Citation Nr: 18144738 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-12 437 DATE: October 25, 2018 ORDER New and material evidence to reopen a claim of service connection for post traumatic stress disorder (PTSD) has been presented; to this extent, the appeal is granted. FINDINGS OF FACT 1. In a February 2006 rating decision, the RO denied the Veteran’s claim of service connection for post traumatic stress disorder. In a letter dated in the same month, the RO notified her of the determination and of her appellate rights and she filed a timely notice of disagreement. After the July 2006 statement of the case, she did not perfect the appeal and the decision became final. 2. The evidence received since the February 2006 rating decision is not duplicative or cumulative of evidence previously of record and raises a possibility of substantiating the Veteran’s claim of entitlement to service connection for post traumatic stress disorder. CONCLUSIONS OF LAW 1. The February 2006 rating decision that denied service connection for post traumatic stress disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for post traumatic stress disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Rating actions are final and binding based on evidence on file at the time the Veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The Veteran has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302(a). Where a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented as to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In making the determination of whether new and material evidence has been submitted to reopen the previously denied claim, the Board must review all the evidence submitted since the last final decision. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 final denial of the claim sought to be reopened. 38 C.F.R. § 3.156(a). The regulatory requirement that the new evidence must raise a reasonable possibility of substantiating the claim “must be read as creating a low threshold.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to why the claim was last denied. Id. at 118. Rather, VA should ask whether the newly submitted evidence, combined with VA assistance and considering alternative theories of entitlement, can reasonably substantiate the claim. Id. Newly submitted evidence is presumed to be credible for the purpose of determining whether evidence is sufficiently new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A February 2006 rating action denied service connection for post traumatic stress disorder. The Veteran filed an NOD with the February 2006 rating decision in March 2006; however, after the July 2006 statement of the case (SOC) was issued, she did not perfect the appeal and the decision became final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. § 20.1105 (2017). Evidence submitted since the February 2006 rating decision includes the VA Form 9 containing a statement from the Veteran that she believes her PTSD started when she was assigned to security tech and then was subsequently assigned to medical tech. This evidence indicates a behavioral change that could support the assertion that the claimed in service stressor occurred. Other new and relevant evidence includes treatment records that indicate possible current diagnosis of PTSD. These were not previously submitted to agency decisionmakers, are not duplicative or cumulative of evidence previously of record, and raise a reasonable possibility of substantiating the claim. These are therefore new and material. The Board reopens the Veteran’s claim of entitlement to service connection for post traumatic stress disorder. REMANDED The issue of entitlement to service connection for PTSD is remanded. REASONS FOR REMAND Reopening the service connection claim does not end that inquiry. Rather, the claim must now be considered on the merits. For the reasons that follow, the Board finds that the claim must be remanded. A service connection may be established for PTSD if the Veteran meets the following three elements: 1. medical evidence establishing a clear diagnosis of PTSD under 38 C.F.R. § 4.125(a); 2. credible supporting evidence that the claimed in-service stressor actually occurred; and 3. a link, established by medical evidence, between current symptoms and a claimed in-service stressor. The first element has been met, as the treatment records show a diagnosis of PTSD. See, e.g., discharge summary of the medical exam dated December 2014. As for the second element, there are no in-service treatment records detailing the stressor that caused PTSD. If a posttraumatic stress disorder 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. VA will not deny a posttraumatic stress disorder 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. 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). The Veteran does not appear to have been sent this notice. More information is needed to allow the Board to make a fully informed decision. While the Veteran has a current diagnosis of PTSD, VA has not yet attempted to corroborate the Veteran’s in-service stressor involving military sexual trauma. The third element, a link established by medical evidence between current symptoms and a claimed in-service stressor has also not been met. While the Veteran has a current diagnosis of PTSD, no examiner has opined whether the diagnosis of PTSD is at least as likely as not related to the military sexual trauma or other stressors alleged by the Veteran. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran has not been provided with a VA psychiatric examination. The Board finds that an examination is necessary in order to adjudicate the service connection claim. The matter is REMANDED for the following actions: 1. Send the Veteran notice advising her that evidence from sources other than the Veteran’s service records or evidence of behavior changes may constitute credible supporting evidence of the personal assault stressor. 2. Schedule the Veteran for a VA psychiatric examination. The claims file should be reviewed by the examiner. Any necessary tests should be conducted. After examining the Veteran and reviewing the claims file, the examiner should: a) Identify all psychiatric disabilities found to be present since July 2014. A diagnosis of PTSD should be ruled in or excluded based on the DSM-5 criteria. b) Please acknowledge and discuss the Veteran’s reported stressors, including MST and exposure to weapons, then please state whether it is at least as likely as not that: 1) One or both stressors played any role in the onset of a current psychiatric disability; 2) any current psychiatric disability had its onset during service; 3) any current psychiatric disability is otherwise etiologically related to the Veteran’s service. (Continued on the next page)   A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. LAURA E. COLLINS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ryan Nelson, Law Clerk