Citation Nr: 21007496 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 18-37 838 DATE: February 9, 2021 ORDER New and material evidence having been received, a petition to reopen a previously denied claim for post-traumatic stress disorder (PTSD) is granted. Entitlement to service connection for PTSD due to military sexual trauma (MST) is granted. FINDINGS OF FACT 1. The Veteran filed a claim for service connection for PTSD that was denied in a January 2008 rating decision, which became final. Evidence received since that decision relates to a previously unestablished element of the claim 2. Resolving all reasonable doubt in her favor, the Veteran’s PTSD is etiologically related to her in-service MST. CONCLUSIONS OF LAW 1. The January 2008 rating decision denying entitlement to service connection for PTSD is final, but new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108; 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d). 2. The criteria for entitlement to service connection for PTSD due to MST have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1980 to September 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified before the undersigned at a hearing via videoconference. This decision is being rendered prior to the production of a transcript of that hearing as part of the Board’s “One Touch” program; given the favorable outcome, the Veteran is not prejudiced. New and Material Evidence By way of procedural background, the Veteran originally filed a claim for entitlement to service connection for PTSD due MST in September 2006. To summarize her previous contentions, she alleged that while she was stationed at the naval hospital in Yokosuka, Japan, in approximately 1982, an orthopedic surgeon who worked with her roommate raped her. Although she could not remember his name, she provided details with respect to his rank and duty station and stated that he was later found guilty at a court-martial for other offenses. She reported that although she was originally part of a case brought against him, the MST-related charges were ultimately dropped from the case. Her claim for service connection was denied in a January 2008 rating decision, which found that there was insufficient evidence of record to substantiate that her claimed in-service stressor had occurred. Subsequently, the Veteran submitted a new claim for entitlement to service connection for PTSD in November 2016, which was denied in a March 2017 rating decision. Generally, a claim that has been denied by an unappealed decision may not thereafter be reopened. 38 U.S.C. § 7105(c).  An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened and the former disposition reviewed. 38 U.S.C. § 5108.  “New” evidence means evidence not previously submitted to agency decisionmakers, and “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 of record at the time of the last 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).  This is a “low threshold” in which the phrase “raises a reasonable possibility” should be interpreted as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010).  The credibility of the newly-submitted evidence is presumed, though not blindly accepted as true if patently incredible. Justus v. Principi, 3 Vet. App. 510 (1992).  Additional evidence received since the prior denial of the claim includes the Veteran’s January 2021 hearing testimony, during which the Veteran discussed her in-service assault and its impact on her mental health, as well as a September 2019 VA examination report, which diagnosed PTSD and found the Veteran’s reports of MST to be credible. This evidence is new, as it was not of record at the time of the prior denial. The evidence is also material, as it relates to the previously unestablished element of whether there was evidence to substantiate the Veteran’s reports of an in-service assault. As new and material evidence has been received, the claim is reopened. Service Connection As set forth above, the Veteran has asserted that she is entitled to service connection for PTSD due to MST. More specifically, she reported that she was working at the naval hospital in Yokosuka in 1982 and had desired a transfer to a different ward in the hospital. A high-ranking orthopedic surgeon who was stationed there offered to meet with her regarding her request for a transfer. She reported that when she went to meet him, however, he sexually assaulted her. Shortly after that, she was transferred to the hospital’s nursery. After the assault, she became agitated and scared and had difficulty concentrating. She reported that she was eventually transferred to the hospital’s supply room, a less favorable assignment. Additionally, she reported feeling depressed, overeating, and abusing drugs as a result of her assault. She also reported that she had a sexually transmitted disease and that she began to disregard authority. As a result of her in-service assault, the Veteran has sought counseling for most of her adult life. According to the Veteran, she ultimately provided a statement to the naval criminal investigative service. In 1983 she was a witness at the court-martial proceedings against her assailant after he was charged with sexual misconduct, coercion, distribution of prescription drugs, and behavior unbecoming of an officer. She stated that it was a “humiliating” experience because she felt that no one believed her. Although the officer was ultimately found guilty of other charges, the charges she had brought against him were dropped from the case because she could not remember enough details. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In this case, establishing service connection for PTSD requires specific findings. These are: (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and, (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 5th edition, of the American Psychiatric Association (DSM-V). Id.; see 38 C.F.R. §§ 4.125(a), 4.130. If a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran’s service records may corroborate the veteran’s 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 disease; 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. VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran’s service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5). At the outset, the Board notes that the Veteran has a current diagnosis of PTSD pursuant to DSM-V criteria as shown by her VA treatment records, as well as a September 2019 VA examination report. As such, the first element of the test for service connection for PTSD is not in question. With respect to the second element, the Veteran’s contentions with respect to MST are discussed in more detail above. She has consistently reported that she was assaulted sometime in approximately 1982 by an orthopedic surgeon at the hospital where she was stationed in Japan and that he was ultimately subject to a court-martial for various other offenses. Although her service records are silent for complaints of MST or other psychiatric abnormalities, the Board notes that her personnel records confirm that she served as a hospital corpsman in Yokosuka in 1982. Additionally, in a July 1982 medical record, she received treatment at the Naval Regional Medical Center in Japan, where she complained of painful urination for the past week. This supports her lay statement that she had a sexually transmitted disease. Moreover, the Veteran’s post-service medical treatment records reflect extensive mental health counseling related to her assault, as well as problems such as weight gain and drug abuse. For instance, in June 2006 records from the Eureka Vet Center, she was assessed with PTSD after describing being coerced into sex with a naval officer during service. She also described a history of methamphetamine and marijuana abuse. These statements are considered especially trustworthy, as they were made for the purposes of receiving medical care and prior to filing a claim. See White v. Illinois, 502 U.S. 346 (1992). Additionally, the record reflects that the Veteran was afforded a VA examination in September 2019. The examiner confirmed the Veteran’s diagnosis of PTSD, and, after finding the Veteran’s lay statements regarding MST were highly credible, rendered a positive nexus opinion. The VA examiner’s findings are based on diagnostic testing, a review of the claims file, examination of the Veteran, and current psychiatric symptoms. As such, the Board finds the opinion of the examiner to be adequate for the purposes of adjudication. See Stefl v. Nicholson, 12 Vet. App. 120, 129 (2003). The Board notes that a medical opinion formed on the basis of a veteran’s reported medical history cannot be rejected without the Board first finding that the veteran’s allegations are not credible. Coburn v. Nicholson, 19 Vet. App. 427, 432 (2005); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, although the Veteran’s MST stressor is not documented in her service records, the Board finds that her account is facially plausible. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). It is also consistent with her reports of painful urination during service and her significant post-service history of treatment for PTSD and related symptoms. Having considered the voluminous medical evidence finding that her symptoms are demonstrative of an in-service personal assault with resulting PTSD, the Board finds that her in-service MST is sufficiently corroborated. In making this finding, the Board acknowledges that the RO previously found that the Veteran did not supply enough information to substantiate her reported stressor. However, her lay statements regarding her in-service assault have remained consistent. To that end, the Board has no reason to doubt her credibility. She has not displayed any unwillingness to recount the details of her attack or psychiatric history that would signify deception. Indeed, she has been and continues to be transparent. Accordingly, resolving all reasonable doubt in her favor, the Board finds that service connection for PTSD based on MST is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). As a final matter, although the Veteran and her representative argued that the Veteran was entitled to service connection for PTSD from September 2006, when she first filed her claim for service connection, the Board makes no findings with respect to an effective date in this decision. Instead, the RO will determine an effective date in a subsequent rating decision that effectuates the Board’s present decision. The Veteran is advised that if she disagrees with the effective date ultimately assigned in that rating decision, she must challenge that effective date separately. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, 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.