Citation Nr: 20021137 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 16-33 599 DATE: March 24, 2020 ORDER New and material evidence having been received, the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened. Entitlement to service connection for PTSD is granted. FINDINGS OF FACT 1. An unappealed June 1997 rating decision denied service connection for a personality disorder. 2. Evidence added to the record since the June 1997 rating decision, which was not previously of record and which is not cumulative of other evidence of record, raises a reasonable possibility of substantiating the claim for entitlement to service connection for PTSD. 3. The Veteran’s PTSD is due to military sexual trauma (MST) that occurred during her active service. CONCLUSIONS OF LAW 1. The criteria for reopening the claim for entitlement to service connection for PTSD have been met. 38 U.S.C. § 5108; 39 C.F.R. § 3.156. 2. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1990 to March 1991. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in October 2015 by a Department of Veteran’s Affairs (VA) Regional Office. 1. New and Material Evidence Having Been Received, the Claim of Entitlement to Service Connection for PTSD is Reopened. Irrespective of the RO’s actions, it is the Board’s responsibility to consider whether it is proper for a claim to be reopened. Barnett v. Brown, 93 F.3d 1380 (Fed. Cir. 1996). Generally, unappealed rating decisions are final with the exception that a claim may be reopened by the submission of new and material evidence. When an appellant seeks to reopen a claim based on new and material evidence, the VA must first determine whether the additional evidence is “new and material.” Second, if the VA determines that new and material evidence has been added to the record, the claim is reopened and the VA must evaluate the merits of the appellant’s claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95 (1993). New evidence means 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. 39 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 the new evidence is presumed; its weight is not presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In a June 1997 rating decision, the regional office denied service connection for a personality disorder (claimed as mental problems). The RO determined that a personality disorder is considered a congenital or developmental defect, unrelated to military service and not subject to service connection. The Veteran did not file a notice of disagreement. There was also no new, relevant evidence received within one year of the June 1997 rating decision. As such, the rating decision became final. In April 2015, the Veteran filed a claim for entitlement to service connection for PTSD due to MST. The scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). Put another way, she continues to seek service connection for an acquired psychiatric disorder (mental problems), however variously claimed and diagnosed. New and material evidence is thereby required to reopen the Veteran’s claim of entitlement to service connection for PTSD. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (quoting Boggs, 520 F.3d at 1337). Evidence received since the June 1997 rating decision includes a June 2018 Disability Benefits Questionnaire (DBQ) by Dr. J.A., Jr. showing that the Veteran has a diagnosis of PTSD, to include secondary persistent depressive disorder as part of the same syndrome, corroboration of the Veteran’s in-service MST, and a finding that a MST occurred during service. This evidence is new to the record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Accordingly, the Veteran’s petition to reopen his claim for entitlement to service connection for PTSD is granted. 2. Entitlement to Service Connection for PTSD Establishing service connection for PTSD generally requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). The first element of service connection is met here. A June 2018 private DBQ by Dr. J.A., Jr., documents a diagnosis of PTSD. He stated that the Veteran met all CAPS-based protocol requirements under the DSM-V for a diagnosis of PTSD. The Board notes that the record also includes a diagnosis of personality disorder, which is not a disability that warrants service connection. However, a June 1996 VA treatment record notes that the Veteran’s personality profile was invalidated due to an extreme response set towards over-reporting pathology. This notation was addressed by Dr. J.A., Jr. who stated that the instability in all areas of the Veteran’s life are part and parcel of the borderline syndrome which Dr. J.A., Jr. explained is an acquired, not congenital process. With respect to the second element, the Veteran reports an instance of MST. An April 2015 statement provides a detailed description of a sexual assault she experienced while in service. The episode of MST is also well-described in the June 2018 DBQ by Dr. J.A., Jr. who is a licensed psychologist. Generally, the assault occurred in July 1990 when she was sexually assaulted by an NCO. In Patton v. West, 12 Vet. App. 272 (1999), the Court held that special consideration must be given to claims for service connection for PTSD based on personal assault as a result of the sensitivity and difficulty in establishing proof of the assault in such claims. Patton also held that medical evidence could be used to corroborate the Veteran’s claimed stressor in personal assault PTSD claims. 38 C.F.R. § 3.304 (f)(5) also allows the Veteran to use evidence other than the service treatment records to corroborate his account of the stressor incident. This evidence includes, but is not limited to: medical records, police records, statements from the Veteran’s family and friends, and changes in behavior, to include, substance abuse, a request for a transfer to another military duty assignment, and unexplained changes in social behavior. This evidence is still subject to a credibility analysis. Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). The Veteran’s service treatment records note some markers of MST and manifestations of psychiatric symptoms during service. A January 1991 service treatment record indicates that the Veteran was hospitalized due to a suicidal gesture. She was diagnosed with severe personality disorder such that her ability to function effectively in a military environment was significantly impaired. A February 1991 service treatment note confirmed the diagnosis but noted disagreement as to the characterization of the discharge as the Veteran had a good military record “prior to acting out.” The Veteran’s February 1991 Report of Medical History indicates the Veteran reported frequent trouble sleeping, depression or excessive worry, and nervous trouble. A March 1991 service personnel record indicates that the Veteran was separated from service for personality disorder. Further, evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the incident; such sources include records from mental health counseling centers. 38 C.F.R. § 3.305 (f)(5). While neither the Veteran’s service treatment records nor her service personnel records contain any documentation of an assault, the Board notes that the Veteran has undergone treatment for suicidal gestures in April 1996 and again in March 1997. In April 1996, the Veteran reported having felt depressed for five years, and that she experienced an attempted rape in service. The Veteran’s now ex-spouse stated that on multiple occasions the Veteran has been seen with guns. In March 1997, the Veteran was diagnosed with major depression with suicidal plan/ideation. In September 2002, the Veteran was diagnosed with borderline personality. A March 2003 mental health evaluation notes an Axis II diagnosis of paranoid personality disorder, though referencing a February 2000 diagnosis by a Dr. J.R., of major depressive disorder, anxiety disorder with some PTSD features. In an April 2015 lay statement, the Veteran’s roommate/landlord, T.G., wrote that she observed the Veteran experiencing mood swings of depression including not bathing or brushing her hair. T.G. further stated that she is aware that Veteran thinks of suicide from time to time. In a July 2016 statement to the social security administration, T.G. wrote that the Veteran is always in conflict with authority figures. An October 2017 private treatment note indicates a positive screening for depression. Dr. J.A. essentially associated these various reports and complaints into a finding that the Veteran was assaulted in service. The opinion thoroughly accounts for the Veteran’s history and accurately states the nature of her childhood and background. Dr. J.A., Jr. interviewed the Veteran, reviewed her medical file, considered and addressed inconsistencies in the evidence and opined that the Veteran had exhibited good adjustment to military life until the event in question. He explained that this was a marker for verification and supported this by stating the Veteran had reported the incident and there was an investigation. Dr. J.A., Jr. opined that the Veteran displays mental health difficulties in several areas including borderline and paranoid personality trait disturbance which began in the military, along with PTSD. Dr. J.A., Jr. explained that the Veteran has secondary persistent depressive disorder as well and that all of the Veteran’s mental health disabilities work together and intermix all stemming from the same traumatic event. Dr. J.A. has also concluded that the Veteran’s PTSD is proximately due to MST during her active service. Given the above, the Board concludes that the totality of evidence weighs in favor of the Veteran’s claim. Entitlement to service connection for PTSD due to MST is granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.304. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, Associate Counsel 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.