Citation Nr: 19166360 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 14-37 152 DATE: August 27, 2019 ORDER New and material evidence to reopen a claim for entitlement to service connection for posttraumatic stress disorder has been submitted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, is remanded. FINDINGS OF FACT 1. The January 2009 rating decision is a final decision. 2. Evidence received since the January 2009 rating decision is new and material regarding the issue of service connection for posttraumatic stress disorder, as it contains evidence not previously considered that has some tendency to help link the Veteran’s claim to his active military service. CONCLUSIONS OF LAW The criteria for reopening the Veteran’s previously denied claim of service connection for posttraumatic stress disorder have been met. 38 U.S.C. § 5.108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from November 1973 to April 1974 and from May 1976 to January 1977. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision from the Seattle, Washington Regional Office (RO) for the Department of Veterans Affairs (VA). The Board previously made a decision on the new and material evidence issue in July 2018. This decision was subject to a joint motion for remand (JMR) approved by the United States Court of Appeals for Veterans Claims (Court) in April 2019. The issue has now been returned to the Board. Service Connection 1. New and Material Evidence Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened or allowed. 38 U.S.C. § 7105(c), (d)(3); 38 C.F.R. § 20.1103. 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; 38 C.F.R. § 3.156(a). “New evidence” means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior denial. 38 C.F.R. § 3.156(a). Materiality has two components; first, that the new evidence pertains to the reason(s) for the prior denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in the substantiation of the claim, applying concepts derived from the duty to assist. Id. at 118. The Veteran seeks to reopen the previously denied claim of posttraumatic stress disorder (PTSD). The Veteran was initially denied service connection for PTSD related to his military sexual trauma (MST) in January 2009 by the Seattle, Washington RO, and the denial was confirmed and continued in April 2013. The claim was denied because the Veteran did not provide sufficient evidence to corroborate an in-service stressor incident or event. In July 2018 the Board found that new and material evidence had not been associated with the claims file since the January 2009 rating decision. The Board denied the claim of entitlement to service connection for PTSD to be reopened, but the April 2019 Court’s joint motion for remand (JMR) vacated the Board’s decision because the Board failed to provide an adequate statement of reasons or bases by not addressing relevant and favorable evidence. After reviewing the record again, the Board has found that since the January 2009 rating decision, additional evidence has been received by VA in the form of medical opinions and evaluations. This evidence is new because it has not previously been submitted or considered. The evidence is also material because it pertains to the basis for the prior denial, that is, a basis related to the corroboration of the in-service stressor and raises a reasonable possibility of substantiating the claim. Specifically, the Veteran submitted medical records from an October 2004 mental health assessment from the Seattle VA medical center where the physician opines that the Veteran’s PTSD is related to his MST. The October 2004 medical opinion can be used to corroborate the reported in-service stressor for sexual assault. See Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) (“we hold that medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated’); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). For these reasons, the Board finds that new and material evidence has been received to reopen the evaluation of service connection for PTSD. When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216 (1995). The new evidence raises a reasonable possibility of substantiating the claim; thus, this evidence is new and material and the requirements to reopen the claim under 38 C.F.R. § 3.156(a) have been satisfied. Accordingly, the Board has determined that new and material evidence has been received to reopen the evaluation of service connection for PTSD. REASONS AND BASES FOR REMAND Having reopened the claim the Board finds further development is necessary. A review of the record reflects several different psychiatric diagnoses. Furthermore, as stated previously, unlike in other PTSD claims, in PTSD claims based on personal assault, an after-the-fact medical opinion can actually service as the credible supporting evidence of the stressor. Menegassi (Fed. Cir. 2011). In fact, according to the special provisions of 38 C.F.R. § 3.304 (f)(4), VA may submit any evidence that it receives concerning the alleged military sexual trauma to an appropriate medical or mental health professional for an opinion as to whether the evidence indicates that a personal assault occurred. In light of the lay statements asserting a sexual assault in service, lay statements as to behavioral changes, and the current mental health treatment, the Board finds that an examination must be provided to assist in determining whether any currently diagnosed psychiatric disorder is related to the claimed assaults in service. Accordingly, these matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, to determine the nature and etiology of any currently diagnosed psychiatric disorders. a.) Offer an opinion on whether the Veteran meets the DSM-V criteria for a diagnosis of PTSD. The examiner is instructed to consider the claimed personal attack on the Veteran in which he was sexually assaulted. b.) If the Veteran meets DSM-V criteria for a diagnosis of PTSD, offer an opinion whether it is at least as likely as not (probability approximately 50 percent), that PTSD is related to the above stressor. c.) for any diagnosed PTSD, the examiner should offer an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that any behavior changes were demonstrated in service or shortly thereafter and, if so, whether such changes may be indicative of a personal assault having been committed upon the Veteran in service. The examiner must comment on the lay statements of record. (Continued on the next page)   d.) If the Veteran meets the criteria for any psychiatric diagnoses other than PTSD, offer an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any psychiatric disorder other than PTSD is related to the Veteran’s service. An opinion should be rendered for each psychiatric condition with which the Veteran is diagnosed. The examiner is asked to provide a rationale for the opinions rendered. If the examiner is not able to provide an opinion, he or she should explain why. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Iannone, Attorney Advisor The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.