Citation Nr: 1823383 Decision Date: 04/20/18 Archive Date: 04/26/18 DOCKET NO. 14-18 911 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for irritable bowel syndrome (IBS). 3. Entitlement to service connection for brain damage. 4. Entitlement to service connection for a psychiatric disability, to include PTSD and depression. 5. Entitlement to service connection for a gastrointestinal disability, to include IBS. REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from October 1979 to August 1981. This appeal is before the Board of Veterans' Appeals (Board) from an April 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issues of service connection for a psychiatric disability, to include PTSD and depression, and a gastrointestinal disability, to include IBS, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The claims for service connection for IBS and PTSD were previously denied in September 2000 and March 2004 rating decisions, respectively; the Veteran did not appeal either decision, and no new evidence pertinent to either claim was received by VA within one year from the date that the RO mailed notice of the decision to the Veteran. 2. The additional evidence received since these final rating decisions relates to unestablished facts necessary to substantiate those claims. 3. The Veteran did not have a brain damage disability at the time of her December 2009 claim for benefits and has not had one at any time since. CONCLUSIONS OF LAW 1. The March 2004 rating decision denying service connection for PTSD is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156(b) (2017). 2. The September 2000 rating decision denying service connection for IBS is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156(b) (2017). 3. The additional evidence presented since the March 2004 rating decision is new and material, and the claim for service connection for PTSD is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 4. The additional evidence presented since the September 2000 rating decision is new and material, and the claim for service connection for IBS is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 5. The criteria for service connection for brain damage have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Pertinent procedural regulations provide that "[n]othing in [38 U.S.C. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C. § 5108]." 38 U.S.C. § 5103A(f). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). New evidence means existing evidence not previously submitted to VA. 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 RO denied service connection for IBS in a September 2000 rating decision, and denied service connection for PTSD in a May 2004 rating decision. These decisions were not appealed, and no new evidence pertinent to either claim was received by VA within one year from the date that the RO mailed notice of the decision to the Veteran. Furthermore, VA has not received or associated with the claims file any relevant official service department records that existed and had not been associated with the claims file at the time of those decisions. Therefore, those decisions are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103; see also 38 C.F.R. § 3.156(b), (c). The bases of the prior final denials were the findings that no chronic IBS condition that could be linked to service existed, and that PTSD was not shown to have been caused by service. Evidence obtained since these decisions include a December 2009 letter from a VA Trauma Recovery physician who stated that the Veteran was being treated for PTSD and major depressive disorder, with exacerbation of gastrointestinal distress due to IBS in response to stress. It also includes a December 2009 completed Mental Health Questionnaire from the same physician stating that the Veteran had a history of sexual trauma at the age of 21, and as a result developed PTSD, and a December 2017 statement from the Veteran that she suffers PTSD as a result of an in-service sexual assault. Without addressing the merits of this evidence, the Board finds that it addresses the issues of whether the Veteran has PTSD related to service, or IBS, related to service or to a service-connected disability. See Justus v. Principi, 3 Vet. App. 510, 512-513 (1992); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Shade v. Shinseki, 24 Vet. App. 110 (2010). Thus, this evidence is both "new," as it has not previously been considered by VA, and "material," as it raises a reasonable possibility of substantiating the Veteran's service connection claims. The Board thus finds that new and material evidence has been submitted to reopen the Veteran's claims for service connection for PTSD and IBS. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. As reflected in her December 2009 claim, the Veteran generally asserts that she has brain damage as a result of service. However, while an August 2006 VA treatment note indicates that the Veteran reported a remote head injury 10 years prior-which is not during her period of service-it was noted that magnetic resonance imaging (MRI) of the brain had been within normal limits. There is no other medical evidence suggesting that the Veteran has a current disorder related to brain damage. Thus, the weight of the evidence reflects that the Veteran did not have a brain damage disability at the time of her December 2009 claim for benefits and has not had one at any time since. Therefore, there can be no valid service connection claim for such disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Accordingly, service connection for brain damage must be denied. ORDER New and material evidence having been submitted, the claim for entitlement to service connection for PTSD is reopened and, to that extent only, the appeal is granted. New and material evidence having been submitted, the claim for entitlement to service connection for IBS is reopened and, to that extent only, the appeal is granted. Service connection for brain damage is denied. REMAND Initially, the Board observes that in response to reasonable efforts made by the RO of the National Personnel Records Center (NPRC), it appears that only an incomplete set of service treatment records (STRs) were obtained. Moreover, in April 2010, the RO made a formal finding of the unavailability of records to corroborate the Veteran's stressors, including the request of specified records from the service personnel file. However, it does not appear that the RO attempted to obtain the Veteran's entire service personnel file ("201" file); nor were any attempts made to obtain additional STRs from alternative sources. As there appears to be some missing service department records in this case, the Board has a heightened duty to assist and to explain its findings and conclusions and to consider the benefit of the doubt. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). VA treatment records reflect initial notations of abdominal pain, PTSD, and major depressive disorder in May 1999. In September 1999, the Veteran was noted to have had painful bouts of IBS and depression with suicidal ideation. A December 2009 letter from a VA Trauma Recovery physician states that the Veteran was being treated for PTSD and major depressive disorder, with exacerbation of gastrointestinal distress due to IBS in response to stress; a December 2009 completed Mental Health Questionnaire from the same physician states that the Veteran has a history of sexual trauma at the age of 21, and as a result developed PTSD. A December 2017 statement from the Veteran asserts that she suffers PTSD as a result of an in-service sexual assault. In an April 2010 memorandum from the RO making a formal finding of lack of information to substantiate a PTSD stressor, it was noted that the Veteran had not returned any stressor statements. As reflected in the May 2014 statement of the case, the Veteran's claim for a psychiatric disability, to include PTSD, was denied in part due to the Veteran's failure to complete the VA form regarding in service stressor information or otherwise provide specific details of her claimed in-service stressor. Following certification of the appeal to the Board, in December 2017, the Veteran provided a statement containing details of her in-service stressor. The Veteran asserted that she had been badly beaten and sexually assaulted at a base party in 1981; she stated that, following the assault, she went to the emergency room at Fort Stewart, was brought in on stretcher, reported a rape, and was stitched up and sent on her way. Also, the Board notes that the Veteran's DD Form 214 (Certificate of Release or Discharge from Active Duty) notes excess leave for 26 days between July and August 1981. For PTSD cases based on in-service personal assault, evidence of behavior changes that may constitute credible evidence of the stressor include deterioration in work performance, which VA may submit to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. See 38 C.F.R. § 3.304(f)(5). Given the notation of excess leave taken by the Veteran in July and August 1981, along with the general unavailability of the Veteran's service treatment records, the AOJ should obtain a an appropriate VA medical opinion as to whether the evidence of record indicates that the Veteran has a psychiatric disability, to include PTSD, as the result of her asserted in-service personal assault. In view of the information contained in the Veteran's December 2017 statement, the AOJ should attempt to obtain the entire service personnel records file; and contacts any alternative sources that may house additional STRs, to include the alleged 1981 emergency room at Fort Stewart. Regarding her claim for a gastrointestinal disability, treatment records reflect that the Veteran has been treated for bowel problems, and a July 2007 treatment record reflects that the Veteran reported related that colon perforation and other bowel problems began two months after her military sexual trauma including rape and sodomy. Also, again, a December 2009 letter from a VA Trauma Recovery physician states that she was being treated for PTSD and major depressive disorder, with exacerbation of gastrointestinal distress due to IBS in response to stress. Thus, the Veteran's claim for a gastrointestinal disability, to include IBS, is intertwined with her claim for a psychiatric disability. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Make all reasonable efforts attempts, to include appropriate search requests through alternative sources, to obtain the Veteran's entire service personnel records file; and any additional or available STRs, to include records from 1981 relating to the asserted emergency treatment following an in-service assault from Fort Stewart, as identified by the Veteran in her December 2017 statement. All reasonable efforts to search alternative sources of the record should be conducted. 2. Attempt to obtain all outstanding pertinent VA medical records dated from April 2010 to the present. 3. After completing the above and any other development deemed necessary, to include a VA examination(s), readjudicate the appeal. If any benefit sought remains denied, provide a supplemental statement of the case to the Veteran. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs