSD. In December 2007, the Board reopened the claim for service connection for PTSD and denied it on the merits. Thereafter in March 2010 the RO declined to reopen the claim for service connection for PTSD. Those prior denials could be interpreted as encompassing all of the Veteran's acquired psychiatric disabilities, to include those other than PTSD. See Clemons, 23 Vet. App. 1. However, the case of Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008), indicates that claims based upon distinctly and properly diagnosed diseases or injuries must be considered separate and distinct claims. In this case, the prior final denials considered only PTSD, which is distinctly diagnosed from the Veteran's other acquired psychiatric disabilities. Accordingly, the Board will treat the Veteran's claim for entitlement to service connection for an acquired psychiatric disability other than PTSD as distinct from the prior denied claims. Therefore, the December 2007 Board decision is not considered to be prior final decision as to the issue of entitlement to service connection for an acquired psychiatric disability other than PTSD, and new and material evidence need not be found prior to the Board considering that issue on the merits. The claim for entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A December 2007 Board decision reopened the claim for service connection for PTSD and denied it on the merits; the Veteran did not appeal that decision and it is final. 2. The additional evidence presented since December 2007 provides some information that, when considered with the other evidence of record, relates to an unestablished fact and/or raises a reasonable possibility of substantiating the Veteran's claim for service connection for PTSD. CONCLUSIONS OF LAW New and material evidence has been presented, and the claim for service connection for PTSD is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify the veteran of information and evidence necessary to substantiate the claim and redefined its duty to assist him in obtaining such evidence. 38 U.S.C.A. §§ 5102 , 5103, 5103A, and 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.156, 3.159, 3.326 (2015). Given the favorable disposition of the action here, which is not prejudicial to the Veteran, the Board need not assess VA's compliance with the VCAA in the context of the issue of whether new and material evidence has been submitted to reopen the claim. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). New and Material Evidence Generally, if a claim for 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 (West 2014). "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). The Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran's claim for service connection for PTSD was originally denied in May 2005. The Veteran did not appeal the decision. In February 2006 the RO declined to reopen the claim for service connection for PTSD. The Veteran appealed to the Board. In December 2007, the Board reopened the claim for service connection for PTSD and denied it on the merits. As the Veteran did not appeal the Board's decision or request reconsideration, the Board's November 2007 decision is final. 38 C.F.R. § 20.1100 (2015). When the Board decided its November 2007 decision, the claims folder contained service treatment records, which are devoid of reference to complaint of, or treatment for, any psychological problems. In addition, the Veteran denied nervous trouble of any sort, depression, or excessive worry at the time of her May 1985 discharge examination, and psychiatric evaluation of the Veteran was normal at that time. The Veteran's service personnel records were also before the Board in December 2007, and reflect a myriad of disciplinary problems involving drug abuse, which resulted in a decrease of the Veteran's performance, and several Article 15 violations. The evidence of record before the Board in December 2007 as it pertained to the claim for service connection for PTSD also included the Veteran's assertions, to include during an August 2007 Board hearing, that she developed PTSD as a direct result of being raped twice and witnessing dead bodies during service; and medical evidence that reflected multiple diagnoses of PTSD attributing the Veteran's PTSD to her alleged sexual assaults and traumatic experience in the military. As noted by the Board in its December 2007 decision, there was no objective corroborating evidence sufficient to verify the actual occurrence of the Veteran's alleged in-service stressors and the diagnoses of PTSD made were based on the unverified stressor events claimed by the Veteran such that there was an absence of a valid diagnosis of PTSD based upon a verified stressor. The evidence received since the prior final denial includes VA treatment records documenting mental health treatment, along with variously diagnosed psychiatric disorders, including PTSD and polysubstance abuse. Also in the record are statements from D.J., Licensed Independent Social Worker (LISW) who opined that the Veteran's symptoms and diagnosis of PTSD are a direct result of her traumatic military experiences. Social Security Administration (SSA) records showed that the Veteran was found to be disabled as of August 2006. The reports noted a history of childhood sexual abuse by an uncle, along with a history of multiple arrests for prostitution and being raped four times monthly. She also alleged she dreamed of pulling bodies in the Army. Also of record are statements, an affidavit and testimony from the Veteran asserting that she was raped twice during service. She also stated that her duties required her to assist forensic and pathological testing involving a plane crash and the recovering of twenty-one bodies. In a 2009 statement, the Veteran's aunt declared that following discharge from the military she noticed a change in the Veteran's mental health and behavior. Records from the U.S. Army Crime Records Center related to the Veteran's reported rape in early 1982, which found insufficient probable cause to pursue the rape allegations, including contemporaneous lay statements from Veteran's then-colleague, who stated that the Veteran reported the rape to him shortly after it was alleged to have occurred, as well as a statement from her sister, who indicated that the Veteran was "acting different" within an hour of the alleged rape, "was quiet and later cried," and told her about the rape one week after it was alleged to have occurred. VA examination reports in 2011 and 2014 found that the Veteran did not meet the criteria for a diagnosis of PTSD. In contrast, a private February 2016 psychological evaluation report contained a diagnosis of PTSD due to military sexual trauma. This evidence is new, as it was not part of the record at the time of the December 2007 Board decision. It is also material, as it relates to an unestablished fact necessary to substantiate the claim. Specifically, it provides evidence of that corroborates the Veteran's claimed in-service stressor, and associates a diagnosis of PTSD with said stressors. Therefore, the evidence is new and material, and the claim is reopened. ORDER As new and material evidence has been presented, the claim for service connection for PTSD is reopened, and to this extent only the appeal is granted. REMAND The Veteran asserts that she developed PTSD due to being sexually assaulted and witnessing traumatic experiences during her military service. She described being assigned to assist with forensic and pathological testing involving a plane crash and the recovering of twenty-one bodies, which resulted in her having severe daily nightmares thereafter. The Veteran further added that in 1982 she was sexually assaulted twice by a fellow soldier and a recruiting sergeant. She stated that she reported both assaults. As previously noted, the service personnel records reflect a myriad of disciplinary problems involving drug abuse which resulted in a decrease of the Veteran's performance, and several Article 15 violations. When the service personnel records are combined with the records from the U.S. Army Crime Records Center related to the Veteran's reported rape in early 1982, as well as the lay statements from Veteran's then-colleague and sister who stated the Veteran told them about the rape shortly after it was alleged to have occurred, the Board finds it is reasonable to conclude that the Veteran did experience a sexual assault in service. The records document the kind of behavior referenced in 38 C.F.R. § 3.304(f)(3) and contain information of the actual reporting of a rape in service. Additionally, the examiners found the Veteran's history of sexual abuse in service to be plausible and these opinions are sufficient to establish the occurrence of the claimed stressors in service regarding the rape. Patton v. West, 12 Vet. App. 272, 280 (1999). The Board finds that the evidence does support a conclusion that the Veteran experienced a sexual assault in service as verified stressors. The service treatment records contain no complaints of, or treatment for, any psychological problems, and on separation from service in May 1985, the Veteran denied nervous trouble of any sort, depression, or excessive worry, and she was psychiatrically evaluated as normal. After service, VA treatment records starting in 2004 noted a diagnosis of PTSD due to military sexual trauma. VA treatment records and SSA records reflect the Veteran's report of being repeatedly raped by her uncle as a child, as well as twice in service. The evidence also shows that post-service discharge, she had a history of multiple arrests for prostitution. She reported being raped four times monthly. In a statement in 2009 a VA LISW opined that the Veteran's symptoms and diagnosis of PTSD were a direct result of her traumatic military experiences. Additionally, a private psychological evaluation report in February 2016 recorded a diagnosis of PTSD due to military sexual trauma. However, neither the psychologist in 2016 nor the VA LISW acknowledged the Veteran's sexual trauma prior to and after service, nor did they address the DSM criteria for PTSD. Significantly, a VA examiner in 2014 specifically found that the Veteran did not meet criteria for PTSD under any edition of DSM because following the military sexual trauma there was no evidence of persistent avoidance of stimuli associated with trauma, on the contrary, the Veteran had a history of prostitution after service, and the DSM never allowed for counterphobic behavior as a symptom of PTSD. Similarly, a VA examiner in May 2011 also concluded that the Veteran did not meet current criteria for PTSD. The examiner explained that while the presence of a qualifying stressing event was conceded, the Veteran did not report a significant number of avoidant symptoms. The examiner added that this finding was consistent with the interpretation of two of the Veteran's treating psychologists. Additionally, the VA examiner in May 2011 diagnosed anxiety disorder, NOS, with paranoid features and noted that the Veteran was experiencing some psychological difficulties that were related to her military service via anxiety NOS. The examiner, however, added that it could not be stated without resorting to mere speculation that these difficulties were causally related to the Veteran's experiences in service, in part due to the presence of extensive post military drug use. Accordingly, the examiner's opinion suggests a link between the diagnosed anxiety disorder and service. Additionally, VA treatment records contain multiple diagnoses of psychiatric disorders other than PTSD, including major depressive disorder and adjustment disorder, NOS. As additional competent medical evidence of PTSD has been received since the 2014 examination, a remand is necessary to assess whether the Veteran has symptomatology that meets the diagnostic criteria for PTSD, and if so, to determine whether it is associated with military sexual trauma as opposed to sexual trauma prior to, and after service. Additionally, the VA examiner should address whether any psychiatric disorder other than PTSD, found to be present, is less likely as not caused or aggravated by service. The requirement for a current disability is satisfied if there is evidence of the disability at any time since the Veteran's claim of service connection was received in 2009, even if the disability is currently in remission or has completely resolved. McClain v. Nicholson, 21 Vet. App. 319 (2008). Finally, relevant ongoing VA medical records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA psychiatric disability examination to determine whether any current psychiatric disorder is related to military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should identify all psychiatric disorders, to include PTSD and anxiety disorder, NOS. The examiner should specifically determine if the Veteran meets the diagnostic criteria for PTSD. If the Veteran does not meet the criteria for PTSD, the examiner should explicitly discuss which criteria for diagnosis are missing (under either DSM-IV or DSM-V criteria). If PTSD is diagnosed, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) PTSD began in or is otherwise related to military service, to include military sexual trauma. For each psychiatric disability diagnosed other than PTSD, including anxiety disorder, NOS, the examiner should provide an opinion regarding whether each disorder at least as likely as not (a 50 percent or greater probability) began in or is otherwise related to military service, to include military sexual trauma therein. All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner should also address the 2011 and 2014 VA examination findings, as well as the February 2016 private psychologist's opinion report. In rendering each requested opinions, the examiner should comment on the significance, if any, on the Veteran's history of childhood and post-service sexual abuse in the development of the psychiatric disorder. 4. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 5. Finally, readjudicate the claims. If the benefit sought on appeal remains denied, furnish the Veteran and her representative a supplemental statement of the case and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, 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 2014). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs