Citation Nr: 18147844 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-21 083 DATE: November 6, 2018 ORDER New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for posttraumatic stress disorder (PTSD). Service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder (MDD), is granted. FINDINGS OF FACT 1. A November 2007 rating decision denied service connection for PTSD. The Veteran was notified of her rights but did not appeal or submit new and material evidence within the applicable one-year appellate period. 2. Evidence submitted since that rating decision was not previously of record and establishes that the Veteran is currently diagnosed with MDD. 3. The Veteran’s MDD cannot be satisfactorily disassociated from service. CONCLUSIONS OF LAW 1. The November 2007 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence sufficient to reopen the claim of service connection for PTSD has been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Resolving all doubt in favor of the Veteran, the criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from January 1983 to September 1992. These matters come before the Board on appeal from a rating decision issued by the agency of original jurisdiction (AOJ) in January 2015. The Veteran filed a notice of disagreement in February 2015. The AOJ issued a statement of the case in April 2016. The Veteran filed an appeal in May 2016. The AOJ issued a supplemental statement of the case in September 2017. The Veteran’s appeal was certified to the Board in September 2017. 1. New and material evidence has been received sufficient to reopen the claim for service connection for PTSD. The AOJ issued a denial of service connection for PTSD in a November 2007 rating decision. The basis for the denial was that there was insufficient evidence to corroborate the Veteran’s claimed in-service stressors and insufficient medical evidence showing a relationship between the Veteran’s current PTSD symptoms and claimed in-service stressors. Because the Veteran did not submit a Notice of Disagreement or new and material evidence within the applicable one-year appellate period, the November 2007 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. After a decision becomes final, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable probability of substantiating the claim. 38 C.F.R. § 3.156(a). Newly submitted evidence is generally presumed to be credible for the purposes of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18. The evidence of record in November 2007 included military personnel records, a medical statement from Dr. B.P., treatment reports from Central Texas Health Care System, a VA examination from October 2007, and other relevant lay evidence. As noted above, the Veteran did not appeal the November 2007 rating decision and it became final. Evidence received subsequent to the November 2007 rating decision includes medical records from the Central Texas Health Care System up to and including records from December 2014. These records reflect that the Veteran has carried a PTSD diagnosis in the past, including in November 2014. In addition, the Veteran provided a detailed stressor statement regarding an alleged personal assault in service, and she was provided a VA PTSD examination in December 2014. This evidence was not in existence at the time of the November 2007 rating decision, and thus it is new evidence. The new evidence is also material because it is probative as to whether or not the Veteran has PTSD or some other acquired psychiatric disorder. Overall, this evidence is not redundant or duplicative, and raises a reasonable possibility of substantiating the claim. Therefore, reopening of the claim is warranted. 2. Service connection for an acquired psychiatric disorder, to include PTSD and MDD, is granted. The Veteran is seeking service connection for PTSD. However, if a Veteran is seeking service connection for PTSD but is diagnosed with other psychiatric disorders, then her pending PTSD claim will also encompass all such disorders raised by the record. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). As such, and keeping in mind the obligation of the Board to construe a Veteran’s claim liberally, the Veteran’s claim will be expanded to include any acquired psychiatric disorder, including MDD. Robinson v. Shinseki, 557 F.3d 1355 (2009); 38 C.F.R. § 20.202. Establishing service connection requires: (1) medical evidence of a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence of 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); 38 C.F.R. § 3.303. The Veteran was afforded a VA PTSD examination in December 2014. The examiner concluded that the Veteran did not have PTSD because she did not meet all of the DSM 5 PTSD criteria (specifically criterion E and criterion G). However, the examiner did conclude that the Veteran suffers from MDD. The examiner based this conclusion on a review of the Veteran’s military service treatment records, military service personnel records, civilian medical records, and the Veteran’s own report of her symptoms. The examiner’s report and the Veteran’s lay statements indicate that the Veteran has problems trusting others, has sleeping problems and nightmares, has flashbacks, feels depressed and stressed out most of the time, experiences paranoia, feels anxious, engages in self-harm, and prefers to be alone and does not like crowds. The Veteran stated that her symptoms relate back to several stressful events that she experienced while in the military. The Veteran reported being raped in 1983 while stationed on an Army base. The Veteran also reported that her symptoms relate back to physical and verbal abuse by her ex-husband between 1985 and 1995. Additionally, the Veteran reported being traumatized by her experiences during Operation Desert Storm. The examiner opined that the Veteran’s MDD was at least as likely as not related to her military service. The examiner pointed to the symptoms that the Veteran reported, which are consistent with the stressful incidents the Veteran reported. For example, the Veteran does not trust men and does not allow men to get close to her, which would be consistent with being raped and being the victim of domestic violence. The Veteran also reports having nightmares and flashbacks to the day she was raped, and often questions what she could have done differently to prevent it. If a PTSD 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. 38 C.F.R. § 3.304 (f)(5). 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). In cases involving an allegation that PTSD is connected to military sexual 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) Although the Veteran’s alleged account of the in-service MST is not specifically identified in the STRs, the STRs contain markers that support her assertions. For example, the Veteran became pregnant during service and intended to give the baby up for adoption because the pregnancy was unwanted. She subsequently decided to keep the baby, but reports show that she had no support from the biological father. Additionally, the Veteran reported at a 1988 physical that she had sleep problems. Finally, the Veteran reported that she was physically abused by her husband and the STRs reflect that the Veteran got married during service. While other treatment records suggest that the Veteran’s acquired psychiatric disorder stems from a combination of chronic pain, residuals from childhood, domestic violence, and an inservice military sexual trauma (MST), the Board finds that it is not possible to satisfactorily disassociate the current MDD from the in-service MST. Because the Veteran currently has MDD which is at least as likely as not causally related to her military service, service connection for MDD is granted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Macchiaroli, Law Clerk