Citation Nr: 18150232 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-30 853 DATE: November 14, 2018 ORDER Reopening of the claim for service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD) due to military sexual trauma (MST), is denied. FINDINGS OF FACT 1. In a July 2014 rating decision, the RO denied the Veteran’s petition to reopen his claim for service connection for an acquired psychiatric disorder including PTSD due to MST. He did not appeal. 2. Evidence received since the July 2014 rating decision is cumulative. CONCLUSIONS OF LAW 1. The July 2014 rating decision that denied the Veteran’s petition to reopen his claim for service connection for an acquired psychiatric disorder including PTSD due to MST is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received since the July 2014 rating decision is not new and material for purposes of reopening the claim for service connection for an acquired psychiatric disability including PTSD due to MST. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1994 to September 1998. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified at a Board videoconference hearing; a transcript of that hearing is of record. 1. Whether new and material evidence has been presented to reopen a claim for service connection for an acquired psychiatric disorder, including PTSD due to military sexual trauma. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all of the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). To be entitled to service connection for PTSD, as opposed to another mental health disorder, the record must include (1) medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV for appeals before August 4, 2014 and DSM-V for appeals certified after August 4, 2014); (2) credible supporting evidence that the claimed in-service stressor 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); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). There are special considerations for PTSD claims predicated on a personal assault. The pertinent regulation, 38 C.F.R. § 3.304(f)(5), provides that PTSD based on a personal assault in service permits evidence from sources other than the Veteran's service records which may corroborate his or her 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). 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). For evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends; and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, “new” evidence is defined as 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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim based on all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999); but see 38 U.S.C. § 5103A (eliminates the concept of a well-grounded claim). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). However, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence is to be presumed unless “patently incredible.” See Duran v. Brown, 7 Vet. App. 216 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the Veteran is seeking entitlement to service connection for an acquired psychiatric disability. This claim was previously denied by a rating decision in July 2014 based on a determination that new and material evidence had not been submitted to reopen the claim. The Veteran was notified of this decision and of his appellate rights by letter dated July 29, 2014. He did not appeal and the decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The evidence of record in July 2014 consisted of the following: military personnel records and service treatment records; private treatment records including from Massachusetts General Hospital and a November 2012 neuropsychological examination; VA outpatient treatment records; a June 2014 VA examination report and July 2014 addendum; records from the Social Security Administration; and lay statements from the Veteran. Service records documented a competency for duty examination in March 1997 due to the Veteran reporting late for work smelling of alcohol. He stated that he had been drinking at a friend’s house and got carried away. It was noted that his condition was not consistent with intoxication or withdrawal and was more consistent with insufficient sleep. An appointment with DAPA was “still recommended.” Post service, the Veteran reported instances of in-service sexual trauma, including waking up three times during service and finding that he was being groped, as well as being knocked unconscious by a couple of guys in the shower in July/August 1996 and waking up in sick bay where he was kept sedated for a couple of weeks so he could not file a report. See VA Social Work Note, dated November 28, 2011; VA examination report, dated June 24, 2014. He stated that he was sent to anger management for two weeks in September 1996. See VA examination report, dated June 24, 2014. However, this was not documented in his service treatment or service personnel records. Post-service medical records showed diagnoses of numerous psychiatric disorders, including PTSD, anxiety, major depression, psychotic disorder, mood disorder, borderline personality disorder, and affective disorder(s), as well as a diagnosis of HIV. Evidence received since the July 2014 rating decision includes testimony from the Veteran and additional VA outpatient treatment records dated through 2015. The Board notes that the Veteran referenced receiving private treatment; however, he did not respond to the RO’s request that he provide releases so that VA could obtain the records on his behalf, or submit those records himself. See RO letter to the Veteran, dated May 20, 2015. The Board finds the evidence submitted since July 2014 is cumulative and not new. The VA treatment records show continued treatment for the Veteran’s psychiatric disorders – diagnoses that were already documented at the time of the July 2014 rating decision. At his hearing in October 2017, the Veteran testified that he was sent to DAPA (drug and alcohol treatment) during service in March 1997 and that this was a marker for his MST. He stated that he started using drugs and alcohol because of the MST. However, evidence of the in-service competency for duty examination in March 1997 was of record and previously considered at the time of the July 2014 rating decision. Under these circumstances, the Board must conclude that new and material evidence to reopen the claim for service connection for an acquired psychiatric disorder including PTSD due to MST has not been received. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen this finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. E., Associate Counsel