Citation Nr: 1134875 Decision Date: 09/19/11 Archive Date: 09/23/11 DOCKET NO. 07-30 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a bilateral great toe disorder. 3. Entitlement to service connection for a bilateral hip disorder, to include as secondary to a bilateral great toe disorder. 4. Entitlement to an increased rating for left knee chondromalacia, currently evaluated as 10 percent disabling. 5. Entitlement to an increased rating for right knee chondromalacia, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from August 1982 to August 1985; September 1990 to May 1991; February 2003 to October 2003; and from September 2004 to September 2005. He also had unverified periods of service with the National Guard and Reserves. The Veteran had service in the Southwest Asia Theater of Operations from September 18, 1990 until May 4, 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from adverse rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, dated February 2006 and February 2008, and from an adverse rating decision issued by the RO in Columbia, South Carolina, in August 2008. The RO in Montgomery, Alabama currently has jurisdiction of the claims. The February 2006 rating decision continued the 10 percent evaluations assigned for chondromalacia of the left and right knees. The February 2008 rating decision denied entitlement to service connection for PTSD and a bilateral great toe disorder. The August 2008 rating decision confirmed and continued the 10 percent evaluations assigned for the Veteran's bilateral knees and confirmed and continued the denial of service connection for PTSD and a bilateral great toe disorder. The Veteran presented testimony before the undersigned Veterans Law Judge in April 2011. A transcript of the hearing is of record. At the time of the hearing, the Veteran submitted additional evidence, which was accompanied by a waiver of RO consideration. The Veteran also submitted additional evidence subsequent to the date of his hearing, which was also accompanied by a waiver of RO consideration. Therefore, the evidence submitted can be considered in this decision. See 38 C.F.R. § 20.1304 (2010). The Board notes that the issue of entitlement to service connection for a bilateral hip disorder, to include as secondary to a bilateral great toe disorder, was first adjudicated in a December 2010 statement of the case (SOC) rather than in any of the rating decisions that are the subject of this appeal. The Veteran included this issue in his VA Form 9, which serves as a notice of disagreement (NOD). No subsequent SOC was issued, but the issue was included in a January 2011 VA Form 8 and the Board took testimony on the issue in April 2011. Inasmuch as the RO and Board took actions to indicate to the Veteran that the issue was on appeal, the requirement that there be a timely substantive appeal is deemed waived. Percy v. Shinseki, 23 Vet. App. 37 (2009). As such, the Board will proceed accordingly. The claims of service connection for a bilateral great toe disorder, bilateral hip disorder and for increased ratings for the left and right knee are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT A VA psychiatrist diagnosed the Veteran as suffering from PTSD due to his Iraq war experiences and these experiences led to him being in fear for his life. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD, have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010), § 3.304(f) (2010) (as amended by 75 Fed. Reg. 39,843-39,852 (July 13, 2010) & 75 Fed. Reg. 41,092 (July 15, 2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist the Appellant As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). In the present case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Service Connection In the present case, the Veteran seeks service connection for PTSD due to his service in Southwest Asia from September 1990 to May 1991. He reports being in fear of his life. He stated that he was exposed to bombings and scud missile attacks. He reported that sirens and chemical alarms would routinely sound-off and that he would go underground to a bunker. He also reports seeing injured and dead Iraqi soldiers and that he saw mass graves. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §1110 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2010). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2010). Further, service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2010). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In order to prevail on the issue of service connection on the merits, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004) citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). In addition to the laws and regulations outlined above, service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); (2) medical evidence establishing a link between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2010). The Board notes that a recent regulatory change has eliminated the requirement for corroboration of a claimed in-service stressor if it is related to the Veteran's fear of hostile military or terrorist activity. It is necessary that a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. 38 C.F.R. § 3.304(f)(3)(2010). The Board further notes that these revised regulations apply in cases like the Veteran's, which were appealed to the Board prior to July 13, 2010, but not decided by the Board as of that date. 75 Fed. Reg. 41092 (July 15, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3)). Given the Veteran's assertions, the recent regulatory change applies to the present case. Moreover, the Board finds that the requirements for service connection of PTSD under 38 C.F.R. § 3.304(f)(3) have been met. Specifically, the Veteran has a current diagnosis of PTSD, by several VA psychiatrists. The record shows diagnoses of PTSD from 2007 forward. Additionally, the Board notes that from January to February 2009, the Veteran was a psychiatric inpatient at a VA facility. During this hospitalization, the Veteran reported the stressors he experienced during Operation Desert Shield/Storm. His stressors were war-related and included seeing injured and dead soldiers, being exposed to scud attacks, and being fearful that he would lose his life due to mines, snipers and scud missiles. The Board finds that the Veteran's stressors are consistent with the places, types, and circumstances of the Veteran's service and as such finds that the claimed stressors occurred. In this regard, his DD 214 shows that he served in Southwest Asia during Operation Desert Storm/Shield from September 1990 to May 1991. During the 2009 psychiatric inpatient hospitalization, the Veteran was diagnosed as having Chronic Gulf Desert Storm War induced PTSD due to his war stressors. The Board observes that the diagnosis of PTSD was in conformity with DSM IV. The Board notes other VA psychiatrists have also given a diagnosis of PTSD due to the Veteran's reported war stressors. While in September 2010, a VA psychiatrist stated that he could not support a diagnosis of PTSD at this time, the Board finds that his opinion lacks probative value. In this regard, the psychiatrist admits to not having access to the Veteran's complete records. A review of the records shows numerous diagnoses of PTSD due to service war stressors. The records also show approximately 6 weeks of psychiatric hospitalization. The report of such hospitalization provides detailed information concerning the Veteran's psychiatric symptoms, as well as the results from psychiatric testing, confirming a diagnosis of PTSD. None of these factors were mentioned and discounted in finding that the Veteran did not currently have a diagnosis of PTSD. Therefore, the opinion is inadequate in adjudicating the claim of service connection for PTSD. As the Veteran's stressors have been shown to relate to his fear of hostile military or terrorist activity, and a VA psychiatrist has confirmed that the Veteran's current symptoms combined with his experiences in Iraq are sufficient to support a diagnosis of PTSD, the Board finds that the evidence supports a grant of service connection for PTSD. ORDER Service connection for PTSD is granted. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Such development would ensure that his due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2010), are met. Review of the claims folder reveals that the Veteran's service treatment records were requested for his first two periods of active service. See November 1998 VA Form 3101. Review of the records obtained does reveal that they include periodic examination reports that post-date his second period of active service, which ended in June 1991. None of the records, however, are dated within the Veteran's last two periods of active duty. Efforts must be made to obtain the Veteran's complete service treatment. The Veteran testified in April 2011 that he began noticing problems with his bilateral toes and hips in 1990, during a period of active duty. He further testified that these problems continued throughout other periods of service. See hearing transcript. He argues that the conditions of his service, including wearing army footwear, marching, walking, and running, caused a bilateral toe condition, and bilateral hip disability. He also claims that his hips started hurting during his annual training and when he was mobilized in 2003, 2004 to 2005. He stated that in 2004 and 2005 he trained soldier and that he did a lot of marching, walking and climbing. Review of VA treatment records reveal that the Veteran has received treatment related to his feet and hips. The records from Martin Army Community Hospital reveal that the Veteran has status post fusion of the first metatarsophalangeal (MTP) joint, bilaterally, and hip pain, osteoarthritis. Pursuant to 38 C.F.R. § 3.159(c)(4) (2010), a medical examination will be provided or a medical opinion obtained if review of the evidence of record reveals that an examination or opinion is necessary for a decision to be rendered. See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In light of the contentions raised by the Veteran and the medical evidence of record, the Board finds that a medical examination is necessary for the purpose of determining whether the Veteran has current disorders related to his bilateral great toes and bilateral hips that are related to service. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Gober, 10 Vet. App. 488 (1997); Clyburn v. West, 12 Vet. App. 296, 302 (1999). The Board also finds that the May 2010 VA examination concerning his service-connected knees is inadequate for rating purposes. It does not adequately address the Veteran's report of flare-ups and does not adequately address whether the Veteran's has instability. In this regard, the examiner states that the Veteran does not have any instability of the knees but then notes that the Veteran has been given a knee brace by VA and that he uses a cane due to his knee giving out. Clarification is needed pertaining whether the Veteran has instability and if so the severity needs to be identified. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2010). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's treatment records from the Central Alabama Veterans Healthcare System and any other facility or physician, dated since December 2010, who has treated the Veteran for his service-connected knees. 2. When the foregoing development has been completed, schedule the Veteran for a VA orthopedic examination in order to ascertain whether he has a current bilateral great toe and/or bilateral hip disorders that are etiologically related to active service and to ascertain the current severity of his service-connected bilateral knee chondromalacia. The claims folder and a copy of this remand must be made available to and reviewed by the examiner prior to the requested examination. All necessary tests, including x-rays if indicated, should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner should identify all current bilateral great toe and bilateral hip disorders found to be present. The examiner should provide an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that any current bilateral great toe and/or bilateral hip disorder had its clinical onset during active service or is related to any in-service disease, event, or injury. The examiner must take into account the Veteran's reports of service activities (running, marching, climbing, training activities, footwear given, etc) in giving this opinion. The examiner should also identify all manifestations attributable to the Veteran's service-connected left and right knee disability. a) The examiner should expressly determine in degrees the range of motion of the right and left knee and should fully describe any pain, weakness, excess fatigability, and incoordination present in the knees during range of motion testing; and, to the fullest extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the affected joint due to pain and weakness on repetitive motion. b) The examiner should address, to the fullest extent possible, the degree of limitation, if any, caused by periods of flare-ups of the right and left knee. If the examiner is unable to determine the amount, if any, of additional limitation of motion present during the Veteran's flare-ups, the examiner should provide a complete explanation as to why such an opinion cannot be provided, including an explanation of what needed information is missing that cannot be obtained. c) The examiner should indicate whether, and to what extent, the Veteran currently has any lateral instability or recurrent subluxation in his right or left knee. In addressing this issue the examiner should discuss the fact that the Veteran currently uses a cane, and wears a knee brace which was issued by VA. This should be reconciled with any finding of no any lateral instability or recurrent subluxation. The examiner should specifically determine whether the Veteran has any lateral instability or recurrent subluxation in his right and/or left knee that is not being identified by tests and procedures; and provide an opinion whether the tests that are being administered should be considered reliable indicators of lateral instability and recurrent subluxation. In addressing this, the examiner should discuss the Veteran's assertions pertaining to instability of the knees and should state whether the Veteran can experience instability without any objective findings of instability on examination. If it is concluded that the Veteran has lateral instability or recurrent subluxation of either knee, the examiner should identify the severity in terms of mild, moderate or severe. The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached. 4. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination reports. If the requested examination does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 5. Finally, readjudicate the claims. If any benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC), and given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs