Citation Nr: 1034802 Decision Date: 09/15/10 Archive Date: 09/21/10 DOCKET NO. 10-04 096A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for complex regional pain syndrome. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for depression. 4. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). 5. Entitlement to special monthly compensation (SMC). (The issues of entitlement to increased ratings for right and left knee disabilities are the subjects of a separate decision of the Board of Veterans' Appeals (Board).) REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The appellant is a veteran who served on active duty training (ADT) from January 1989 to May 1989 and on active service from November 1989 to May 1992. These matters are before the Board on appeal from March 2006, February 2009 and July 2009 rating decisions by the Buffalo, New York Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal is REMANDED to the RO. (Because the issues of a separate decision of the Board which are being remanded to the RO are inextricably intertwined with the issues addressed herein, this case is not to be sent to the Appeals Management Center (AMC), in Washington, DC.) VA will notify the appellant if further action on her part is required. REMAND Complex Regional Pain Syndrome Under Stegall v. West, 11 Vet. App. 268, 271 (1998), where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Therefore, further development is necessary before the Board can adjudicate this claim on appeal. In a November 2007 decision, the United States Court of Appeals for Veterans Claims (Court) specifically noted that the issue of entitlement to service connection for complex regional pain syndrome should be considered in the first instance. In its March 2008 Remand, the Board instructed the RO/AMC (in pertinent part) to arrange for the Veteran to be examined by an appropriate physician to determine whether there is at least a 50 percent probability or greater (at least as likely as not) that she has complex regional pain syndrome as a result of an injury or disease incurred or aggravated during active service. The Veteran underwent VA orthopedic examinations in September 2008 and November 2009 conducted by a physician's assistant (PA-C). A physician did not review or sign either report. According to M21-1MR, Part III, Subpart IV, Chapter 3, Section D 18(a), an examination report must be reviewed and signed by a medical doctor when an examination has been conducted by a physician assistant or nurse practitioner. A medical professional is not competent to offer an opinion as to matters outside the scope of his experience. Layno v. Brown, 6 Vet. App. 465, 469 (1994). A physician is an authorized practitioner of medicine, while a PA-C has been trained and certified to provide certain of a physician's duties, "all under the responsible supervision of a licensed physician." Dorland's Illustrated Medical Dictionary 1434 (30th ed. 2003). In general, the Board is of the opinion that a PA-C is competent to evaluate the likely presence and etiology of complex regional pain syndrome, the opinion of which was based on clinical findings. See Cox v. Nicholson, 20 Vet. App. 563 (2007) (noting that there is no requirement that medical examinations be conducted by physicians only, and that the issue involves whether the individual has the types of education and clinical training to evaluate the medical issue at hand). In this case, however, because the March 2008 Remand order indicated that a physician should review the Veteran's claims file and render the opinion, it was in violation of the prior Remand for the RO/AMC to schedule the examination with a PA-C. See Stegall, supra. (CONTINUED ON NEXT PAGE) PTSD The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) and the regulations implementing it apply in the instant case. With regard to the claim of service connection for PTSD, the Board is of the opinion that further development of the record is required to comply with VA's duty to notify. The Veteran's service treatment records (STRs) were associated with the claims folder in November 2001. They appear to be incomplete. A search for additional records should be undertaken by the RO. The Veteran is claiming that she has PTSD secondary to personal assault in service. Specifically, the Veteran alleges that she suffers from PTSD as a result of a sexual assault by a military supply specialist (whose name she could not remember) at Ft. Drum at sometime in 1991. The Veteran's lay testimony alone is not enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996). Under 38 C.F.R. § 3.304(f)(4), if a PTSD claim is based on an in- service personal assault, evidence from sources other than the Veteran's service records may corroborate her accounts of the stressor incident. Moreover, in Patton v. West, 12 Vet. App. 272, 278 (1999), the United States Court of Appeals for Veterans Claims (Court) specified that there are special evidentiary procedures for PTSD claims based on personal assault. See VA ADJUDICATION MANUAL M21-1MR, Part IV, subpart ii.1.D.17. Because personal trauma is an extremely personal and sensitive issue, many incidents of personal trauma are not officially reported, and the victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. It is often necessary to seek alternative evidence. Id. Examples of such evidence include, but are not limited to, records from law enforcement authorities, hospitals, or physicians; copies of personal diaries, journals, or letters written contemporary to the claimed in-service events; and statements from family members, roommates, fellow service members, or clergy. The types of evidence that may be considered to substantiate a claim of service connection for PTSD based on personal assault under 38 C.F.R. § 3.304(f)(4), was not provided in the VCAA letter of October 2005. This defect should be cured on remand. Depression Service connection may be granted for disability which is proximately due to or the result of service- connected disability. 38 C.F.R. § 3.310(a). In addition, service connection may be established on a secondary basis for a disability which is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). However, the veteran may only be compensated for the degree of disability over and above the degree existing prior to the aggravation. Id. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In the case at hand, the Board finds that there are no etiology opinions of record that are adequate for adjudication purposes. The medical evidence of record shows that the Veteran has been treated for depression. The Board notes that the Veteran has not been scheduled for a VA examination to determine whether she currently has depression that was caused or aggravated (in light of Allen, supra) by her service-connected knee disabilities. [The record includes an April 2007 VA medical opinion indicating that it could not be differentially determined if the Veteran's depression, "a symptom of PTSD, is also related to her knee condition." This opinion is not adequate for adjudication purposes.] Since the matter before the Board involves a question that is primarily medical in nature, a VA examination to answer the medical question remaining is necessary. See 38 U.S.C.A. § 5103A. TDIU and SMC The Board notes that further development and adjudication of the Veteran's claims for increased ratings for right and left knee disabilities (the subjects of a separate Board decision) may provide evidence in support of her claim for TDIU. Moreover, further development and adjudication of the Veteran's claims for service connection may provide evidence in support of her claim for SMC. Action on these claims will be deferred pending resolution of the claims for increased rating and service connection. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. Despite the lengthy procedural history of this claim, corrective action is required. Accordingly, the case is REMANDED for the following action: 1. The RO should issue a letter to the Veteran informing her of the provisions of 38 C.F.R. § 3.304(f)(4) describing the evidence that may be submitted to establish the occurrence of the alleged in-service personal assault. Specifically, she should be advised of the various ways in which personal assault may be corroborated. Such alternative forms of evidence include, but are not limited to: behavior and/or performance changes; records from law enforcement authorities, mental health counseling centers, hospitals, or physicians; statements from family members, fellow service members, or clergy; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 2. The RO should make another attempt to secure the Veteran's service treatment records through official channels. 3. The RO is to arrange for the Veteran to undergo a VA orthopedic examination by a physician to determine the whether she suffers from complex regional pain syndrome that is attributable to service or is caused or aggravated by service-connected disabilities. The Veteran's claims folder must be made available to the physician for review in this case. A notation to the effect that this record review took place should be included in the report of the examiner. All indicated tests and studies are to be performed, and a comprehensive recreational and occupational history is to be obtained. All medical findings are to be reported in detail. The examination must be conducted following the protocol in VA's Disability Examination Worksheet for Joints, revised on December 9, 2009. The physician is to provide a full description of the effects of the service-connected disabilities upon the Veteran's employment and daily life. The physician should indicate whether the Veteran suffers from complex regional pain syndrome that is attributable to service or is caused or aggravated by service- connected disabilities. The complete examination findings, along with the complete rationale for all opinions expressed, should be clearly set forth in the examination report. 4. The RO should arrange for the Veteran to be examined by a VA psychiatrist to determine the nature and likely etiology of her depression. The psychiatrist must review the Veteran's claims file in conjunction with the examination. The physician should provide an opinion regarding the following: Is it at least as likely as not (i.e., a 50 percent or better probability) that the Veteran's current depression had its onset in, or is otherwise related to, her military service? Is it at least as likely as not (50 percent or better probability) that the Veteran's depression was caused or aggravated (i.e., chronically worsened) by her service- connected knee disabilities. If the examiner finds that the Veteran's depression was not caused, but was aggravated by her service-connected knee disabilities, the examiner should report the baseline level of severity of the depression prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. If some of the increase in severity of the depression is due to natural progress, the examiner should indicate the degree of such increase in severity due to natural progression. See generally 38 C.F.R. § 3.310(b) (effective October 10, 2006). The examiner should explain the rationale for all opinions provided. 5. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on her claim. 6. Thereafter, the RO/AMC should undertake any other development it determines to be warranted, to include obtaining any medical records and/or opinions deemed necessary. 7. The RO should then readjudicate the matters remaining on appeal. If the benefits sought on appeal remain denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and her representative the opportunity to respond. Then the case should then be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).