Citation Nr: 1804565 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 15-01 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES Whether new and material evidence has been received to reopen a service-connection claim for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), and if so, whether service-connection for such disability may be granted. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Giaquinto, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1970 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) from a May 2014 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified before the undersigned at a videoconference hearing held at the RO in Phoenix, Arizona in October 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.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The RO denied the Veteran's application to reopen his service-connection claim for a psychiatric disability, to include PTSD, in a March 2006 rating decision. The Veteran did not appeal that determination, nor did he submit new and material evidence within one year. 2. The evidence received since the March 2006 rating decision relates to an unestablished fact necessary to substantiate his service-connection claim for an acquired psychiatric disability. 3. The evidence of record supports a finding that the Veteran has PTSD that is related to his period of service. CONCLUSIONS OF LAW 1. The March 2006 rating decision, as it relates to the Veteran's service-connection claim for a psychiatric disability, is final. 38 U.S.C. §§ 5108, 7105 (West 2012); 38 C.F.R. §§ 3.156, 20.1103 (2017). 2. As new and material evidence has been received, the claim for service connection for a psychiatric disability is reopened. 38 U.S.C.A. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 3. PTSD was incurred in active service. 38 U.S.C. §§ 5107, 1110 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence The RO last denied the Veteran's application to reopen his service-connection claim for a psychiatric disability, to include PTSD, in a March 2006 rating decision. The application was denied in pertinent part because the Veteran had not submitted evidence demonstrating a verified stressor. The Veteran did not appeal that determination, nor did he submit new and material evidence within one year. As such, the rating decision became final. Evidence submitted since the last final denial includes an assessment from the Veteran's VA psychiatrist, Dr. C.W.A., who in a July 10, 2015 VA psychiatry note indicated that the Veteran's claimed stressor (in-service military sexual trauma) was indeed "plausible and consistent, which lends it credibility," and that it was his professional opinion that the Veteran's reported military sexual trauma is the proximate cause of his current PTSD. This medical opinion evidence relates to a potential relationship between the Veteran's current PTSD and his claimed stressor, and, as described below serves to corroborate the Veteran's stressor-both unestablished facts necessary to substantiate his service-connection claim. The evidence is new, material and serves to reopen the Veteran's service-connection claim under 38 C.F.R. § 3.156(a). II. Service Connection The Veteran claims entitlement to service connection for an acquired psychiatric disability, to include PTSD. In particular the Veteran asserts he has PTSD that is directly related to an in-service sexual assault. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. § 3.303. Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). To establish service connection a claimant must generally 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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In particular, establishment of service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the condition, (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2017). Where a PTSD claim is based on an in-service personal assault, credible supporting evidence that the claimed stressor actually occurred is still required. Significantly however, evidence from sources other than the Veteran's service records may corroborate the 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); see also Patton v. West, 12 Vet. App. 272 (1999). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In this case, since 1994, the record has shown a diagnosis of PTSD. The Veteran's claim has continued to be denied however based on a finding that his claimed in-service stressor has not been verified. The Veteran reports being accused of stealing a fellow servicemember's wallet during service, and as punishment, he was sentenced to three days of confinement in a small cell on the ship with a diet of only bread and water. During his confinement, he claims that he was guarded by three men who forced him to be nude, verbally abused him, and requested sexual favors. Eventually, he claims, two of them held him down while the third sodomized him. Service treatment records verify that in July 1970, the Veteran was indeed punished with confinement and bread and water for three days. There is no record of any sexual assault. The record also shows that in February 1971, the Veteran requested to see a psychiatrist, but the request was never fulfilled. The Veteran claims that, as a result of the alleged assault, he began using drugs as a means of escape. Records indicate that the Veteran used alcohol and marijuana as a teenager, prior to service, but that his drug use escalated during service to include LSD, mescaline, acid, and speed. The Veteran has also stated that he began using heroin and opium while in service. Personnel records show that the Veteran was given an early discharge, related to his drug abuse. In a June 1971 statement supporting his request for discharge, he reported that drug use was a tool to escape life in the Navy, and that if he were to continue to serve in the Navy, he would need to continue to use drugs. The Veteran first reported his stressor to VA in 1982. He testified under oath at the October 2017 hearing that prior to that point, he told no one about this assault except his father out of fear, and that he dealt with the trauma by abusing drugs. Since separation from service, the Veteran has been treated numerous times for drug addiction. He has entered drug rehabilitation on dozens of occasions. In a July 2002 statement, he claimed that he had been experiencing flashbacks and nightmares for 30 years and had medicated himself with hard narcotics and alcohol. Notably, a March 1994 VA examiner diagnosed the Veteran with PTSD upon examination, noting that "if the Veteran's report is accurate he was exposed to severe traumatic events [in service]" including abuse in the brig. Most recently, the Veteran's VA psychiatrist, Dr. C.W.A. noted the following in a July 10, 2015 VA treatment report: While I have no reasonable means of verifying his traumas, [the Veteran's] history is plausible and consistent, which lends it credibility. Despite treatment with which he has been compliant, the Veteran remains severely impaired in occupational and social functioning, i.e., has not been able to work in some time and is socially isolated at present. In my professional opinion, the Veteran's reported military sexual trauma is the proximate cause of his current PTSD which resulted in his inability to work and form relationships. Dr. C.W.A. noted that the Veteran exhibited intrusion symptoms, avoidance symptoms, negative alterations in mood, and hyperarousal. He noted that one may conceptualize the Veteran's extensive substance use history as attempts to avoid memories of, and feelings from the military sexual trauma. Subsequent VA assessments include "PTSD (MST), chronic." See an August 24, 2015 VA treatment report from Dr. C.W.A. The Veteran is competent to attest to his own in-service observations and experiences, to include the circumstances of his claimed sexual assault. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). Although the Veteran's service records include no documentation of any in-service assault and/or mental health disability symptomatology, the Board finds that this does not diminish the Veteran's account of in-service sexual trauma. The Veteran has made clear through is testimony in October 2017 that he was afraid of mentioning the assault in service for fear of retaliation and fear of revealing that part about his history. Further, with respect to in-service personal assault in particular, 38 C.F.R. § 3.304(f)(5) indicates that evidence of behavioral changes from sources other than the Veteran's service records may corroborate the account of the stressor incident. As discussed above, the Veteran's service treatment records document that the Veteran sought treatment from a psychiatrist in February 1971, just months after the alleged assault, and experienced escalating drug use during his military service leading to his discharge. The Veteran's stated stressor has been consistent since he first started talking about it in the early 1980s, and a 1994 VA examiner diagnosed PTSD based on this claimed stressor. The Board notes that 38 C.F.R. § 3.304(f)(5) allows for VA to 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. This is in essence what Dr. C.W.A. provided when he determined upon review of the record, interview of the Veteran, testing and treatment that the Veteran's claimed sexual assault stressor was not only possible, but "plausible and credible" from a medical perspective. Dr. C.W.A. then stated it was his professional opinion the Veteran's claims in-service stressor is the proximate cause of his current PTSD. In light of this corroborative evidence, the Board resolves all doubt in the Veteran's favor and finds the Veteran's in-service stressor to be corroborated. See 38 C.F.R. § 3.102 (2017). The medical opinion evidence from Dr. C.W.A. is consistent with that of the March 1994 VA examiner, and serves to link the Veteran's current PTSD disability with the Veteran's stressor. There are no medical opinions of record that specifically contradict the favorable nexus evidence noted above. Thus, all elements for the award of service connection for an acquired psychiatric disorder, to include PTSD are satisfied. See 38 C.F.R. §§ 3.303, 3.304(f) (2017). The benefit sought on appeal is granted. ORDER The claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD is reopened. Service connection for an acquired psychiatric disability, to include PTSD, is granted. ____________________________________________ V. Chiappetta Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs