Citation Nr: 21068737 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 17-37 762 DATE: November 12, 2021 ORDER Service connection for female sexual arousal disorder (FSAD) is denied. Reopening of service connection for an acquired psychiatric disorder, to include Depression not otherwise specified (NOS), is granted. REMANDED Service connection for an acquired psychiatric disorder, to include Depression NOS, is remanded. FINDINGS OF FACT 1. The Veteran does not have a current FSAD. 2. An August 2013 rating decision denied service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder, on the basis that the evidence did not show credible evidence that the claimed in-stressor (military sexual trauma) occurred. 3. The Veteran did not timely file a notice of disagreement (NOD) following the August 2013 rating decision, and new and material evidence was not received during the one-year appeal period following that decision. 4. Evidence received since the August 2013 rating decision relates to an unestablished fact of in-service military sexual trauma. CONCLUSIONS OF LAW 1. The criteria for service connection for FSAD have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for reopening of service connection for an acquired psychiatric disorder, to include depression NOS, have been met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, served on active duty from October 1979 to October 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision from the Regional Office (RO), which denied reopening of service connection for depression and denied service connection for FSAD. In July 2021, the Veteran testified at a Board virtual hearing, before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. Regarding service connection for FSAD, the Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. As the Board grants reopening of service connection for an acquired psychiatric disorder and remands the issue for further development, the Board need not address the duties to notify and assist at this time. 1. Service Connection for FSAD The Veteran generally contends that service connection for FSAD is related to military sexual trauma. Specifically, the Veteran contends that, while in advanced individual training at Fort Dix, New Jersey in January 1980, a commanding officer cornered her in a room and made unwanted physical contact and sexual advances towards her, though she resisted his advances. She asserts that her FSAD is due to military sexual trauma. See July 2021 Board Hearing Transcript, March 2018 representative brief, May 2017 VA Form 9. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. The requirement of a current disability is satisfied when a veteran has a disability at the time of filing a service connection claim, during the pendency of that claim, or just prior to the filing of a claim, even if the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). After reviewing all the medical and lay evidence, the Board finds that the weight of the evidence is against finding a current FSAD disability. The service treatment records are silent for symptoms, complaints, diagnosis, or treatment for FSAD. Post-service treatment records are also silent for symptoms, treatment, or diagnosis of FSAD. A review of private treatment records dated from 1993 to 1999 are silent for any complaints or treatment for fluctuating or loss of sexual interest/stimulation or diagnosis of FSAD. VA treatment records are also silent for symptoms, diagnosis, or treatment for FSAD. VA treatment notes show that the Veteran reported problems with lower abdominal/pelvic pain in 2015, but a CT of the abdomen and pelvis did not reveal any findings relevant to a sexual dysfunction disorder. See April 2015, May 2015 VA treatment records. VA treatment records only reflect reports of psychiatric symptoms such as depression, nightmares, and anger related to reported military sexual trauma, but there is no mention of symptoms or treatment for sexual dysfunction nor diagnosis of FSAD. The weight of the evidence shows no diagnosis of a FSAD disability, including based on functional impairment, at any time during the pendency of this claim or in the time period just prior to the filing of this claim. In the absence of proof of a current disability, there can be no valid claim for entitlement to service connection for a FSAD disability on either a direct, secondary, or any other basis. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for service connection for a FSAD, and the claim must be denied. New and Material Evidence Criteria Generally, a claim that has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, 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 evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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 C.F.R. § 3.156(a). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received 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 Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id at 118. Regardless of the RO's determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened. Once the case is reopened, the presumption as to the credibility no longer applies. Id at 513. 2. Reopening Service Connection for an Acquired Psychiatric Disorder In this case, an August 2013 rating decision denied service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder, on the grounds that the evidence did not show a credible evidence of the claimed in-service stressor, military sexual trauma. In August 2013, the Veteran was notified of the rating decision and provided notice of procedural and appellate rights. The Veteran did not submit a timely NOD following the August 2013 rating decision, and new and material evidence was not received during the one-year appeal period following the decision. As such, the August 2013 rating decision became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a),(b), 20.302, 20.1103. Since the August 2013 rating decision denying service connection for an acquired psychiatric disorder, VA has received additional evidence that pertains to in-service stressor/event of military sexual trauma. See April 2015 correspondence. Presuming the credibility of such new evidence for the purpose of reopening the claim, such evidence relates to the unestablished fact of an in-service event of military sexual trauma and of behavioral changes and psychiatric symptoms since the claimed in-service event, so could reasonably substantiate the issue of service connection for acquired psychiatric disorder. For this reason, the Board finds that the additional evidence is new and material to reopen service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 2. Service Connection for an Acquired Psychiatric Disorder is Remanded. The Veteran contends that service connection for an acquired psychiatric disorder, namely depression, is warranted due to military sexual trauma. Specifically, the Veteran testified that she was in a company that only had eight women, and each woman had to work guard duty of women's' quarters on base. The Veteran asserts that that while in advanced individual training at Fort Dix, New Jersey, in January 1980, a sergeant woke her up to conduct guard duty at 3:00 am, and the sergeant asked her to come to his office to discuss her guard duty responsibilities, where he cornered her in a room and made unwanted physical contact and sexual advances towards her. The Veteran reports that she resisted the advances and ran to her duty station, and did not file a report at the time due to fear of retaliation, but asserts that women in her company were often pressured to have sexual relationships with the officers to avoid guard duty. The Veteran contends that her current depression is the result of these events during service. See July 2021 Board Hearing Transcript, March 2018 representative brief, May 2017 VA Form 9. In an April 2015 statement, the Veteran's sister, who also served in the military, wrote that, when she visited the Veteran while they were both stationed in Germany during service, the Veteran told her about unwanted sexual advances and harassment from her sergeant during basic training, and that the Veteran endorsed fear and nightmares about the incident. Additionally, the Veteran's sister wrote that the Veteran was different when she got out of service, as she was more withdrawn, depressed, and would become agitated for no reason. See April 2015 correspondence. Post-service records show that the Veteran was initially evaluated for military sexual trauma in 2006 and has been diagnosed with depression NOS. Treatment providers described the Veteran as depressed and tearful when discussing the military sexual trauma event. A treating VA psychologist in March 2006 noted that the Veteran "appears fully credible in her report of MST." See March 2016, September 2014 VA treatment records. The record indicates that service connection for an acquired psychiatric disorder, including PTSD and depressive disorder, was previously denied due to lack of credible evidence of and in-service stressor, i.e., military sexual trauma. In cases of personal assault, evidence from sources other than service records, such as statements from family members can corroborate a veteran's account of personal assault as well as provide evidence of behavioral changes after the alleged assault, including episodes of depression, anxiety, and economic and social behavioral changes. 38 C.F.R. § 3.304(f)(5). A review of the record shows that the Veteran has not been provided a VA examination or medical opinion regarding the etiology of the currently diagnosed depression. In light of lay evidence that the Veteran reported the unwanted sexual advances to her sister during service and that the Veteran was different after service, having become withdrawn, depressed, and easily agitated for no apparent reason, as well as a March 2006 VA treatment provider's note that the Veteran's account of military sexual trauma appeared credible, a VA examination would be helpful to help assess whether the acquired psychiatric disorder, to include the currently diagnosed depression, was incurred in or otherwise etiologically related to service, including the claimed military sexual trauma in service. Service connection for an acquired psychiatric disorder is REMANDED for the following action: Request a VA psychological opinion to assess the relationship, if any, between any current acquired psychiatric disorder and active service. The relevant documents in the record should be reviewed by the examiner, including the Veteran's reports of events in service and symptoms reported by others in and since service. The following opinion is requested: Is any currently diagnosed acquired psychiatric disorder, to include depression, consistent with the reported unwanted sexual advances by a sergeant during service? The examiner should consider the reported in-service event of unwanted sexual advances in January 1980 while in advanced individual training at Fort Dix, and subsequent psychological symptoms that include being withdrawn, depressed, and easily agitated. See lay statements offered from the Veteran (October 2014, March 2015, and July 2015 statements and July 2021 Board Hearing Transcript) and the Veteran's sister (April 2015 statement). J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.