Citation Nr: 21005811 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-57 249 DATE: February 2, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. The claim of entitlement to service connection for PTSD is granted. FINDINGS OF FACT 1. In an October 2008 rating decision, the Regional Office (RO) denied the Veteran’s claim for entitlement to service connection for PTSD. The Veteran did not file a Notice of Disagreement, nor was new and material evidence physically or constructively received within one year of the decision; thus, the decision became final. 2. Evidence has been received since the October 2008 rating decision that relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD. 3. The Veteran has a present diagnosis of PTSD. 4. Resolving reasonable doubt in the Veteran’s favor, her PTSD is related to in-service stressors. CONCLUSIONS OF LAW 1. The October 2008 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. New and material evidence has been received since the October 2008 denial of service connection for PTSD. 38 U.S.C. §§ 5103, 5108; 38 C.F.R. §§ 3.156, 3.303. 3. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the United States Army from July 1999 to September 2004 and was discharged under honorable conditions. The instant matter is on appeal from a May 2014 rating decision. In January 2020, the Veteran testified before the undersigned in a virtual hearing. A transcript of the proceedings will be associated with the record. This decision was expedited prior to associating a copy of the testimony with the claims file. 1. New and material evidence having been received, the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. “New” evidence is defined as existing evidence not previously submitted to agency decision makers. “Material” evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO initially denied the Veteran’s claim of entitlement to service connection for PTSD in an October 2008 rating decision as they could not obtain additional information about the Veteran’s in-service stressors. The Veteran did not appeal this determination. She did not submit new and material evidence, nor were additional, relevant VA treatment records physically or constructively possessed within one year of the denial. Thus, the October 2008 rating decision is final. Evidence received since the denial details the Veteran’s in-service stressors, including physical and sexual abuse by her ex-husband, a fellow service member, as well as combat-related experiences while serving in Iraq. The bar to reopening a claim for new and material evidence is low, and the Veteran’s evidence pertaining to in-service stressors meets that threshold. Therefore, such evidence is new and material, and the claim for service connection for PTSD is reopened. 2. The claim of entitlement to service connection for PTSD The Veteran contends that she is entitled to service connection for PTSD. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) (2014); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred, unless the stressor is related to a Veteran’s fear of hostile military or terrorist activity. 38 C.F.R. § 3.304 (f). When considering claims based upon personal assault or military sexual trauma (MST), a veteran need not have reported the in-service assault. The law provides that, in this situation, evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the stressor incident. Gallegos v. Peake, 22 Vet. App. 329 (2008). 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) (3). Moreover, the Court in Patton and YR noted an exception to the general rule announced in Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996), that a stressor generally cannot be established as having occurred merely by after-the-fact medical nexus evidence. YR v. West, 11 Vet. App. 393, 398-99 (1998); Patton, 12 Vet. App. at 272. It may be in a claim, as here, which is predicated on an MST. The Board concludes that the Veteran has a current diagnosis of PTSD related to her active duty service, specifically to multiple instances of MST. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran’s service records reflect counseling for martial problems as early as 2001. She was prescribed medication for a mental health condition around October 2001. Service records note “adult physical abuse” as a diagnosis in January 2003, and subsequent engagement in group psychotherapy. In March 2003, the Veteran deployed to Iraq for one year. During her deployment, she received counseling reports regarding substandard conduct. Upon her return from Iraq, the Veteran continued to receive developmental counseling warnings, to include absence without leave, insubordinate conduct, failure to obey orders or regulations, tardiness to work, and scheduling an excess of appointments during working hours. Her June 2004 separation examination noted previous treatment for depression during service. The Veteran has since reported that she experienced severe abuse at the hands of her ex-husband, a fellow service member, during active duty. She detailed two instances of rape, and a number of instances of physical violence. The Veteran reported that, while stationed in Iraq, she experienced a number of traumatic events related to the ongoing combat. Post-service treatment records reflect a long history of PTSD, depression, and substance abuse. These records attribute her PTSD to her MST, and numerous instances of physical assaults, including intimate partner violence. PTSD symptoms were noted to have started in 2004. In March 2014, the Veteran underwent a VA examination to assess her PTSD. The examiner diagnosed her with PTSD and determined that her reported sexual assault stressor met the criteria for PTSD. While the examiner noted that PTSD may have preexisted service, the condition was exacerbated by the stressors of her active duty service. The examiner further noted that the Veteran’s progressive substance abuse was secondary to her PTSD. The Veteran also testified in January 2020 that her family noticed a change in her following service – she was not the same person as she was prior to entry. This including increased use of substances that impacted her. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current diagnosis of PTSD is at least in part related to her active duty service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for PTSD is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Fisher, 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.