Citation Nr: 1112896	
Decision Date: 04/01/11    Archive Date: 04/13/11

DOCKET NO.  07-20 577	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

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

2.  Entitlement to an initial compensable rating for left knee strain.

3.  Entitlement to an initial compensable rating for upper back strain (also claimed as a neck condition).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Michael T. Osborne, Counsel


INTRODUCTION

The Veteran had active service from February 2000 to May 2005, including in Iraq in support of Operation Iraqi Freedom.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted the Veteran's claims of service connection for left knee strain and for upper back strain (also claimed as a neck condition), assigning zero percent ratings for each of these disabilities effective May 18, 2005 (the day after the date of the Veteran's separation from active service).  

This matter also is on appeal of a July 2006 rating decision in which the RO denied the Veteran's claim of service connection for PTSD.

In April 2007, the Veteran notified VA that she had moved to the jurisdiction of the RO in Detroit, Michigan.  That facility retains jurisdiction over this appeal.

The Board notes that, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that claims for service connection for PTSD also encompass claims for service connection for all psychiatric disabilities afflicting a Veteran based on a review of the medical evidence.  The medical evidence indicates that the Veteran has not been diagnosed as having an acquired psychiatric disability other than PTSD.  Thus, the Board concludes that a claim of service connection for an acquired psychiatric disability other than PTSD is not encompassed by the Veteran's currently appealed claim of service connection for PTSD and Clemons is inapplicable.

As is explained below, the issues of entitlement to initial compensable ratings for left knee strain and for upper back strain (also claimed as a neck condition) 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.  VA will notify the Veteran if further action is required on her part.


FINDINGS OF FACT

1.  The Veteran's service personnel records show that she served in Iraq in support of Operation Iraqi Freedom.

2.  The Veteran has reported that her in-service stressors are related to fear of hostile military or terrorist activity.

3.  The competent evidence shows that the Veteran's PTSD is related to active service.


CONCLUSION OF LAW

PTSD was incurred in active service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304 (2010). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined.  The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim.  In this decision, the Board grants entitlement to service connection for PTSD which constitutes a complete grant of the Veteran's claim.  Therefore, no discussion of VA's duty to notify or assist is necessary.

The Veteran contends that she incurred PTSD during active service.  She specifically contends that her in-service stressors included fear of being raped, murdered, or tortured by the enemy and daily exposure to the threat of hostile military or terrorist activity from improvised explosive devices (IEDs) while on active service in Iraq and caused her to experience PTSD during active service.  She also contends that her current PTSD is related to active service based on these in-service stressors.

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may 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 C.F.R. § 3.303(d).

Service connection for PTSD requires medical evidence diagnosing the condition in accordance with VA regulations; 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.  If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 C.F.R. § 3.304(f).  See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat Veterans).

If, however, a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor.  Examples of such evidence include, but are not limited to, statements from family members, and evidence of behavior changes following the claimed assault.  38 C.F.R. § 3.304(f)(3).  In Patton v. West, 12 Vet. App. 272 (1999), the Court held that special consideration must be given to personal assault PTSD claims.  In particular, the Court held in Patton that the provisions in M21-1, Part III, 5.14(c), which address PTSD claims based on personal assault, are substantive rules which are the equivalent of VA regulations and must be considered.  See also YR v. West, 11 Vet. App. 393, 398-99 (1998).  The Board notes that M21-1, Part III, Chapter 5, has been rescinded and replaced, in relevant part, by M21-1MR, Part III, Subpart iv, Chapter 4, Section H30.  See generally M21-1MR, Part III, Subpart iv, Chapter 4, Section H30.

These M21-1MR provisions on personal assault PTSD claims require that, in cases where available records do not provide objective or supportive evidence of the alleged in-service stressor, it is necessary to develop for this evidence.  As to personal assault PTSD claims, more particular requirements are established regarding the development of "alternative sources" of information as service records may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities.  See M21-1MR, Part III, Subpart iv, Chapter 4, Section H30b.  Further, the relevant provisions of M21-1MR indicate that behavior changes that occurred around the time of the incident may indicate the occurrence of an in-service stressor and that "[s]econdary evidence may need interpretation by a clinician, especially if the claim involves behavior changes" and "[e]vidence that documents behavior changes may require interpretation in relation to the medical diagnosis by a neuropsychiatric physician".  See M21-1MR, Part III, Subpart iv, Chapter 4, Section H30c.

The Board observes here that the RO appears to have developed the Veteran's PTSD claim as a claim based on an in-service personal assault; however, the Veteran does not contend, and the competent evidence (service personnel records and service treatment records) does not show, that she experienced a personal assault during active service.  Instead, it appears that the Veteran contended on her February 2006 VA Form 21-0781a, "Statement In Support Of Claim For Service Connection For Posttraumatic Stress Disorder (PTSD) Secondary To Personal Trauma," that she feared being personally assaulted while she was in Iraq although no in-service personal assault, in fact, occurred.  Although the RO concluded that the M21-MR provisions concerning personal assault PTSD claims were applicable in this case, and although it appears that the RO complied with the required development outlined in the M21-MR provisions governing personal assault PTSD claims in this case, the Board finds that the Veteran's service connection claim for PTSD should be analyzed under the relaxed evidentiary standards for verification of in-service stressors found in the revised § 3.304(f) rather than under the M21-MR provisions governing personal assault PTSD claims.  See 38 C.F.R. § 3.304(f) (effective July 13, 2010).  See also M21-1MR, Part III, Subpart iv, Chapter 4, Section H30.

On July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by relaxing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor.  75 Fed. Reg. 39843 (July 13, 2010) as amended by 75 Fed. Reg. 41092 (July 15, 2010) (providing the correct effective date of July 13, 2010 for the revised 38 C.F.R. § 3.304(f)).  Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: 

(f)(3) If a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and 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, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.

See 75 Fed. Reg. 39843 (July 13, 2010) as amended by 75 Fed. Reg. 41092 (July 15, 2010) (providing the correct effective date of July 13, 2010 for the revised 38 C.F.R. § 3.304(f)).  The revised § 3.304(f) applies to claims of service connection for PTSD that were appealed to the Board before July 13, 2010, but have not been decided by the Board as of July 13, 2010.  Because the Veteran's appeal for service connection for PTSD was pending at the Board before July 13, 2010, the Board finds that the revised 38 C.F.R. § 3.304(f) is applicable to the Veteran's claim.  See 38 C.F.R. § 3.304(f) (effective July 13, 2010).

If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim.  See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent.  If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology.  See Savage, 10 Vet. App. at 495-498.

It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 C.F.R. § 3.102.

The Board finds that the evidence supports granting the Veteran's claim of service connection for PTSD.  The Veteran's service treatment records do not show that she was diagnosed as having PTSD at any time during active service.  These records show instead that the Veteran denied any relevant pre-service medical history and psychiatric evaluation was normal at her enlistment physical examination in June 1999.  On periodic physical examination in May 2004, she reported a medical history of nervous trouble.  The in-service examiner stated that this referred to occasional stressful events at work with no signs or symptoms of panic attacks and were resolved with relaxation/separation from stress.  This examiner also stated that the Veteran's reported nervous trouble was not considered disabling.  No history of psychiatric or mental problems was noted on outpatient treatment in July 2004 prior to the Veteran's Iraq deployment.  The Veteran's service treatment records show that she was treated as an outpatient at Tallil Air Force Base, Iraq, although not for PTSD.  The Veteran reported on a January 2005 "Post-Deployment Health Assessment" that she had been deployed to Iraq in support of Operation Iraqi Freedom from July 2004 to January 2005.  Although she had not engaged in direct combat and had not seen anyone wounded, killed, or dead during this deployment, the Veteran reported that she had felt that she was in great danger of being killed.  She also reported experiencing nightmares.  The Veteran did not report any relevant in-service medical history at her separation physical examination in February 2005.

The Veteran's service personnel records, including her DD Form 214, show that she served in Iraq for 6 months in support of Operation Iraqi Freedom and was awarded the Global War on Terrorism Expeditionary Medal (Iraq).  She reported on her February 2006 VA Form 21-0781a that her in-service stressors included a fear of being raped or murdered while stationed in Iraq and seeing evidence of blown up trucks and vehicles as a result of IEDs every day while in Iraq.  She stated that she had "bad dreams about these things happening to" her and, even after returning from her deployment to Iraq, she still felt that "something is going to blow up and hurt me" while driving.  Given the foregoing, the Board finds that the Veteran's reported in-service stressors clearly include fear of hostile military or terrorist activity and are consistent with the facts and circumstances of her active service in Iraq.  See 38 C.F.R. § 3.304(f) (effective July 13, 2010).  

The competent evidence also contains a diagnosis of PTSD based on the Veteran's reported in-service stressors from her Iraq service.  On VA examination in August 2005, the Veteran's complaints included an inability to concentrate, her mind wandered and replayed events from Iraq, and "she worries that other people are not who they seem to be (i.e. they are rapists)."  She reported serving in Iraq from July 2004 to January 2005 and having nightmares about being raped, killed, or tortured after her first month in Iraq.  She also reported that she had been in a unit which had experienced 7 rapes and her command began restricting the movements of women and preventing them from even going to the bathroom at night.  She reported further that she began to feel afraid for her personal safety "to the point of sleeping with a knife in her bed."  She currently had nightmares 1-2 nights a week and could not get back to sleep after a nightmare.  She felt tired, paranoid, and scared the day after a nightmare.  Since her discharge from service, she had experienced a general distrust of people and was in the process of divorcing her husband.  She stated that she panicked if she saw a box lying on the side of the road and explained that 4 box bombs had been discovered inside the air base where she had been stationed in Iraq while she was there.  

Mental status examination of the Veteran in August 2005 showed normal orientation, appropriate appearance, hygiene, and behavior, normal communication and speech, panic attacks twice a week lasting an hour "or until she could get back around people she knows and trusts" and occurring when she saw boxes on the side of the road, no hallucinations or obsessional rituals, normal thought processes, and no suicidal or homicidal ideation.  She also had a delusion that her husband was not the person she knew "but this diminished somewhat though she could not stand being around him."  The Veteran had trouble concentrating at work "where she forgets things she goes to pick up and comes back with one of the three things she was told to get."  She got lost driving in familiar areas, recently turned the wrong way on a one-way street, ran off the shoulder of a road, and could not account for periods of time every day.  The Veteran also stated that she had dropped her in-service friends even though she currently worked on the same base they did and would not go near the base if she did not work there.  She had tried to date recently but felt she could not trust anything her date said.  She also went home to see her family recently but did not feel close to any of them, although she had been very close to her mother before active service.  The diagnoses included chronic PTSD.  The Board notes that there is no competent contrary opinion of record concerning the Veteran's PTSD.

The evidence (service treatment records and service personnel records) shows that the Veteran served in Iraq.  She has reported that her in-service stressors, including the fear of hostile military or terrorist activity, were related to her service in Iraq.  The competent evidence also shows that the Veteran has been diagnosed as having PTSD and she reported her in-service stressors, including the fear of hostile military or terrorist activity, to the VA examiner who rendered this diagnosis.  In summary, after resolving all reasonable doubt in the Veteran's favor,  and especially in light of the relaxed evidentiary standards for PTSD claims found in the revised 38 C.F.R. § 3.304(f), the Board finds that the competent and probative medical and lay evidence of record supports granting service connection for PTSD.


ORDER

Entitlement to service connection for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits.


REMAND

The Veteran also contends that her service-connected left knee strain and upper back strain (also claimed as a neck condition) are both more disabling than currently evaluated.  She specifically contends that the pain from her left knee disability is equivalent to the pain from her right knee disability which is rated as 10 percent disabling.  She also specifically contends that she experiences neck pain as a result of her service-connected upper back strain.  

The competent evidence shows that, on a VA examination request completed in July 2008, the RO requested that the Veteran be examined for the current nature and severity of her service-connected left knee and upper back disabilities.  The VA examiner(s) was requested to provide complete range of motion findings, including whether the range of motion in the Veteran's left knee and upper back/neck was limited by any of the DeLuca criteria.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  The VA examiner(s) also was requested to "base all DeLuca findings on at least three repetitions of range of motion."  See VA examination request dated July 18, 2008.  Unfortunately, a review of the Veteran's VA joints examination completed on August 14, 2008, shows that no repetitive range of motion testing was conducted and no DeLuca findings were reported concerning her service-connected left knee strain.  A review of the Veteran's VA spine examination completed on August 15, 2008, also shows that no range of motion testing was reported for the Veteran's cervical spine.

The Veteran's service representative contended in a February 2011 Informal Hearing Presentation (IHP) submitted to the Board that both of the Veteran's August 2008 VA examinations were inadequate for VA purposes.  See 38 C.F.R. § 4.2 (2010).  The Veteran's service representative specifically contended that the August 2008 VA examinations were inadequate for VA purposes because no DeLuca findings were obtained for the Veteran's service-connected left knee strain and no range of motion testing was conducted for the Veteran's service-connected upper back strain (also claimed as a neck condition).  The Court has held that, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Board agrees with the Veteran's service representative that the August 2008 VA examinations were inadequate for VA purposes.  Given the contentions of the Veteran and her service representative concerning the adequacy of her August 2008 VA examinations, and given the length of time since those examinations, the Board finds that, on remand, the Veteran should be scheduled for updated VA examinations to determine the nature and severity of her service-connected left knee strain and upper back strain (also claimed as a neck condition).

The RO/AMC also should attempt to obtain the Veteran's up-to-date VA and private treatment records.

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and/or her service representative and request that they identify all VA and non-VA clinicians who have treated her for her service-connected left knee strain and upper back strain (also claimed as a neck condition) since her service separation.  Obtain all VA treatment records which have not been obtained already.  Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already.  A copy of any records obtained, to include a negative reply, should be included in the claims file.

2.  Schedule the Veteran for updated VA examination(s) to determine the current nature and severity of her service-connected left knee strain.  The claims file must be provided to the examiner(s) for review.  All appropriate testing should be conducted, to include complete range of motion testing (in degrees) for the left knee.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  The examiner(s) should state whether there is objective evidence of pain following repetitive range of motion testing of the left knee.  The examiner(s) also should state whether there is any additional limitation of motion (in degrees) after repetitive range of motion testing of the left knee, if possible.  Based on a review of the claims file and the results of the Veteran's physical examination, the examiner(s) should state whether any limitation of motion of the left knee is objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  A complete rationale must be provided for any opinion expressed.

3.  Schedule the Veteran for updated VA examination(s) to determine the current nature and severity of her service-connected upper back disability (also claimed as a neck condition).  The claims file must be provided to the examiner(s) for review.  All appropriate testing should be conducted, to include complete range of motion testing (in degrees) for the upper back and neck (or cervical spine).  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  The examiner(s) should state whether there is objective evidence of pain following repetitive range of motion testing of the cervical spine.  The examiner(s) also should state whether there is any additional limitation of motion (in degrees) after repetitive range of motion testing of the cervical spine, if possible.  Based on a review of the claims file and the results of the Veteran's physical examination, the examiner(s) should state whether: (a) forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees, or combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees, or whether there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; (b) forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the cervical spine is not greater than 170 degrees, or whether there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or (c) whether there is favorable or unfavorable ankylosis of the entire cervical spine or unfavorable ankylosis of the entire spine.  A complete rationale must be provided for any opinion expressed.

4.  Thereafter, readjudicate the Veteran's claims for initial compensable ratings for left knee strain and for upper back strain (also claimed as a neck condition).  If the benefits sought on appeal remain denied, the Veteran and her service representative should be provided a supplemental statement of the case.  An appropriate period of time should be allowed for response.

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).



______________________________________________
MICHAEL A. PAPPAS
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs