Citation Nr: 21041015 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 19-15 432 DATE: July 7, 2021 ORDER The request to reopen a claim for service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, and anxiety is granted. The request to reopen a claim for service connection for stomach disorder, to include hernia, is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, and anxiety, is remanded. FINDINGS OF FACT 1. A January 2016 rating decision denied service connection for PTSD; the Veteran submitted a timely notice of disagreement in January 2016 and a statement of the case (SOC) was issued in April 2017, however, the Veteran did not appeal this decision to the Board. 2. Additional evidence received since the January 2016 rating decision denying service connection for PTSD is new, relates to unestablished facts necessary to support the claim, and raises a reasonable possibility of substantiating the claim. 3. A January 2016 rating decision denied service connection for stomach disorder, to include hernia; the Veteran submitted a timely notice of disagreement in January 2016 and a statement of the case (SOC) was issued in April 2017; however, the Veteran did not appeal this decision to the Board. 4. Evidence added to the record since the January 2016 rating decision is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for stomach disorder, to include hernia. CONCLUSIONS OF LAW 1. The January 2016 rating decision that denied a claim for service connection for PTSD became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim of service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 3. The January 2016 rating decision that denied a claim for service connection for stomach disorder, to include hernia, became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. New and material evidence has not been received to reopen the claim of service connection for stomach disorder, to include hernia. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDINGS ND CONCLUSIONS The Veteran served on active duty from July 1977 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. The Board observes that the Veteran originally filed a claim for entitlement to service connection for PTSD. The United States Court of Appeals for Veterans Claims (Court) has determined that when a claimant makes a claim of entitlement to service connection for a psychiatric disability, he or she is seeking service connection for any acquired psychiatric disability regardless of how those symptoms are labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, as reflected on the title page, the Board has recategorized the issue on appeal as entitlement to an acquired psychiatric disorder, to include PTSD, depression, and anxiety. This case has been advanced on the docket pursuant to 38 C.F.R. § 20.900. Service Connection In a January 2016 rating decision, the RO denied entitlement to service connection for PTSD and stomach condition, to include hernia. The Veteran submitted a timely notice of disagreement in January 2016 and a statement of the case (SOC) was issued in April 2017. Subsequent to the issuance of the April 2017 SOC, the Veteran did not perfect his appeal to the Board nor was any new and material evidence received within the 60-day appellate period of the April 2017 SOC. Therefore, the January 2016 rating decision became final. In November 2017, the Veteran filed a Fully Developed Claim, again asserting entitlement to service connection for PTSD and stomach condition, to include hernia. The January 2018 rating decision on appeal determined that no new and material evidence had been submitted and denied reopening the Veteran's claims. The Veteran submitted a timely notice of disagreement in March 2018 and an SOC was issued in March 2019. The Veteran perfected his appeal to the Board in May 2019. See May 2019 Form 9. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105 (c). However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "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. The evidence must also raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The court has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The Court interpreted the language of 38 C.F.R. § 3.156 (a) and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding opening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Thus, instead of limiting consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, VA should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. The request to reopen a claim for service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, and anxiety The question for the Board is whether new and material evidence has been submitted to reopen a claim of service connection for an acquired psychiatric disorder, to include PTSD, depression, and anxiety. The evidence of record at the time of the January 2016 rating decision included the Veteran's service treatment records (STRs), military service records, VA treatment records, VA examination, and lay statements. The Veteran's lay statements contend that he was sexually assaulted in service. See February 2015 Statement in Support of Claim for PTSD Secondary to Sexual Assault. The Veteran's STRs show no psychiatric complaints nor treatment. The Veterans military service records show no reports of personal assault, to include military sexual trauma, but do show that the Veteran was recommended for separation by reason of unsatisfactory participation after absence without leave (AWOL) from February 1983 to March 1983. The Veteran's December 2015 VA examination shows that the Veteran did not have a PTSD diagnosis. Evidence submitted and obtained since the last final rating decision includes additional VA treatment records, VA examination, and lay evidence. The January 2019 VA examination again states that the Veteran does not have a current PTSD diagnosis. However, the Veteran's additional lay statements include more information about his personal assault in-service, including military sexual trauma. See November 2017 Correspondence; see also May 2021 Hearing Transcript. The Board further notes that the Veteran has expanded his claim of service connection to include depression and anxiety in addition to PTSD. See May 2021 Hearing Transcript. Upon review, the Board finds this evidence is both new and material evidence sufficient to reopen the Veteran's claim. The evidence is new in that it was not of record at the time of the last final rating decision, and the evidence is "material" because it relates to an unestablished fact necessary to substantiate the underlying service connection claim. Specifically, it addresses and elaborates on the Veteran's contention that he was sexually assaulted in service. As a result, the Board finds that the evidence raises a reasonable possibility of substantiating the Veteran's claim. 38 C.F.R. § 3.156 (a). As the credibility of new evidence is generally presumed, the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder is reopened. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). 2. The request to reopen a claim for service connection for stomach condition, to include hernia The question for the Board is whether new and material evidence has been submitted to reopen a claim of service connection for a stomach condition, to include hernia. The evidence of record at the time of the January 2016 rating decision included the Veteran's service treatment records (STRs), military service records, VA treatment records, VA examination, and lay statements. The Veteran's STRs show a complaint of stomach pain and a notation of a possible hernia. See June 1980 STR. The Veteran's November 2015 VA examination shows that the Veteran did not have a current hernia condition. Evidence submitted and obtained since the last final rating decision includes additional VA treatment records, VA examination, and lay evidence. The Veteran's additional lay statements describing his hernia do not constitute new and material evidence. The Veteran's current and previous contentions relate his hernia to his service. The February 2019 VA examination shows that the Veteran does not have a current hernia condition. Furthermore, VA treatment records show no diagnosis or treatment for any stomach condition, to include hernia. While the additional lay statements, treatment records and examination report added to the record since the January 2016 rating decision are new evidence in the sense they were not considered in that decision, they are not material evidence. They do not show or suggest that the Veteran has a current stomach condition, to include hernia. The November 2015 VA examination and February 2019 VA examination both show that the Veteran does not have a current hernia. In summary, the evidence received since January 2016 pertaining to the Veteran's stomach condition is cumulative and duplicative, and is not evidence that tends to support that the Veteran has a current stomach condition. Therefore, the Board must find that the additional evidence received since January 2016 is not material evidence that addresses an unestablished fact necessary to substantiate the claim of service connection for stomach condition, to include hernia. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, and anxiety is remanded. Since new and material evidence to reopen the Veteran's claim has been found, the Board finds that a remand is warranted for a new VA examination. 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 claimed in-service stressor occurred. In this case, Veteran's service treatment and personnel records do not contain evidence which corroborates his claimed in-service stressors. However, for a PTSD claim based on personal assault, an after-the-fact medical opinion can serve as the credible supporting evidence of the stressor. That is, VA examiners can interpret the evidence of record to corroborate the occurrence of in-service personal assault. 38 C.F.R. § 3.304 (f)(5); Menegassi v. Shinseki, 638 F.3d 1379, 1383 (Fed. Cir. 2011); Bradford v. Nicholson, 20 Vet. App. 200, 207 (2006); Patton v. West, 12 Vet. App. 272, 280 (1999). The Board finds that the January 2019 VA PTSD examination is inadequate in this respect. The VA examiner determined that the Veteran does not have a current PTSD diagnosis, specifically noting that the Veteran did not have a stressor related to personal assault, to include military sexual trauma. The examiner seemingly downplayed the Veteran's reported in-service sexual assault, noting that while the Veteran described being raped in service, he does not endorse symptoms which would be expected to arise from such trauma. While such symptoms may be important in establishing the occurrence of events not documented or otherwise corroborated, there is evidence in this case (from the Veteran's own statements to his going AWOL in February and March 1983) establishing that the claimed incident occurred. Accordingly, the Board finds that the examiner's opinion is inadequate, and a new VA examination is required. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. The Veteran should be provided an examination to determine the nature and etiology of his current psychiatric disability. Access to the Veteran's electronic VA claims file must be made available to the examiner for review in connection with the examination. After examining the Veteran and reviewing the claims file, the examiner should first delineate all psychiatric disabilities identified on examination. The examiner should therefore explain the basis for his or her opinion as to the Veteran's current diagnosis or diagnoses and address the prior diagnoses of record to the extent they differ from the current diagnosis. If PTSD is diagnosed, the examiner should specify the stressor(s) upon which the diagnosis is based. The record contains stressors cited by the Veteran, to include in-service sexual assault. The examiner should review the record and provide an opinion as to whether there is any evidence of behavior changes in service after the harassment and/or assault reported by the Veteran which could provide corroborative evidence that the claimed harassment and/or assault occurred. (Evidence of behavior changes may include deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes). In this case, the Veteran's personnel records reflect that he was recommended for separation by reason of unsatisfactory participation after absence without leave (AWOL) from February 1983 to March 1983. If the VA examiner concludes that the evidence of behavior changes in service is sufficient to corroborate the claimed harassment and/or assault, he or she should provide an opinion as to whether it is at least as likely as not that the Veteran currently has PTSD as a result of that harassment/assault or some other stressor. For any other mental disorder that is diagnosed, the examiner should provide an opinion, with supporting rationale, as to whether it is at least as likely as not that any psychiatric disability identified on examination is causally related to the Veteran's active service. 2. Then, readjudicate the claim on appeal. If a decision is adverse to the Veteran, issue a SSOC and allow appropriate time for response. Then, return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. C. Slaughter, 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.