Citation Nr: 21009304 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-65 790 DATE: February 22, 2021 ORDER The application to reopen a claim of service connection for posttraumatic stress disorder (PTSD) is granted. Service connection for PTSD is granted. Service connection for a bipolar disorder, as secondary to service-connected PTSD, is granted. FINDING OF FACT 1. In a November 2005 rating decision, the RO continued and confirmed the previously denial of service connection for PTSD. The Veteran did not appeal this decision, and new and material evidence was not received within one year after it was issued. 2. Evidence received since the November 2005 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of service connection for PTSD. 3. The medical evidence establishes a diagnosis of PTSD; credible supporting evidence shows that the Veteran’s claimed military sexual trauma occurred; and medical evidence establishes a link between current symptoms and a claimed in-service stressor. 4. The Veteran’s bipolar disorder is caused by her service-connected PTSD. CONCLUSION OF LAW 1. The November 2005 rating decision that continued and confirmed the previously denied claim of service connection for PTSD is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. Since the November 2005 rating decision, new and material evidence has been received to reopen the claim of service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). 4. The criteria for service connection for a bipolar disorder, as secondary to service-connected PTSD, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1981 to June 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran presented testimony before the Board. New and Material Evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Regardless of whether the RO determined new and material evidence had been submitted, 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 Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). Whether new and material evidence has been received to reopen the claim of service connection for PTSD. In a September 1996 rating decision, the RO denied service connection for PTSD for lack of a current diagnosis; the Veteran was notified of the decision and of her appellate rights, but she did not appeal. In June 2004 and November 2005 rating decisions, the RO found that new and material evidence had not been received to reopen the claim of service connection for PTSD; the Veteran was notified of the decisions and of her appellate rights but she did not appeal. Accordingly, the November 2005 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The additional evidence since the November 2005 rating decision is not redundant or cumulative evidence previously considered and it relates to an unestablished fact necessary to substantiate the claim of service connection for PTSD. Specifically, in July 2020, the Veteran submitted an opinion from a private psychologist, wherein the psychologist diagnosed PTSD and related the disorder to in-service military sexual trauma. As the July 2020 medical opinion is not redundant or cumulative evidence previously considered and relates to an unestablished fact necessary to substantiate the claim of service connection for PTSD, new and material evidence has been received sufficient to reopen the previously denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Therefore, the criteria for reopening the claim of service connection for PTSD are met. Service Connection for PTSD The Veteran seeks service connection for PTSD, which she attributes to military sexual trauma (MST), which occurred from October 1983 to 1984. See Statement (May 2014). Service connection for PTSD may be granted if three elements are satisfied—(1) medical evidence establishing a clear diagnosis of PTSD under 38 C.F.R. § 4.125(a); 2) credible supporting evidence that the claimed in-service stressor actually occurred; and 3) a link, established by medical evidence, between current symptoms and a claimed in-service stressor. 38 C.F.R. § 3.304(f). PTSD based on personal assault refers broadly to stressor events involving harm perpetrated by a person who is not considered part of an enemy force. 38 C.F.R. § 3.304(f)(5). The VA acknowledges the unique problems veterans face in documenting their claims because of the sensitive and extremely personal nature of assault. To compensate for the difficulties in reporting and producing evidence to support the occurrence of a stressor, evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the stressor incident. In fact, the absence of in-service reports or treatments cannot be considered “negative evidence” in personal assault cases. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013). Unlike in other PTSD claims, an after-the-fact medical opinion can serve as the credible supporting evidence of the stressor in PTSD personal assault claims. See Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011). For the following reasons, service connection for PTSD is warranted. The medical evidence shows a diagnosis of PTSD, from the Veteran’s treating psychologist. See Evaluation (June 2020); see Cohen v. Brown, 10 Vet. App. 128, 153 (1997). The only VA psychiatric examination of record, conducted in May 2014, shows that the Veteran had symptoms of PTSD, but did not meet the full criteria for PTSD. It is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). Since the June 2020 PTSD diagnosis, none of the evidence of record has opposed the presence of PTSD. Resolving any reasonable doubt in the Veteran’s favor, a current PTSD diagnosis has been established. The Board finds credible the Veteran’s account that the reported in-service MST occurred. Although the Veteran did not report the sexual trauma in service, throughout the pendency of the appeal, to include to the Board and to mental health care providers, the Veteran has provided a consistent account of the military sexual trauma. See, e.g., VA examination report (September 1996); VA treatment record (September 2000); Board hearing transcript (January 2020). In her account, the Veteran explained that she was sexually assaulted by a superior officer multiple times while stationed in Baltimore, Maryland. After the assault, she reports that she experienced behavioral problems. The Veteran’s account is consistent with service records showing that she was treated with depressive symptoms in 1984. In a May 1984 report, a clinical psychologist noted that the Veteran experienced “very difficult problems with her male co-workers,” and that she was “very withdrawn.” Personnel records show that the Veteran’s evaluations for teamwork and work ethics declined from 1983 to 1984 and that she was ultimately discharged for misconduct in 1984. See Service Personnel Records (SPR), Marks; Personnel Action (June 1984). Here, the Board ascribes heightened credibility to the Veteran’s account of the MST, as it was made to clinicians for the purpose of treatment. See, e.g., VA treatment record (September 2000); see also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment). Additionally, in June 2020, a treating psychologist provided a detailed opinion wherein the psychologist expressly attributed the Veteran’s MST to her current PTSD diagnosis. See private evaluation (June 2020). The Board finds that this medical opinion serves as additional credible supporting evidence of the Veteran’s reported in-service stressor. See Menegassi, 638 F.3d 1379. When coupled with the documented in-service behavioral changes and mental health treatment, the Board finds that the evidence sufficiently supports the actual occurrence of the Veteran’s reported MST. In reaching this finding, the Board acknowledges a May 2014 VA examination report wherein the examiner found that the “records did not evidence any markers indicative of an in-service MST-related event.” The Board affords little probative weight to the examiner’s opinion, as it was conclusory and did not address personnel records showing deterioration in work performance and discharge for misconduct, or in-service mental health records, which noted problems with males, isolation, and depressive symptoms. Indeed, 38 C.F.R. § 3.304(f)(5) expressly identifies deterioration in work performance and episodes of depression as behavioral changes that may support the occurrence of a claimed assault. Third, the competent medical evidence of record establishes that the Veteran’s current PTSD is related to her in-service stressor. Specifically, in a detailed June 2020 opinion, the Veteran’s treating psychologist explained based on the Veteran’s reports and a thorough review of the evidence, that the Veteran’s current PTSD is likely related to her in-service stressor. When coupled with the Veteran’s testimony of recurrent psychiatric symptoms since service and documented mental health treatment in and since service, the Board finds that the aforementioned evidence shows that it is at least as likely as not that the Veteran’s PTSD is linked to her MST. Absent any opinion to the contrary, service connection for PTSD is warranted. Service Connection on a Secondary Basis Service connection is warranted for disability proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a), (b). As a result of the decision above, service connection is in effect for PTSD. VA and private mental health care providers diagnosed a bipolar disorder. See PTR (June 2020); VA examination (May 2013). Accordingly, this case turns on whether the evidence shows that the Veteran’s current bipolar disorder is related to a service-connected disability. In a June 2020 report, the Veteran’s treating psychologist opined that her current bipolar disorder is proximately due to or the result of her service-connected PTSD. (Continued on next page) As the evidence establishes that the Veteran’s bipolar disorder is caused by her service-connected PTSD, service connection for a bipolar disorder as secondary to the service-connected PTSD is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, 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.