Citation Nr: 19106950 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 17 16-989A DATE: January 29, 2019 ORDER The application to reopen the claim for service connection for depressive disorder and dysthymia with nocturnal enuresis is denied. The application to reopen the claim for service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for PTSD is denied. FINDINGS OF FACT 1. In an unappealed June 2000 decision, the Board denied service connection for depressive disorder and dysthymia with nocturnal enuresis, and posttraumatic stress disorder (PTSD). 2. Evidence received since the June 2000 decision, does not relate to an unestablished fact necessary to substantiate the claim for entitlement to depressive disorder and dysthymia with nocturnal enuresis. 3. Evidence received since the June 2000, decision, relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for PTSD. 4. The preponderance of the evidence is against a finding that the Veteran has PTSD, due to service. CONCLUSIONS OF LAW 1. The June 2000 Board decision denying service connection for depressive disorder and dysthymia with nocturnal enuresis, and entitlement to service connection for posttraumatic stress disorder (PTSD) is final. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 19.129, 19.192 (2017). 2. New and material evidence has not been received regarding the claim for service connection for depressive disorder and dysthymia with nocturnal enuresis, and the claim is not reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. New and material evidence has been received regarding the claim for service connection for PTSD, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty from August 1996 to November 1996. This matter is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Saint Louis, Missouri, Department of Veterans Affairs (VA) Regional Office (RO). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for depressive disorder and dysthymia, with nocturnal enuresis. Prior to service records from the Hopewell Center showed the Veteran sought treatment for her depressive disorder in 1995. She was diagnosed with major depression, dysthymic disorder, personality disorder, and alcohol dependence. She was placed on medication. She admitted to a history of suicidal ideation, and episodes of bed wetting since she was a child. She reported a history of hearing voices since she was a child. The Veteran’s service treatment records document that approximately one month following entry into service, her mental condition was evaluated. She reported trying to hurt herself several times prior to service. After the examination it was recommended she be separated for a condition that EPTS (existed prior to service), which was disqualifying for enlistment. In June 2000 the Board denied service for depressive disorder and dysthymia, with nocturnal enuresis. The Board’s denial was based on a conclusion that the Veteran’s depressive disorder and dysthymia with nocturnal enuresis clearly and unmistakably preexisted her entry into active duty. The Veteran was on active duty from August to November 1996, and there was no worsening of her underlying preexisting depressive disorder and dysthymia with nocturnal enuresis during her active service. The Veteran did not appeal this denial, nor did she submit any relevant evidence during the year following the June 2000 rating decision. Since the June 2000 decision, VAMC treatment records have been associated with the file, and indicate a diagnosis of and treatment for depressive disorder and dysthymia, and nocturnal enuresis. Though this is new evidence, it is not material. These records are essentially duplicative of the evidence already of record. They do not provide any explanation as to etiology or otherwise link the condition to the Veteran’s active duty service. There remains no evidence that the Veteran’s for depressive disorder and dysthymia, with nocturnal enuresis first manifested on active duty, or that her for depressive disorder and dysthymia, with nocturnal enuresis was permanently aggravated by service. Based on the above evidence, the Board finds that new and material evidence has not been received to reopen the claim of service connection for depressive disorder and dysthymia, with nocturnal enuresis. The treatment records are new, but the evidence does not raise a reasonable possibility of substantiating the claim. In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, 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 VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. There has been no evidence received since the June 2000 denial that raises the reasonable possibility of substantiating the claim. Even if the claim were to be reopened, VA’s duty to assist would not be triggered, as there is no indication the Veteran suffers from for depressive disorder and dysthymia, with nocturnal enuresis because of her time in service. The reopening of the claim is not warranted. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) In June 2000, the Board denied service connection for PTSD. The denial found the Veteran’s claim of entitlement to service connection for PTSD not well founded. At a VA examination in November 1997, the examiner stated the Veteran did not meet the criteria for PTSD. The Veteran submitted a request to reopen the previously denied claim of service connection for PTSD. In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade, supra. Moreover, 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 VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence received since the denial includes medical records, to include an examination and a positive nexus opinion from Dr. P. M., of West St. Louis Counseling. Dr. M. opined that it is more likely than not that the Veteran suffers from PTSD because of her time in service. This evidence relates to the basis for the prior denial, and raises a reasonable probability of substantiating the claim, thus, reopening of the claim is warranted. 3. Entitlement to service connection for PTSD is denied. Service connection for PTSD generally requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms an in-service stressor; and, (3) credible supporting evidence that the in- service stressor occurred. 38 C.F.R. § 3.304(f). Under the provisions of 38 C.F.R. § 3.304(f)(5), 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 Private records from Hopewell Center, from December 1995 reveal she reported being depressed her entire life. She reported suicidal ideation. She was diagnosed with dysthymic disorder, major depression, and alcohol dependence. During service in October 1996 she had an entrance physical standards board proceedings (EPSBD). She reported she began to experience nocturnal enuresis upon entering combat training. She reported nightmares and a history of trying to cut herself at age 18 or 19. She reported trying to hurt herself numerous times, and being suicidal. In October 1995, she was placed on Paxil and Trazadone. She reported telling her recruiter she was being seen for mental health issues, but that the recruiter told her to not tell the physician at the MEPS facility. She described a significant history of physical and verbal abuse by her mother. She was diagnosed with dysthymia and nocturnal enuresis. It was recommended she be separated for a condition that EPTS, which was disqualifying for enlistment. Despite a detailed psychiatric evaluation in service, not once did the Veteran reference witnessing the rape of another recruit, nor did she report any personal assault. She provided details of her pre-service experiences and traumatic events. She discussed her nocturnal enuresis in detail. The Board finds that if the Veteran indeed witnessed another’s rape in service, it would have been reasonable for her to have reported it at the time of her mental health examination. Although the Veteran submitted a statement to VA in 1997 noting that she witnessed a rape in service, the Hopewell Center records do not show her reports of this alleged traumatic event. In July 1997 the Veteran filed a claim for dysthymia and nocturnal enuresis, and sexual trauma due to witnessing a rape. She reported having depressive bouts with suicidal ideation prior to entering service. At a November 1997 examination, she did not meet the criteria for a diagnosis of PTSD. In June 2016, the Veteran underwent a psychiatric examination by Dr. P. M. She reported a good childhood, and having no mental health history prior to entering service. She was in basic training, and on guard duty one night. She reported witnessing a rape in the co-ed barracks one night, and being traumatized by the incident. She was released in November 1996. She reported being exposed to a forced rape in 1991 prior to service. She reported this trauma was worse than the first rape she witnessed because the rape she witnessed during service was after she felt she had begun to heal. Dr. M. concluded the Veteran suffers from PTSD because of the rape she witnessed while in Army Basic Training. Dr. M. did not note that the Veteran was ever personally assaulted in service. In a December 2018 statement from Dr. M., she explained that the Veteran suffers from PTSD because of time in service. She explained that the stressor as being the witness of another female recruit’s rape. There is a lack of information to corroborate the stressor associated with the Veteran’s claim for service connection for PTSD. The Veteran did not provide sufficient details to corroborate the stressful event, namely of witnessing another recruit’s rape. To the extent that the Veteran contends she witnessed a rape in service, the Board finds her statements lack credibility. She did not report witnessing the rape to evaluators just prior to discharge. She did not report witnessing the rape to treating professionals after she was discharged from service, and only reported it in conjunction with her claim for benefits. Post-service medical records are silent with respect to a PTSD diagnosis, until over 20 years after discharge. Therefore, there is no probative evidence of an in-service event that caused or aggravated her claimed psychiatric disorders. Upon careful review of the record, including the Veteran lay testimony, the Board finds that preponderance of the evidence is against awarding service connection for PTSD. The crucial inquiry here is whether the Veteran has established that she has PTSD due to her military service. The Board concludes she has not. Although the Board recognizes the Veteran’s sincere belief that she suffers from PTSD because of in-service trauma, there is no competent or credible evidence showing that the Veteran experienced an in-service trauma. The Veteran is competent to describe her symptoms, but she has not been shown to have medical expertise to render a competent medical opinion as to a diagnosis or etiology of what she observes. Again, her statements of witnessing a rape in service lack credibility. The Board finds the opinion of Dr. M. to be wholly conclusory and provided no discussion of the actual facts or reasoned analysis. Dr. M. provided a diagnosis of PTSD based on the Veteran’s reported history of military sexual trauma, rather than on evidence of a documented incident or after a review of the Veteran’s complete medical history. Further, the Veteran reported to Dr. M. that she had no pre-service psychiatric issues. The private physician noted the Veteran had no prior mental health history; however, the record is replete with evidence of an extensive mental health history dating back to 1995. A documented review of the file was not made. As such, Dr. M.’s opinion is afforded little probative weight. Although there is a documented diagnosis of PTSD, including as due to military sexual trauma, the diagnosis is not based upon a corroborated stressor or an exception to the requirement for a corroborated stressor. Additionally, with regard to the recent amendment codified at 38 C.F.R. § 3.304(f)(3), the Veteran is not shown to have been exposed to any hostile military or terrorist activity. The Board reiterates that any previous diagnoses of PTSD were not based on the Veteran’s reported stressors of her own sexual assault or abuse, but rather, due to witnessing the rape of another. In this regard, the Board finds that any diagnosis was solely based on the Veteran’s reported stressors, which have not been corroborated. As such, any such diagnoses of PTSD lack probative value. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion). The Board may not accept the medical diagnoses to the extent that they are not supported by the medical evidence or are based upon an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician’s opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). As noted above, Dr. M. did not consider her significant pre-service history of psychiatric issues, nor did Dr. M. appear to have reviewed the entire record. Therefore, Dr. M’s PTSD diagnosis lacks probative value as it is based on an inaccurate factual basis and unconfirmed stressors. In sum, the most probative evidence of record does not show the Veteran has a valid diagnosis of PTSD related to an event, injury, or disease in service. The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant’s favor in cases where there is an approximate balance of positive and negative evidence regarding a material issue. The preponderance of the evidence, however, is against the Veteran’s claim, and thus that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Skiouris, Associate Counsel