621 F.3d 340 (2010)
Maurice R. DUHANEY, Petitioner
v.
The ATTORNEY GENERAL OF the UNITED STATES, Respondent.
No. 08-2349.
United States Court of Appeals, Third Circuit.
Argued June 10, 2010.
Filed September 14, 2010.
*342 Daniel M. Gonen, Christos Ravanides, (Argued), New York, NY, Counsel for Petitioner.
Tony West, Greg D. Mack, Manuel A. Palau, (Argued), Richard M. Evans, Paul Fiorino, U.S. Department of Justice Washington, D.C., Counsel for Respondent.
Before AMBRO, CHAGARES, and GREENAWAY, JR., Circuit Judges.

OPINION
CHAGARES, Circuit Judge.
Maurice Duhaney petitions for review of the April 22, 2008, decision by the Board of Immigration Appeals ("BIA"), finding Duhaney removable as an alien convicted of an aggravated felony under Immigration and Nationality Act ("INA") section 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). This order of removal was based on a 1985 conviction for criminal possession of a weapon in the second degree, which Duhaney contends the Government could have raised as a ground for removal during prior immigration proceedings. Having failed to charge him as deportable based on this conviction during the prior proceedings, he argues that the Government should have been precluded from doing so in subsequent proceedings. Duhaney also argues that the BIA committed procedural error and deprived him of the right to present arguments on his own behalf. For the reasons set forth below, we will deny the petition.

I.
Duhaney was born in Jamaica on November 12, 1965. In 1973, at the age of seven, he was admitted to the United States as a lawful permanent resident and has resided in the United States ever since. On September 11, 1985, a jury convicted Duhaney of manslaughter in the second degree and criminal possession of a weapon in the second degree, based on the fatal shooting of Vincent Santiago, Jr. (the "1985 shooting convictions"). The jury acquitted Duhaney of murder in the second degree and manslaughter in the first degree. Duhaney was sentenced to consecutive terms of five to fifteen years for each conviction. While Duhaney was awaiting trial for these charges, he was arrested and charged with possession of a controlled substance with the intent to sell. On October 1, 1985, Duhaney pled guilty to criminal sale of a controlled substance (the "1985 controlled substance conviction"). He was sentenced to one to three years in prison. Based on these three convictions, Duhaney remained incarcerated until 1995.
On June 24, 1986, the Immigration and Naturalization Service (INS) issued an Order to Show Cause (the "1986 OTSC") charging Duhaney as deportable pursuant to former INA section 241(a)(11), 8 U.S.C. § 1231(a)(1) (1986), based on the 1985 controlled substance conviction. Administrative Record ("A.R.") 910. The 1986 OTSC did not mention the 1985 shooting convictions. Id. In response to the 1986 OTSC, Duhaney submitted a Form I-191 requesting a waiver of deportation pursuant to former INA section 212(c) in September 1992. A.R. 905-06. In his application for a § 212(c) waiver, Duhaney disclosed all three convictions. A.R. 906.
In August 1993, an Immigration Judge ("IJ") held a hearing on Duhaney's request for a § 212(c) waiver. The IJ asked the INS attorney about the firearms conviction, and the INS attorney stated his belief that the since the OTSC was issued before March 1, 1991, the firearms conviction *343 could not be used as a basis for deportability. A.R. 369. The INS attorney further noted, "I don't think we'd ever charge him, Judge, but the possibility exists that it could be charged in the future. I would hope that the Service doesn't do that." A.R. 370. The IJ commented he would "leave that for another day," although he expressed "real reservations about whether the Service could do that," as the issue presented a "res judicata question." Id. The IJ accepted the INS attorney's representation that these other convictions did not render him statutorily ineligible for a § 212(c) waiver. Id. In the oral decision granting Duhaney's request for a waiver, the IJ first noted that Duhaney had admitted the allegations in the OTSC and conceded that he was deportable. A.R. 377. The IJ discussed both the 1985 substance abuse conviction cited in the OTSC and the 1985 shooting convictions, noting that the manslaughter conviction amounted to a crime involving moral turpitude. A.R. 383-84 (citing In re Wojtkow, 18 I. & N. Dec. 111 (BIA 1981)). The Government elected not to appeal, and these first deportation proceedings were terminated on August 20, 1993. A.R. 425.
On March 24, 2000, Duhaney pled guilty to criminal possession of a controlled substance in the third degree (the "2000 conviction"). On March 25, 2004, the Government issued a Notice to Appear (NTA) charging that the 2000 conviction rendered him removable on two grounds: (1) as a conviction for a crime relating to a controlled substance under INA section 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i); and (2) as a conviction of an aggravated felony under INA section 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), which is defined to include a drug trafficking crime under INA section 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (the "2004 NTA"). A.R. 931. In October 2004, an IJ ordered Duhaney removed based on the 2000 conviction. A.R. 746-48. In January 2005, the BIA affirmed this removal order, making it the final agency determination (the "2005 removal order" or the "2005 removal proceedings"). A.R. 752.
On August 9, 2006, the New York Supreme Court vacated the 2000 conviction and dismissed the indictment with prejudice. A.R. 440. Thereafter, Duhaney filed a pro se motion with the BIA to reopen and terminate the 2005 removal proceedings; the BIA received the motion on December 4, 2006.[1] A.R. 695-706. On December 5, 2006, the Government also moved to reopen the 2005 removal proceedings. A.R. 688-90. The Government's motion acknowledged that Duhaney was no longer removable based on the now-vacated 2000 conviction, but the motion stated the Government's belief that Duhaney "may be removable ... on the basis of other, separate and distinct criminal convictions." A.R. 690. The Government requested that the BIA "remand this matter to the Immigration Court so that it may reopen and terminate the aforementioned Removal Proceedings ... and rescind the aforementioned Order of Removal." Id. The Government's motion also included the following caveat: "all of the foregoing without prejudice against the initiation of any new removal proceedings, so that DHS-ICE may prepare and file a new NTA against the Respondent." Id.
Duhaney claims that he did not receive the Government's motion. Throughout this time period, Duhaney was in the Government's *344 custody. On November 17, 2006, the Government transferred Duhaney from a detention facility in New York to a correctional center in Pennsylvania. Duhaney's motion included a cover letter listing his address as the Pennsylvania facility, A.R. 695, but the BIA's filing receipt lists his address as the New York facility, A.R. 693. The Government served its motion by sending it via first class mail to the New York facility. A.R. 690.
On January 17, 2007, the BIA granted the parties' motions to reopen and remanded the matter to the Immigration Court for further proceedings. A.R. 617. On March 6, 2007, the Government filed a Form I-261, lodging additional charges of removability against Duhaney (the "2007 Form").[2] A.R. 600-01. Specifically, the 2007 Form charged Duhaney with removability pursuant to: INA section 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C), based on his conviction for a firearms offense; INA section 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), based on his convictions for two crimes of moral turpitude; and INA section 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), based on his conviction for an aggravated felony. A.R. 600. The 2007 Form detailed his 1985 manslaughter, firearms possession, and sale of a controlled substance convictions; reported that his 2000 conviction had been vacated; and acknowledged that he had been granted a § 212(c) waiver based on an application that listed all three 1985 convictions. A.R. 600-01.
In response, Duhaney filed a motion to terminate the removal proceedings. A.R. 503-09. Duhaney argued, inter alia, that DHS failed to provide him notice of its motion to reopen, that the BIA erred by remanding the case to the IJ rather than simply terminating the removal proceedings, and that the Government was barred by collateral estoppel and res judicata from charging grounds of removability that it could have charged during the prior proceedings that were closed in 1993 and 2005. A.R. 504-08.
On November 5, 2007, the IJ denied Duhaney's motion to terminate. A.R. 444-52. The IJ noted that collateral estoppel and res judicata apply generally to immigration proceedings, but that neither doctrine precluded DHS from alleging new grounds for removability in this case. A.R. 449. The IJ concluded that "[u]nder the INA as it was applied when [Duhaney] was granted a waiver under section 212(c)..., the former INS could not have charged [him] with removal as an alien convicted of an aggravated felony," because the aggravated felony provisions of the Immigration Act of 1990 did not apply retroactively until the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 was enacted. A.R. 450. Based on this "material intervening change in the governing law," the IJ found that "neither res judicata nor collateral estoppel would bar DHS's prosecution of removal proceedings based on his 1985 weapon conviction." A.R. 451. The IJ also determined that Duhaney's § 212(c) waiver applied only to the basis for removability alleged at that time, and not to a basis for removability Duhaney's conviction of an aggravated felonythat did not even exist at the time. A.R. 451.
On December 20, 2007, the IJ ordered Duhaney removed to Jamaica based on the three grounds added by the 2007 Form. A.R. 58-63. Duhaney appealed the IJ's *345 decision, A.R. 9-29, and on April 22, 2008, the BIA affirmed the removal order, A.R. 2-6. The BIA rejected Duhaney's arguments that it erred by remanding the case to the IJ, that Duhaney's due process rights were violated by his failure to receive notice of the Government's motion, and that collateral estoppel and res judicata barred the Government from adding charges that it could have charged before. A.R. 4-5. On May 7, 2008, Duhaney filed this timely petition for review.

II.
We have jurisdiction over this petition under 8 U.S.C. § 1252(a)(1). Since Duhaney was found removable based on his conviction for an aggravated felony, we review only the legal and constitutional issues raised. 8 U.S.C. §§ 1252(a)(2)(C)-(D); see Caroleo v. Gonzales, 476 F.3d 158, 162 (3d Cir.2007) ("We have jurisdiction to review constitutional claims or questions of law raised upon a petition for review from a final order of the BIA...."). We exercise de novo review over these issues. See Caroleo, 476 F.3d at 162 (citing Kamara v. Att'y Gen., 420 F.3d 202, 211 (3d Cir. 2005)).

III.
As a threshold matter, Duhaney argues that the BIA erred by remanding his case to the IJ rather than simply reopening the proceedings for the sole purpose of terminating the order of removal. He argues that the BIA disregarded its own established precedent by remanding the case, and that he was deprived of the right to oppose remand because the Government failed to provide proper notice.

A.
Duhaney first contends that the BIA erred by remanding rather than terminating his case upon the vacatur of his conviction, relying on Johnson v. Ashcroft, 378 F.3d 164, 171 (2d Cir.2004) ("Johnson (2d Cir.)"). In that case, the Court of Appeals for the Second Circuit noted that the "BIA, as a matter of practice, routinely reopens and terminates proceedings of this kind without remanding for further inquiry before an IJ." Id. (citing In re Rodriguez-Ruiz, 22 I. & N. Dec. 1378, 1380 (BIA 2000); In re Gutnick, 13 I. & N. Dec. 672, 674 (BIA 1971)). The court also noted that, since the Government did not intend to introduce any previously unavailable evidence on remand, "the Board's own precedents clearly mandated" that the Government's motion to remand be denied. Id. (citing Kuang-Te Wang v. Ashcroft, 260 F.3d 448, 451 & n. 2 (5th Cir.2001); In re Coelho, 20 I. & N. Dec. 464, 471-73 (BIA 1992)). The court concluded that, "[w]hile the Board is free to modify its precedents in a reasoned fashion, it acts arbitrarily and unlawfully when it simply ignores established holdings." Id. at 171 (citing Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir.2001); Johnson v. Ashcroft, 286 F.3d 696, 700 & n. 4 (3d Cir. 2002) ("Johnson (3d Cir.)")).
We have recognized that an administrative agency "acts arbitrarily if it departs from its established precedents without announcing a principled reason for the departure." Johnson (3d Cir.), 286 F.3d at 700 (citations and quotation marks omitted). We disagree, however, that the BIA disregarded established precedent by remanding these proceedings to the IJ. We do not view any of the cases cited in Johnson (2d Cir.) as establishing that the BIA's established precedent is to terminate removal proceedings without remand to the IJ. While the BIA terminated removal proceedings without first remanding to an IJ in both Rodriguez-Ruiz, 22 I. & N. Dec. at 1380, and Gutnick, 13 I. & N. *346 Dec. at 674, these two examples do not prove that this procedure amounts to the BIA's established precedent.
If anything, the applicable regulations seem to contemplate the procedure that the BIA followed in this case. Under 8 C.F.R. § 1003.1(d)(3)(iv), the BIA generally "will not engage in factfinding in the course of deciding appeals." If "factfinding is needed in a particular case, the Board may remand the proceeding to the immigration judge...." Id. In Coelho, the BIA discussed the requirements for a motion to remand, explaining that such motions are "not expressly addressed" by the INA but have become "an accepted part" of the agency's procedure. 20 I. & N. Dec. at 471. When a motion to remand also requires reopening closed proceedings, the motion must comply with the requirements for a motion to reopen. Id. Accordingly, remand is generally only appropriate for "consideration of new facts or changed circumstances." Wang, 260 F.3d at 451. Coelho and Wang merely recognize that remand is generally inappropriate without new factual circumstances.
In this case, the vacatur of Duhaney's 2000 conviction presented the BIA with new facts to consider, allowing it to grant the parties' motions to reopen and to remand to the IJ to evaluate the impact of these new facts. Once the BIA had remanded the case to the IJ, BIA precedent authorized the IJ to consider "any and all matters" that the IJ "deem[ed] appropriate in the exercise of his administrative discretion." In re Patel, 16 I. & N. Dec. 600, 601 (BIA 1978). Under these circumstances, the BIA did not disregard its established precedent by remanding the case in a way that ultimately permitted the Government to lodge additional charges of removability against Duhaney. Accordingly, the BIA did not err in ordering a remand.

B.
Duhaney also argues that the Government failed to provide notice of its motion to reopen, which it sent to a detention facility in New York after he had been transferred to a correctional center in Pennsylvania. In particular, he claims that he was deprived of the opportunity to make arguments on his own behalf and that he suffered prejudice as a result, in violation of his right to due process. See Fadiga v. Att'y Gen., 488 F.3d 142, 155 (3d Cir.2007) ("Where an alien claims a denial of due process because he was prevented from making his case to the BIA or the IJ, he must show (1) that he was prevented from reasonably presenting his case and (2) that substantial prejudice resulted." (quotation marks, citation, and footnote omitted)). We disagree with Duhaney's claim.
Both parties filed motions to reopen the proceedings based on the vacatur of Duhaney's 2000 conviction. A.R. 689-90 (Government's motion), 698-706 (Duhaney's motion). Without hearing any additional arguments from either party, the BIA granted the relief sought by both parties. A.R. 617 (granting motion to reopen because "[t]he respondent and the Department of Homeland Security, in separate motions, ask that we reopen proceedings on the grounds that the criminal conviction underlying the respondent's removal order has been vacated"). Again, both parties sought and received identical relief. We reject Duhaney's argument that he suffered any type of prejudice under these circumstances. Accordingly, the BIA did not deprive Duhaney of his due process rights.

IV.
Having addressed Duhaney's argument that the BIA committed procedural error, *347 we turn to his substantive challenges to the removal order. His principal claim is that res judicata precluded the Government from adding additional charges to the 2004 NTA based on convictions that it could have used to support charges of removability during prior immigration proceedings. Duhaney argues that two separate proceedings should have preclusive effect: (1) the original proceedings, based on the 1986 OTSC, which terminated with the grant of a § 212(c) waiver; and (2) the 2004 proceedings, which he argues should have been terminated when his 2000 conviction was vacated. Since we have determined that the BIA did not err by remanding the proceedings in a way that permitted the Government to lodge additional charges of removability, only the first proceeding achieved the finality necessary to invoke res judicata.[3] We hold that the Government was not precluded from alleging new charges of removability following the vacatur of Duhaney's 2000 conviction.

A.
Res judicata, also known as claim preclusion, bars a party from initiating a second suit against the same adversary based on the same "cause of action" as the first suit. See In re Mullarkey, 536 F.3d 215, 225 (3d Cir.2008). A party seeking to invoke res judicata must establish three elements: "(1) a final judgment on the merits in a prior suit involving (2) the same parties or their privies and (3) a subsequent suit based on the same cause of action." Id. (quotation marks omitted). "The doctrine of res judicata bars not only claims that were brought in a previous action, but also claims that could have been brought." Id.
Although the doctrine of res judicata is most frequently applied to final judgments issued by courts, we have also endorsed its application to adjudicative determinations by administrative agencies, including certain immigration decisions. The Supreme Court has instructed that the "common-law doctrines of collateral estoppel (as to issues) and res judicata (as to claims)" should be applied "to those determinations of administrative bodies that have attained finality." Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 107, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). "`When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.'" Id. (quoting United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966)). Since the common law principles of collateral estoppel and res judicata are "well established," courts may imply that "Congress has legislated with an expectation that the principle will apply except when a statutory purpose to the contrary is evident." Id. at 108 (quotation marks omitted).
Applying this framework, we have held that common law preclusion doctrines apply to adjudicative agency determinations under the INA, as long as application of these doctrines "does not frustrate congressional intent or impede the effective functioning of the agency." Duvall v. Att'y Gen., 436 F.3d 382, 387-88 (3d Cir. 2006). In Duvall, we explained that these preclusion doctrines apply to "all proceedings that may be deemed `adjudicative,' no matter whether the governing entity is a *348 `court' or an `agency.'" Id. at 390. We further explained that "[t]he adversarial system of dispute resolution established in the INA is plainly adjudicatory in character and susceptible to full application of common law principles of preclusion." Id. Since "[r]equiring the INS to meet its burden of proof at a single hearing is consistent with the statutory scheme, as interpreted by the administrative agency, and will not frustrate the goals of Congress," the "`lenient presumption in favor of administrative estoppel' holds, and the INA will be held to incorporate common law principles of collateral estoppel." Id. (citing In re Fedorenko, 19 I. & N. Dec. 57, 61 (BIA 1984) and quoting Astoria, 501 U.S. at 108, 111 S.Ct. 2166).
The parties in this case do not dispute the general proposition that res judicata may be applied to adjudicative proceedings under the INA.[4] The question is whether res judicata precluded the Government from lodging new charges of removability under these particular circumstances. As previously noted, res judicata only applies to a second proceeding based on the same "cause of action" as the first. The challenge in this case, as in many res judicata cases, is defining the relevant "cause of action."
We have disavowed attempts to create a "simple test" for "determining what constitutes a cause of action for res judicata purposes." Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir. 1991) (quotation marks omitted). "Rather, we look toward the `essential similarity of the underlying events giving rise to the various legal claims.'" Id. (quoting Davis v. U.S. Steel Supply, 688 F.2d 166, 171 (3d Cir.1982) (en banc)). Our approach reflects the "`present trend ... of requiring that a plaintiff present in one suit all the claims for relief that he may have arising out of the same transaction or occurrence.'" Id. (quoting United States v. Athlone Indus., Inc., 746 F.2d 977, 984 (3d Cir.1984)). Under this transactional approach, the focus of the inquiry is "`whether the acts complained of were the same, whether the material facts alleged in each suit were the same, and whether the witnesses and documentation required to prove such allegations were the same.'" Id. (quoting Athlone, 746 F.2d at 984). "A mere difference in theory is not dispositive." Id.
Duhaney proposes that the relevant "`transaction' for res judicata purposes in removal proceedings is the alien's removability." Duhaney Br. 21. He contends that "[w]hether the alien is removable on the basis of criminal offenses is essentially a single transaction: certainly, the issue of an alien's removability on the basis of multiple convictions form a convenient trial unit and conforms to the parties' expectations." Id. The Government proposes that in the removal context, the relevant transaction should be defined as the "factual *349 occurrence or conviction upon which a charge of removability is based." Att'y Gen. Br. 34.
We conclude that the Government's approach to defining the relevant cause of action is more faithful to our res judicata precedent and the equitable principles underlying the doctrine, to say nothing of congressional intent. In this case, the Government secured a removal order against Duhaney based on criminal convictions for which it had not previously charged Duhaney as removable. Although there are common elements of fact between the two removal proceedings, the critical acts and the necessary documentation were different for the two proceedings. Accordingly, we hold that the doctrine of res judicata did not bar the Government from lodging additional charges of removability after Duhaney's 2000 conviction was vacated.
The Court of Appeals for the Second Circuit has applied a similar transactional approach to defining the relevant cause of action. Channer v. DHS, 527 F.3d 275, 281-82 (2d Cir.2008). In Channer, the petitioner was convicted of state and federal crimes arising out of two separate incidents: a federal charge of carrying a firearm during a drug trafficking crime and state charges of robbery in the first degree and conspiracy to commit robbery. The INS initially charged him as removable based solely on the federal conviction, which it contended amounted to both an aggravated felony and a removable firearms offense under the INA. After an IJ had entered an order of removal, however, the petitioner's federal conviction was vacated, and, based on the INS's motion, his removal was terminated. The INS then initiated new removal proceedings against him, charging him as removable based on his state convictions, which amounted to aggravated felonies under the INA. The petitioner argued that this second proceeding was barred by res judicata, but the BIA and the Court of Appeals for the Second Circuit held that the second proceeding involved a different "cause of action" from the first. Id. at 278, 281-82. The court in Channer reasoned that the two proceedings "did not originate from the same nucleus of operative fact. The factual predicates produced two distinct convictions based on different charges." Id. at 281. The court continued that "[w]hile the remedy for each claim is identicaldeportation for committing an aggravated felonythe contrasting evidence required to prove each claim and the different elements of each crime demonstrate that they do not form a convenient trial unit." Id. The court rejected Channer's claim that res judicata should apply because "the facts essential to the second suit existed and were known to the complaining party at the time of the first," reasoning that "each deportation proceeding stemmed from a separate transaction" and "each required different proof." Id. The court concluded that res judicata did not bar the Government from lodging new charges of removability based on a different predicate conviction.
In Bravo-Pedroza v. Gonzales, 475 F.3d 1358 (9th Cir.2007), by contrast, the Court of Appeals for the Ninth Circuit determined that "elementary fairness" required the opposite result. Id. at 1360. In that case, the Government first sought to deport Bravo-Pedroza based on a 1985 conviction for robbery and a 1986 conviction for burglary. The IJ found him deportable but granted him relief under former INA § 212(c), 8 U.S.C. § 1182(c) (1990). Bravo-Pedroza, 475 F.3d at 1359. The Government sought to deport him for a second time in 2001, based on a 1996 conviction for petty theft that, due to his prior offenses, amounted to an aggravated felony. *350 Id. The IJ found Bravo-Pedroza removable, but while his petition for review was pending, the Court of Appeals for the Ninth Circuit held that petty theft did not amount to an aggravated felony; it therefore remanded Bravo's petition to the BIA. Id. A few days later, the Government filed new charges of removability against him, alleging that his three prior convictions were crimes of moral turpitude. Id. The IJ upheld the charges, but the Court of Appeals granted Bravo-Pedroza's petition for review, concluding that res judicata barred the Government from relitigating Bravo-Pedroza's removability based on these three prior convictions. Id. at 1359-60. The court held that the Government was barred by res judicata from "initiating a second deportation case on the basis of a charge that [it] could have brought in the first case, when, due to a change of law that occurred during the course of the first case, [it] lost the first case." Id. at 1358. The court rejected the Government's argument that res judicata should be applied "flexibly" in this context, explaining that the agency's own regulations provided an opportunity to add charges "during the pendency of immigration proceedings," but not after a proceeding had concluded. Id. at 1359-60 (emphasis in original). The Government had "abundant opportunity" to add these charges to the prior proceedings, the court determined, and having neglected this opportunity, it could not "avoid the application of the general principles of res judicata." Id. at 1360.
The court concluded that "elementary fairness" supported the petitioner's res judicata defense, but it did not address whether the second proceedings involved the same cause of action as the first. We are not persuaded that principles of fairness necessarily support application of res judicata in the circumstances present herein. In any event, we see no reason to depart from our standard res judicata analysis, including the transactional approach to defining the relevant cause of action.
Duhaney argues that we should not consider the predicate conviction to be the relevant factual transaction because the facts underlying a conviction may not generally be litigated in removal proceedings. See Duhaney Br. 21 n. 5 (arguing that under the "formal categorical approach," the "underlying facts of the criminal convictions generally may not be litigated" (citing Evanson v. Att'y Gen., 550 F.3d 284, 290 (3d Cir.2008))). Although an IJ's ability to look beyond the elements of the crime charged may be limited, the emphasis of the IJ's analysis remains whether a particular conviction amounts to a removable offense. We conclude that the most reasonable definition of the relevant transaction is the factual occurrence giving rise to a charge of removability. See Channer, 527 F.3d at 281 ("While the remedy for each claim is identicaldeportation for committing an aggravated felonythe contrasting evidence required to prove each claim and the different elements of each crime demonstrate that they do not form a convenient trial unit"). In this case, the relevant factual occurrence is the conviction or convictions giving rise to a charge of removability. Since the instant removal order was based on an aggravated felony conviction arising from criminal conduct that the Government had not previously charged as a ground for removal, these new charges represent a new "cause of action."
Our precedent in other, related areas supports this conclusion. In a case where we rejected an alien's attempt to invoke judicial estoppel to block the Government from lodging additional charges of removability, we explained that "`there is no requirement that the [DHS] advance every conceivable basis for [removability] in the *351 [Notice to Appear].... [S]uch a rule would needlessly complicate proceedings in the vast majority of cases.'" Yong Wong Park v. Att'y Gen., 472 F.3d 66, 73 (3d Cir.2006) (quoting De Faria v. INS, 13 F.3d 422, 424 (1st Cir.1993) (modifications in Park)).
We adopted a similarly pragmatic view of the Government's immigration charging discretion in Duvall. Despite our general conclusion that the doctrine of collateral estoppel applied to immigration proceedings, we ultimately concluded that the Government was not precluded from relitigating the issue of the petitioner's alienage, even though that issue technically had been adjudicated on the merits in the first proceeding. In the initial deportation proceedings, the Governmentthrough an oversight the court characterized as a mere "litigation error"failed to produce proof of the petitioner's foreign citizenship. Duvall, 436 F.3d at 384. After these initial deportation proceedings were terminated in the petitioner's favor, she went on to commit several additional crimes. When the Government sought to remove her based on these subsequent convictions, she attempted to invoke collateral estoppel to bar the Government from relitigating the issue of her alienage. We held that collateral estoppel did not bar the Government from relitigating this issue under these circumstances, reasoning that "collateral estoppel was borne of equity and is therefore `flexible,' bending to satisfy its underlying purpose in light of the nature of the proceedings." Id. at 390-91 (quoting Nat'l R.R. Passenger Corp. v. Pa. Pub. Util. Comm'n, 288 F.3d 519, 528 (3d Cir. 2002)).
The case for applying equitable preclusion doctrines flexibly is particularly strong in the circumstances presented by Duhaney's petition. As we explained in Duvall, Congress has repeatedly amended the immigration laws to facilitate the removal of aliens who have been convicted of aggravated felonies. 436 F.3d at 391 (noting that a "primary goal of several recent overhauls of the INA has been to ensure and expedite the removal of aliens convicted of serious crimes" (citations omitted)); see also Channer, 527 F.3d at 280 n. 4 (observing that Congress has "repeatedly and unambiguously" sought to remove aliens convicted of aggravated felonies). "[A] doctrine of repose should not be applied so as to frustrate clearly expressed congressional intent." Channer, 527 F.3d at 280 n. 4. The fact that Congress has specifically chosen to amend the immigration laws to facilitate the removal of aliens who have committed aggravated felonies counsels against an overly rigid application of the res judicata doctrine.
In this case, the order of removal against Duhaney is based on a ground of removability that did not even become available until after Duhaney was granted a § 212(c) waiver. The BIA found him removable under INA section 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony as defined in INA section 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F). INA section 101(a)(43)(F) defines aggravated felony as a crime of violence for which the term of imprisonment is at least one year. This definition of aggravated felony was not created until after 1985, however, and Congress did not provide for the retroactive application of the definition until it passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009. IIRIRA section 321(b) amended INA section 101(a)(43) to apply the definition of aggravated felony "regardless of whether the conviction was entered before, on, or after the date of enactment of this paragraph." *352 110 Stat. at 3009-628 (codified at 8 U.S.C. § 1101(a)(43)).
When the original immigration proceedings terminated with the grant of a § 212(c) waiver in 1993, three years before IIRIRA was passed, the Government could not have charged Duhaney with removability based on this ground. Other courts of appeals have held that res judicata does not bar the Government from lodging new charges of removability, post-IIRIRA, that could not have been raised pre-IIRIRA. See, e.g., Ljutica v. Holder, 588 F.3d 119, 127 (2d Cir.2009) ("Under the principles of res judicata, while a previous judgment may preclude litigation of claims that arose prior to its entry, it cannot be given the effect of extinguishing claims which did not even then exist and which could not possibly have been sued upon in the previous case." (quotation marks omitted)); Alvear-Velez v. Mukasey, 540 F.3d 672, 678 (7th Cir.2008) ("[A]lthough changes in case law almost never provide a justification for instituting a new action arising from the same dispute that already has been litigated to a final judgment, statutory changes that occur after the previous litigation has concluded may justify a new action.").
Since we have determined that the instant order of removal is based on a different "cause of action" than the earlier proceedings against Duhaney, we need not resolve whether the enactment of new statutory grounds of removal would render res judicata inapplicable. Neither must we address Duhaney's contention that the Government could have used his 1985 firearm and manslaughter convictions to support other potential grounds of removal. Under the circumstances presented by this case, res judicata does not bar the Government from lodging new charges of removability based on convictions that it had not previously raised.[5]

B.
Duhaney contends that the regulations governing § 212(c) waivers support his position that the Government was precluded from lodging new charges of removal based on convictions disclosed in his application for § 212(c) relief. The Government contends that this argument was waived because it was not specifically raised before the IJ and the BIA. Duhaney contends that this specific issue falls within his broader claim that the Government was precluded from relitigating claims that it could have brought during earlier proceedings. Assuming, arguendo, that Duhaney has properly exhausted this issue, we conclude that his § 212(c) waiver does not apply to the instant order of removal, which is based on a different ground of removability.
A § 212(c) waiver extends only to the "specific grounds of excludability or deportability that were described in the application." 8 C.F.R. § 212.3(d). The sole charge in the 1986 OTSC was based on his 1985 controlled substance conviction, making *353 him deportable under former INA section 242(a)(11), 8 U.S.C. § 1231(a)(1) (1986). A.R. 910. It did not raise any other grounds for deportability. Duhaney's application for the § 212(c) waiver disclosed his other convictions, A.R. 906, and the IJ discussed these convictions in the hearing on Duhaney's request for the waiver, see A.R. 369-70, but the disclosure and discussion of these convictions does not somehow bring every possible ground for deportation that could have been based on the convictions within the scope of the waiver.
The BIA has explained that a § 212(c) waiver "should remain valid indefinitely," but only as to specific "grounds stated at the time of the grant of relief." In re Balderas, 20 I. & N. Dec. 389, 393 (BIA 1991). In Balderas, the BIA further explained that "since a grant of section 212(c) relief `waives' the finding of excludability itself, the crimes alleged to be grounds for excludability or deportability do not disappear from the alien's record for immigration purposes." Id. at 391. "[W]hen section 212(c) relief is granted, the Attorney General does not issue a pardon or expungement of the conviction itself. Instead, the Attorney General grants the alien relief upon a determination that a favorable exercise of discretion is warranted on the particular facts presented, notwithstanding the alien's excludability or deportability." Id. (footnote omitted).
The facts of Balderas help illuminate this distinction. The INS first sought to deport Balderas based on two convictions, under the former INA section 241(a)(4)(A), which applied to an alien convicted of two crimes involving moral turpitude. Balderas received a § 212(c) waiver, but he was later convicted of another crime involving moral turpitude. The INS then sought to deport Balderas a second time, based on one of the pre-waiver convictions and the post-waiver conviction, under the same "two crimes involving turpitude" provision. The BIA concluded that Balderas' § 212(c) waiver did not apply to this new basis for deportability, holding that:
a conviction which has once been relied upon in a charge of deportability may be alleged as one of the `two crimes involving moral turpitude' in a second proceeding, even though the first proceeding was terminated by a grant of relief under section 212(c) of the Act, where the second crime alleged is a subsequent conviction that was not disclosed in the prior proceeding.
Id. at 393.
Although Balderas involved an alien who committed another crime after obtaining a § 212(c) waiver, the second proceeding relied both on the post-waiver conviction and one of the pre-waiver convictions. This fact illustrates that the scope of a § 212(c) waiver is defined by the basis for deportability, not the underlying crime itself. See Esquivel v. Mukasey, 543 F.3d 919, 922 (7th Cir.2008) ("The BIA has established that a § 212(c) waiver does not waive the basis for excludability itself; it merely waives the finding of excludability." (emphasis in original)). Indeed, we have determined, relying on Balderas, that the fact that a petitioner's deportation based on a particular conviction has been waived does not prevent subsequent consideration of the same underlying conviction for other purposes. Rodriguez-Munoz v. Gonzales, 419 F.3d 245, 248 (3d Cir.2005) ("[E]ven if Rodriguez-Munoz's deportation based on his 1992 conviction were waived under § 212(c), that conviction would nonetheless remain an aggravated felony for purposes of precluding his application for cancellation of removal under § 240A."); see also De Hoyos v. Mukasey, 551 F.3d 339, 342-43 (5th Cir.2008) (agreeing with the BIA's *354 approach in Balderas); Esquivel, 543 F.3d at 922-23 (same).
Duhaney obtained discretionary relief that allowed him to remain in the country even though he was found to be deportable based on his 1985 conviction for sale of a controlled substance. This § 212(c) waiver remains valid indefinitely, but it applies only to the basis for deportation charged in the 1986 OTSC. Under the applicable regulations, the Government was permitted to lodge new charges of removability, even based on convictions that were disclosed in his application. Duhaney's § 212(c) waiver does not extend to the ground for removability that underlies the instant order of removal.

V.
For the foregoing reasons, we will deny the petition for review.
NOTES
[1]  During this time period, the Government issued an NTA, dated November 16, 2006, charging Duhaney as removable based on his 1985 drug trafficking, manslaughter, and firearms convictions. A.R. 683-84. This NTA was later dismissed as "improvidently issued." A.R. 618.
[2]  We refer to the Form I-261 itself as the "2007 Form," and we refer to this form together with the 2004 NTA that it supplemented as the "Amended 2004 NTA." The 2007 Form, on its own, does not constitute a separate charging document. It merely adds factual allegations and charges of removability to the 2004 NTA.
[3]  We note, however, that under the analysis we apply to the original proceedings, res judicata would not have barred the Government from filing a new NTA based on the charges lodged in the 2004 Form had the BIA merely terminated the proceedings.
[4]  Although this general principle appears well settled, at least one court of appeals has expressed the possibility that res judicata may not apply in the specific context of efforts to remove aliens convicted of aggravated felonies. See Channer v. DHS, 527 F.3d 275, 280 n. 4 (2d Cir.2008). The court in Channer explained that "a doctrine of repose should not be applied so as to frustrate clearly expressed congressional intent," and that Congress has "repeatedly and unambiguously ... sought to remove ... aliens convicted of aggravated felonies." Id. The court therefore suggested that the removal of aliens who have committed aggravated felonies may be a special case: "It may be that when DHS attempts to remove aliens convicted of aggravated feloniesas opposed to aliens falling into some other category making them removablethe determination of whether res judicata applies changes, given Congress' clear and emphatic position with respect to such aliens." Id.
[5]  Duhaney also argues that the Government's attempts to initiate new removal proceedings against him based on charges that it could have brought in earlier proceedings violate due process. Without some procedural bar to limit the Government from bringing successive actions, Duhaney argues, it "could simply institute repeated administrative proceedings, imposing more and more expense on its target, until it achieved its desired result." Duhaney Br. 47. The doctrines of res judicata and procedural estoppel, as well as the BIA's own procedures, however, impose significant limits on the Government's ability to bring successive removal actions. These doctrines and procedures impose principled limits on the Government's ability to revisit claims and issues that have already been fully litigated, even if these doctrines do not bar the Government from lodging new charges of removability in this particular case. Duhaney's due process challenge therefore lacks merit.


Citation Nr: 1448546
Decision Date: 10/31/14    Archive Date: 11/05/14

DOCKET NO.  12-08 117	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia

THE ISSUE

Entitlement to service connection for posttraumatic stress disorder (PTSD).

REPRESENTATION

Veteran represented by:	Georgia Department of Veterans Services

ATTORNEY FOR THE BOARD

S. Nathanson, Associate Counsel

INTRODUCTION

The Veteran had duty from September 1974 to March 1975 and service in the Reserve.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  Jurisdiction over the case was subsequently transferred to the RO in Atlanta, Georgia.

In January 2014, the Board remanded this matter for further development of the record.  All indicated development has been completed and the matter is ready to be decided on the merits.

Additional VA treatment records and statements from the Veteran have been associated with the claims file after the most recent Supplemental Statement of the Case.  The Board finds that these documents are merely cumulative of the evidence already in the claims file and therefore do not require review by the RO.

FINDING OF FACT

PTSD is not attributable to service; there is insufficient credible supporting evidence to verify the Veteran's alleged in-service stressors.

CONCLUSION OF LAW

PTSD was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125 (2014).

REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in April 2009 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined.

VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.  The examination reports reflect that the examiners recorded the Veteran's current complaints and conducted appropriate examinations pertinent to the rating criteria.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

In addition, all identified service treatment records and post-service treatment records were obtained.  To the extent that the Veteran indicated that she received psychiatric treatment since 1975, the Veteran did not provide the name of the provider nor an authorization and consent to release information form for VA to obtain the records.  Therefore, the Board finds that there has been compliance with the duty to assist.

The Board notes that although the Veteran indicated in her August 1995 hearing that she applied for Social Security Administration benefits, she stated that she applied for the benefits as a result of her back and blood conditions and not a psychiatric disorder.  Therefore, the Board finds that there is no reasonable possibility that the records would assist the Veteran.

The Board remanded this matter in January 2014 to provide VCAA compliant notice, associate with the claims file any outstanding treatment records, and to obtain a medical opinion.  As all indicated development has been completed, to include providing the Veteran with an additional examination in March 2014, the Board finds that there was substantial compliance with the remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Board will therefore proceed to the merits of the appeal.

Legal Principles and Analysis

The Veteran contends that she has PTSD that that is related to service.  Specifically, she asserts that she has PTSD as a result of sexual assaults that occurred during her active service.  The Board finds that the claim must be denied as there is insufficient credible and corroborating evidence to verify the Veteran's claimed stressors.

As an initial matter, the Veteran does not claim, and the evidence does not reflect, that PTSD resulted from combat with the enemy.  Therefore, the combat provisions of 38 U.S.C.A. § 1154 are not applicable.

Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service disease, injury or event.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).  Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

There are also particular requirements for establishing 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 requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (requiring PTSD diagnoses to conform to the DSM-IV); 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.  38 C.F.R. §§ 3.304(f).

There are also special considerations for PTSD claims predicated on a personal assault.  The pertinent regulation, 38 C.F.R. § 3.304(f)(5), provides that PTSD based on a personal assault in service permits evidence from sources other than a veteran's service records which may corroborate his or her 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.  38 C.F.R. § 3.304(f)(5).  The VA Adjudication Manual Rewrite (M21-1MR) also identifies alternative sources for developing evidence of personal assault, including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals.  M21-1MR, Part IV, Subpart ii, 1.D.17.g.

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).

Here, the March 2014 VA examination report contains a diagnosis of PTSD based on her claimed in-service stressor.  There is, nevertheless, a need to corroborate the claimed stressor.

As an initial matter, the first time that the Veteran alleged that she was sexually assaulted corresponded to when she filed her March 2009 claim for benefits.  Specifically, she did not mention that she was assaulted in her numerous prior claims, to include her December 1976 claim, October 1979 claim, November 1981 claim, February 1989 claim, October 1994 claim, or November 2007 claim.

A review of her mental health treatment records from 1995 suggest that her panic attacks and anxiety were related to her chronic illness and her family situation.  There were no mentions of a military sexual assault at that time.  In March 1995, the Veteran revealed that she had panic attacks when she left her home because she was overwhelmed with having to take medications and fearful that she would contract a more serious illness if she went out in public.  The social worker noted that the Veteran was guarded in discussing her personal history, but was able to relate issues involving her 19 year old son who she referred to as a drug addict.  In April 1995, it was noted that the Veteran reported continued symptoms of panic attacks which she attributed to high levels of histamines in her system.  She also denied any psycho-social problematic issues but continued to relate feelings of anxiety, fear, and being overwhelmed.  She reported feelings of acceptance surrounding her son's addictive behavior and her ability to "let go."  Her cognitive functioning appeared intact and no thought disorder was detected.  In May 1995, it was noted that the Veteran began to experience nightmares related to the death of her parents and she was frightened by her own medication condition.  At that time she denied having any acute mood swings and denied having any acute depressive symptoms.

The Board also notes that during the August 1995 hearing, the Veteran stated that since separation from service, she earned her GED and learned how to type but completed no other training or schooling, worked for the police department for four years as a clerk, worked as a waitress, and managed an apartment building.  She further testified that since November 1986 she had been unable to work in any field.

The first notation of PTSD of record was not until July 2007 when it was noted that the Veteran had PTSD due to sexual trauma as a child.

In a February 2009 treatment record, the doctor noted that the Veteran revealed for the first time in the previous visit that she was raped in the military and beaten by a female supervisor.  The Veteran stated that she always denied military sexual trauma in the past and her way of coping had been to avoid thinking about the past trauma.

In her April 2009 stressor statement, the Veteran indicated that, in March 1974, she was returning to the barracks one weekend evening when a man stopped and asked her for directions.  She stated that she opened the door, he pulled her out of her car into a van, and then raped her.  She stated that it was dark and she was not able to get a good look at him.  She further stated that he threatened her and told her not to tell anyone and consequently she only told her mother, father, and her aunt and then blocked out the incident for years by willpower and the use of drugs until 2007.

In an associated questionnaire, the Veteran reported that the incident occurred in November 1974 and that she did not file a formal report, go to the police, or go to the hospital after the attack.  She stated that she was threatened by the person who raped her to not tell anyone so she did not tell anyone until she finally told her parents and her aunt.  She further reported that, as a result of the incident, between her self-medication and the prescribed medication, she could not remember the facts that she needed to remember and when she tried to remember them, it caused her stress.

In April 2009, the Veteran's husband, friend, child, and aunt provided buddy statements.  The buddy statements all contained reports that the Veteran had been raped by a man when she was in the military.

The Veteran's friend further reported that the Veteran was molested by her stepfather when she was younger and that when the Veteran told her mother about the rape, her mother did not believe her nor did she do anything to stop it.

The Veteran's aunt also reported that the Veteran called her after she was raped in 1974 and that the Veteran had also called her mother and requested that her mother call a congressman to get her out of the military, but her mother was unable to do that.

In a subsequent April 2009 statement by the Veteran, she indicated that the man who raped her was a solider.  She said that she was ashamed and was told by other not to report the rape because of the trouble that it would cause her.

A January 2010 treatment record contained a notation that the Veteran was "clearly a very disturbed woman [and] is completely obsessed with her own ideas and justifies these with her own interpretation of American Indian tradition."

On VA examination in January 2012, the examiner determined that the Veteran did not meet the criteria for a diagnosis of PTSD, but instead rendered a diagnosis of depressive disorder and an Axis II personality disorder.  The examiner remarked that the Veteran referred to herself as having other people living in her body, she was a poor historian, and was vague regarding most issues in her life.  The examiner further explained that gaining accuracy of true events and factual history was not possible by the Veteran's reports alone.

In a statement, the Veteran indicated that during the VA examination she was in a terrible emotional state because she had been attacked the night before.  She also indicated that she developed an alternate personality named Sawe who would attack men and only Sawe knew the details of the rape because Sawe carried the memories of hate and anger.

The Board remanded this matter in January 2014 in order to obtain a new VA examination and medical opinion.  The examiner was explicitly advised to presume that the Veteran was credible as to the alleged sexual military trauma.

On VA examination in March 2014, the Veteran reported that she had been seeking psychiatric treatment fairly consistently since 1975.  She further reported that when she was 13 her stepfather attempted to molest her.  She stated that, when she was age 15, she attempted to shoot him, but she missed and grazed her sister.

She described herself as a civil rights journalist and quantum metaphysicist and stated that she went to college in business economics, philosophy, quantum physics, and reported having an IQ of 161 and belonging to Mensa.  She also reported that she was an accountant for the police department.

The Veteran stated that she could predict death and the examiner noted that she appeared to believe in telepathy and endorsed having prophetic visions.  The examiner noted that the Veteran appeared to have anthropomorphized traumatic memories in alter-egos.

As to the claimed stressors, the examiner noted that the Veteran's alleged military sexual trauma in 1974 met the criteria for a diagnosis of PTSD and noted that the stressor was conceded by VA so that markers that substantiated the stressor were not applicable.  However, the Veteran also indicated that there was an additional military sexual trauma in basic training that was a "lesbian rape involving alternate personality."  The examiner noted that that military sexual trauma was "possibly delusional."  The examiner also observed that the Veteran appeared to have a number of possibly delusional somatic complaints.

The examiner ultimately opined that the Veteran appeared to meet the criteria for dissociative identity disorder that resulted from severe childhood abuse, and that the military sexual trauma appeared to have worsened the disorder beyond the expected progression.  The examiner explained that the date of the event correlated to her reported year of birth, the event triggered two year drug binge, and she was diagnosed with the disorder several years later.

The examiner also opined that she met the diagnostic criteria for PTSD which appeared to be the result of the same sexual military trauma.

The Board finds that the Veteran's statements regarding the alleged sexual assaults are not credible and neither are the buddy statements submitted by the Veteran's friends and family.

It is the Board's responsibility to assess the credibility and weight to be given the evidence.  See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192- 93 (1992)); see also Guerrieri v. Brown, 4 Vet. App. 467, 470- 471 (1993).  The Board is obligated under 38 U.S.C.A. § 7104(d) to analyze the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the Veteran.  See, e.g., Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994).

Here, while the Veteran is competent to provide evidence of that which she experiences, see Layno v. Brown, 6 Vet. App. 465 (1994), in determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

As demonstrated above, the Veteran did not allege the claimed stressor until 2009 even though she mentioned her childhood sexual assault as of 2007.  The Board may draw a reasonable inference from the lack of notation of a condition in a medical report if the report would be expected to contain such information.  Horn v. Shinseki, 25 Vet.  App. 231, 239 n. 7 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (suggesting that the Board may consider failure of a fact to be recorded in a medical record to be substantive negative evidence where the missing fact would ordinarily be recorded).

The Veteran's reports of the assault are also not consistent throughout the record.  At times the Veteran indicated that she was assaulted by a man when it was dark and she could not see who the person was, at times she indicated that she was assaulted and beaten by a female supervisor, and at times she indicated that she was sexually assaulted twice during service, once was by a woman during basic training and once was by a man during service.

Of note, the January 2012 VA examiner opined that gaining accuracy of true events and factual history was not possible by the Veteran's reports alone and the March 2014 VA examiner opined that the Veteran's allegation of the assault by a female was possibly delusional.  Although the March 2014 VA examiner did opine that the PTSD was due to the sexual military assault from November 1974, the examiner was explicitly requested to assume that the Veteran was sexually assaulted and therefore the opinion is not probative as to the credibility of the in-service stressor.

The Board acknowledges that the Veteran endorsed drug use and indicated that she sought psychiatric treatment starting in 1975.  The Board is also aware that credible buddy statements and changes in behavior, such as engaging in substance abuse or seeking psychiatric treatment, could be sufficient to corroborate the Veteran's in-service stressor.  38 C.F.R. § 3.304(f)(5).

However, in this case, to the extent that the Veteran actually began abusing drugs in 1975 and began seeking psychiatric treatment at that time, in light of the Veteran's history of childhood sexual abuse and an Axis II personality disorder, the Board does not find her drug use and seeking psychiatric treatment sufficient to corroborate her in-service stressor.

As to the buddy statement submitted by the Veteran's aunt, the Board also finds that it is not sufficient to corroborate the Veteran's alleged in-service stressor, because it is inconsistent with the evidence of record.  Specifically, the Veteran's aunt stated that the Veteran requested that the Veteran's mother contact a congressman about the assault and help the Veteran get out of the military.  The Veteran, on the other hand, stated on multiple occasions that she did not file a formal report and only told her mother, father, and aunt out of fear.  She made no indication that she asked her mother to contact a congressman or try to get her out of the military.  In fact, in her October 2009 Notice of Disagreement, the Veteran stated that she did not request a new duty assignment because she knew that she only had three more months left on the barracks before she was able to return home.

The Board therefore finds that that the Veteran is not credible in her description of the in-service incidents recounted above and neither are the buddy statements provided by the Veteran's family members and friend.  The Board is aware that under the relaxed standard for corroborating PTSD, it is not necessary to establish that the alleged assault be documented in the Veteran's service personnel records and lay statements and changes in behavior can be sufficient; however, in this case, as the Board finds that the lay statements are not credible, the claim must be denied.

The Board accepts that a doctors diagnosis of PTSD due to personal assault, if competent and credible, may serve as corroboration of the stress.  Menegassi v. Shinseki, 638 F.3d 1379 (2011).  However, here, as in Menegassi, the alleged stressor is not credible.

As to the other diagnoses in the record of other acquired psychiatric disorders, such as depression and anxiety, the January 2014 VA examiner determined that all of the Veteran's symptoms were attributed to either PTSD or dissociative identity disorder.  Accordingly, the Board finds that the Veteran does not have a current disability manifested by an acquired psychiatric disorder other than PTSD.

In regard to the dissociative identity disorder (multiple personality disorder), a personality disorder is not considered a "disease or injury" under the applicable legislation.  See 38 C.F.R. § 3.303.  The Board notes that with respect to a personality disorder, service connection may be granted for disability due to a superimposed disease or injury.  See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993).  In this case, the credible evidence does not reflect any superimposed pathology (disease or injury) during the Veteran's service.

In reaching these conclusions, the Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

ORDER

Service connection for PTSD is denied.

____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


                  NOTICE                          NO. 5-02-0526
 Decision filed 03/20/06. The text of
 this decision may be changed or                     IN THE
 corrected prior to the filing of a
 Petition   for    Rehearing   or   the   APPELLATE COURT OF ILLINOIS
 disposition of the same.
                             FIFTH DISTRICT
________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
                                       ) Circuit Court of
   Plaintiff-Appellee,                 ) Williamson County.
                                       )
v.                                     ) No. 98-CF-460
                                       )
ANTHONY W. NEWBOLDS,                   ) Honorable
                                       ) John Speroni,
   Defendant-Appellant.                ) Judge, presiding.
________________________________________________________________________

            JUSTICE WELCH delivered the opinion of the court:

            Following a bench trial in the circuit court of Williamson County, the defendant,
Anthony W. Newbolds, was convicted of home invasion and, on April 11, 2000, was

sentenced to a term of imprisonment of 22 years. His conviction and sentence were affirmed

by this court on direct appeal. People v. Newbolds, 325 Ill. App. 3d 192 (2001). The facts

relating to the defendant's crime, conviction, and sentence are set forth therein, and we will

not repeat them here. In that appeal, the defendant raised a single issueBthe applicability of

Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), to the
truth-in-sentencing law.

            On May 31, 2002, the defendant, acting pro se, filed the first of two petitions pursuant
to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2002)). The
petition was 72 pages long and raised a myriad of issues. It was subsequently amended, pro

se, adding an additional argument.
            On July 1, 2002, the circuit court of Williamson County dismissed the petition as

frivolous or patently without merit pursuant to section 122-2.1(a)(2) of the Act (725 ILCS

                                                       1
5/122-2.1(a)(2) (West 2002)). The circuit court specifically found that the defendant had not
"met his burden of making a substantial showing" of a denial of his constitutional rights and

that the issues raised in the petition either had been raised and decided in the defendant's
direct appeal, and were therefore res judicata, or could have been raised in the direct appeal
but were not, and were therefore waived. After the denial of his motion to reconsider the

dismissal of his postconviction petition, the defendant filed a notice of appeal.
       While the appeal from the dismissal of his first postconviction petition was pending,
the defendant filed, on January 22, 2003, a second pro se postconviction petition asserting,

among other things, that the dismissal of the first petition on waiver and res judicata grounds

had been improper. This second petition was 152 pages long and, like the first petition, was
verified.

       On February 5, 2003, the circuit court of Williamson County dismissed the second

postconviction petition as frivolous or patently without merit. The circuit court specifically

found that the defendant had not "met his burden of making a substantial showing" of a
deprivation of his constitutional rights. After the denial of his motion to reconsider, the

defendant also appealed the dismissal of his second postconviction petition.

       On this court's own motion, the two appeals were consolidated for review. In his brief
on appeal, the defendant points out that the second postconviction petition raises no

substantive claims independent of those contained in the first petition. Accordingly, the
defendant states that on appeal he challenges only the dismissal of the first postconviction
petition, urging that both bases for the circuit court's dismissal were erroneous.

       On September 30, 2004, we reversed the circuit court's summary dismissal of the
defendant's postconviction petition, holding that a summary dismissal on the grounds of res
judicata and waiver was not appropriate at the first stage of postconviction proceedings

because these grounds for a dismissal are affirmative defenses which, like the ground of

                                              2
untimeliness, are properly left for the second stage of postconviction proceedings. People v.
Newbolds, 352 Ill. App. 3d 678 (2004). We remanded the cause to the circuit court for

further proceedings under the Act.
       On June 3, 2005, the Illinois Supreme Court decided People v. Blair, 215 Ill. 2d 427
(2005), in which it held that section 122-2.1(a)(2) of the Act does allow a summary, first-

stage dismissal of a postconviction petition on the grounds of res judicata and/or waiver.
The supreme court concluded that, in enacting section 122-2.1(a)(2) of the Act, the
legislature had intended that the phrase "frivolous or *** patently without merit"

encompassed res judicata and waiver.

       On September 29, 2005, pursuant to its supervisory authority, the Illinois Supreme
Court directed us to vacate our previous judgment herein (People v. Newbolds, 352 Ill. App.

3d 678 (2004)) and to reconsider the case in light of the supreme court's decision in People v.

Blair, 215 Ill. 2d 427 (2005). Accordingly, we vacated our previous judgment which held

that the circuit court could not, at the first stage of postconviction proceedings, dismiss the
defendant's postconviction petition on the grounds of res judicata and waiver. We must now

examine the allegations of the defendant's petition to determine whether the circuit court's

findings that the defendant's claims are barred by res judicata or waiver are correct.
       Our review of the circuit court's dismissal of a postconviction petition pursuant to

section 122-2.1(a)(2) of the Act is de novo. People v. Edwards, 197 Ill. 2d 239, 247 (2001).
We are free to substitute our own judgment for that of the circuit court in order to formulate
the legally correct answer. Edwards, 197 Ill. 2d at 247.

       The purpose of a postconviction proceeding is to permit an inquiry into constitutional
issues involved in the original conviction and sentence that were not, and could not have
been, adjudicated previously on direct appeal. People v. Harris, 206 Ill. 2d 1, 12 (2002).

Accordingly, in an initial postconviction proceeding, the common law doctrines of res

                                              3
judicata and waiver operate to bar the raising of claims that were or could have been
adjudicated on direct appeal. Blair, 215 Ill. 2d at 443. The doctrine of res judicata bars the

consideration of issues that were previously raised and decided on direct appeal. Blair, 215
Ill. 2d at 443. The doctrine of waiver or forfeiture bars claims that could have been raised on
direct appeal but were not. Blair, 215 Ill. 2d at 443-44. Exceptions to these doctrines may

allow otherwise-barred claims to proceed where fundamental fairness so requires, where the
alleged forfeiture stems from the incompetence of appellate counsel, or where the facts
relating to the claim do not appear on the face of the original appellate record. Blair, 215 Ill.

2d at 450-51. With respect to this third exception to the waiver rule, it is not so much that the

claim could not have been presented or raised by a party on direct appeal, but that such a
claim could not have been considered by the reviewing court because the claim's evidentiary

basis was de hors the record and a reviewing court may not consider matters not of record.

People v. Whitehead, 169 Ill. 2d 355, 372 (1996). The exception saves such claims

irrespective of whether their supporting facts are available as a practical matter at the time of
the direct appeal; if they are not a part of the trial record, they may not be considered by the

reviewing court on a direct appeal. Whitehead, 169 Ill. 2d at 372.

       The defendant challenges the dismissal of only five of the claims contained in his
postconviction petition: that he was deprived of a fair trial when he was forced to wear a

50,000-volt electric stun belt at the trial and that trial counsel was ineffective for failing to
object to the use of the device, that his 22-year prison sentence was unconstitutionally
disproportionate to the 2-year terms received by his codefendants, that the trial court failed to

make an inquiry into allegations of trial counsel's ineffectiveness, that trial counsel was
ineffective in failing to pursue allegations of improper communication between the
prosecutor and a detective during the detective's testimony at the hearing on the motion to

quash his arrest, and that his appellate counsel was ineffective for failing to raise any and all

                                               4
of these claims on direct appeal.
       Initially, we note that none of the claims raised by the defendant in his postconviction

petition were raised on direct appeal. Accordingly, they have not been ruled upon and are
not res judicata. To the extent the trial court found that the claims were barred by res
judicata, the trial court erred. The question then is whether the claims were waived, or

forfeited, by the defendant's failure to raise them on direct appeal. 1 The defendant argues
that the claims were not forfeited by his failure to raise them on direct appeal, because they

rely on facts outside the record for proof and therefore could not have been raised on direct
appeal and/or because the failure to raise them on direct appeal is attributable to appellate

counsel's ineffectiveness.
       With respect to the first claimBthat he was deprived of a fair trial when he was forced
to wear a stun belt during the trial and that his trial counsel was ineffective in failing to

objectBwe note that while it is clear from the record on appeal that the trial court permitted

the sheriff's department to force the defendant to wear a stun belt during the defendant's

       1
           Although we have traditionally referred to the defendant's failure to raise an issue on

direct appeal as a "waiver" of that issue, the supreme court made it clear in Blair, 215 Ill. 2d

at 443-44, that it prefers the term "forfeiture." Accordingly, we will refer to claims that are
barred because they could have been raised on direct appeal, but were not, as having been
forfeited.

                                                 5
bench trial, it is not clear from the record whether the defendant actually did wear a stun belt.
The record on appeal reflects only that the trial court ruled that it was up to the sheriff's

department to determine whether and how best to restrain the defendant, but it does not
reflect what the sheriff's department actually did. Accordingly, any direct appeal of the trial
court's ruling allowing the use of the stun belt would have been met with the argument that

the defendant could not demonstrate prejudice because the record did not show that he
actually did wear a stun belt. The defendant could only have been prejudiced by the trial
court's ruling if he had, in fact, been forced to wear a stun belt. Because the record is not

sufficient to establish this fact, the claim could not have been raised on direct appeal.

Accordingly, this claim was not forfeited by the defendant's failure to raise it on direct
appeal.

       Furthermore, the defendant alleges alternatively that his failure to raise this claim on

direct appeal was due to his appellate counsel's ineffectiveness. A defendant is guaranteed

the effective assistance of counsel on appeal. People v. Coleman, 168 Ill. 2d 509, 522
(1995). Accordingly, the doctrine of forfeiture does not bar the consideration of an issue

where the forfeiture stems from the incompetency of counsel on appeal. Coleman, 168 Ill. 2d

at 522-23. The trial court erred in summarily dismissing this claim as frivolous or patently
without merit on the ground that it had been forfeited.

       With respect to the disparate-sentencing claim, we do not agree with the defendant
that this claim relied on matters outside the record and therefore could not have been raised
on direct appeal. The record on appeal contains sufficient facts regarding the sentences

received by the defendant's codefendants on which to base a disparate-sentencing argument
on direct appeal. The record contains docket entries indicating that the codefendants had
entered guilty pleas to reduced charges of aggravated battery in exchange for their testimony

against the defendant and four-year sentence caps and that they had each received a two-year

                                               6
prison sentence. Accordingly, the exception to the forfeiture doctrine for matters based on
facts outside the record does not apply to this claim. Nevertheless, the defendant also alleges

that the failure to raise this alleged error on direct appeal was due to his appellate counsel's
ineffectiveness. Accordingly, the doctrine of forfeiture does not bar the consideration of this
claim. Coleman, 168 Ill. 2d at 522-23. The circuit court erred in summarily dismissing this

claim as frivolous or patently without merit on the ground that it had been forfeited.
       Similarly, the defendant's third claimBthat the trial court erred in not adequately
addressing the defendant's posttrial claims of the ineffective assistance of trial counselBis not

based on matters outside the record and could have been raised on direct appeal. The

defendant concedes this point in his brief on appeal. However, again the defendant argues
that the failure to raise this alleged error on direct appeal was a result of his appellate

counsel's ineffectiveness. Accordingly, this claim is not barred by the doctrine of forfeiture,

and the circuit court erred in summarily dismissing this claim as frivolous or patently without

merit on the ground that it had been forfeited.
       The defendant's fourth claimBthat his trial counsel was ineffective in failing to pursue

allegations of improper communication, through facial gestures and head shaking, between

the prosecutor and a detective during the detective's testimony at the hearing on the motion to
quash arrestBis based on matters outside the record and could not have been raised on direct

appeal. This claim was supported by the affidavits of Barbara Owens, who stated that she
had witnessed the improper facial gestures and told the defendant's trial counsel about it.
Because this claim relies for its proof on facts that are outside the record on appeal, it could

not have been raised on direct appeal. Furthermore, the defendant argues alternatively that
the failure to raise this claim on direct appeal was due to his appellate counsel's
ineffectiveness. Accordingly, this claim was not forfeited by the defendant's failure to raise it

on direct appeal.

                                               7
       Because none of the defendant's postconviction petition claims are either res judicata
or forfeited for the failure to raise them on direct appeal, the circuit court erred in dismissing

the postconviction petition as frivolous or patently without merit on the grounds of res
judicata and forfeiture.      Accordingly, we reverse the dismissal of the defendant's
postconviction petition on these grounds.

       The circuit court also dismissed the defendant's postconviction claims as frivolous or
patently without merit because it found that the defendant had not "met his burden of making
a substantial showing" of a denial of his constitutional rights. A postconviction petition is

considered frivolous or patently without merit only if the allegations of the petition, taken as

true and liberally construed, fail to present the "gist of a constitutional claim." Edwards, 197
Ill. 2d at 244. The "gist" standard is a low threshold, and to set forth the "gist" of a

constitutional claim, the postconviction petition need only present a limited amount of detail

and need not set forth the claim in its entirety. Edwards, 197 Ill. 2d at 244. Further, the

petition need not include legal arguments or citations to legal authority. Edwards, 197 Ill. 2d
at 244. Accordingly, at this first stage of proceedings, the defendant need not make a

"substantial showing" of a constitutional violation but need only present the "gist" of a

constitutional claim, without legal argument or citation to legal authority. Edwards, 197 Ill.
2d at 246-47. If the defendant passes this initial hurdle of presenting the "gist" of a

constitutional violation, he is entitled to the appointment of counsel, who can amend the
petition to meet the higher hurdle of making a "substantial showing" of a constitutional
violation. 725 ILCS 5/122-4 (West 2002).

       In Edwards, 197 Ill. 2d at 246-47, the supreme court made it clear that, at the first
stage of postconviction proceedings, the petition need only present the "gist" of a
constitutional claim in order to proceed to the second stage of proceedings, at which the State

is required to answer or move for a dismissal. 725 ILCS 5/122-5 (West 2002). At the second

                                                8
stage, the court must determine whether the petition and any accompanying documentation
make a "substantial showing of a constitutional violation." Edwards, 197 Ill. 2d at 246. If no

such showing is made, the petition is dismissed; if the requisite showing is made, the petition
is set for an evidentiary hearing. Edwards, 197 Ill. 2d at 246. The supreme court made it
clear that at the first stage of proceedings it is "inappropriate" to consider whether a

"substantial showing of a constitutional violation" has been made. At this first stage, the
circuit court may only consider whether the petition states the "gist of a constitutional claim."
See also People v. Coleman, 183 Ill. 2d 366, 380-81 (1998).

       Because in the instant case the circuit court appears to have employed the

inappropriate standard of a "substantial showing of a constitutional violation," rather than the
lighter burden of presenting a "gist of a constitutional violation," we reverse the dismissal of

the defendant's postconviction petition on this ground.

       For the foregoing reasons, we reverse the decision of the circuit court of Williamson

County that summarily dismissed the defendant's postconviction petition. We remand this
cause to the circuit court for further proceedings in accordance with sections 122-4 through

122-6 of the Act (725 ILCS 5/122-4 through 122-6 (West 2004)). See People v. Rutkowski,

225 Ill. App. 3d 1065, 1068 (1992).

       Judgment reversed; cause remanded.

       CHAPMAN and DONOVAN, JJ., concur.

                                               9
                                           NO. 5-02-0526
                                              IN THE

                                APPELLATE COURT OF ILLINOIS
                                  FIFTH DISTRICT
___________________________________________________________________________________
      THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
                                            ) Circuit Court of
         Plaintiff-Appellee,                ) Williamson County.
                                            )
      v.                                    ) No. 98-CF-460
                                            )
      ANTHONY W. NEWBOLDS,                  ) Honorable
                                            ) John Speroni,
         Defendant-Appellant.               ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed:   March 20, 2006
___________________________________________________________________________________

Justices:           Honorable Thomas M. Welch, J.
                 Honorable Melissa A. Chapman, J., and
                 Honorable James K. Donovan, J.,
                 Concur
___________________________________________________________________________________

Attorneys        Daniel D. Yuhas, Deputy Defender, Jacqueline L. Bullard, Assistant Appellate
for              Defender, Office of the State Appellate Defender, Fourth Judicial District, 400 West
Appellant        Monroe Street, Suite 303, P.O. Box 5240, Springfield, IL 62705-5240
___________________________________________________________________________________
Attorneys        Hon. Charles Garnati, State's Attorney, Williamson County Courthouse, Marion, IL
for              62959; Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Kevin D.
Appellee         Sweeney, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, 730
                 E. Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864
___________________________________________________________________________________