Citation Nr: 1806927 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-08 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Elizabeth Jamison, Associate Counsel INTRODUCTION The Veteran had active service in the United States Navy from August 1989 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, which denied entitlement to service connection for a left shoulder condition and PTSD. The Veteran submitted a notice of disagreement in May 2013. A statement of the case was issued in February 2014. In March 2014, the Veteran submitted a VA Form 9, in which she indicated her desire to appeal only the issue of service connection for PTSD. In March 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this proceeding is associated with the claims file. A claim of entitlement to service connection for PTSD was originally denied in a December 2008 rating decision. In July 2012, the Veteran requested to re-open the claim. A February 2013 rating decision confirmed and continued the denial of service connection for PTSD. The Veteran submitted a notice of disagreement in May 2013. To establish jurisdiction over the issue of service connection for PTSD, the Board must first consider whether new and material evidence has been received to reopen the claim. See 38 U.S.C. §§ 5108, 7105 (2012). The Board must proceed in this fashion regardless of the RO's actions. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92. As discussed fully below, new and material evidence has been submitted to reopen the PTSD claim. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court of Appeals for Veterans Claims (CAVC) held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. The CAVC recognized that, "the appellant had neither the legal or medical knowledge to narrow the universe of his claim or his current condition." Id. at 5. At this time, the Board declines to recharacterize the claim for service connection for PTSD as an acquired psychiatric disability. Depression, a bipolar disorder, and anxiety are not encompassed by this appeal, as the Veteran filed separate claims for these issues (rating decisions in August 2004, February 2008, and March 2010 denied entitlement to bipolar disorder, depression, and anxiety, respectively). Accordingly, these discrete issues are not on appeal. The Board notes that additional evidence, including VA treatment records, has been uploaded to the Veteran's electronic file since the issuance of the February 2014 statement of the case. However, the decision to grant the Veteran's claim is wholly favorable. Thus, there is no prejudice to the Veteran in the Board proceeding with a decision at this time. This appeal was processed using the Virtual Benefits Management System (VBMS) and Legacy Content Manager (formerly Virtual VA) paperless claims processing systems. FINDINGS OF FACT 1. An unappealed December 2008 rating decision denied entitlement to service connection for PTSD secondary to personal assault due to lack of diagnosis or evidence of a verifiable stressor in service. 2. Evidence regarding PTSD received since the December 2008 rating decision is new and material in that it is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the claim. 3. The Veteran has a current diagnosis of PTSD. 4. Resolving all reasonable doubt in her favor, the Veteran's PTSD is causally related to an in-service assault. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Board's decision herein to grant the claim of entitlement to service connection for PTSD represents a complete grant of the benefit sought. As the decision is wholly favorable to the Veteran, no further discussion of VA's duties to notify and assist is necessary. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993). II. New and Material Evidence The claim of entitlement to service connection for PTSD was previously denied, and the Veteran seeks to reopen this claim. In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103 (2017). If a claim of entitlement to service connection 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; 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). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The credibility of the evidence is presumed for the purpose of reopening, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask 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. Id. at 118. With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. Here, a December 2008 rating decision originally denied the claim. The Veteran did not appeal that decision, nor did she submit any new and material evidence within a year of that rating decision. The December 2008 rating decision therefore became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Relevant evidence of record at the time of the December 2008 rating decision included the Veteran's service treatment and personnel records; VA treatment records from the Oklahoma City VAMC and Eastern Colorado HCS; VA Form 21-4138, Statement in Support of Claim, from the Veteran with narrative of stressful events in service, received October 30, 2007; Letter from C.B. LCSW, PTS Recovery Program, Oklahoma City VAMC, received October 30, 2007; VA Form 21-0781, Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD), received July 26, 2007; and a VA Formal Finding of a lack of information required to corroborate stressor(s) associated with a claim for service connection for PTSD, dated November 14, 2008. In July 2012, the Veteran requested that her claim of entitlement to service connection for PTSD be reopened. Relevant additional evidence received since the December 2008 rating decision includes the additional post-service treatment records; letter from the Veteran received July 19, 2012; VA PTSD examination dated January 25, 2013 with Addendum dated December 5, 2013; letter from C.B. LCSW and Post-Traumatic Stress Recovery Program Application received May 10, 2013; VA Form 21-4138, Statement in Support of Claim, received May 10, 2013; and a statement from the Veteran received May 10, 2013 (Notice of Disagreement). This evidence was not previously on file at the time of the December 2008 decision; thus, it is new. Furthermore, this evidence is material because it bears directly on the issue of a PTSD diagnosis and a nexus to service, which are the reasons that the claim was previously denied. Thus, the new evidence relates to an unestablished fact necessary to substantiate a claim of entitlement to service connection for PTSD, and it raises a reasonable possibility of substantiating the claim, particularly when considering the low threshold for reopening a claim as set forth in Shade, supra. Accordingly, the claim of entitlement to service connection for PTSD is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). III. Service Connection The Veteran contends that service connection is warranted for PTSD resulting from her service, including personal assault. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson, 12 Vet. App. at 253, citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). At the outset, the Board is mindful that veterans claiming service connection for PTSD due to personal assault face unique problems documenting their claims. Since assault is an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, and victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. See Proposed Rule, PTSD Based on Personal Assault, 65 Fed. Reg. 61132 (Oct. 16, 2000) ("Many incidents of in-service personal assault are not officially reported, and Veterans may find it difficult to produce evidence to prove the occurrence of this type of stressor."). Where a claimant's claimed stressor is unrelated to combat, lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). As a layperson, the Veteran is competent to report her experienced symptoms but not to make the complex determination as to the etiology of her PTSD. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Accordingly, the regulations governing PTSD provide that where a claim is based on an in-service personal assault, evidence from sources other than the 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). As an initial matter, the Board finds that the Veteran has current diagnosis of PTSD. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997) (finding that mental health professionals making a PTSD diagnosis "are presumed to know the DSM requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis"). VA treatment records dated December 2010 contain a diagnosis of PTSD. Then in August 2015, VA treatment records note a diagnosis of "PTSD re: MST." An August 2016 VA problem list notes chronic PTSD. The Board notes the finding of the January 2013 VA examiner, who stated that the Veteran's symptoms do not meet the diagnostic criteria for PTSD under DSM-IV. However, the Board has also considered a January 2016 VA psychiatry note, in which the Veteran's physician expressed concerns about the January 2013 findings and wrote that she supported re-examination given the documentation of PTSD by a specialty clinic staff. After weighing the evidence of record, the Board finds that a current diagnosis of PTSD is established. Turning to the in-service element, although STRs do not document any reported assault allegations, the Board finds sufficient corroborating evidence to conclude that the Veteran's reported in-service stressors due to personal assault occurred. The regulation relating to personal assault reflects VA's judgment that unreported personal assaults occur frequently in the military. The record does not include any contemporaneous corroborating evidence, such as police reports or medical examinations; however, the Veteran provided an explanation as to why she did not report assault by a senior sailor due to concerns over retaliation. She told a friend at the time, but never told her family because she did not believe her mother would be supportive. The Board further notes that the fact that mental health professionals treating the Veteran post-service have accepted that the stressors occurred can be considered corroborating evidence. See Menegassi v. Shinseki, 638 F.3d 1379, 1381 (Fed. Cir. 2011); Patton v. West, 12 Vet. App. 272, 282 (1999). Accordingly, the Board resolves all reasonable doubt in favor of the Veteran to find that there is sufficient evidence in the record to establish that she experienced personal assault during service. Finally, the record includes medical evidence of a link between her in-service personal assault stressor and the current PTSD diagnosis. A private psychologist diagnosed "Posttraumatic Stress Disorder, chronic, MST related" in a March 2014 psychological assessment. An August 2015 VA treatment note contained a diagnosis of "PTSD re: MST." The August 2015 note also documented the VA physician's opinion that the prior VA examination was inadequate and her intent to write a separate letter to support the Veteran's efforts to obtain service connection for PTSD. Although such a letter is not associated with the claims file, the Board notes the physician's support of a nexus between the Veteran's service and her PTSD. After thorough review of the evidence of record, the Board is of the opinion that the evidence is at least in equipoise regarding the question of whether the Veteran's current PTSD is causally related to her period of active service. Resolving all doubt in favor of the Veteran, the Board finds that entitlement to service connection for PTSD is warranted. Gilbert, 1 Vet. App. at 53; 38 C.F.R. § 3.102. ORDER New and material evidence having been received, the claim of entitlement to service connection for PTSD is reopened. Entitlement to service connection for PTSD is granted. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs