Citation Nr: 21014800 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-14 810 DATE: March 15, 2021 ORDER New and material evidence has been received and the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. Entitlement to service connection for an acquired psychiatric disorder diagnosed as posttraumatic stress disorder (PTSD), panic disorder, bipolar disorder, and depression is granted. FINDINGS OF FACT 1. A July 2013 rating decision denied entitlement to service connection for an acquired psychiatric disorder diagnosed as PTSD, panic disorder, bipolar disorder, and depression. The Veteran was notified of the denial but did not submit new and material evidence or a Notice of Disagreement (NOD) within one year. 2. Evidence received since the July 2013 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for an acquired psychiatric disorder diagnosed as PTSD, panic disorder, bipolar disorder, and depression. 3. The Veteran’s acquired psychiatric disorder, diagnosed as PTSD per DSM-5 criteria, is related to stressors that occurred during the Veteran's service, including military sexual trauma (MST). CONCLUSIONS OF LAW 1. The July 2013 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, diagnosed as PTSD, panic disorder, bipolar disorder, and depressive disorder are met. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156, 20.1103. 2. The criteria for service connection for an acquired psychiatric disorder, diagnosed as PTSD, panic disorder, bipolar disorder, and depressive disorder are met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.303, 3.04. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty June 1977 to January 1978. This appeal comes to the Board of Veterans’ Affairs (Board) from a January 2015 rating decision by the Department of Veterans’ Affairs (VA). The Veteran timely filed a notice of disagreement (NOD). The Veteran participated in a hearing with a Veteran’s Law Judge of the Board in February 2020. Unfortunately, there was no transcript associate with this hearing due to technological error. The Veteran then participated in a video hearing with the undersigned in February 2021. The transcript is of record. 1. New and material evidence having been received, the claims of entitlement to service connection for acquired psychiatric disorder, diagnosed as PTSD, panic disorder, bipolar disorder, and depressive disorder are reopened. A claim that has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §7105; 38 C.F.R. §20.1103. The 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, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is 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 U.S.C. § 5108; 38C.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 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 to the Board. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been submitted, 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 generally "low." See Shade v. Shinseki, 24 Vet. App.110, 117 (2010). A July 2013 rating decision denied entitlement to service connection for an acquired psychiatric disorder diagnosed as PTSD, panic disorder, bipolar disorder, and depression. The Veteran was notified of the denial but did not submit new and material evidence or a Notice of Disagreement (NOD) within one year. The denial therefore became final. Evidence received since the July 2013 rating decision includes hearing testimony, lay evidence from the Veteran and her family, medical opinion evidence, VA examination report, and VA treatment records. These are new, as they were not before the agency of original jurisdiction in July 2013. This evidence relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for an acquired psychiatric disorder diagnosed as PTSD, panic disorder, bipolar disorder, and depression. Specifically, the evidence pertains to nexus and current disability elements. Moreover, new evidence will raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Shade. Here, the new evidence has already triggered the duty to assist, resulting in the opinion provided in December 2014 by a VA examiner. The Board thus reopens the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, diagnosed as PTSD, panic disorder, bipolar disorder, and depressive disorder for a de novo review on the merits. 38 U.S.C. § 5108 ; 38 C.F.R. § 3.156. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, panic disorder, bipolar disorder, and depression The Veteran contends her acquired psychiatric disorder is directly caused by MST which occurred while she was in service. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). 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 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)(5). In cases involving an allegation that PTSD is connected to MST, the Federal Circuit has held that "the absence of a service record documenting an unreported sexual assault is not pertinent evidence that the sexual assault did not occur." AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013). The Veteran was diagnosed with PTSD under the DSM-5 criteria in August 2016. Thus, the first factor for service-connection has been met. Next, the Board must determine a link between the current symptoms and the in-service stressor. The August 2016 psychological evaluation indicates a full evaluation of the Veteran was completed using DSM-5 criteria. This report clearly reflects that the Veteran’s psychiatric symptoms are linked to her in-service stressor of MST. As such, the second element has been satisfied. Finally, the Board must address the final factor of credible evidence that the in-service stressor occurred. Although the Veteran's service treatment records do not document any reported sexual assault allegation, the Board finds the Veteran's reported in-service stressor due to MST is credible. As noted above, the current PTSD regulation relating to personal assault reflects VA's judgment that unreported personal assaults occur frequently in the military. The record does not include any contemporaneous corroborating evidence, such as police reports or medical examinations; however, the Veteran explained she did not report the assaults at the time, and this is consistent with the nature of personal assaults as indicated in VA regulations. While there is a December 2014 VA examination stating the Veteran did not have a PTSD diagnosis that conforms to DSM-5 criteria, the Board finds the lay statements from the Veteran and her family, and the positive opinion from the August 2016 clinician, credible. These statements relate the Veteran's PTSD to her in-service MST, and as such are significant evidence in support of the Veteran's reported MST event. Furthermore, the Veteran reported she was more comfortable discussing her trauma to the physician in the 2016 examination rather than the 2014 one. As such, the Board finds there is sufficient evidence in the record to establish the Veteran experienced a personal assault during service. In general, "after-the-fact medical nexus evidence," such as a VA examiner's finding that a claimant's PTSD was caused by the alleged in-service stressor, cannot by itself serve as credible supporting evidence of the claimed in-service stressor. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996); Cohen v. Brown, 10 Vet. App. 128, 146-47 (1997). However, there is an exception to this rule in service connection claims for PTSD based on an alleged personal assault. In such cases, the Court held that the "categorical statements" made in Moreau and Cohen that medical nexus evidence cannot by itself fulfill the requirement of "credible supporting evidence" do not apply. See Patton v. West, 12 Vet. App. 272, 279-280 (1999) (holding that in PTSD cases based on personal assault, a VA examiner's finding that the claimant's PTSD is etiologically linked to the alleged in-service stressor can serve as verification that the stressor occurred); see also 38 C.F.R. § 3.304 (f)(5) (providing that VA may submit any evidence it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred). Accordingly, for personal assault PTSD claims, an after-the-fact medical opinion can serve as the credible supporting evidence of the stressor. Id.; see also Menegassi v. Shinseki, 638 F.3d 1379, 1383 (Fed. Cir. 2011); Bradford v. Nicholson, 20 Vet. App. 200, 207 (2006). The claim of entitlement to service connection for an acquired psychiatric disorder, diagnosed as PTSD, panic disorder, bipolar disorder, and depressive disorder is granted. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Brewer, 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.