Citation Nr: 18141025 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 14-44 291 DATE: October 9, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder, to include major depression, is reopened. Entitlement to service connection for an acquired psychiatric disorder, to include major depression due to military sexual trauma, is granted. FINDINGS OF FACT 1. A June 2010 rating decision denied the Veteran’s claim of entitlement to service connection for major depression; the Veteran did not timely appeal the denial, nor did he submit additional evidence for consideration within one year. 2. Evidence received since the June 2010 rating decision is not cumulative or redundant of the evidence of record, relates to unestablished facts, and raises a reasonable possibility of substantiating the claim. 3. The Veteran likely experienced a military sexual trauma during active service. 4. Affording the Veteran the benefit of the doubt, his present acquired psychiatric disorder, to include major depression, is as likely as not linked to his military sexual trauma. CONCLUSIONS OF LAW 1. The June 2010 rating decision is final. 38 U.S.C. 5108, 7104, 7105; 38 C.F.R. 3.156, 20.1100. 2. New and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include major depression. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include major depression due to military sexual trauma, have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from December 1978 to November 1982. On the December 2014 VA Form 9, the Veteran requested a hearing. He withdrew his hearing request in a subsequent September 2016 correspondence. New and Material Evidence In general, RO decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.200. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. “New” evidence is existing evidence not previously submitted to agency decision makers. “Material” evidence is 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 can be neither cumulative nor redundant of the evidence of record at the time of the last prior 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). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran’s compensation claim for major depression was originally denied in an August 2007 rating decision. Subsequent rating decisions from February 2009 and, most recently, from June 2010 confirmed the denial of service connection due to a failure to submit new and material evidence. The Veteran was notified of the June 2010 denial but did not appeal or submit evidence within the one-year appeal period. Therefore, that decision became final. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. This is the most recent final rating decision. At the time of the June 2010 rating decision, the regional office considered the Veteran’s service treatment records and VA treatment records. The denial was based on the lack of new and material evidence sufficient to reopen the claim. At the time of the original August 2007 denial, there was no evidence of an in-service event, injury, or disease. Since the June 2010 rating decision, the Veteran has submitted several lay statements, including one detailing an experience of military sexual trauma while in service, and two statements from psychiatric treatment providers linking this trauma to his currently diagnosed acquired psychiatric disorders. This evidence is new, material to a previously unestablished fact, and raises a reasonable possibility of substantiating the claim. Boggs v. Peake, 520 F.3d 1330 (2008). Therefore, this claim is reopened. Entitlement to service connection for an acquired psychiatric disorder, to include major depression due to military sexual trauma The Veteran is seeking entitlement to service connection for an acquired psychiatric disorder to include major depression. He maintains that a sexual assault while in service is the precipitating cause of his acquired psychiatric disorder. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board finds that the evidence of record supports a grant of service connection for an acquired psychiatric disorder, to include depression, due to military sexual trauma. First, there is evidence of a current disability. The record reflects that the Veteran has a current diagnosis of depression. Second, there is evidence of an in-service event, disease, or injury, as the Veteran has provided a competent and credible lay statement regarding military sexual trauma during service. The Veteran maintains that he was drugged and sexually assaulted in active duty service during or near the summer of 1982. While his service treatment records do not specifically detail the assault, they do indicate that his squadron sent him for psychiatric and substance abuse evaluation and treatment in July and August of 1982. Further, military personnel records indicate that the Veteran did very well in his position from enlistment until about mid-1982, when his performance evaluation labeled him as a “highly emotional individual who intermittently required close supervision…” and needed “to put forth more effort towards controlling his emotions.” No prior evaluations indicated any similar issues with the Veteran’s temperament. In November 1982, the Veteran was discharged under honorable conditions; however, the reason given for his discharge was unsatisfactory performance. There was a marked decline in both his mental health and job performance, which the Board finds to be probative evidence that an event occurred in service that severely impacted the Veteran. The Board also notes that letters submitted from two of the Veteran’s mental health treatment providers reflect a sincere belief that he did in fact experience a military sexual trauma; there is no evidence of exaggeration or malingering on the Veteran’s part in any of his medical treatment records. Third, the Board finds that there is evidence of a relationship between the Veteran’s currently diagnosed depression and the in-service military sexual trauma. He submitted letters from two of his mental health providers. The first letter was from the Veteran’s treating psychotherapist at a VA in-patient mental health center. She indicated that the Veteran had struggled with depression and anxiety for several years which could be attributed to demoralization in the military and to the military sexual trauma he experienced. She noted that his depression had become so severe that he had attempted suicide on numerous occasions, had nightmares related to the sexual trauma, had difficulty trusting others, actively avoided triggers/reminders of the trauma, had ongoing feelings of shame in guilt, felt a lack of interest in activities of daily life, negative feelings about himself and the world around him, and struggled with hypervigilance and chronic insomnia. The second letter was from a clinical social worker who worked with the Veteran. She wrote that the Veteran struggled with trust issues and rarely disclosed his military sexual trauma to anyone, including his treatment providers, but after working to build a strong rapport, he had revealed it to her. She noted that she had significant experience working with Veterans with military sexual trauma and, in her professional opinion, found that the Veteran undoubtedly struggled with issues such as depression, numbness, detachedness, insecurity, loneliness, nightmares, distrustfulness, and guilt and shame due to the trauma. Additionally, she wrote that his well-documented struggles with drugs and alcohol were a way to cope with his intrusive memories. She concluded that the Veteran should continue treatment and should be compensated in such a way to recognize and validate the impact of his military sexual trauma on his life. The Board finds that these letters are of significant probative value. In rendering their opinions, the Veteran’s psychotherapist and clinical social worker relied on their personal knowledge of the Veteran’s case, and on their expertise, knowledge, and training assisting Veteran’s as they navigate issues related to military sexual trauma. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran’s favor, a grant of service connection for an acquired psychiatric disorder, to include depression, due to military sexual trauma, is warranted. See Gilbert v. Derwinski, 1 Vet. App. 48, 55 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Bush