Citation Nr: 1801493 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 11-14 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. 3. Entitlement to service connection for migraine headaches, to include as secondary to PTSD. 4. Entitlement to service connection for type II diabetes mellitus, to include as secondary to PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Noh, Associate Counsel INTRODUCTION The Veteran had active military service from October 1973 to November 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before the undersigned Veterans Law Judge at a video conference hearing in October 2017. A transcript of the hearing has been associated with the claims file. The issues of entitlement to service connection for migraine headaches, to include as secondary to PTSD, and entitlement to service connection for diabetes mellitus, to include as secondary to PTSD, are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ). FINDINGS OF FACT 1. A July 2001 rating decision denied service connection for PTSD. The Veteran was notified of her rights but did not appeal or submit new and material evidence during the appellate period, and that decision became final. 2. The evidence associated with the claims file subsequent to the July 2001 rating decision is neither cumulative nor redundant of the evidence already of record, and raises a reasonable possibility of substantiating the Veteran's claim. 3. The Veteran's PTSD is causally or etiologically related to in-service stressors. CONCLUSIONS OF LAW 1. The July 2001 rating decision is final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence sufficient to reopen the claim of service connection for PTSD has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence As a general rule, a previously denied claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. 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 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). The submission of new and material evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d at 1384; Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156(a), does not create a third element in the reopening process, but is a component of the question of what is new and material evidence, rather than a separate determination to be made if evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen). Shade further held that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim." Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510 (1992). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Once evidence is deemed new and material, the Board can proceed to review the claim based on the merits and the entire evidence of record. The Veteran's claim for service connection for PTSD was denied in July 2001 because there was no evidence corroborating her report of a personal assault in service. Evidence associated with the file since the 2001 denial includes, in pertinent part, report of a July 2008 VA examination and the Veteran's testimony at the October 2017 hearing. At the July 2008 examination, the Veteran described an abusive relationship she was in during service, including an assault that caused a concussion. She also described witnessing her barracks-mates engaging in sexual acts, which she reported, causing fear of retribution. The examiner diagnosed the Veteran with PTSD that she found to be at least as likely as not related to the described in-service stressors. At the October 2017 hearing, the Veteran contended that her PTSD is caused by or related to her active service. The Veteran recounted the time when she witnessed an "orgy" in her barracks. The Veteran was shocked and reported it to her Chief as she did not feel secure or comfortable in her sleeping quarters. The Veteran reported that she slept in the recreation room fully dressed and sitting in a chair while her request to be removed from base was waiting approval. Once approved, the Veteran moved off base. However, shortly thereafter, she was again assigned to work at the barracks with the women that she reported. The Veteran testified that she felt scared and unsafe. Not only did the Veteran feel unsafe at her work station, she also felt unsafe at home as she was involved in an abusive relationship. The Veteran stated that she was physically and mentally abused by her boyfriend that resulted in injuring her head at least twice. Upon review of the record, the Board finds that the testimony presented at the October 2017 hearing and the July 2008 VA examination constitutes new and material evidence. Specifically, the Board finds the Veteran competent to describe her in-service stressors and finds that the in-service medical records corroborate her testimony. The Board also notes that the July 2008 VA examination determined that the Veteran's PTSD is likely causally related to her in-service stressors. As such, the Veteran's testimony and the July 2008 VA examination relate to an unestablished fact necessary to substantiate the claim for service connection for PTSD. Accordingly, new and material evidence has been received, and the claim for entitlement to service connection for PTSD is reopened. II. Service Connection Generally, to establish service connection for PTSD a Veteran must show: (1) a current diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a causal relationship between the present disability and the in-service stressor. 38 C.F.R. §§ 3.304(f)(1), 4.125(a). In PTSD claims predicated on a personal assault, 38 C.F.R. § 3.304(f)(5) provides that PTSD based on a personal assault in service permits evidence from sources other than the 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). It is important to note that, for personal assault PTSD claims, an after-the-fact medical opinion can also serve as the credible supporting evidence of the reported stressor. Patton v. West, 12 Vet. App. 272, 280 (1999). As an initial matter, during the course of the appeal the regulations pertaining to psychiatric disorders were amended. See 79 Fed. Reg. 45,093 (August 4, 2014) (effective August 4, 2014). Specifically, the regulations were updated so that all psychiatric diagnoses must be in conformity with diagnostic criteria in the DSM-5, as opposed to the DSM-IV. Id. However, the regulation states that it was not the intent of the Secretary to have the rule change apply to cases that had been certified to or were pending before the Board at the time of the change. Id. As the Veteran's claim was pending before the Board prior to August 4, 2014, whether the Veteran has a diagnosis of PTSD will be determined based on the criteria in the DSM-IV. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). At the outset, the Board finds the Veteran has a current diagnosis of PTSD, as assigned by the July 2008 VA examiner. As such, the first element of service connection is met. The Board also finds that the Veteran has presented credible supporting evidence that in-service stressors occurred. The Veteran has reported that she witnessed her barracks-mates engaging in sexual acts in her barracks room. She stated that she was stunned and horrified and extremely frightened. She reported the incident to her Chief and was subsequently was approved to move off the base. However, the Veteran was then assigned to a work detail in the same barracks with the women that she reported. During her detail, a wooden locker fell on her. The Veteran continues to have nightmares of this incident as she felt that the detail was a form of retaliation for reporting the incident. The Veteran also reported that she was in an abusive relationship during service with a partner who physically and mentally abused her. In particular, the Veteran reported that she was hit in the head couple of times. The Veteran has also stated that her son was a product of rape. The Veteran did not report the abuse to her chain of command because they never did anything about the previous incident. Due to these stressors, the Veteran experienced depressed mood, insomnia, fatigue, and feelings of worthlessness and hopelessness. A review of the service treatment records confirms that the Veteran was treated for multiple head injuries during service. Further, the Veteran was diagnosed with passive dependent personality and passive-aggressive personality and was honorably discharged for unsuitability due to character and behavior disorder. The Board finds that the request for a transfer to move off base, deterioration in work performance, and a sudden diagnosis of passive-aggressive personality weighs in favor of a finding that her reported in-service stressors occurred. Moreover, the Board finds that there is no clear and convincing evidence contradicting the Veteran's statement. As such, the Board concedes the occurrence of the Veteran's reported in-service stressors. Accordingly, the second element of service connection has been met. What remains for consideration is whether the Veteran's PTSD is related to her in-service stressors. In the July 2008 VA examination, the examiner found that the Veteran's PTSD was causally related to her in-service stressors. At the examination, the Veteran exhibited flat affect, anxious and depressed mood, and attention disturbance. The Veteran described her life without any enjoyment, trust, or activities due to not wanting to be with other people or feeling anxious around people. The Veteran reported that she has persistent re-experiencing of the traumatic events. Based on the records and the examination, the examiner diagnosed the Veteran with mild PTSD, which she opined is more likely than not due to or a result of military sexual trauma, as the Veteran exhibited PTSD symptoms during service and continued to exhibit worsening symptoms post-service. The Board gives great weight to the examiner's opinion and finds the final element of service connection has been met. In conclusion, the Board finds that the Veteran has a current diagnosis of PTSD, and the medical evidence shows that the Veteran's PTSD is causally related to her conceded in-service stressors. The Board thus finds that service connection for PTSD is warranted. 38 C.F.R. §§ 3.102, 3.303, 3.304. ORDER New and material evidence having been received, the claim for service connection for PTSD is reopened. Entitlement to service connection for PTSD is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND The Board's review of the claims file reveals that further AOJ action on the claims of entitlement to service connection for migraine headaches and diabetes mellitus, all to include as secondary to service-connected PTSD, is warranted. As stated above, the Board finds that the Veteran's testimony is credible and finds that there is evidence of in-service stressors that resulted in the Veteran's PTSD. The July 2008 VA examination did not address the Veteran's claims of migraine headaches and diabetes mellitus, all to include as secondary to PTSD. Therefore, the Board finds that a remand is necessary to obtain a new examination based on a full reading of the medical record and consideration of the Veteran's testimony and contentions. The Veteran is hereby notified that it is her responsibility to report for an examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. Accordingly, the case is REMANDED for the following action: 1. Obtain a new VA examination from an appropriate medical professional. The electronic claims file must be made available to be reviewed by the examiner, and a note that it was reviewed should be included in the report. Migraine headaches-After examining the Veteran and reviewing the claims file, the reviewer must provide an opinion as to whether it is at least as likely as not (a fifty percent probability or greater) the Veteran's migraine headaches had their onset in service or are otherwise related to service. In rendering this conclusion, the examiner must specifically discuss the in-service treatment records of headaches with nausea, vomiting, and aurora, as well as the effects of multiple head injuries sustained by the Veteran during service, in particular the time when a large locker fell on top of her and the time when a fall resulted in a concussion. The examiner must also provide an opinion as to whether it is at least as likely as not (a fifty percent probability or greater) that the Veteran's migraine headaches were caused by her service-connected PTSD. The examiner must also provide an opinion as to whether it is at least as likely as not that the Veteran's migraine headaches were aggravated (permanently worsened beyond the natural progress of the disorder) by her service-connected PTSD. If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the migraine headaches by PTSD. A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Diabetes mellitus-After examining the Veteran and reviewing the claims file, the reviewer must provide a diagnosis for the Veteran's current diabetes mellitus and determine if it is at least as likely as not (a fifty percent probability or greater) that the Veteran's diabetes mellitus had its onset in service or is otherwise related to service. The examiner must also provide an opinion as to whether it is at least as likely as not (a fifty percent probability or greater) that the Veteran's diabetes mellitus was caused by her service-connected PTSD. In rendering this conclusion, the examiner must specifically discuss the Veteran's contentions that her treatment for PTSD (Seroquel) caused her diabetes mellitus. The examiner must also provide an opinion as to whether it is at least as likely as not that the Veteran's diabetes mellitus was aggravated (permanently worsened beyond the natural progress of the disorder) by her service-connected PTSD. In rendering this conclusion, the examiner must specifically discuss the Veteran's contentions that her treatment for PTSD (Seroquel) aggravated her diabetes mellitus. If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the diabetes mellitus by PTSD. A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. Thereafter, readjudicate the issues of entitlement to service connection for migraine headaches and diabetes mellitus, all to include as secondary to PTSD. If the determination remains unfavorable to the Veteran, she and her representative should be furnished a supplemental statement of the case. The Veteran and her representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the 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 those 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. §§ 5109B, 7112 (2012). ______________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs