Citation Nr: 1802119	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  13-07 564	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUES

1. Entitlement to service connection for posttraumatic stress disorder (PTSD), to include as due to military sexual trauma (MST).

2. Whether new and material evidence has been received to reopen the claim of service connection for a left shoulder disorder.

3. Whether the new and material evidence has been received to reopen the claim of service connection for a low back disorder, to include as secondary to a left shoulder disorder.

4. Entitlement to service connection for a left shoulder disorder.

5. Entitlement to service connection for a low back disorder. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans
WITNESSES AT HEARING ON APPEAL

The Veteran and the Veteran's Wife


ATTORNEY FOR THE BOARD

M. Thompson, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Navy from April 1979 to May 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. Jurisdiction has subsequently been transferred to the RO in Boise, Idaho. 

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in October 2017. A transcript of that hearing has been associated with the claims file.  

The issues of entitlement to service connection for a left shoulder disorder and entitlement to service connection for a low back disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The stressor event of military sexual trauma (MST) occurred during active duty service. 

2. The Veteran is diagnosed with PTSD that is the result of MST.

3. In a January 1991 rating decision, service connection for a left shoulder disorder was denied. 

4. In a January 1991 rating decision, service connection for a low back disorder was denied. 

5. The evidence associated with the claims file subsequent to the January 1991 denial relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the Veteran's claim for service connection for a left shoulder disorder. 

6. The evidence associated with the claims file subsequent to the January 1991 denial relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the Veteran's claim for service connection for a low back disorder.


CONCLUSIONS OF LAW

1. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (f) (2017).

2. The January 1991 rating decision denying the Veteran's claim of entitlement to service connection for a left shoulder disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.1103 (2017). 

3. The January 1991 rating decision denying the Veteran's claim of entitlement to service connection for a low back disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.1103 (2017).
4. New and material evidence has been received to reopen the claim of entitlement to service connection for a left shoulder disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 

5. New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

Neither the Veteran nor his attorney has 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 a duty to assist argument).

II. Service Connection for PTSD

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). 

In addition, service connection for certain chronic diseases, including psychoses, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303 (d) (2017).

In order to establish service connection for PTSD, the evidence of record must include a medical diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f) (2017).

At the outset, the Board is mindful that veterans claiming service connection for PTSD due to personal assault (MST) face unique problems documenting their claims. Since assault is an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, and victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. See Proposed Rule, PTSD Based on Personal Assault, 65 Fed. Reg. 61,132 (Oct. 16, 2000) ("Many incidents of in-service personal assault are not officially reported, and veterans may find it difficult to produce evidence to prove the occurrence of this type of stressor"). 

Accordingly, the regulations governing PTSD provide that where a claim is based on an 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) (2017).

Unlike in other PTSD claims, in PTSD claims based on personal assault, an after-the-fact medical opinion can serve as credible supporting evidence of the stressor. See Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011). 

In cases involving an allegation that PTSD is connected to personal assault, the Federal Circuit has held that "the absence of a service record documenting an unreported sexual assault is not pertinent evidence that the sexual assault did not occur." AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (purpose of Federal Rule of Evidence 803 does not apply because most people do not report personal assaults).

The Veteran contends that he suffers from PTSD incurred in service. Specifically, the Veteran alleges that he was the victim of MST while on active duty.

According to his service treatment records (STRs), the Veteran was found to have no psychiatric disorders at enlistment or separation from service. Although the Veteran was administratively discharged from service for a personality disorder, there is no documentation of diminished performance. In fact the Veteran was regularly rated as superior in his performance evaluations. The STRs do not include reports or symptoms of MST. 

During active service, the Veteran reported in his STRs an increase in drug and substance abuse in 1980. Specifically, in November 1980 the Veteran sought treatment because he began experiencing "bad trips, insomnia, and over-dosing." The Veteran admitted to alcohol and drug abuse prior to enlisting. In April 1988 he reported a long history of drug and alcohol abuse that started when he was 13 years old; however, his heaviest period of use was from 1981 to 1983. 

In a March 2011 lay statement the Veteran's mother-in law stated that the Veteran told her about his experience of MST. She stated that she encouraged him to seek treatment. 

In a May 2011 lay statement the Veteran's wife stated that that the Veteran told her about his MST in 1983. The Veteran's wife describes the Veteran as having mood swings, issues with anger, and as suffering from alcohol abuse as a result of the MST. She further stated that she has observed the Veteran have distrust of and conflict with male supervisors since separation from service. She believes this conflict results from MST by the Veteran's superior officer. She stated that the Veteran began seeking treatment in 1987. 

On a November 2012 VA mental disorder examination the Veteran reported the MST to the examiner. The examiner found that the Veteran suffered from PTSD if the MST stressor were verified. Private treatment records from Dr. E.S. from October 2011 to March 2013 similarly report a diagnosis of PTSD.  

At the October 2017 hearing, the Veteran stated that after the MST, he asked his Master Chief for help because he started drinking. The Veteran's wife stated that the Veteran told her about his MST prior to their marriage in 1983. She also stated that she observed the Veteran to have a fear of male supervisors in the Navy and after separation. She also observed that he was abusing alcohol during that time. 

Upon careful review of the record, the Board finds that entitlement to service connection for PTSD is warranted. First, there is sufficient evidence to conclude the Veteran has a current diagnosis of PTSD. The November 2012 VA examiner found the Veteran to have a diagnosis of PTSD if the MST stressor was verified, and a private treatment provider has similarly diagnosed the Veteran with PTSD.  

Second, the Board finds that the Veteran's account of the in-service sexual assault is credible. The Veteran reported an increase in his alcohol abuse as a result of the MST. The Veteran and his wife testified to an increase in the Veteran's drinking, and STRs document an increase in his alcohol abuse in 1980 to 1981. And the Veteran's mother-in-law was instrumental in the Veteran seeking treatment in 1987. The Board finds the documented increase in alcohol and drug consumption during service corroborates the Veteran's version of events, and the Board finds the Veteran to be credible. Accordingly, there is sufficient, credible evidence that the Veteran was sexually assaulted in service. 

Finally, the November 2012 VA examiner assessed that the Veteran has PTSD if the in-service MST stressor were verified. The Board finds the November 2012 VA examination to be adequate, as the psychiatrist elicited a detailed history from the Veteran. Further, the Board has found the Veteran's report of the in-service assault to be credible. The Board thus finds that the preponderance of the medical evidence supports the conclusion that the diagnosed PTSD is etiologically related to in-service sexual assault. The Board concludes that the preponderance of the evidence supports a finding that the Veteran's current PTSD resulted from MST. Entitlement to service connection for PTSD is warranted. 38 U.S.C. 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

III. 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 (2012); 38 C.F.R. § 3.156 (2017). 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) (2017).

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 received 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 decision to be made if evidence is new and material. 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 holds 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. 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 contends that his claims for service connection for a left shoulder disorder and a low back disorder should be reopened. The RO denied both claims in a January 1991 rating decision on the basis that the Veteran had no diagnosed left shoulder or low back disorder. The Veteran filed a Notice of Disagreement (NOD) for the left shoulder disorder in February 1991 and a Statement of the Case (SOC) was issued by the RO in February 1991. The Veteran did not seek any further appeal of the left shoulder disorder. 

In October 2017 the Veteran testified at a Board hearing. According to the Veteran, he has a current diagnosis for a left shoulder disorder and a low back disorder from private treatment providers. The Veteran stated that he hurt his shoulder, neck and back in 1987 while working in the Navy commissary warehouse. The Veteran stated that he received treatment at a local hospital soon after the injury and was reassigned from operating the forklift after injury. The Veteran stated that he first sought treatment for his shoulder and back in 1994. The Veteran asserted that a chiropractor in 2004 or 2006 linked the Veteran's injury in the warehouse during service to his post service shoulder and back pain and treatment, but he was unable to provide the name of the private treatment facilities or doctors from the 1994, 2004 or 2006 records. The Veteran stated that he is in pain if he does not take his pain medication and that he has experienced constant pain in the shoulder and back since his initial injuries in service. 

The Veteran's wife also testified at the Board hearing, stating that when the Veteran was in service he had severe muscle spasms at home that required her to call an ambulance for the Veteran to receive treatment at a local hospital. The Veteran was prescribed medication for pain and was sent home by the Navy on light duty. She stated that at times the Veteran is unable to raise his shoulder. She also recalled the Veteran being diagnosed with an acromioclavicular (AC) joint separation of his shoulder while in service. She observed that the Veteran would be able to work for months without any issues with his shoulder and back, but then he would have times when he would need to be home to lay down.  

A June 2007 private treatment record x-ray indicated that the Veteran had degenerative changes of the cervical spine. A May 2008 magnetic resonance imaging (MRI) in a private treatment record indicated that the Veteran had multilevel spondylosis of the cervical spine. A September 2009 MRI in a private treatment record from Dr. S.K.S. found the Veteran to have multilevel degenerative disc disease of the cervical spine. An October 2009 MRI in a private treatment record from Dr. S.K.S. found the Veteran to have right and left paracentral disc protrusion. The MRI found mild features of degenerative disc disease (DDD) in the mid thoracic spine. An April 2010 private treatment record from Dr. S.K.S found the Veteran to have a left shoulder impingement with a history of left AC joint separation. On the November 2012 VA examination, the examiner found that the Veteran had a diagnosis of DDD of the lumbar spine and AC degenerative joint disease (DJD) of the left shoulder. 

Upon review of the record, the Board finds that new and material evidence has been received. In the October 2017 hearing, the Veteran established that he has a current diagnosis for his left shoulder disorder and a low back disorder. Further, the private treatment records and the SSA records show that the Veteran has a current diagnosis for a left shoulder and low back disorder. Further, the Veteran and his wife testified that the Veteran has experienced symptoms of his left shoulder and low back disorders since injury in service. 

Hence, the requirements to reopen the claims have been met, and the claims must be reopened. 


ORDER

Entitlement to service connection for PTSD is granted. 

New and material evidence having been presented, the claim for service connection for a left shoulder disorder is reopened.

New and material evidence having been presented, the claim for service connection for a low back disorder is reopened. 


REMAND

Remand is necessary to secure outstanding relevant private treatment records and an adequate VA opinion or, if necessary, a new examination. When VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 

The Board finds that the evidence is insufficient for further adjudication. VA medical opinions regarding the Veteran's back and left shoulder were obtained in November 2012; however, the examiner did not consider the Veteran's lay statements regarding the in-service injury and subsequent symptoms since service. Furthermore, the November 2012 VA opinion did not adequately address the Veteran's secondary service connection claim, that his low back disorder is secondary to the left shoulder disorder. Therefore, an addendum opinion is necessary. 

Accordingly, the case is REMANDED for the following action:

1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative.  

2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative.

3. Following completion of the above, obtain an addendum opinion from a qualified VA medical professional to determine the etiology of the Veteran's left shoulder disorder and low back disorder. The claims folder must be made available to the examiner for review in connection with the examination, and the examiner must acknowledge such review in the examination report. If the examiner finds that further examination is necessary to answer the questions posed, the Veteran must be scheduled for a new VA examination. 

Left Shoulder Disorder - The examiner must:

Provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the left shoulder disorder was caused or aggravated by the Veteran's military service. 

If there is a medical finding that the Veteran has arthritis of the left shoulder, provide a medical opinion as to whether it is at least as likely as not (50 percent or greater probability) that such arthritis manifested within one year of separation from active service in May 1990. 

The examiner must discuss the Veteran's and his wife's credible contentions of ongoing left shoulder pain since service. 

Low Back Disorder - The examiner must:

(a) Provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the low back disorder was caused or aggravated by the Veteran's military service. 

If there is a medical finding that the Veteran has arthritis of the low back, provide a medical opinion as to whether it is at least as likely as not (50 percent or greater probability) that such arthritis manifested within one year of separation from active service in May 1990. 

The examiner must discuss the Veteran's and his wife's credible contentions on ongoing low back pain since service. 

(b) If the answer to question (a) is "No," then the examiner must provide an opinion as to whether it is at least as likely as not that the low back disorder is proximately due to or the result of the Veteran's left shoulder disorder. 

(c) If the answer to question (b) is "No," then the examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's left shoulder disorder aggravated the low back disorder. In this context, "aggravation" has occurred when it has been medically determined that the claimed condition has undergone an identifiable permanent increase in severity that was proximately due to or the result of the left shoulder disorder.

A complete rationale must be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, he or she should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided.

The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. If his reports are discounted, the examiner should provide a reason for doing so.

4. Review the examination report to ensure that it is in compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 

5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The Veteran 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 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. §§ 5109B, 7112 (2012).




______________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs