Citation Nr: 21062898 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 20-28 414 DATE: October 12, 2021 ORDER There is new and material evidence to reopen the previously denied claim for service connection for an acquired psychiatric disorder; to that extent only, the appeal of this claim is granted Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), is denied. Entitlement to service connection for residuals of a fracture of the left foot, including secondary to a right knee disability, is denied. FINDINGS OF FACT 1. The claim for service connection for an acquired psychiatric disorder was previously considered and denied in an April 2015 rating decision. The Veteran did not appeal that decision. 2. But evidence added to the file since that April 2015 denial is not cumulative or redundant of the evidence considered in that prior decision and raises a reasonable possibility of substantiating this claim of entitlement to service connection for an acquired psychiatric disorder. 3. Still, however, the preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disorder that originated during her service, or that manifested to a compensable degree within a year of her separation from service (this applies specifically to psychoses), or that is otherwise related or attributable to her service. 4. The fracture of her left foot was not caused and is not aggravated by her service-connected right knee disability and not otherwise related or attributable to her service. CONCLUSIONS OF LAW 1. The April 2015 rating decision that previously considered and denied service connection for an acquired psychiatric disorder is a final and binding determination based on the evidence then of record. 38 U.S.C. § 7104(b); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.1103 (2018). 2. But there is new and material evidence since that decision to reopen this claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. However, the criteria still are not met for entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria also are not met for entitlement to service connection for the fracture of the left foot either on the premise that it is directly due to service or secondary to the service-connected right knee disability. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January to March 1991. This appeal to the Board of Veterans' Appeals (Board) is from a December 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran has several mental health disorder diagnoses including psychotic depression, PTSD, and unspecified depressive disorder. In determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Given those holdings in Clemons and the uncertainty of the Veteran's specific diagnosis, including in terms of whether some versus all are warranted, the Board has expanded her claim to include all diagnoses to date. This will provide the most favorable review of her claim in keeping with the Court's holdings in Clemons. Id. NEW AND MATERIAL EVIDENCE New and material evidence has been received to reopen the previously denied claim for service connection for an acquired psychiatric disorder; to that extent only, the appeal of this claim is granted. The RO previously considered and denied the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder in April 2015. She did not appeal that decision, so it is final and binding based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A claim of entitlement to service connection may be reopened, however, if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is presumed unless the allegation is beyond the competence of the person making it or inherently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of 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 the VA's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Because the prior April 2015 decision is the last final and binding denial of this claim, it marks the "starting point" for determining whether there is the required new and material evidence since that decision to reopen this claim. 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). The claim was denied in April 2015 on the basis that an in-service stressor could not be confirmed. But, since then, the Veteran has provided statements explaining she was the victim of military sexual trauma (MST). See 38 C.F.R. § 3.304(f)(5). Given these more recent contentions, including especially that she is a victim of MST, there is new and material evidence to reopen this claim. SERVICE CONNECTION Service connection is granted for a disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Psychoses may be presumed to have been incurred in service if they manifested to a compensable degree (meaning to at least 10-percent disabling) within a year of the Veteran's separation from service, although this presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a), 3.384. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted, as well, on a secondary basis for disability found to be proximately due to, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a) and (b). To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability either in the way of causation or aggravation. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The determination of whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its competency and credibility to, in turn, determine its ultimate probative value in relation to other relevant evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claims file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for an acquired psychiatric disorder is denied. The Veteran contends that she suffers from a psychiatric disorder, particularly PTSD, because of especially traumatic events ("stressors") that occurred during her time in service. Service connection for PTSD, in particular, requires medical evidence of a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (meaning in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM)), a medically established link between the current symptoms and a stressor in service, and credible supporting evidence that the claimed stressor in service occurred. See 38 C.F.R. § 3.304(f). Here, a private evaluator diagnosed the Veteran with PTSD in August 2010. However, in November 2016 a PTSD examiner conversely determined the Veteran does not meet the DSM requirements for this diagnosis. That notwithstanding, the Board finds the evidence is in relative equipoise as to whether she has the required DSM diagnosis of this condition. See Cohen v. Brown, 10 Vet. App. 128 (1997) (explaining that a diagnosis is presumed to be in accordance with the DSM criteria). However, even conceding that, the Board concludes that the preponderance of the evidence weighs against finding that the Veteran's psychiatric disorder began during her service, or that she had a psychosis within a year of her separation from service (PTSD is a neurosis, not psychosis), or that her disorder is otherwise related or attributable to her service. At the forefront, there is a question of the Veteran's credibility in relation to this claim. The Board sees that her reports of traumas ("stressors") in service are inconsistent. While she reported at one point an explicit sexual assault, so MST, she later reported that the acts were consensual, and she used it as a bargaining tool to receive lighter duties. During a July 2012 VA PTSD Intake Report, she revealed that the acts during service was consensual and she was not physically forced. The examiner asked her numerous times if there were other MST events that occurred during her service, and in response she denied any MST events. Conversely, in a December 2017 Statement in Support of her PTSD claim, he maintains that she was sexually assaulted by her supervisor, who forced himself on her. These patent inconsistencies in her recollections tend to undermine the credibility of her contentions and call into question the actual occurrence of these claimed events even recognizing the certain concessions that are made and lesser pleading and proof requirements when a claim for PTSD is predicated on MST. 38 C.F.R. § 3.304(f)(5). Moreover, although, in the MST context, it is permissible to have after-the-fact medical nexus evidence etiologically linking PTSD to service, the most persuasive medical opinions in this case are unfavorable to the claim, not instead supportive of it and are more probative than the medical opinions contrarily supporting the claim such that, on the whole, the evidence for versus against this claim is not in relative balance (equipoise). If 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 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. 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). Here, though, in this regard, several VA examiners thoroughly interviewed the Veteran and reviewed the claims file and concluded that it is less likely than not that her psychiatric disorders (so irrespective of diagnosis) are related to her service including the result of MST. The July 2012 VA examiner concluded that the Veteran's sexual trauma, instead, is from her childhood and does not involve any activity during her service. The examiner noted that the Veteran exhibits depressive symptoms related to a mélange of experiences such as her childhood sexual abuse, extensive history of drug and alcohol abuse, and chronic pain. The VA examiner explained that the Veteran's PTSD symptoms related to her childhood sexual abuse were not queried due to time constraints and their being outside of the scope of this military-related trauma/PTSD interview. This conclusion also was corroborated by the November 2016 VA examiner. This additional examiner determined the Veteran's psychiatric disorder symptoms occurred prior to her service due to abuse by her stepfather. This VA examiner noted the Veteran stated that she was not forced to engage in sexual activity while in service. This VA examiner further concluded that the Veteran's depression appears to be tied into her past prior to joining the military. Although the Veteran believes that her psychiatric disorder is related to her service, since a lay person, she is not competent to make this critical determination. This issue is medically complex, not merely simple, as it requires esoteric training and expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Furthermore, as mentioned, her lay statements are less than credible due to their patent inconsistencies. The Board consequently finds the November 2016 VA opinion and earlier July 2012 VA opinion more probative and therefore more persuasive than the Veteran's lay statement. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). The medical opinions offer an adequate statement of reasons or bases. See D'Aries v. Peake, 22 Vet. App. 97, 107 (2008). Thus, as it stands, there is no competent and credible (therefore no probative) evidence of a stressor in service. There additionally is no probative evidence of a diagnosed psychiatric disorder related or attributable to the Veteran's service. The Board resultantly finds that the elements of service connection for an acquired psychiatric disorder, including PTSD, have not been met and, therefore, the claim must be denied. 2. Entitlement to service connection for residuals of a fracture of the left foot, including as secondary to a right knee disability, is denied. The Veteran contends that the fracture of her left foot/great toe was caused by her service-connected patellofemoral syndrome of her right knee. Because she has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication of this claim will consider only entitlement to secondary service connection. The Veteran has a confirmed diagnosis a fracture of her left foot/great toe. See June 2018 VA examination. Additionally, she has a service-connected right knee disability, albeit not characterized as patellofemoral syndrome, per se, but nonetheless status post-surgical reconstruction and involving limitation of flexion and extension of this knee and a post-operative scar. Therefore, the question is whether this service-connected right knee disability is implicated in the fracture of her left foot/great toe. However, it is on this crucial point that the Board concludes that the preponderance of the evidence is against finding that her left foot injury is proximately due to, or the result of, or being aggravated by her service-connected right knee disability. 38 C.F.R. § 3.310(a) and (b); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). A March 2018 VA treatment note shows the Veteran was seen for a left foot injury, but she indicated that a television had fallen on her left foot. She did not cite her service-connected right knee disability as a precipitating cause or factor in her left foot injury. During a June 2018 VA examination, the Veteran reported that her right knee gave out and caused her to slip. She added that, in attempting to break her fall, she reached for a large television and the television landed on her left foot. The June 2018 VA examiner opined that it was less likely than not the Veteran's left foot fracture was proximately due to or the result of her service-connected condition. The VA examiner reasoned that patellofemoral pain syndrome (PFS) is a broad term used to describe pain in the front of the knee and around the patella, or kneecap. The most common symptom of patellofemoral pain syndrome is a dull, aching pain in the front of the knee. The examiner indicated that common symptoms include: pain during exercise and activities that repeatedly bend the knee, such as climbing stairs, running, jumping, or squatting; pain after sitting for a long period of time with your knees bent, such as one does in a movie theater or when riding on an airplane; pain related to a change in activity level or intensity, playing surface, or equipment; or popping or crackling sounds in your knee when climbing stairs or when standing up after prolonged sitting. Most significantly, the VA examiner noted that instability is not recognized as a finding with PFS. The Board has considered the Veteran's lay assertion that her right knee gave out and that, in attempting to regain her balance, a television fell on her left foot. Generally, lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Veteran did not mention her right knee giving out when she initially sought medical treatment. It is significant that statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth to receive a proper diagnosis or treatment. White v. Illinois, 502 U.S. 346, 356 (1992). It was only later, after the fact, when she implicated her right knee disability into her left foot injury. Consequently, the Board finds that the June 2018 VA examiner's medical opinion is more probative on the notion of secondary service connection. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Moreover, this VA medical examiner's opinion is based on an accurate medical history (so factual predicate) and provides the required explanation or underlying reasoning or rationale, which is where most of the probative value of an opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). For these reasons and bases, the preponderance of the evidence is against this claim, meaning the benefit-of-the-doubt rule does not apply. Therefore, this claim must be denied. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hamm, 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.