Citation Nr: 21011883 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 16-07 565 DATE: March 2, 2021 ORDER The application to reopen the claim for service connection for posttraumatic stress disorder (PTSD) is granted. Service connection for an acquired psychiatric disorder, diagnosed as PTSD and major depressive disorder (MDD), is granted. FINDINGS OF FACT 1. In an unappealed March 2009 rating decision, the RO denied service connection for PTSD. 2. Evidence received since the March 2009 rating decision is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD. 3. The evidence is in equipoise as to whether the Veteran’s reported in-service stressor of sexual assault is corroborated by medical and other evidence of record. 2. The Veteran’s currently diagnosed PTSD and MDD are related to the corroborated in-service events of personal and sexual assault. CONCLUSIONS OF LAW 1. The March 2009 rating decision denying service connection for PTSD is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § § 20.1103 (2020). 2. New and material evidence has been received since the last denial of service connection for PTSD; the application to reopen the claim is granted. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § § 3.156 (a) (2020). 3. The criteria to establish service connection for an acquired psychiatric disorder, to include PTSD and MDD, are met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2001 to March 2005. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified regarding this matter at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In August 2019, the Board denied reopening the claim for service connection for PTSD. The Veteran timely appealed that decision to the U.S. Court of Veterans Appeal, resulting in a Joint Motion for Remand (JMR) by the parties. An October 2020 Court Order remanded the matter for compliance with the instructions in the JMR. Reopening Service Connection Claim—Laws and Analysis The RO initially denied service connection for PTSD in an April 2007 rating decision because there was no medical evidence that a diagnosis was present or evidence of any in-service stressor events. Notably, the April 2007 rating decision indicated that only a part of the Veteran’s service treatment records was available for review. The Veteran was notified of the rating decision but did not appeal the decision. Following the April 2007 rating decision, additional service treatment records were received in September 2008. If VA receives or associates with the claims folder relevant official service department records at any time after a decision is issued on a claim that had not been associated with the claims folder when VA first decided the claim, VA will reconsider the claim without requiring new and material evidence. 38 C.F.R. § 3.156 (c). Given the receipt of additional service treatment records, the Agency of Original Jurisdiction (AOJ) reconsidered the claim for service connection for PTSD in a March 2009 rating decision, which again denied the claim. The Veteran was notified of the rating decision but did not appeal the decision. As such, the March 2009 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1103. In June 2012, the Veteran filed a claim to reopen service connection for PTSD. In a January 2014 rating decision, the AOJ again denied the claim based on a lack of a verified claimed in-service stressor. Shortly after the AOJ decision, the Veteran notified VA that certain clinical records remained outstanding. See Veteran’s statement in Support of Claim dated in January 2014. New VA treatment records, addressing the Veteran’s psychiatric disability, were subsequently obtained by VA in May 2014 (and referenced treatment dated from November 2012 to December 2013). The Board finds that this evidence, which includes the Veteran’s January 2014 statement, was received within one year of the January 2014 rating decision. As such, the January 2014 rating decision did not become final. See 38 C.F.R. § 3.156 (b). A claim will be reopened in the event that new and material evidence is presented. 38 U.S.C. § 5108. Because the March 2009 rating decision was the last final disallowance, the Board must review all of the evidence submitted since that rating decision to determine whether the Veteran’s claim for service connection should be reopened and re-adjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273 (1996). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. With regard to petitions to reopen previously and finally disallowed claims, the Board must conduct a two-part analysis. First, the Board must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material.” Second, if the Board determines that the evidence is “new and material,” it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Section 3.156(a) provides as follows: A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means 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). 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; Justus v. Principi, 3 Vet. App. 510, 513 (1992) (credibility of the evidence is to be presumed). The evidence received subsequent to the March 2009 rating decision includes, in pertinent part, the May 2019 Board hearing transcript, where the Veteran testified to new details about her ex-boyfriend’s sexual abuse during service. New evidence also includes a summary of the case of [REDACTED] (Pa. Ct. Common Pleas Apr. 14, 2009) (reflecting that the Veteran’s ex-boyfriend was convicted of third-degree murder in 2008). The Board finds that this evidence is new and material within the meaning of applicable law and regulations because it is probative of the issue at hand. The evidence discussed above is new, as such evidence was not of record prior to the issuance of the March 2009 rating decision. Moreover, the evidence is material, as it relates to the unestablished element of corroborating her claimed in-service stressors, including in-service personal and sexual assault. Accordingly, the Board finds that the newly added evidence relates to an unestablished fact necessary to substantiate the Veteran’s claim of service connection for PTSD. 38 C.F.R. § 3.156 (a). As such, the Veteran’s claim is reopened. Service Connection for an Acquired Psychiatric Disorder Laws and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2020) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires medical evidence diagnosing the disorder in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between the current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). In non-combat cases of PTSD involving an allegation of personal assault, more particularized requirements are established to verify whether the alleged stressor actually occurred. Patton v. West, 12 Vet. App. 272, 278-80 (1999). In this regard, evidence from sources other than the Veteran’s service records may corroborate the appellant’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, mental health counseling centers, hospitals, or physicians; and/or statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is another 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 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)(3). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran maintains that she has an acquired psychiatric disability as a result of being personally and sexually assaulted during service. Specifically, the Veteran has reported that she was physically and sexually abused by her ex-boyfriend while stationed in the U.S. and suffered sexual abuse at the hands of superior officers during her deployment in Iraq. Upon review of the record, the Board finds that the evidence is in equipoise as to whether the Veteran’s reported in-service stressors of personal and sexual assault are corroborated by medical and other evidence of record. Initially, the Board finds that the Veteran has been diagnosed with PTSD and MDD. See December 2012 VA mental health intake note (AXIS I diagnoses of PTSD and severe MDD). Although service treatment records are absent for any notations of sexual assault or other abuse, the evidence shows that the Veteran underwent several tests for sexually transmitted diseases, which may be a marker for military sexual trauma. See 38 C.F.R. § 3.304(f)(5) (“tests for sexually transmitted diseases” may corroborate MST); see also, Chronological Record of Medical Care in March 2001; HIV test in September 2002; chlamydia test in October 2003; and gonorrhea test in July 2004. Following service, the Veteran reported on several occasions that she suffered sexual trauma both while stationed in the U.S. and while deployed. For example, in April 2012, the Veteran reported in a private psychiatric assessment that she “dealt with a lot of sexual harassment” in service “perpetrated by an officer.” According to the Veteran, during her deployment a male officer would knock on her dorm room door and the Veteran would “perform sexual favors for him” without anyone else knowing about it. Id. The psychiatric evaluator, therefore, deemed the Veteran a “victim of sexual harassment/abuse.” Id. VA treatment records include a December 2012 mental health evaluation. At that time, the Veteran reported that her servicemember ex-boyfriend raped her while in service in 2004. The Veteran recounted that her relationship with her ex-boyfriend was “physically abusive” and that he “raped her” after she called off their wedding. Id. On one occasion, the Veteran indicated that her ex-boyfriend “choked her and she lost consciousness.” The Veteran stated that “she does not like to talk about the rape or the physical abuse.” VA treatment records also include a June 2013 mental health consultation note. At that time, the Veteran recounted her military sexual trauma to a VA psychologist. The Veteran reported that “she was the only female” in her unit in Iraq and “was continuously sexually harassed.” Further, the Veteran again detailed her relationship with her physically, sexually, and verbally abusive ex-boyfriend. Specifically, she stated that her ex-boyfriend was abusive during their relationship, which lasted almost all of the 4 years that she was in service. He was also sexually abusive as he would force her to perform sexual acts, he physically abused her by beating her, and he was verbally abusive. She said some people in the military knew about this but no one or the police ever intervened. It was further noted that the Veteran’s ex-boyfriend was currently in jail for murdering his subsequent girlfriend. The Veteran noted that she felt guilty for this since she never told anyone about his abuse. The medical evidence of record also shows that the Veteran abused alcohol and marijuana to cope “with pain from things that have happened to her in the past.” See January 2013 View Point Health–Comprehensive Assessment. The Veteran also reported to a VA clinical psychologist that her “peak period” of drinking alcohol “was from 2003 – 2011”—i.e., during and following her military sexual trauma—at which time she drank alcohol 3-4 times per week and drank “1 fifth of liquor per use.” See December 2018 VA mental health progress note. The Veteran suffered “alcohol related blackouts” and drank “more than intended at times.” Id. Ultimately, the Veteran attended a rehabilitation program for substance abuse in 2013. The relevant evidence of record also includes the Veteran’s testimony during the 2019 Board hearing. At that time, she reported that her ex-boyfriend threatened to kill her on multiple occasions, attempted to kill her by crashing his car with her in the passenger seat, raped her, and murdered his next girlfriend. The Board finds that this evidence further corroborates that her ex-boyfriend physically and sexually abused the Veteran. The Veteran also submitted lay statements from her mother, sister, and friend. These statements offer additional insight into the Veteran’s ex-boyfriend’s physical abuse, the Veteran’s reporting of that abuse when it occurred, and the Veteran’s behavioral changes in the wake of that abuse, including her inability to include people in her life. See Letter from R.D. dated in September 2015 and letter from D.T. dated in August 2019. Upon review of all the evidence of record, the Board finds that the Veteran’s reported in-service stressors of personal and sexual assault are corroborated by medical and other evidence of record. The Veteran’s treatment records, and lay statements suggest, at least in part, some evidence of behavior changes. As a general rule, the Board may not determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence of the in-service event. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). In the context of a sexual assault, the Board also cannot use the Veteran’s failure to report an event as evidence against the event occurring as there is no reasonable expectation that such event would have been reported. AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2014). In this case, the Board finds it reasonable that the Veteran would not have reported the in-service sexual assault to service personnel given the traumatic nature of the assaults and abuse. Accordingly, the Board finds that the Veteran’s reported in-service stressors of personal and sexual assault is corroborated. For these reasons, the Board finds that the weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran’s currently diagnosed PTSD and MDD are related to the in-service personal and sexual assaults. As such, resolving reasonable doubt in the Veteran’s favor, service connection for an acquired psychiatric disorder, to include PTSD and MDD, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.