Citation Nr: 18150860 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 17-22 208A DATE: November 15, 2018 ORDER The previously denied claim of service connection for an acquired psychiatric disorder, claimed as anxiety, is reopened. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is granted. FINDINGS OF FACT 1. In an April 2012 rating decision, the agency of original jurisdiction (AOJ) denied entitlement to service connection for anxiety; and, the Veteran did not appeal that determination. 2. Presuming its credibility, the evidence associated with the record since April 2012 relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of service connection for an acquired psychiatric disorder. 3. The weight of the evidence of record is in relative equipoise as to whether the Veteran has a current acquired psychiatric disorder, variously diagnosed as PTSD, generalized anxiety disorder, and major depressive disorder, which is at least as likely as not causally related to a military sexual trauma (MST). CONCLUSIONS OF LAW 1. The April 2012 rating decision denying service connection for anxiety is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103. 2. New and material evidence has been received sufficient to reopen the claim of service connection for an acquired psychiatric disorder. 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, to include PTSD, have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from September 1992 to November 1995. This matter comes before the Board on appeal from a rating decision issued by the AOJ in November 2014. The Veteran filed a notice of disagreement in November 2015. The AOJ issued a statement of the case in March 2017. The Veteran filed an appeal to the Board in May 2017. The Veteran’s appeal was certified to the Board in September 2018. 1. New and material evidence has been received sufficient to reopen the claim of service connection for an acquired psychiatric disorder. A finally adjudicated claim is an application which has been allowed or disallowed by the AOJ, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. In an April 2012 rating decision, the AOJ denied service connection for anxiety. The April 2012 rating decision’s denial of service connection for anxiety is final because the Veteran did not timely appeal that determination. 38 C.F.R. §§ 3.104, 20.302, 20.1103. In addition, no evidence that was relevant to the issues was filed with VA during the appeal period(s), thus, new and material evidence was not submitted so as to vitiate the finality of that decision. 38 C.F.R. § 3.156(b). Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C § 5108; 38 C.F.R. § 3.156(a). When “new and material evidence” is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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 provisions of 38 C.F.R. § 3.156(a) create a low threshold for finding new and material evidence, and view the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (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). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). As noted above, the AOJ’s April 2012 rating decision is final. Since the April 2012 rating decision, additional evidence pertinent to the claim of service connection for an acquired psychiatric disorder has been added to the claims file, including: a diagnosis of PTSD due to a MST (which is a new theory of entitlement), a lay statement supporting the Veteran’s assertions, and private treatment records showing other mental health diagnoses, including major depressive disorder (MDD). In particular, a November 2014 VA examination was conducted, and the examiner concluded that the Veteran met all criteria for PTSD based on the DSM 5 criteria. Furthermore, the Veteran’s husband reports that the Veteran called him shortly after the claimed MST and told him what had happened to her; he also reported that he and other family members had noticed changes in her behavior since her discharge from the Army in 1995. Finally, the Veteran submitted additional medical records (from both VA and private sources) that show diagnoses of psychiatric disorders, including PTSD and MDD. Presuming its credibility, this evidence is new and material. The evidence was not previously of record and raises a reasonable possibility of substantiating the claims of service connection for an acquired psychiatric disorder. As the new evidence addresses the reason for the prior denials, it is material and the claims may be reopened. 2. Service connection for an acquired psychiatric disorder, to include PTSD, is granted. The Veteran is seeking service connection for an acquired psychiatric disorder, to include PTSD, based on military sexual trauma. 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). Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed.Cir.2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir.2004); 38 C.F.R. § 3.303. In addition to the above, establishing service connection for PTSD requires: (1) medical evidence establishing a diagnosis of PTSD using DSM 5 criteria, (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. 38 C.F.R. §§ 3.304(f), 4.125(a); see also Cohen v. Brown, 10 Vet. App. 128 (1997). It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. Gilbert at 54; 38 C.F.R. § 3.102. While the Veteran has been previously denied service connection for anxiety, the evidence suggests that the Veteran suffers from PTSD, and thus recharacterization of the issue under Clemons is warranted. The Veteran was afforded a VA examination in November 2014. The examiner reviewed the Veteran’s claims file, examined the Veteran, and spoke with the Veteran’s husband. The examiner found that the Veteran had a diagnosis of PTSD conforming to DSM 5, related to an in-service personal assault. According to the Veteran, she had been the victim of MST in 1993 or 1994. She was living in an apartment on/near base and one day her platoon sergeant came and knocked on her back door. She let him in, and they sat on her couch and began talking; the Veteran states that he then began touching and grabbing her in an inappropriate manner. The Veteran told him to stop but he continued, at which point she yelled at him and pushed him. The Veteran reports that he got angry and left, but that afterwards he was mean to her and possibly started spreading rumors about her. The Veteran reported to the examiner that she suffers from panic attacks, ongoing sleep problems, nightmares, emotional and physiological reactions when reminded of her trauma, unwanted thoughts, avoidant behaviors, negative beliefs about herself and self-blame, startled reactions, concentration difficulties, and diminished interest in activities she once enjoyed. The Veteran’s husband reported that he noticed a change in her behavior after she returned home and that she was more on edge, uptight, and had intimacy problems. Thus, there is sufficient evidence for the Board to conclude that the Veteran does currently suffer from PTSD due to an in-service personal assault. A claim for PTSD requires credible supporting evidence that the claimed-in service stressor occurred. 38 C.F.R. § 3.304; Cohen at 148. However, 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 evidence that can be considered are: records from law enforcement authorities, rape crises centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; statements from family members, roommates, fellow service members, or clergy; and evidence of behavior changes following the claimed assault. Unlike in other PTSD claims, in PTSD claims based on personal assault, an after-the-fact medical opinion can serve as the credible supporting evidence of the stressor. See Menegassi v. Shinseki, 68 F.3d 1379 (Fed. Cir. 2011). In this instance, the Veteran’s claim is supported by a lay statement submitted by her husband which relays the same story told by the Veteran. The Veteran and her husband were engaged at the time the claimed incident occurred. The Veteran’s husband asserted that the Veteran called him after the event happened and told him what happened. The Veteran’s husband reported that the Veteran felt upset, scared, and violated, and wondered if she had done anything wrong. The Veteran’s husband is not competent to report whether or not the assault itself occurred, however he is competent to report that she had told him she had been assaulted. Additionally, the Veteran’s husband is also competent to report the changes in the Veteran’s personality that he observed first hand following the incident. There is no reason to doubt his credibility in this regard. Because there is no evidence to the contrary, and because of the sensitive nature of a personal assault, the Veteran’s husband’s assertion is probative. Furthermore, the Veteran’s assertion that the MST occurred is supported by the VA examiner’s opinion and examination. Thus, there is sufficient evidence for the Board to conclude that the claimed in-service MST did occur. Moreover, the November 2014 VA examiner concluded that the Veteran’s PTSD was more likely than not causally related to the MST she experienced while in service. In this regard, the examiner noted that the Veteran reported that she had been the victim of sexual assault during childhood, and the examiner explained that a history of childhood sexual assault made the Veteran especially vulnerable to developing PTSD symptoms as a result of a later traumatic event. Further, the examiner commented that the Veteran’s family members also noted that the Veteran changed since her time in military service. He also noted that the Veteran has reported ongoing symptoms since the MST. In a separate November 2014 VA medical opinion, a different VA examiner opined against the claim. In contrast to the initial opinion noted above, the subsequent VA opinion reasoned that because the Veteran was sexually abused as a child, it is more likely than not that her PTSD was related to her mental health condition prior to entry into the service rather than her experiences while in the military. That examiner also pointed out that the Veteran’s service treatment records do not provide evidence to support that the Veteran was pulled or grabbed or otherwise sexually assaulted while in the Army. The Board finds, however, that the initial November 2014 VA opinion outweighs the subsequent VA opinion. The latter opinion relies on the absence of evidence and a presumption that the Veteran had a pre-existing psychiatric disorder. As noted above, however, it is not surprising to find a lack of documentation regarding a personal assault. This is the very reason that the legal framework under 38 C.F.R. § 3.304(f)(5) indicates that when PTSD 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. Likewise, the Board finds that a pre-existing psychiatric disorder was not shown at the time of entry into service. According to the Veteran’s July 1991 pre-induction Report of Medical History, the Veteran checked the “yes” box corresponding to “Depression or excessive worry,” but later explained to the examiner that she simply “worries a lot.” She also checked the “yes” box corresponding to the question of whether she had ever been treated for a mental condition. However, by her own explanation, she reported to the examiner she attended counseling, but only because she and her father had a misunderstanding. She did not report that she was ever diagnosed with a psychiatric disorder, and there is no indication from that examination report that she was suffering from PTSD as a result of childhood sexual trauma. (Continued on the next page)   In light of the foregoing, the Board finds that at the very least, the evidence of record is at least in equipoise as to whether the Veteran has current PTSD as a result of an in-service sexual assault. Accordingly, and with all reasonable doubt in favor of the Veteran, service connection for PTSD is warranted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Macchiaroli, Law Clerk