Citation Nr: 1806489 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-06 471A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Whether new and material evidence has been submitted to reopen a previously denied and final claim of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as PTSD. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1980 to September 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. Jurisdiction over the appeal presently rests with the RO in Lincoln, Nebraska. FINDINGS OF FACT 1. New and material evidence has been submitted sufficient to reopen a previously denied and final claim of service connection for PTSD. 2. The Veteran likely experienced a military sexual trauma during active service. 3. Affording the Veteran the benefit of the doubt, her present PTSD is as likely as not linked to her military sexual trauma. CONCLUSIONS OF LAW 1. New and material evidence having been submitted, the claim of service connection for PTSD is reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 2. The criteria for service connection of PTSD have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). Here, given the positive outcome of the below decisions, any failure on the part of VA to comply with the duty to notify and assist would constitute harmless error. II. New and Material Evidence The Veteran seeks to reopen the previously denied and final claim of service connection for PTSD. If a claim was previously denied by a RO or Board decision, and that RO or Board decision became final, then 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 (2012); 38 C.F.R. § 3.156 (2017). Even if the RO (in a rating decision, statement of the case, or supplemental statement of the case) has already determined that new and material evidence has been submitted, in the appeal, a new and material evidence analysis must still be completed by the Board. The requirement for the submission of new and material evidence is a jurisdictional prerequisite in order for a claimant to obtain review of a previously denied and final decision. 38 U.S.C.A. §§ 5108, 7104(b) (West 2014). Therefore, even though the RO de facto reopened the claim of service connection for sleep apnea in its May 2013 rating decision, and the claim of service connection for carpal tunnel syndrome in its November 2014 rating decision, the Board is under the statutory obligation to conduct a de novo review of the new and material evidence issue prior to adjudicating the underlying claims. Under 38 C.F.R. § 3.104(a), a decision of the rating agency shall be final and binding . . . as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. § 5104. A determination on a claim by the Agency of Original Jurisdiction (AOJ), of which the claimant is properly notified, is final if an appeal is not timely perfected. 38 C.F.R. § 20.1103 (2017). A rating decision becomes final one year after its issuance, unless a Notice of disagreement is filed. 38 C.F.R. § 20.302(a) (2017). If a notice of Disagreement is filed, and a statement of the case is subsequently issued, a substantive appeal must be filed within 60 days from the date that the AOJ mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of the mailing of the underlying rating decision, which ever period ends later. 38 C.F.R. § 20.302(b). In general terms, "new" evidence is evidence that was not of record at the time that the prior final RO or Board decision was issued. "Material" evidence is evidence that addresses the element(s) of service connection that were deficient (and therefore the basis of denial) in the prior final RO or Board decision. See 38 C.F.R. § 3.156(a) (2017). The United States Court of Appeals for the Federal Circuit (Federal Court) has indicated that evidence may be considered new and material if it contributes, "to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 115 F. 3d. 1356, 1363 (Fed. Cir. 1998). The Veteran's initial claim of service connection for PTSD was denied in a January 2010 rating decision. She filed a notice of disagreement with that denial and in March 2010, a statement of the case was issued. The Veteran did not file a substantive appeal of that denial, nor did she submit any new evidence within 60 days of the issuance of that statement of the case. See Buie v. Shinseki, 24 Vet. App. 242 (2011). Therefore the claim became final. The claim was initially denied because the Veteran's service treatment records did not document any psychiatric incidents during service, and there was no evidence linking her claimed psychiatric disability to active service. In May 2012, the RO de facto reopened the claim and afforded the Veteran a VA examination in connection with her claim. That examination report included a review of her complete medical records, as well as military personnel records, and provided an etiology opinion for her disability, as well as an opinion regarding her claimed in service stressor, namely a particular military sexual trauma. This evidence is new in that it was not of record at the time of the prior denial. It is material in that it addresses a criterion for service connection which was deficient at the time of the prior denial, namely, a medical nexus to service. As such, this claim is reopened. III. Service Connection The Veteran seeks service connection for posttraumatic stress disorder, secondary to military sexual trauma. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board finds that service connection for PTSD should be granted. In the instant matter, the Veteran has a present diagnosis of PTSD, as confirmed by her May 2012 VA examination, as well as her VA medical treatment records. Therefore, the first issue the Board must address is whether she sustained a military sexual trauma, as she asserts. Generally speaking, in-service incidents must be verified by some documentation, be it via the Veteran's military personnel records, service treatment records, or other evidence. However, due to the sensitive nature of in-service personal assaults, VA is aware that such incidents frequently go unreported and therefore cannot be confirmed by review of a veteran's service treatment records. As such, the Code of Federal Regulations specifically addresses methods of verifying such a stressor. 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. 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. 38 C.F.R. § 3.304(f)(5). The Veteran, in this case, asserts that she was sexually assaulted by a military physician in 1982. Specifically, she contends that she underwent an examination in connection with her request to transfer to a new station by virtue of pregnancy, and during the examination to confirm her pregnancy, a military physician forced her to undress and sexually assaulted her. Thereafter, her then husband (who was also a military service member) had to help her dress herself, and that she discussed the incident with him. She admits that she did not report this assault, but rather internalized it for many years. The Board has reviewed her available service treatment records and notes that there is no evidence of any such assault documented, as would be expected, per the Veteran's own admission. However, there is additional evidence which the Board finds sufficient to support a finding that such an assault occurred. First, the Board observes that the Veteran has submitted multiple stressor statements regarding this incident, which have been generally consistent throughout, and are also consistent with statements made during medical treatment (she has provided reports of the same incident to multiple treatment providers, as documented by her available medical records). She has also provided a statement from her then husband, attesting to the aftermath of the incident, as well as to discussions between them regarding whether she should report the incident or not (she chose not to do so). Further, VA regulations allow the Board to consider behavioral changes following an assault as a possible confirmation that such an assault occurred. A review of her military personnel records show a well behaved and responsible soldier with no behavioral issues reported during service. However, in the years since her separation from service, the Veteran's medical records document a history of depression, anxiety, and drug and alcohol abuse. Ultimately, the Board must consider the whole picture in determining whether the Veteran's reported assault occurred. A lay person is competent to report evidence of which they have firsthand knowledge. 38 C.F.R. § 3.159(a)(2) (2017). Therefore, to the extent that the Veteran was present for her own assault, she is competent to provide this testimony. Further, when assessing the credibility of such testimony, the factors which must be considered include facial plausibility; internal consistency; consistency with other evidence; self-interest or bias; lay statements made during treatment; and personal knowledge or experience. See Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, the evidence as reported by the Veteran to VA, as well as to her medical treatment providers, statement from her former husband, and history of post-assault substance abuse and psychiatric troubles weighs in favor of a finding that the assault occurred. The only evidence which contradicts this finding is the lack of such a stressor documented in the service treatment records, which is the exact purpose of the additional considerations as established in 38 C.F.R. § 3.304(f)(5). The Board also notes the May 2012 examiner's opinion that such an assault likely did not occur, an opinion based almost entirely on the lack of documentation in the service treatment records (in fact, the examiner, despite determining that the assault did not occur, continues to include such an assault in the stressor portion of the examination). In sum, the Board finds that the Veteran's report is both credible and competent, as supported by other available evidence. As such, for the purposes of establishing service connection of PTSD, the Board concedes an in-service military sexual trauma occurred. The question which the Board must then address, after determining that a sexual trauma occurred during service, is whether the present disability is linked to that trauma. The Board finds that this is the case. In the May 2012 VA examination report, the examiner diagnosed PTSD. In making that diagnosis, the examiner listed two specific stressors, the sexual assault, which the Board has conceded did occur, and a report of domestic violence. No other stressors were given to support the diagnosis of PTSD. Although the examiner ultimately concluded that the Veteran's PTSD was not due to the in-service trauma, that conclusion was reached after stating that the examiner did not believe there was adequate proof in the file of the assault occurring. As addressed above, the Board has conceded that it did occur. Therefore, to the extent that the examiner based the etiology opinion on the fact that the assault did not occur, that opinion is of limited value. Further, the Board again notes that the diagnosis itself relies upon the event as the underlying stressor in making the diagnosis. Therefore, to the extent that the Board finds that the event did occur, it is also satisfied that the diagnosis is linked to the in-service assault. The Board also finds that the remaining medical evidence supports a medical nexus between the military sexual trauma and the presently diagnosed PTSD. The Veteran's VA treatment records and medical records provided by the Rochester Vet Center and the Social Security Administration (SSA) indicate a medical nexus to military sexual trauma. Particularly, the Board observes that a June 2009 Social Survey by a licensed psychologist from the Rochester Vet Center diagnosed PTSD, and includes an etiology opinion linking that diagnosis to military sexual trauma. Specifically, the psychologist stated that, although the Veteran had a pre-existing trauma history, it seems likely that her experience of military sexual trauma, in the context of an environment which she felt good about herself, added to her distress and symptoms. It appears as if her molestation by a man who was both a physician and a superior officer was especially difficult for the Veteran who valued the Air Force and had wanted it to be a safe place for her. The Board has reviewed the evidence of record and found no real evidence to contradict that which links her present PTSD to her in-service trauma. Rather, the only negative opinions are based on a finding that the trauma did not occur. However, as the Board has conceded that the trauma likely did occur, any such opinion is of limited value in assessing this case. In light of this, the Board will afford the Veteran the Benefit of the doubt and grant service connection for PTSD, secondary to military sexual trauma. ORDER New and material evidence having been submitted, the previously denied and final claim of service connection for PTSD is reopened. Service connection for an acquired psychiatric disorder, diagnosed as PTSD, is granted. ____________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs