Citation Nr: 21023563 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 20-20 260 DATE: April 21, 2021 ORDER New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for stress and anxiety. Entitlement to service connection for posttraumatic stress disorder (PTSD), due to military sexual trauma (MST), is granted. FINDINGS OF FACT 1. The Veteran’s claim of entitlement to service connection for stress and anxiety was denied in an October 1999 rating decision because there was no evidence of a current diagnosis. As the Veteran did not appeal or submit new and material evidence within the applicable appellate period, the decision became final. 2. In an October 2008 rating decision, the Agency of Original Jurisdiction (AOJ) declined to reopen the Veteran’s claim of entitlement to service connection for anxiety, finding that new and material evidence had not been submitted. As the Veteran did not appeal or submit new and material evidence within the applicable appellate period, the decision became final. 3. The evidence which has been secured since the last final denial regarding entitlement to service connection for stress and anxiety is both new and material. 4. A preponderance of the evidence indicates the Veteran’s PTSD is due to MST. CONCLUSIONS OF LAW 1. The criteria for reopening the Veteran’s claim of entitlement to service connection for stress and anxiety. 38 U.S.C. §§ 1145(a), 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The criteria for entitlement to service connection for PTSD, due to MST, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from April 1995 to April 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2018 rating decision issued by a Department of Veterans Affairs (VA) regional office. New and Material Evidence Generally, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.200. 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, the Secretary shall reopen the claim and review the former disposition of the claim. The Board must consider the question of whether new and material evidence has been received because it goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which, 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 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). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. 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 (2000). If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). 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 Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). 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). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the appellant in developing the facts necessary for the claim have been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). 1. New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for stress and anxiety. The record reflects that the Veteran was originally denied service connection for stress and anxiety in an October 1999 rating decision, with the AOJ finding that a condition had not ben diagnosed. The Veteran did not appeal the decision and accordingly that decision became final. 38 C.F.R. § 20.1103. The record also reflects that, in an October 2008 rating decision, the AOJ declined to reopen the Veteran’s claim of entitlement to service connection for anxiety, finding that new and material evidence had not been submitted. The Veteran did not appeal the decision and accordingly that decision became final. Id. Since the last final denial, VA treatment records noting a diagnosis of PTSD have been associated with the claims file. See Louisville VA Medical Center (VAMC) records, received June 2018, August 2018, and October 2019 in CAPRI. Additionally, the Veteran has submitted lay statements regarding an MST in February 1999. See April 2018 VA Form 21-0820; May 2018 VA Form 21-0781; May 2018 Correspondence; June 2018 Correspondence. Further, the Veteran underwent a VA examination in August 2018 and submitted a private examination in October 2019. See August 2018 VA Initial PTSD Disability Benefits Questionnaire (DBQ); August 2018 VA Medical Opinion DBQ; October 2019 Private PTSD DBQ. The Board finds this evidence to be “new” as it was not previously of record. Further, the Board finds this evidence to be material as it concerns an unestablished fact as it pertains to a current disability. Given that there is new and material evidence, the claim is reopened. Service Connection As an initial matter, the Board notes that the Veteran initially filed a claim of entitlement to service connection for stress and anxiety. See April 1999 VA Form 21-526. However, it is well settled that when a veteran makes a claim, they are seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, the Veteran has been diagnosed with PTSD. See Louisville VAMC records. Accordingly, the Board finds it appropriate to recharacterize the Veteran’s claim as one of entitlement to a service connection for PTSD. 2. Entitlement to service connection for PTSD, due to MST, is granted. Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence between current symptoms and an in-service stressor. See 38 C.F.R. § 3.304(f). The diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which provides that all psychiatric diagnosis must conform to the American Psychiatric Association’s DSM. Id. Because sexual assault is an extremely personal and sensitive issue, many incidents are not officially reported, which creates a proof problem with respect to the occurrence of the claimed stressor. In such situations, it is not unusual for there to be an absence of service records documenting the alleged events. The victims of such trauma may not necessarily report the full circumstances of the trauma for many years after the trauma. Thus, when a PTSD claim is based on in-service sexual assault, evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stressor incident. See 38 C.F.R. § 3.304(f)(5); Patton v West, 12 Vet. App. 272, 277 (1999). 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 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). Additionally, corroboration of every detail of a claimed stressor is not required; rather, a veteran only needs to offer independent evidence of a stressful event that is sufficient to imply their personal exposure. See Pentecost v. Principi, 16 Vet. App. 124, 128 (2002). Further, medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated. See Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). Factual Background. The Veteran’s service treatment records are silent with respect to a sexual assault. However, there are indications of stress/anxiety, and the Veteran had a See STR-Medical. The Veteran had a gynecological specimen collected on January 25, 1999. The Veteran’s medical records indicate that she has a current diagnosis of PTSD. See Louisville VAMC records. The Veteran has reported that, in February 1999, she was sexually assaulted by a fellow airman in his barracks. See April 2018 VA Form 21-0820; May 2018 VA Form 21-0781; May 2018 Correspondence; June 2018 Correspondence. A March 2018 VA treatment record, reports that the Veteran had a positive screen for military sexual trauma. In April 2018, the Veteran submitted a lay statement from M.H., reporting that she remembered the Veteran seeming distant and isolated, that phone calls were very short, and that the Veteran seemed very depressed. See April 2018 M.H. Lay Statement. In August 2018, the Veteran underwent a VA examination in which the examiner provided a diagnosis of unspecified anxiety disorder, noting that the Veteran did not meet the criterion for a diagnosis of PTSD. In finding that the Veteran did not meet the criterion for PTSD, the examiner noted that, though the Veteran experienced irritable behavior, angry outbursts, hypervigilance, and sleep disturbance, it was unclear if such were due to her reported military stressor; the examiner did not elaborate. Notably, the examiner identified a possible marker in the Veteran’s service treatment records. Additionally, the examiner acknowledged that the Veteran’s VA treatment records revealed a diagnosis of PTSD, but the examiner stated that the role of a treating provider is one of treating symptoms that are presented, not necessarily reach the level of a fully developed disorder, and are often based on the veteran’s self-report. See August 2018 VA Initial PTSD DBQ; August 2018 VA Medical Opinion DBQ. In October 2019, the Veteran submitted an examination conducted by Dr. J.A., a private psychologist, in which the psychologist provided a diagnosis of PTSD due to MST. See October 2019 Private Opinion. Analysis. The Veteran contends that her diagnosed PTSD is due to MST. The incident of MST is not documented in her service treatment or personal records, nor does the Veteran contend that she ever reported the incident. However, the Veteran has reported that, in February 2019, she was sexually assaulted by a fellow airman in his barracks. See April 2018 VA Form 21-0820; May 2018 VA Form 21-0781; May 2018 Correspondence; June 2018 Correspondence. The Veteran also submitted a lay statement from M.H., reporting that she remembered the Veteran seeming distant and isolated, that phone calls were very short, and that the Veteran seemed very depressed. See April 2018 M.H. Lay Statement. In August 2018, the Veteran underwent a VA examination in which the examiner concluded that the Veteran did not meet the criterion for a diagnosis of PTSD. In making this determination, the examiner noted that, though the Veteran experienced irritable behavior, angry outbursts, hypervigilance, and sleep disturbance, it was unclear if such were due to her reported MST; the examiner did not elaborate. Additionally, the examiner acknowledged that the Veteran’s VA treatment records revealed a diagnosis of PTSD, but the examiner stated that the role of a treating provider is one of treating symptoms that are presented, not necessarily reach the level of a fully developed disorder, and are often based only on the veteran’s self-report. See August 2018 VA Initial PTSD DBQ; August 2018 VA Medical Opinion DBQ. However, the Veteran’s VA treatment records indicate that she has a current diagnosis of PTSD, and that she participates in therapy related to her reported MST. See Louisville VAMC records. Additionally, in an October 2019 private examination conducted by Dr. J.A., the psychologist noted that the Veteran reported feeling depressed about the age of 23, which the psychologist noted was about the time of the reported MST. The psychologist also disagreed with the August 2018 VA examiner’s statement that a diagnosis by a treating provider is often based only on the veteran’s self-report, noting that all mental status examinations and treatment are based on the patient’s self-report of their experiences and feelings. Ultimately, the psychologist concluded that the Veteran met all the required symptoms for a DSM-5 diagnosis of PTSD, secondary to MST. See October 2019 Private Opinion. The Board finds the October 2019 private examination and medical opinion persuasive in corroborating the existence of MST, as well as in providing a positive nexus opinion. See Menegassi v. Shinseki, supra. Based on consideration of the Veteran’s statements of MST, along with her VA treatment records and the private medical examination and opinion from Dr. J.A., the Board finds that the preponderance of the evidence supports the finding that the Veteran’s PTSD is related to sexual trauma she experienced during service. As such, the claim of entitlement to service connection for PTSD is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. (continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, 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.