Citation Nr: 18112656 Decision Date: 06/21/18 Archive Date: 06/20/18 DOCKET NO. 15-12 064 DATE: June 21, 2018 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. New and material evidence has not been presented sufficient to reopen a claim for entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include obsessive compulsive disorder. FINDINGS OF FACT 1. The Veteran is diagnosed with PTSD that is the result of military sexual trauma. 2. An unappealed April 1996 rating decision denied entitlement to service connection for manic depression and schizophrenia. 3. The evidence received since the April 1996 rating decision is cumulative or redundant of the evidence previously of record and is not sufficient to raise a reasonable possibility of substantiating the claim for entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include obsessive compulsive disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). 2. The April 1996 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302. 3. New and material evidence has not been presented sufficient to reopen the claim for entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include obsessive compulsive disorder. 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 in the United States Army from May 1974 to April 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board acknowledges that the United States Court of Appeals for Veterans Claims decided in Clemons v. Shinseki, 23 Vet. App. 1 (2009), 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. However, as the RO developed the instant claims separately and the Veteran continues his disagreement with both issues, the Board elects to separate the claims for entitlement to service connection for PTSD and whether new and material evidence has been presented to reopen a claim for entitlement to service connection for another acquired psychiatric disorder. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, such as psychoses, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown if “the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology.” Savage v. Gober, 10 Vet. App. 488, 498 (1997). 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) In order to establish service connection for PTSD, the evidence of record must include a medical diagnosis of 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. 61,132 (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”). Accordingly, the regulations governing PTSD provide that where a claim is based on an 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). Unlike in other PTSD claims, in PTSD claims based on personal assault, an after-the-fact medical opinion can serve as credible supporting evidence of the stressor. See Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011). In cases involving an allegation that PTSD is connected to personal assault, the Federal Circuit has held that “the absence of a service record documenting an unreported sexual assault is not pertinent evidence that the sexual assault did not occur.” AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (purpose of Federal Rule of Evidence 803 does not apply because most people do not report personal assaults). The Veteran contends that he suffers from PTSD related to an in-service sexual assault. Specifically, the Veteran reported that he was sent to sick call related to a spastic colon problem. He stated that the Physician’s Assistant who was supposed to treat him gave him medication that made him tired and then sexually abused him. The Veteran’s ex-wife submitted a statement dated in December 2013 indicating that they were married from 1976 to 1981. She noted that when he came back from Germany in 1977, “his drinking was steadily increasing.” She further noted that he and a friend got arrested for stealing. She went on to indicate that he went to several mental health visits while they were living in on-base housing but that after his military service, he had a hard time holding a job. The Veteran had frequent nightmares and would drink alcohol. A September 2013 letter from the records clerk of the local police department indicated that the Veteran was arrested in November 1978 for theft. The Veteran’s personnel records also show that he was confined on civil authority in November 1978. The Veteran’s service treatment records include a February 1980 separation report of medical history wherein the Veteran reported he had frequent trouble sleeping and depression or excessive worry. He indicated he did not know if he had nervous trouble of any sort. The medical notes state that the Veteran had “situational anxiety.” In July 1995, the Veteran was admitted to the hospital for an “acute psychotic episode.” At that time, he admitted that he began heavily drinking in the Army and that he was referred for treatment for depression in 1975 or 1976 in service. He stated he was put on some kind of antidepressant at that time but could not recall the name. The Veteran’s post-service treatment notes include a May 2012 psychiatric note indicating that the Veteran complained of intrusive thoughts related to a military sexual trauma. He reported that he was sodomized by a Physician’s Assistant who stated he had to do a rectal examination. The Veteran stated that he had high levels of shame, anger, and guilt related to the experience. A May 2013 statement from Dr. A.H. notes that she treats the Veteran for posttraumatic stress disorder and chronic depression. In a follow-up letter dated in May 2014, Dr. A.H. indicated that the Veteran disclosed a military sexual trauma from the late 1970’s. She noted that the Veteran went from being a model soldier to problematic and ended up being arrested. Because he did not disclose the in-service rape, he was not accurately assessed by mental health professionals. Dr. A.H. stated that because the Veteran’s behavioral and emotional difficulties had a sudden onset, he was misdiagnosed as paranoid and schizophrenic in 1995. However, with the disclosure of the military sexual trauma, he was properly diagnosed with PTSD and now receives appropriate treatment. Ultimately, Dr. A.H. stated that the Veteran’s “past sexual trauma history has undoubtedly created considerable hardship for [the Veteran] as demonstrated in his records and in his overall functioning throughout the years since its occurrence.” Upon careful review of the record, the Board finds that entitlement to service connection for PTSD is warranted. First, there is sufficient evidence to conclude the Veteran has a current diagnosis of PTSD. The May 2014 statement from Dr. A.H., a VA psychologist, stated that the Veteran has a diagnosis of PTSD related to military sexual trauma. Further, the Board finds that the Veteran’s account of an in-service sexual assault is credible. Although the Veteran’s reported “spastic colon” and in-service mental health treatment is not documented in service, there is some evidence that the Veteran’s complete service treatment records are not of file. The Board finds the Veteran’s reports of excessive worry and depression on his August 1980 report of medical history especially probative. In addition, the Veteran’s ex-wife’s reports of increased drinking during service and evidence of an arrest in 1978 are consistent with the Veteran’s historical account showing a behavioral change in service which is indicative of the in-service incident. Accordingly, he is found both competent and credible to report the in-service military sexual trauma. Finally, Dr. A.H. specifically related the Veteran’s PTSD to his in-service military sexual trauma. She provided a complete rationale to accompany her opinion, indicating a review of the Veteran’s medical history and finding his symptoms consistent with PTSD. She also noted indications of a trauma during the Veteran’s active service. There is no medical evidence to the contrary. The Board concludes that the preponderance of the evidence supports a finding that the Veteran’s current PTSD resulted from military sexual trauma. Entitlement to service connection for PTSD is warranted. 38 U.S.C. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Whether new and material evidence has been presented sufficient to reopen a claim for entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include obsessive compulsive disorder Generally, a claim that has been denied in an unappealed RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. 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. 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 regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran seeks to reopen his claim for entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include obsessive compulsive disorder. A claim for entitlement to service connection for manic depression and schizophrenia was most recently denied in a rating decision dated in April 1996. The Veteran did not appeal that decision and it became final. At the time of the April 1996 rating decision, the evidence of record included the Veteran’s available service treatment records, VA treatment records, and the Veteran’s statements in support of his claim. The Veteran’s service treatment records showed that he was noted to have “situational anxiety,” and the VA treatment records showed a June 1995 hospital admission for chronic ethanol abuse. However, the claim was denied because the remainder of the service medical records were completely negative regarding a chronic nervous condition and no evidence that the Veteran’s claimed disabilities were incurred in or aggravated by his active service. In connection with his current claim, the Veteran provided updated treatment records showing a diagnosis of obsessive compulsive disorder and a statement from his ex-wife noting the Veteran’s drinking and arrest in service. The Board finds that the evidence added to the record since the April 1996 rating decision is new but not material. The Veteran has not provided evidence showing that he was treated for an acquired psychiatric disorder (other than PTSD) in service or that his current obsessive compulsive disorder is etiologically related to his period of active duty service. Rather, the new evidence merely reiterates that he is treated for mental health conditions. The ex-wife’s statement does not indicate that the Veteran was diagnosed with a psychiatric disorder in service, but instead notes his behavior in service. The Veteran’s in-service situational anxiety and arrest were of record at the time of the April 1996 rating decision. There is no medical evidence connecting such behavior to a diagnosed, chronic disability. The evidence is merely cumulative of the evidence that existed at the time of the initial denial, and therefore, is not found material to the Veteran’s claim. Accordingly, as new and material evidence has not been received to reopen the claim for service connection for an acquired psychiatric disorder other than PTSD, to include obsessive compulsive disorder, the petition to reopen the previously denied claim is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Lindsey Connor