Citation Nr: 1800528 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-20 581 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for an acquired psychiatric disorder, diagnosed as an anxiety order, not otherwise specified, based on military sexual trauma (MST) (anxiety disorder, NOS). 2. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as an anxiety disorder, NOS, based on MST. ORDERS New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for an anxiety disorder, NOS, based on MST is reopened. Service connection for an acquired psychiatric disorder, diagnosed as PTSD and an anxiety disorder, NOS, based on MST is granted. FINDING OF FACT 1. In a March 2008 rating decision, the Veteran's service connection claim for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), claimed as due to MST was denied. She did not perfect an appeal regarding this determination. 2. Evidence received since the March 2008 rating decision is new and material regarding the issue of service connection for acquired psychiatric disorder, diagnosed as an anxiety disorder, claimed due to MST, as it contains evidence not previously considered that has some tendency to establish a current diagnosis of anxiety disorder, NOS. 3. Resolving all doubt in the Veteran's favor, the currently diagnosed acquired psychiatric disorder, diagnosed as PTSD and an anxiety disorder, NOS, was incurred during active military service. CONCLUSIONS OF LAW 1. The March 2008 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. § 20.1103 (2017). 2. The criteria for reopening the Veteran's previously denied claim of service connection for PTSD have been met. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 3. The criteria to establish service connection for an acquired psychiatric disability, to include an PTSD and anxiety disorder, NOS, due to MST, are approximated. 38 U.S.C. §§ 1131, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS Introduction The Veteran served on active duty from February 1979 to June 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office in Portland, Oregon (RO). In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. In consideration of this holding and the anxiety disorder, NOS diagnosis of record, the Board has recharacterized the claim as reflected on the title page. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Furthermore, given the favorable outcome in this decision that represents a full grant of the issues on appeal, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Discussion I. New and Material Evidence The Veteran contends her anxiety disorder, NOS is a result of military service. Specifically, the Veteran has reported two incidents of personal assault while in-service that she has stated resulted in the currently diagnosed anxiety disorder, NOS. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c), (d)(3); 38 C.F.R. § 20.1103. If "new and material" evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "[N]ew evidence" means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components, first, that the new evidence pertains to the reason(s) for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. Id. at 118. The Veteran seeks to reopen the previously denied claim of service connection for PTSD. The claim was initially considered and denied by the RO in a March 2008 rating decision. The Veteran did not file a notice of disagreement with the decision, and no medical evidence was submitted within one year of the issuance of the decision. The Veteran did not perfect her appeal. The Veteran then filed to reopen a claim for PTSD in November 2010. The claim was denied in a January 2012 rating decision. The Veteran perfected the appeal and it is now before the Board. Since the March 2008 rating decision, additional evidence has been received in the form of VA treatment records, a VA examination, and a letter from the Veteran's private treating physician. The VA treatment records, VA examination, and letter from the Veteran's private treating physician are new because they have not been previously submitted. This evidence is also material because it pertains to the basis for the prior denial, that is, that the Veteran did not have a current mental health disability, and raises a reasonable possibility of substantiating the claim. Specifically, in a March 2010 letter a private psychologist indicated that the Veteran presented with Panic disorder but also noted the history suggested PTSD. VA treatment records include diagnoses of PTSD, depression and anxiety. Similarly, in the November 2011 VA examination, the Veteran was diagnosed with an anxiety disorder, NOS. For these reasons, the Board finds that new and material evidence has been received to reopen service connection for an acquired psychiatric disorder. See 38 C.F.R. § 3.156(a). When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216 (1995). This new evidence raises a reasonable possibility of substantiating the claim; thus, this evidence is new and material and the requirements to reopen the claim under 38 C.F.R. § 3.156(a) have been satisfied. Accordingly, the Board has determined that new and material evidence has been received to reopen service connection for acquired psychiatric disorder. II. Service Connection In June 2007, the Veteran filed a claim for service connection for PTSD, based on a personal assault. The Veteran reported two incidents of personal assault while in-service that she has stated resulted in the currently diagnosed anxiety disorder, NOS. First, he Veteran stated that at Ft. Benning, Georgia, she was sexually assaulted in February 1977. Second, the Veteran stated that her husband while, in service, a fellow soldier, was physically abusive. The Board finds the evidence is in relative equipoise and that service connection for an anxiety disorder, NOS, based on MST, is warranted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and an in-service stressor. Hostile criminal actions, such as the harassment and personal assault stressors alleged by a veteran are contemplated under the provisions of § 3.304(f)(5), which addresses evidentiary considerations where PTSD is alleged to have resulted from an in-service personal assault. Acevedo v. Shinseki, 25 Vet. App. 286 (2012). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). In cases involving personal assault, the existence of a stressor in service does not have to be proven by the "preponderance of the evidence" because this would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C.A. § 5107(b). YR v. West, 11 Vet. App. 393, 399 (1998); Patton v. West, 12 Vet. App. 272, 279-280 (1999). If a PTSD claim is based on 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 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. 38 C.F.R. § 3.304(f)(5). The Veteran claims an acquired psychiatric disorder, based on MST. On an October 2017 Statement in Support of Claim for PTSD, secondary to personal trauma, the Veteran listed two separate incidents that occurred while in service. First, she indicated she was attacked in her dormitory, where a man attempted to rape her but was unable to get her clothes off. Second, the Veteran indicated her husband while in service was abusive and that in November 1979, she suffered a broken nose and broken ribs. The Veteran's entrance examination is silent for any gynecological issues. On her exit examination, the Veteran indicated that during service, she experienced a change in her menstrual pattern. A November 1979 treatment note showed the Veteran sought treatment for a fractured nose. The Veteran indicated the injury occurred while boxing. December 1979 mental health treatment notes indicate the Veteran sought treatment for marital difficulties. In June 1980, the Veteran began experiencing fainting spells. In October 2007, the Veteran submitted a buddy statement from S.C., who indicated that the Veteran had reported her experience with the assault in her barracks to him. S.C. also reported the Veteran told him that her husband also attacked her and broke her nose. S.C. added that the Veteran has relayed these incidents multiple times. In March 2010, the Veteran's treating psychologist, R.H., submitted a letter in support of the claim. R.H. stated the Veteran presented initially with panic disorder but that her history also suggested PTSD and alcohol abuse related to a rape and an abusive spouse while in service. R. H. explained that over the time he worked with the Veteran he had not officially concluded she had PTSD in terms of billing but clarified that the treatment was focused in that direction because of the similarity in treatment for panic disorder and PTSD. R.H. added that the Veteran had intrusions from the past that she avoided with the rape being the primary traumatizing feature. October 2010 VA Mental Health Notes show the staff psychiatrist recommended the Veteran obtain treatment focused on survivors of MST. The Veteran was referred to a MST coordinator. An October 2010 PTSD checklist noted that the Veteran met DSM-IV PTSD Criteria B, C, and D and accordingly a PTSD diagnosis was suggested. A November 2010 report of a VA psychologist reflected a full mental status examination was performed and the psychologist concluded that she met the criteria for PTSD related to a single episode of MST. In November 2011, the Veteran underwent a VA examination to determine the etiology of any mental health disabilities. The Veteran reported anger, insomnia, and memory issues resulting from the in-service assaults. The VA examiner diagnosed the Veteran with anxiety disorder, NOS. The RO denied the claim in January 2012 and the Veteran filed a timely notice of disagreement. This appeal followed. In June 2017, the Veteran testified in support of her claim. The Veteran recounted the details of both the in-service sexual assault and her abusive marital relationship while in service. The Veteran testified that the broken nose she suffered in-service was caused by her husband at the time. The Veteran further testified that she feared there would be consequences for his career and hers, so she did not accurately report the cause of the incident. The Board notes that the Veteran is competent to report the circumstances of the assault she experienced in service because they are based on her own direct observations. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of her personal knowledge). Moreover, the Board finds these statements to be credible, as the Veteran has reported a consistent history of the in-service stressor in describing the stressor throughout the period on appeal. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (holding that as a finder of fact, the Board, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing). The Board finds convincing the reason she provided for wanting to deny the causes of her physical injuries sustained in service. Similarly, the August 2014 lay statement of record is both competent and credible. As noted above, there is little contemporaneous evidence available to verify the Veteran's stressors. However, the Board finds that the letter from R.H., the Veteran's treating psychologist, persuasive as to the existence of the Veteran's stressor. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that although "the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible."). Moreover, it is based on facts supported by the record as well as clinical findings at the examination and contains an adequate rationale. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek further examination to clarify and definitively opine on the nature and etiology of any current mental health disabilities. The Board could also order further development of the record and a more defined records search. However, under the law, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). In this case, although the VA examination concluded there was no diagnosis of PTSD, other records, including a VA treatment record from a psychologist reflected the Veteran met the DSM-IV criteria for PTSD. As this diagnosis was made by psychologist and even references the DSM, the Veteran has a current diagnosis during the appeal period. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997) (holding that mental health professionals making diagnoses 'are presumed to know the DSM requirements applicable to their practice and to have taken them into account.'). Furthermore, as explained above, the Board finds the evidence corroborates the Veteran's stressor. Lastly, the evidence links the current symptoms to service. In sum, the Board finds that the evidence of record is at least in relative equipoise. That is, there is at least an approximate balance of evidence both for and against the actual occurrence of the in-service stressor. Under such circumstances, all reasonable doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Because a diagnosis of an anxiety disorder, NOS has been offered, and because competent and credible supporting evidence that the in-service stressor occurred has been offered, service connection for an anxiety disorder, NOS is warranted. ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD C. Teague, Associate Counsel Copy mailed to: Disabled American Veterans Department of Veterans Affairs