Citation Nr: 1800342 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 16-55 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a psychiatric disability, to include PTSD. REPRESENTATION Veteran represented by: Swords to Plowshares, Veterans Rights Organization, Inc. ATTORNEY FOR THE BOARD Ryan Frank, Associate Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps from February 1983 to February 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In the June 2015 rating decision, in pertinent part, the RO denied the Veteran's request to reopen his previously denied claim for service connection for PTSD. The Veteran's claim for service connection for PTSD has been recharacterized as a psychiatric disability to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In his November 2016 substantive appeal, the Veteran requested a video conference hearing before a Veterans Law Judge. In an October 2017 statement, the Veteran's representative withdrew the request for a hearing. The Board therefore deems the hearing request withdrawn pursuant to 38 C.F.R. § 20.702 (e) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's claim for service connection for PTSD was denied in a March 2004 rating decision on the basis that the evidence failed to establish a current diagnosis of PTSD or that the Veteran's alleged stressor occurred. He was notified of this decision and timely disagreed with it, but did not perfect a substantive appeal within one year of the rating decision or 60 days of the Statement of the Case (SOC), and it became final. 2. Evidence received since the March 2004 rating decision raises a reasonable possibility of substantiating the claim of service connection for a psychiatric disability. 3. The Veteran's account of an in-service stressor is credible and consistent with the evidence of record. 4. The probative medical evidence of record demonstrates that the Veteran has a current diagnosis of PTSD, which as likely as not had its onset during or is otherwise related to a stressor in his active duty service. CONCLUSIONS OF LAW 1. The March 2004 rating decision is final with regard to the issue of entitlement to service connection for a psychiatric disability. New and material evidence sufficient to reopen the claim of entitlement to service connection for a psychiatric disability has been received. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for a grant of service connection for PTSD have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence The Veteran contends that he has a psychiatric disorder, specifically PTSD, as a result of sexual assault during his active duty service. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. 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 is neither cumulative nor redundant of evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). However, 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 to the Board. Anglin v. West, 203 F.3d 1343, 1347 (Fed. Cir. 2000). In deciding whether new and material evidence has been submitted, 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 generally "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim of entitlement to service connection, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The RO denied the Veteran service connection for PTSD in a March 2004 rating decision. He submitted a Notice of Disagreement in July 2004 but did not perfect an appeal within one year of the rating decision or within 60 days of the November 2004 SOC. Therefore, the March 2004 rating decision is final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 20.302, 20.1103. The basis for the March 2004 denial was a lack of evidence of a current diagnosis of PTSD or that the Veteran's alleged stressor occurred. The question is thus whether the Veteran has submitted or VA has otherwise received evidence that was not before the RO in March 2004, that is neither redundant nor cumulative, and that raises a reasonable possibility of substantiating a claim that the Veteran currently has a psychiatric disability as a result of an in-service sexual assault. The evidence that was of record at the time of the March 2004 rating decision included the Veteran's service treatment records, VA treatment records, and his account of an in-service sexual assault. Since the March 2004 rating decision, the Veteran has provided additional lay statements regarding behavior changes following the alleged assault and a March 2017 private examination report diagnosing the Veteran with PTSD as a result of said assault. As the record now contains more evidence pertinent to the issue of a current disability and an in-service assault than it did in March 2004, the Board finds that new and material evidence has been received which pertains to previously unestablished facts necessary to support the claim. As this evidence raises a reasonable possibility of substantiating the claim, satisfying the criteria of 38 C.F.R. § 3.156(a) for new and material evidence, the claim is reopened. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressors actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128 (1997). There are special considerations for PTSD claims predicated on personal assault. The pertinent regulation, 38 C.F.R. § 3.304(f)(5), provides that PTSD based on a personal assault in service permits evidence from sources other than a veteran's service records which may corroborate his or her 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 statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304(f)(5). 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. 38 C.F.R. § 3.304(f)(5). 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. In addition, 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)(5). An August 1985 service treatment record notes a diagnosis of alcohol dependency. The Veteran's February 1986 separation examination does not note any psychiatric disorder. In a January 2004 statement, the Veteran reported the alleged circumstances of his sexual assault in service. In the Veteran's account, two days before his graduation from Infantry Training School, he was assaulted by three fellow Marines, one of who put a webbed belt around his neck as the others beat him with what he believed to be a nightstick. He reported that one tried to put the object "in my bottom part." He then passed out and woke drenched in urine. He indicated that he only reported this incident to a chaplain with whom he had formed a relationship and that he began to drink "just to get to sleep and mainly to forget about it" shortly after this incident. In a January 2015 statement, the Veteran reported a somewhat different account of this incident. In this account, one of his assailants "attempted oral copulation" as the other two held the Veteran down. He clarified that it was his assailants who urinated on him and reported that he was "physically kicked and punched repeatedly." He reported that he enrolled in a rehabilitation program for alcohol abuse shortly after this incident. A March 2015 VA treatment record notes that the Veteran was referred for admission to a men's trauma recovery program for treatment of PTSD. The treatment provider's diagnoses included PTSD and alcohol use disorder in early full remission. The Veteran remained in this program until August 2015. A VA treatment record from later in March 2015 notes that, in late December 2014, the Veteran reported the circumstances of his sexual assault in service to other veterans in a reintegration program and that his behavior in treatment changed noticeably as a result. "It appeared that having disclosed this part of his history was a significant relief to the veteran. [His] feedback to others took on a less abrasive tone, and he engaged in more informal social activities with other veterans." The Veteran was afforded a VA examination in June 2015. The examiner noted the Veteran's report of military sexual trauma and discounted it as unsupported by objective evidence. The examiner found that the Veteran did not meet the diagnostic criteria for PTSD and diagnosed an alcohol use disorder in early remission. In a July 2015 statement, the Veteran further clarified that one of his assailants "attempted to stick his penis in my face." The June 2015 VA examiner provided an addendum opinion in October 2015. The examiner repeated that he saw no markers of military sexual trauma in the Veteran's records and that treatment for substance abuse, by itself, was not a sufficient marker. The examiner also opined that statements about military sexual trauma long after the fact cannot be considered appropriate markers. The Veteran has submitted a February 2016 statement by his mother, who reported that the Veteran had told her of the sexual assault at the time it occurred. "After receiving weekly talks with [the Veteran], on or about 7/85 he no longer responded, when asked he described to me what was going on. [The Veteran] described in detail the events that weekend had been dealt to him. He explained how he no longer wanted to be a part of the Marines, and out of shame could not go to his superiors! At this time I continued to support [the Veteran] and hoped that he would seek some sort of therapy due to his excessive drinking and attempts to mask his problems." The Veteran has also submitted a statement in April 2016 from a friend who knew him during active duty service. This friend reported that the Veteran told him of the assault "about a year into his tour" and that he told the Veteran to report the incident to someone in authority but the Veteran was too embarrassed to do so. He also described the Veteran's behavioral changes after the assault. The Veteran has also submitted an additional statement by his mother, written in October 2016. In this statement, his mother provided additional detail, including that, when he first reported the assault to her, he included that his assailants "beat him so badly that he defecated on himself." She also reported a "difference in his whole being" after his separation from active duty, that he "was not the son [she] knew," less outgoing, more distant, more irritable, and drinking much greater amounts and more often. She added that "[o]ther family members and friends noticed this change and asked [her] if he was okay." The Veteran has also submitted a psychiatric examination by a private examiner, the report of which is dated March 2017. The examiner, who has specialized in PTSD cases for 24 years, diagnosed PTSD and described in detail how the Veteran meets each of the diagnostic criteria for PTSD. The examiner noted the inconsistencies in the Veteran's report of military sexual trauma but found that this "is common in PTSD and is reflected in the criterion D: 'Inability to recall key features of the trauma.'" The examiner further explained that the "way that traumatic memory is established and stored in the brain is unlike the way non-traumatic memories are stored, and distortions are common." The examiner noted that, when asked about the inconsistencies, the Veteran "was quite believable in that he did not remember when he said this and why he would have made this error, he did not attempt an explanation or an excuse." The examiner found the Veteran's accounts "quite typical of the process of traumatic recollection." The examiner also noted changes in the Veteran's personality as reported by his mother and friend as well as the service treatment record noting substance abuse. The examiner also noted the change in the Veteran's demeanor after disclosing the circumstances of his assault during treatment. The examiner added that the Veteran's focus on small details was consistent with trauma survivors' tendency to "describe memories with emphasis and heightened memory on emotionally charged details" and that the Veteran's report of defecating in his pants "is not the type of fact people report when they are manufacturing false information." Lastly, the examiner reported that the Veteran's nonverbal cues of eye contact, verbal tone, body language and the "nuances of communication" during the examination "revealed no information that led [the examiner] to suspect that [the Veteran] was being dishonest or exaggerating the events as they occurred." The examiner concluded that it was more likely than not that the reported sexual assault occurred. Although there is no direct documentation in service of military sexual trauma, the service treatment records note substance abuse after the alleged sexual assault and the lay statements of record describe significant changes in the Veteran's behavior afterward. Medical evidence from both VA treatment providers and the private examiner establishes a diagnosis of PTSD. The private examiner was particularly thorough in her discussion of the Veteran's symptoms, their correspondence to the diagnostic criteria for PTSD, and the links between those symptoms and the Veteran's claimed in-service sexual assault. The private examiner also thoroughly and convincingly explained her finding that any inconsistencies in the Veteran's report of military sexual assault were entirely typical of a trauma survivor and thoroughly described her bases for finding the Veteran's account credible. In light of the totality of the circumstances, and giving the Veteran the full benefit of the doubt, the Board finds that it is at least as likely as not that the assault occurred and that the Veteran has PTSD as a result. As the reasonable doubt created by the evidence must be resolved in favor of the Veteran, entitlement to service connection for PTSD is warranted. ORDER New and material evidence having been received, the claim of entitlement to service connection for a psychiatric disability is reopened. Service connection for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs