Citation Nr: 18148478 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 12-27 836 DATE: November 7, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder (MDD) due to military sexual trauma (MST), is reopened. Service connection for a psychiatric disorder, to include PTSD and MDD due to MST, is granted. FINDINGS OF FACT 1. In a February 2009 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for PTSD; the Veteran did not timely initiate an appeal of that decision within one year of notification. 2. In January 2011, the Veteran initiated a request reopen her previous claim of entitlement to service connection for PTSD (now characterized as entitlement to service connection for a psychiatric disorder, to include PTSD and MDD due to MST. 3. The evidence received since the February 2009 rating decision relates to an unestablished fact necessary to substantiate the Veteran’s claim for service connection and raises a reasonable possibility of substantiating that claim. 4. Resolving all reasonable doubt in favor of the Veteran, the Veteran’s psychiatric disorders, diagnosed as PTSD and MDD, are etiologically related to the sexual assault she experienced during her active duty military service. CONCLUSIONS OF LAW 1. The February 2009 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening a claim of entitlement to service connection for a psychiatric disorder, to include PTSD and MDD due to MST, have been met. 38 U.S.C. § 5108; 38 C.F.R. §3.156(a). 3. The criteria for service connection for a psychiatric disorder, to include PTSD and MDD due to MST, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1974 to May 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. New and Material Evidence The Veteran is seeking to reopen her claim of entitlement to service connection for a psychiatric disorder, to include PTSD and MDD due to MST. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement and substantive appeal are filed within the applicable time limits. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. If a claim has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). “New evidence” means existing evidence not previously submitted to agency decision makers. “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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Veteran’s original claim seeking service connection for PTSD was denied in a February 2009 rating decision because the evidence of record did not show any complaints of, or treatment for, this condition during service. Additionally, the RO found that the record did not provide credible evidence that the claimed in-service stressor occurred. The Veteran did not appeal that rating decision, nor was any new and material evidence submitted within the appeal period, and the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In January 2011, the Veteran requested that the RO reopen her previous claim. In an August 2011 rating decision, the RO reopened the Veteran’s claim and then denied that claim on the merits. Nevertheless, the Board has a jurisdictional responsibility to consider whether it is proper for the claim to be reopened. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered regardless of the RO’s action. See Jackson, 265 F.3d at 1369. Evidence added to the record since the last final rating decision of record includes a February 2011 VA psychiatric examination report diagnosing PTSD and MDD, and August 2011 statement from the Veteran’s psychotherapist, VA treatment records showing ongoing mental health treatment, and lay statements and an affidavit from the Veteran describing the in-service sexual assault that she experienced while on active duty. The Board finds that this evidence is new, as it has never previously been before agency decision makers, and material, as it relates to an unestablished fact necessary to substantiate the claim. Moreover, this evidence suggests that there is a possible relationship between the Veteran’s current PTSD and MDD and her claimed MST. Accordingly, the Board finds this evidence raises a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for a psychiatric disorder, to include PTSD and MDD due to MST, and the claim is reopened. Service Connection The Veteran is seeking entitlement to service connection for a psychiatric disorder, to include PTSD and MDD due to MST. 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred, unless the stressor is related to a Veteran’s fear of hostile military or terrorist activity. 38 C.F.R. § 3.304(f). VA regulations provide that, if a PTSD 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. 38 C.F.R. § 3.304(f)(5). The United States Court of Appeals for the Federal Circuit (Federal Circuit) observed that 38 C.F.R. § 3.304 (f)(5) specifically states that a medical opinion may be used to corroborate a personal-assault stressor, noting “medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated.” See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the United States Court of Appeals for Veterans Claims (Court) erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor); see also Patton v. West, 12 Vet. App. 272, 280 (1999) (rejecting the requirement that “something more than medical nexus evidence is required for ‘credible supporting evidence’” in personal-assault cases). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that she was a victim of military sexual trauma in service. Lay statements and an affidavit from the Veteran indicate that she was sexually assaulted by a superior officer in the Army. She claims that she was threatened by that same officer so that she would not report incident. She contends that the superior officer in question used to write negative reports about her and tell her about them. She claims that he showed her the reports on numerous occasions and that she felt that these reports might threaten her career in the military. The Veteran asserts that the superior officer would not submit these reports because negative reports of that nature would have resulted in the Army moving her to a different location or even discharging her from active duty service. The Veteran states that the superior officer would turn in positive reports so that she would not be moved away from him and that such actions would explain why all the reports in her record from her abuser were positive. See May 2011 statement; August 2011 statement; August 2011 notice of disagreement statement; October 2014 statement submitted with VA Form 9; February 2018 statement; and July 2018 affidavit. Further, the Veteran contends that her in-service sexual trauma is related to her current mental health problems. The Board acknowledges that the service treatment records are negative for any complaints, treatment, or diagnosis of any acquired psychiatric symptoms. The February 2011 VA examiner diagnosed the Veteran as having PTSD, major depressive disorder, agoraphobia, and alcohol abuse in sustained remission. He noted that the Veteran’s depression was likely secondary to the PTSD and that the agoraphobia was actually part of the PTSD. He indicated that the alcohol abuse had been remission for five years and that it played no role in the current PTSD/depression. Although the examiner noted that the Veteran “has a longstanding diagnosis of PTSD secondary to sexual assault while she was in the military,” he did not provide a medical opinion addressing the etiology of the Veteran’s diagnosed psychiatric disorders. However, post-service VA treatment records reflect diagnoses of PTSD due to military sexual trauma and major depressive disorder. See, e.g., May 2013 VA treatment record indicating “Vet of MST complained of depression, anxiety, nightmares, inability to be around men, and the difficulty of trusting men. Additionally, the evidence of record indicates that the Veteran’s symptoms related to military sexual trauma have continued affect her since she separated from military service. For example, the Veteran has engaged in ongoing therapy at VA. In fact, an August 2011 statement from the Veteran’s psychotherapist, L.P., APRN, CNS, CS, indicated, “[the Veteran] buried her PTSD and MST deep inside by excelling at work, drinking at home, and isolating at home. Now, without the alcohol and [being] unable to work, she is facing her MST and PTSD.” L.P. indicated that the Veteran worked with a small group and that her supervisor was her abuser. L.P. also indicated that she believed the Veteran was abused, victimized, and “felt as if she could not control what was happening to her.” L.P. noted that the Veteran was a perfectionist and that it did not surprise her that the Veteran “perfected keeping PTSD and her MST a secret – even from herself.” L.P. indicated that avoidance of others, especially men, was a key symptom of her PTSD and MST. Finally, L.P. noted that many women do not come forward and report sexual abuse as they believe that they will not be believed. In a May 2011 Memorandum, the RO indicated that there was no evidence in the record corroborating that the Veteran experienced any sexual trauma or required any mental health treatment during service and that treatment for PTSD and MDD was not documented until many years after she separated from service. The Veteran is competent to report a history of military sexual trauma and psychiatric symptoms that began in service. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno, 6 Vet. App. at 470. The mere fact that her assertions are not supported by contemporaneous clinical evidence or an etiological medical opinion does not render them inherently not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). The Veteran has competently and credibly reported that she was sexually assaulted by a superior officer while in the Army and that she was afraid to report the incident for fear of retaliatory action. It appears that she did not feel comfortable discussing the incident until many years after service when she began receiving mental health treatment. The Board finds that the Veteran’s account of the onset of her psychiatric symptoms to be competent and credible. Given the competent and credible lay statements from the Veteran and her psychotherapist, her current diagnoses of PTSD and major depressive disorder; and resolving all reasonable doubt in the Veteran’s favor; the Board finds that service connection for PTSD and major depressive disorder is warranted. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. L. Marcum, Counsel