Citation Nr: 22015115 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 18-02 304 DATE: March 16, 2022 ORDER New and material evidence having been received, the claim of entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD) is reopened. Entitlement to service connection for PTSD and major depressive disorder is granted. FINDINGS OF FACT 1. The Veteran's claim of entitlement to service connection for a psychiatric disability, to include PTSD, was previously denied in a February 2016 Board decision. The Chairman of the Board has not ordered reconsideration of that decision. 2. Evidence received since the February 2016 Board decision is new and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for PTSD. 3. The weight of the evidence establishes that the Veteran's currently diagnosed PTSD and depressive disorder are the result of an in-service stressor event. CONCLUSIONS OF LAW 1. The criteria to reopen the finally denied claim of entitlement to service connection for a psychiatric disorder, including PTSD, have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. The criteria for service connection for PTSD and depressive disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty with the United States Army from April 1970 to January 1972. In October 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. New and Material Evidence All Board decisions are final on the date stamped on the face of the decision, unless the Chairman orders reconsideration. 38 U.S.C. §§ 7103 (a), 7104(b); 38 C.F.R. § 20.1100. Generally, a claim that has been denied in an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means 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). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In this case, a February 2016 Board decision denied the Veteran's claim of entitlement to service connection for a psychiatric disorder, including PTSD. In doing so, the Board found no evidence that a psychiatric disability was present in service or until more than a year thereafter; nor had the Veteran's claimed stressor been corroborated. The pertinent evidence of record at the time of that decision included the Veteran's service treatment records (STRs), Social Security Administration (SSA) records, VA treatment records, and lay statements from the Veteran describing his in-service stressors. The claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). In July 2016, the Veteran submitted a new claim of entitlement to service connection for PTSD, to include depression and anxiety. In support of his claim, the Veteran submitted letters from his brother, sister, and a girlfriend he was dating during service and shortly after discharge, all of whom wrote about the Veteran's changes in demeanor following military service. Also of record is the report of a VA PTSD examination that occurred in November 2017, and an opinion from the VA examiner concluding that the Veteran's PTSD was at least as likely as not incurred in or caused by his unverified in-service personal trauma. Overall, the Board finds that the evidence submitted since the February 2016 Board decision is new and material. It directly relates to an unestablished fact necessary to substantiate the claimnamely, it helps corroborate the Veteran's claimed in-service stressor and the nexus between that stressor and his current PTSD diagnosis. The Board notes that this evidence is not cumulative or redundant of the evidence previously of record. Moreover, it raises a reasonable possibility of substantiating the Veteran's claim. Accordingly, reopening the claim of entitlement to service connection for a psychiatric disorder, including PTSD, is warranted. Entitlement to service connection for PTSD and depressive disorder The Veteran contends that he has PTSD related to certain events that occurred during active service in Germany, including a personal assault where a fellow soldier threatened him by putting a knife to his throat. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); (2) a 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. See 38 C.F.R. § 3.304 (f). Hostile criminal actions, such as the personal assault stressor alleged by the Veteran, are contemplated under the provisions of § 3.304(f)(5), which addresses evidentiary considerations where PTSD is alleged to have resulted from an in-service personal assault. Acevedo v. Shinseki, 25 Vet. App. 286 (2012). When 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. 38 C.F.R. § 3.304 (f)(5); see also 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. 38 C.F.R. § 3.304 (f)(5). 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. Id. For personal assault PTSD claims, an after-the-fact medical opinion can serve as credible supporting evidence of the stressor. 38 C.F.R. § 3.304 (f)(5); Menegassi v. Shinseki, 638 F.3d 1379, 1382-83 (Fed. Cir. 2011); Bradford v. Nicholson, 20 Vet. App. 200, 207 (2006); Patton v. West, 12 Vet. App. 272, 280 (1999). The question of whether the Veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Therefore, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals, but whether the evidence establishes the occurrence of a stressor is a question of fact for adjudicators. See 38 C.F.R. § 3.304 (f). Overall, after careful review of the record in this case, the Board finds that the evidence weighs in favor of finding that the Veteran has PTSD and depressive disorder that are etiologically related to his claimed in-service stressor. The evidence of record shows that the Veteran has been diagnosed with PTSD and depressive disorder. See August 2011 General Psych Testing report; November 2017 VA PTSD examination. Therefore, the Board's analysis will focus its analysis on the link between the Veteran's current symptoms and his claimed in-service stressor and the evidence that establishes that the claimed in-service stressor occurred. Regarding an in-service stressor, the Board observes that the Veteran has asserted, through written correspondence and Board hearing testimony, that he experienced several stressors during service, including the suicide of a friend, an incident in which he almost drowned in a pool, and a personal assault in which a fellow servicemember threatened him with a knife to his throat. In a September 2011 statement in support of claim for PTSD, the Veteran wrote that he was in a park in downtown Kitzingen, Germany when he was assaulted by a fellow soldier wanting money and/or drugs. The Veteran wrote that the soldier pulled a knife and put it to his throat, and the Veteran thought he was going to be killed. In later statements and in hearing testimony, the Veteran stated that he did not report the incident out of fear of reprisal. Of record is the report of General Psych Testing the Veteran underwent in August 2011 in connection with his application for SSA disability benefits. The examiner diagnosed major depressive disorder and PTSD by history. The Veteran was later found to be disabled for SSA purposes for "other disorders of the nervous system." In a February 2014 Formal Finding, a VA Joint Services Records Research Center (JSRRC) coordinator determined that the information required to corroborate the Veteran's claimed stressor was insufficient to send to the JSRRC, namely because the Veteran was not able to provide individual names and other pertinent information. In November 2016, VA received letters from the Veteran's brother, sister, and a girlfriend he was dating during service and shortly after discharge. Each wrote that the Veteran told them about the incident in which he was threatened with a knife and that his demeanor changed when he returned from active service. His former girlfriend wrote that before he went into the service, he was a quiet, shy person; but when he came home, he was angry, had begun to drink, and was drunk most of the time. The Veteran's brother wrote that, while he was in the service, the Veteran wrote a letter home to his mother describing an incident in which he was threatened with a knife. The brother further wrote that the Veteran refused to talk about the incident when he returned home, and that the Veteran started drinking heavily and became secluded. The Veteran's sister also wrote about the Veteran's letter home that recounted the assault, and she reiterated that the Veteran kept to himself when he returned home and started drinking a lot. The Veteran underwent a VA PTSD examination in November 2017. The examiner diagnosed PTSD, alcohol use disorder in remission, and unspecified depressive disorder. She determined that it was not possible to differentiate what symptoms were attributable to each diagnosis. The Veteran described to the examiner the in-service incident in which a fellow soldier threatened him with a knife to his throat and caused him to fear for his life. He stated that he did not report the incident at the time for fear of retribution; instead, he started drinking a lot. The examiner determined that the stressor was adequate to support the diagnosis of PTSD. In an accompanying opinion, the examiner determined that the Veteran's PTSD was at least as likely as not incurred in or caused by an unverified in-service personal trauma in which a fellow soldier put a knife to his throat. The examiner noted that the Veteran had no pre-military history of psychiatric dysfunction, and statements from his sister, brother, and ex-girlfriend indicated that the traumatic event happened and that it affected him after his return from service. VA treatment records show the Veteran has been treated for PTSD and major depressive disorder dating back to 2011, when he was initially evaluated for psychiatric issues. It was noted that the Veteran had recently lost two jobs after being terminated twice for harassment; that he and his wife had recently lost their house; and that finances were a major concern. The Veteran denied any past psychiatric/psychological history and/or treatment, but he did report being threatened at knifepoint during service, which was noted to be a very terrifying event for him. During his October 2021 Board hearing, the Veteran testified that he attended individual therapy every other month. (Continued on the next page) Overall, the Board finds that the evidence weighs in favor of finding that the Veteran's current PTSD and major depressive disorder are etiologically related to active service. The Veteran's statements concerning the in-service personal assault in which he was threatened with a knife have been consistent throughout the period on appeal and before. Moreover, his sister, brother, and ex-girlfriend provided statements that support his contentions regarding his in-service stressor and show that his behavior changed after he returned from active service. Finally, the November 2017 VA examiner noted that the Veteran did not have a pre-military history of psychiatric dysfunction, and that statements from his family members and ex-girlfriend indicated that he experienced the traumatic event and that it affected him after return from service. While the reported personal assault is not noted in the Veteran's service records, the medical and other evidence recounted above strongly suggests that the claimed in-service stressor occurred. Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011). Further, because the PTSD diagnosis based on an in-service stressor has been offered, and because credible supporting evidence that the in-service stressor occurred has been offered, the Board finds that service connection for PTSD is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. T. Raftery, 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.