Citation Nr: 21001298 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-61 415 DATE: January 7, 2021 ORDER 1. Since there is new and material evidence, the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened. 2. Moreover, the underlying claim of entitlement to service connection for PTSD is granted. FINDINGS OF FACT 1. Additional evidence received since a prior, final and binding, December 2013 regional office (RO) decision earlier considering and denying service connection for PTSD is not cumulative or redundant of the evidence considered in that earlier decision, relates to an unestablished fact necessary to substantiate this claim, and raises a reasonable possibility of substantiating it. 2. It is just as likely as not the Veteran has PTSD owing to military sexual trauma (MST), so because of that injury during his service. CONCLUSIONS OF LAW 1. There is new and material evidence since the December 2013 decision to reopen this claim of entitlement to service connection for PTSD. 38 U.S.C. §§ 5107, 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156. 3.160(d), 20.200, 20.1103 (2018). 2. And, resolving all reasonable doubt in the Veteran's favor, the criteria are met for his entitlement to service connection for PTSD. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the Army from October 1986 to October 1988 and had additional service in May 1992. This appeal to the Board originates from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of this claim during a recent virtual hearing in November 2020 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. 1. Since there is new and material evidence, this claim of entitlement to service connection for PTSD is reopened. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing 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. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. This claim was initially considered and denied in September 2008 because there was no credible evidence then of record tending to support the Veteran’s contention of an especially traumatic event (“stressor”) during his service leading to PTSD. The claim was denied again in August 2009 for similar reasons and again in December 2013 because there continued to be no credible evidence supporting his stressor account. Those prior decisions denying this claim, including the most recent December 2013 decision, are final and binding determinations based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.156. 3.160(d), 20.200, 20.1103 (2018). That December 2013 decision therefore marks the “starting point” for determining whether new and material evidence since has been submitted or otherwise obtained to warrant reopening this claim and readjudicating it on its underlying merits (i.e., on a de novo basis). See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996) (indicating to review for newness and materiality all evidence submitted or otherwise obtained since the last final and binding denial of the claim, irrespective of whether that denial was on the underlying merits or, instead, a prior petition to reopen the claim). To this end, the Veteran since has submitted VA treatment notes and the report of a July 2016 PTSD examination, as well as additional information tending to support his stressor account. This is new and material evidence and, therefore, reason to reopen his claim since there now at least is the required suggestion of a relevant event (i.e., stressor) during his service that may account for him now having PTSD. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).   2. Entitlement to service connection for PTSD is granted. The Veteran contends that he has PTSD owing to MST in 1987, so during his initial period of service. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge from service, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection for PTSD, in particular, requires: (1) medical evidence diagnosing the condition in accordance with the requirements of 38 C.F.R. § 4.125 (meaning in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM)); (2) credible supporting evidence that the claimed in-service stressor 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 Fifth Edition of the DSM (DSM-5) has replaced the Fourth Edition of the DSM (DSM-IV), and all applications for benefits received by VA or pending before the agency of original jurisdiction (AOJ), i.e., RO on or after August 4, 2014 must refer to the DSM-5. Since the Veteran's claim was certified to the Board in March 2017, so after that delimiting date, the DSM-5 is applicable. Records confirm the Veteran has the required current diagnosis of PTSD since indicated in both his VA treatment records and in the report of his VA examination in July 2016. Moreover, this diagnosis has been etiologically linked to his prior military service and, more specifically, to the MST he has testified to experiencing. For example, treatment records indicate he was diagnosed with PTSD associated with MST in November 2007. And, while the Board acknowledges the VA examiner in July 2016 clarified the PTSD diagnosis was a “rule-out diagnosis,” as a result of inconsistencies in the Veteran’s self-reporting of symptoms and credibility, the evidence on the whole provides the required indication he has PTSD owing to the MST alleged. The Board, consequently, is resolving all reasonable doubt in the Veteran’s favor and granting, rather than denying, his claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). If, as here, a PTSD claim is based on in-service personal assault, so including MST, evidence from sources other than the Veteran's service records may corroborate his 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. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5). In cases involving personal assault, the existence of a stressor in service does not have to be proven by the "preponderance of the evidence" because this would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C. § 5107(b). See YR v. West, 11 Vet. App. 393, 399 (1998); Patton v. West, 12 Vet. App. 272, 279-280 (1999). The Court clarified in YR and Patton that the general rule discussed in Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996), that after-the-fact medical nexus evidence cannot establish the occurrence of the claimed in-service stressor, does not apply to PTSD claims based on personal/sexual assault. See also Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) (reiterating that, when a claim is predicated on personal/sexual assault, a post-service examination of a Veteran may be used to establish the occurrence of the claimed stressor). Courts have recognized that, since sexual assault is an extremely personal and sensitive issue, many incidents are not officially reported until years later. See Menegassi at 1383; see also Bradford v. Nicholson, 20 Vet. App. 200 (2006). Turning now to the relevant evidence of record, the Veteran as mentioned contends that he was assaulted in 1987. His military personnel records indicate multiple occasions when he was absent without leave (AWOL) and accordingly charged during his active duty for training (ACDUTRA) in 1992 for refusing to attend drills. A November 2016 written statement from his mother also relates a number of behavior changes owing to his substance abuse before and after separating from the military. As a general matter, VA law and regulations preclude an award of direct service connection for disability that originated due to substance abuse, as this is deemed to constitute willful misconduct on the part of the claimant. 38 U.S.C. § 105(a); 38 C.F.R. § 3.301(b), (d); VAOPGPREC 7-99, 64 Fed. Reg. 52,375 (June 9, 1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, has held that there can be compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a Veteran's service-connected disability. See Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001) (indicating that Veterans could only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder."). This dynamic must be considered when, as here, the Veteran alleges his substance abuse was, in actuality, just a means of coping with the effects of his PTSD (i.e., a coping mechanism). The Veteran credibly testified to increased substance abuse and personality changes following his assault and eventual separation from the military. Further, his service treatment records (STRs) indicate that, in December 1987, he sought treatment for several unexplained injuries – including an inability to sleep, diarrhea, and rectal bleeding. He also later sought treatment in February 1988 for a black eye. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, meaning about evenly balanced for versus against the claim, with the Veteran prevailing in either event, or whether instead a preponderance of the evidence is against the claim, in which case the claim is denied. According to the holding in Gilbert, supra, "a [V]eteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (explaining that an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Rather, this need only be an "as likely as not" proposition, which in this instance it is for the reasons and bases discussed. Thus, the Board finds that service connection for PTSD is warranted. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. B. Kucera 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.