Citation Nr: 21021348 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 20-13 850 DATE: April 12, 2021 ORDER The application to reopen the previously denied service connection claim for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for PTSD, also diagnosed as depressive disorder, due to an in-service personal assault, is granted. FINDINGS OF FACT 1. In an April 2016 rating decision, the Regional Office (RO) denied the Veteran’s claim of entitlement to service connection for PTSD. The Veteran did not appeal, and new and material evidence was not received within a year of the rating decision. 2. Evidence received concerning PTSD since the April 2016 rating decision is related to the basis for the prior denial and raises a reasonable possibility of substantiating the service connection claim for PTSD. 3. There is credible supporting evidence that the Veteran experienced a military sexual trauma (MST) during her first period of service. 4. The evidence is at least evenly balanced as to whether the diagnosed PTSD and depressive disorder are related to the MST. CONCLUSIONS OF LAW 1. The April 2016 rating decision that denied the claim of service connection for PTSD is final. 38 U.S.C. § 7105 (d); 38 C.F.R. §§ 3.156 (b), 20.200, 20.302. 2. The additional evidence received since the April 2016 rating decision is new and material with respect to PTSD, and reopening the claim of service connection for PTSD is warranted. 38 U.S.C. §§ 5108; 38 C.F.R. § 3.156. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for PSTD and depressive disorder due to MST are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304 (f) (5). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1, 1984 to June 1, 1984 and from October 8, 1986 to November 16, 1990. Two VA administrative decisions, one undated and the other dated November 2019 addressed the different types of discharges for these two periods of service. The first period of service was considered honorable and the second dishonorable. The decision below grants service connection based on the first, honorable period of service. This matter comes before the Board of Veterans’ Appeal (Board) from a November 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In the November 2017 rating decision, the RO continued its denial of service connection for PSTD finding that the evidence submitted was not new and material to warrant reopening of the claim. In November 2018, the Veteran filed her notice of disagreement and was issued a statement of the case in January 2020. In March 2020 the Veteran perfected her appeal to the Board. In April 2021, the Veteran testified during a virtual hearing before the undersigned Veterans Law Judge. The transcript from the hearing has not yet been associated with the file, but as the benefits sought are being granted in full, one is not necessary at this time. Application to Reopen Previously Denied Claim Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). The exception to this general rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence mean evidence that, by itself or when considered with the 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). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purposes of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the RO denied a service connection claim for PTSD in an April 2016 rating decision. The Veteran was appropriately notified and did not appeal this decision. New and material evidence was not received within the remaining appeals period. Thus, the decision became final. 38 U.S.C. § 7105(d) (2012); 38 C.F.R. §§ 3.156(b), 20.200, 20.302 (2016). Since the April 2016 rating decision, the Veteran provided additional information about the in-service stressor and current psychiatric treatment. She was the victim of multiple sexual assaults during service. Specifically, the Veteran submitted evidence of MST during the first period of service, which she received an honorable discharge. See DD214. The Veteran has submitted medical records confirming her current PTSD and depressive disorder diagnoses. In August 2017, the Veteran underwent in-patient psychiatric treatment for her current diagnosed PTSD and depression disorder diagnoses. The Veteran testified how her military service record was favorable until the MST. After she experienced MST her military career drastically declined. The Veteran’s statement also included statements describing the MST, to include the ranks and titles of her assailants. In sum, the additionally received evidence reflects MST during the first period of service, the lack of which was one of the bases for the previously denied service connection claim. Thus, the additional evidence relates to the basis of prior denial and raises a possibility of substantiating the claim and is therefore new and material. Reopening the claim is therefore warranted. Service Connection Service connection will be granted if the evidence demonstrates that the current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361(Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.304 (f). Entitlement to Service Connection for PTSD There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304 (f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD generally requires: (1) medical evidence diagnosing the condition in accordance with the applicable criteria; (2) 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. 38 C.F.R. § 3.304 (f). The Veteran described an incident of MST in 1984, during her first period of service. The Veteran testified that her military career declined after the in-service event and MST continued on multiple occasions during service. The Veteran did not report any of her incidents of MST. The April 2016 VA examiner diagnosed the Veteran with PTSD and major depressive disorder. Thus, the current disability element has been met for PTSD and depressive disorder. The remaining question concerns whether there is credible supporting evidence for the MST stressor and if so, whether there is a valid PTSD diagnosis attributable to the MST stressor. Although there is nothing in the Veteran’s service personnel and treatment records that specifically documents a sexual assault at any point during her active service, in cases involving an allegation that PTSD is connected to military sexual assault, 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). VA recognizes that Veterans claiming service connection for PTSD due personal assault face unique problems documenting their claims. Since assault is an extremely personal and sensitive issue, many incidents of sexual assault are not officially reported, and victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. See Proposed Rule, PTSD Based on Persona Assault, 65 Fed. Reg. 61132 (Oct. 16. 2000) (“Many incidents of in-service personal assault are not officially reported, and veterans may find it difficult to produce evidence to prove the occurrence of this type of stressor”). Accordingly, the regulations governing PTSD provide that where a claim is based on an 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). The April 2016 VA examiner opined that the Veteran’s PTSD was at least as likely as not related to an in-service stressor. The examiner found that the Veteran’s current psychiatric disorder was not due to the first period of service because the MST that occurred during that period “was thwarted early” and “did not by her report lead to significant symptoms.” The opinion is inadequate to the extent it does not attribute the psychiatric disorder to the first period of service on these bases because it is based on an inaccurate factual premise. The Veteran has consistently stated that she had significant symptoms due to the assault during the first period of service. Moreover, the degree to which the assault was thwarted is irrelevant, the only question is whether it took place and the evidence shows that it did. In addition, VA treatment records including those dated August 2017 contain diagnoses of PTSD and depressive disorder based in part on the assault that took place during the first period of service. For the foregoing reasons, the evidence is at least as evenly balanced as to whether the Veteran’s PTSD is related to MST that occurred during her first period of service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, service connection for PTSD is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The above evidence also indicates that the diagnosed depressive disorder is related to service, and service connection is therefore warranted for that disorder as well. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Henderson, 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.