Citation Nr: 20028872 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 18-33 528 DATE: April 24, 2020 ORDER The application to reopen a previously denied claim for service connection for an acquired psychiatric disorder is granted. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, panic disorder, depression, agoraphobia, and generalized anxiety disorder, to include as secondary to MST, is granted. FINDINGS OF FACT 1. An unappealed March 2002 Regional Office (RO) rating decision denied the Veteran service connection for an acquired psychiatric disorder. 2. Evidence received since the March 2002 RO decision that denied service connection for an acquired psychiatric disorder is new and material, in that it is not cumulative or redundant of the evidence of record at the time of the March 2002 rating decision and raises a reasonable possibility of substantiating the claim. 3. Resolving all reasonable doubt in the Veteran’s favor, her acquired psychiatric disorder, to include PTSD, panic disorder, depression, agoraphobia, and generalized anxiety disorder, is related to her MST experienced during active service. CONCLUSIONS OF LAW 1. The March 2002 rating decision that denied service connection for an acquired psychiatric disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The evidence received since the final March 2002 rating decision is new and material, and the claim for service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 3. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, panic disorder, depression, agoraphobia, and generalized anxiety disorder, as due to MST, have been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1992 to July 1993. This current matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The Veteran initially requested a Board hearing on her June 2018 VA Form 9. However, in subsequent correspondence dated in August 2019 and January 2020, the Veteran indicated, through her attorney, that she wished to withdraw her request for a hearing. Thus, her Board hearing request is considered withdrawn. 38 C.F.R. § 20.704(e). The Board has recharacterized the Veteran’s underlying service connection claim to include all psychiatric disorders that have been diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (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). New and Material – An Acquired Psychiatric Disorder Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides 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. New and material evidence is defined as evidence not previously submitted to agency decision makers which bear directly and substantially upon the specific matter under consideration; such new and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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). Here, a March 2002 rating decision denied service connection for an acquired psychiatric disorder. As new and material evidence was not received within the one-year period following notification of the decision, and the Veteran did not initiate an appeal of the decision by filing a notice of disagreement, the decision became final. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 20.1100(a), 20.1104. The Veteran most recently filed a request to reopen her claim for service connection for an acquired psychiatric disorder in March 2016. Evidence associated with the claims file since the last final March 2002 denial includes VA treatment records with medical opinions, including a June 2016 VA examination for PTSD and private treatment records. This new evidence, in conjunction with the evidence already of record, raises a reasonable possibility of substantiating the claim as it suggests the Veteran has an acquired psychiatric disorder related to MST. Thus, the Board finds that the new and material evidence criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claim of service connection for an acquired psychiatric disorder is reopened. Service Connection – Variously Diagnosed Acquired Psychiatric Disorders Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection for PTSD 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); see also Cohen v. Brown, 10 Vet. App. 128 (1997). The sufficiency of a stressor is a medical determination and is presumed by a medical diagnosis of PTSD. Cohen, 10 Vet. App. at 140. If a PTSD claim is based on an in-service personal assault, medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated. Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). Section 3.304(f)(5) provides that PTSD based on a personal assault in service permits evidence from sources other than a veteran’s service records which may corroborate his or her 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. When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). Here, the Veteran claims entitlement to service connection for PTSD due to military sexual trauma in service. Specifically, the Veteran contends that she was a victim of several incidents of sexual assaults that occurred in service, which subsequently led to her PTSD and other psychiatric disorders. The Veteran’s January 1992 enlistment examination report does not show evidence of any psychiatric disorder – no defects were noted upon entry into service. Service treatment records (STRs) dated in April 1993 show complaints for stress. During a May 1993 examination, the Veteran reported frequent trouble sleeping, depression or excessive worry, and loss of memory or amnesia. She was diagnosed with borderline personality disorder in May 1993, and was later discharged from service, in July 1993, for such disorder. Notably, in July 1993, immediately prior to her service discharge, it was noted that the Veteran was positive for suicidal ideation and had a history of poor coping skills and anxiety attacks. She had a consultation with psychiatry and was recommended for psychiatry admission. The Veteran’s VA and private treatment records show generally consistent reporting of psychiatric symptoms and diagnoses related to military sexual trauma beginning around 2001. These records also reflect that the Veteran received counseling and therapy treatment for her psychiatric symptoms. During a February 2001 VA examination for mental disorders, she was diagnosed with dysthymia and borderline personality disorder. The examiner indicated that the Veteran did not seem to exhibit symptoms related to any mental disorder prior to service, but she did not opine as to whether the Veteran’s diagnosed psychiatric disabilities are related to service. In March 2016, the Veteran submitted lay statements from both her spouse and her aunt. The Veteran’s spouse stated that the Veteran had told him about incidents of sexual assaults by military personnel while she was in service. He also attested to observing notable behavioral changes in the Veteran after those incidents occurred. The Veteran’s aunt noted significant behavioral changes that she observed in the Veteran after service, which led to her suspicions that the Veteran had been sexually assaulted in service. On a July 2016 VA examination report, the examiner diagnosed the Veteran with borderline personality disorder and PTSD. She noted that she assigned the PTSD diagnosis with reservation, as it was primarily based on the Veteran’s reports of numerous sexual assaults that occurred in service. She indicated that she could not distinguish what portion of the Veteran’s symptoms are attributable to each diagnosis, which made it difficult to determine whether the Veteran truly has PTSD, as opposed to borderline personality disorder. The examiner noted that the Veteran’s psychiatric disorder resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. She indicated that the Veteran’s stressors of incidents related to military sexual assault were sufficient to support a diagnosis of PTSD. She stated that the markers of the Veteran waking up in her barracks with men in her room and later undergoing an examination for sexually transmitted diseases, which revealed a diagnosis of vaginosis, could possibly be from an MST. She noted that the only marker documented in the Veteran’s service treatment records is a diagnosis of vaginosis. The examiner opined that it is less likely than not that the Veteran’s records support the occurrence of military sexual trauma. She explained that she was assigning a diagnosis of PTSD diagnosis with reservations as it is impossible to determine if the Veteran’s symptoms are related to borderline personality disorder or PTSD. On an August 2017 VA Review Disability Benefits Questionnaire (DBQ) for PTSD, the contract examiner, a psychologist who indicated that she had been assessing the Veteran since April 2017, diagnosed the Veteran with PTSD, panic disorder, and agoraphobia. She noted an extensive overlap of symptoms related to what she termed anxiety-based disorders. The examiner indicated that the Veteran’s mental disorders resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. She remarked that the Veteran’s history is indicative of good functioning and military performance prior to stressor incidents in the military and circumstances of discharge, while noting that there was a progressive advancement of anxiety-related avoidance and both mental and physical health problems since the Veteran’s in-service experiences. In an accompanying nexus opinion letter, the psychologist opined that the Veteran’s symptoms are consistent with a primary diagnosis of chronic PTSD, and that it is at least as likely as not directly related to traumatic events the Veteran suffered during her military service. She also noted that, as a consequence of managing untreated symptoms associated with PTSD, the Veteran also meets diagnostic criteria for secondary diagnoses of panic disorder, agoraphobia, and generalized anxiety disorder. She stated that the Veteran first reported to her treatment facility in April 2017, requesting assistance in readjustment issues related to PTSD. She noted that the Veteran presented with significant anxiety and arousal that contributed to emotional lability, ruminative worry, cognitive problems, insomnia, and frequent panic attacks. The psychologist indicated that, throughout the treatment period, the Veteran was consistent in her report of traumatic events that she relives daily through intrusive thoughts and memories, as well as nightmares. She noted that a thorough review of the Veteran’s military history shows a clear record of decompensation from an initially high level of performance after experiencing multiple traumatic events during service. She stated that the Veteran did not exhibit psychiatric issues or concerns during a pre-active duty medical examination or during basic training. The psychologist outlined the Veteran’s reported incidents of abuse during service, including sexual assault by a female peer, rape by a group of male peers, physical assault and threat of sexual assault by servicemen from another military unit, and another physical assault by a group of servicemen during a bar fight in which the Veteran had to fight to escape the situation. Due to these events, the psychologist continued, the Veteran sought testing for sexually transmitted diseases (STDs). She also mentioned that the Veteran underwent a pregnancy test and resumed birth control after her MST. The Veteran’s attorney, in an August 2019 Appellate Brief, argued that the pregnancy and STD tests immediately following the Veteran’s MST serve as markers to corroborate the Veteran’s account of MST. The Board finds that the Veteran’s acquired psychiatric disorder, to include PTSD, panic disorder, depression, agoraphobia, and generalized anxiety disorder is caused, and/or aggravated, by her military sexual trauma. As such, service connection for an acquired psychiatric disorder, to include PTSD, panic disorder, depression, agoraphobia, and generalized anxiety disorder PTSD due to MST is warranted. In reaching this decision, the Board finds that the June 2016 VA opinion does not carry much probative value. The examiner noted that she was not able to distinguish the Veteran’s PTSD from borderline personality disorder symptoms but then concluded that the Veteran’s documented borderline personality disorder overrides anything else that she may have. This statement represents one of the few contradictions shown in the examiner’s opinion. Moreover, the examiner based the unfavorable nexus opinion on a lack of markers or documentation of sexual assault. This cannot be the basis of a denial of the Veteran’s claim because, 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). The Board assigns less weight to this opinion. Although the record does not definitively establish that the Veteran experienced military sexual trauma in service, the Board looks to the regulatory provisions governing service connection for PTSD due to military sexual trauma in finding that the described events did occur. 38 C.F.R. § 3.304(f)(5). The Board finds that there is sufficient evidence in the record to establish credibly that the Veteran was a victim of military sexual trauma and that her PTSD is related to such incidents in service. The Board finds the Veteran’s lay statements of record to be credible and acknowledges the corroborative buddy statements from her spouse and her aunt. Moreover, the August 2017 VA contract examiner and psychologist provides a positive medical nexus to military sexual trauma. Based on the foregoing, the Board concludes that the evidence is in relative equipoise. In such circumstances, the regulations dictate that reasonable doubt is to be resolved in the Veteran’s favor. Accordingly, as the benefit-of-the-doubt rule is for application, the Board finds that the grant of service connection for an acquired psychiatric disorder, to include PTSD, panic disorder, depression, agoraphobia, and generalized anxiety disorder as a result of MST, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, 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.