Citation Nr: 1333860 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 01-07 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to a disability rating in excess of 20 percent for subluxation of the left shoulder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran had periods of active service from December 1977 to December 1980 and from June 1981 to September 1981. He also had service with the Army National Guard in Texas from September 1991 to May 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from April 2001 and October 2002 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In the April 2001 rating decision, the RO denied entitlement to service connection for residuals of an ankle injury, and granted entitlement to a 20 percent rating for subluxation of the left shoulder joint, effective October 17, 2000. In the October 2002 rating decision, the RO found that new and material evidence had not been submitted sufficient to reopen a previously denied claim of entitlement to service connection for PTSD. In a September 2005 decision, the Board found that new and material evidence had been submitted to reopen the claim of entitlement to service connection for PTSD. The Board then remanded the claim of entitlement to service connection for PTSD for further development, as well as claims of entitlement to service connection for a right ankle disorder, and entitlement to a disability rating in excess of 20 percent for subluxation of the left shoulder. In January 2009, the Appeals Management Center granted service connection and assigned an initial 10 percent rating for left shoulder degenerative arthritis, effective August 23, 2005. In January 2004 and May 2010, the Veteran testified at a videoconference hearing before a Veterans Law Judge. Transcripts of the hearing proceedings are of record. Each Veterans Law Judge who conducted the hearing in January 2004 and May 2010 are no longer employed by the Board, and the Veteran indicated that he wanted to appear to appear for another hearing. See 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). In July 2013, the Veteran testified at a Travel Board hearing before the undersigned. A transcript of that proceeding has been associated with the claims file. The issues of entitlement to service connection for PTSD and entitlement to a disability rating in excess of 20 percent for subluxation of the left shoulder 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. FINDING OF FACT There is competent evidence establishing that Achilles tendinitis of the right ankle is related to active duty service. CONCLUSION OF LAW The criteria for service connection for Achilles tendinitis of the right ankle have been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). With respect to the issue decided herein, the Board is granting in full the benefits sought on appeal. Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b); also see Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013) (holding that the provisions of § 3.303(b), however, only apply to the list of disabilities identified under § 3.309(a)). Service connection for certain chronic diseases, such as arthritis, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran's lay statements may be sufficient evidence in any claim for service connection. 38 C.F.R. § 3.303(a) ("Each disabling condition shown by a veteran's service records, or for which he seeks a service connection[,] must be considered on the basis of ... all pertinent medical and lay evidence."); see 38 U.S.C. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence"). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). As an initial matter, the record reflects a current diagnosis of a right ankle disability. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Specifically, a November 2011 VA examination reflects a diagnosis of Achilles tendinitis of the right ankle. As the Veteran has a current disability, the remaining question is whether there is evidence of an in-service occurrence of an injury or disease and evidence of a nexus or relationship between the current disability and the in-service disease or injury. In this regard, service treatment records currently associated with the claims file are negative for complaints of or treatment for the right ankle. However, the Veteran has described an in-service right ankle injury on numerous other occasions. Specifically, he contends that he injured his right ankle in 1986 while he was stationed in Germany. During VA treatment in February 1995, the Veteran reported that he had a right ankle sprain during a unit basketball game. During VA treatment in November 1999, he complained of pain in both Achilles tendons, with no history of injury. The assessment was mild Achilles tendinitis. VA treatment records reflect that in August 2000, the Veteran complained of a painful right Achilles tendon since the 1980s. The diagnosis was bilateral Achilles tendonitis. A September 2000 magnetic resonance imaging (MRI) of the bilateral ankles revealed a slight thickening and irregularity of the right Achilles tendon when compared to the left. The radiologist opined that this was probably because of old Achilles tendonitis or a tendinosis. During VA treatment in October 2000, the Veteran reported that he had problems with Achilles tendon pain since 1987, which had become progressively worse in the previous six months. In a February 2001 statement, he reported that he injured his right Achilles tendon in 1986 while stationed in Germany, adding that he went to the doctor several times, but was only given pain pills. He further stated that his right ankle occasionally bothered him ever since that time. During the January 2005 Board hearing, the Veteran testified that he injured his Achilles tendon during service and complained that his Achilles tendon hurt every now and then. In a March 2006 statement, the Veteran reported that he injured his right Achilles tendon in October 1986, adding that it was aggravated during a road march. He added that an MRI done a few years earlier showed that his injury had healed itself; however, he stated that he still had pain from the injured Achilles tendon. Similarly, at the May 2010 Board hearing, the Veteran testified that he injured his Achilles tendon during service and that he had not reinjured his ankle since service, but that it continued to bother him. During a VA examination in November 2011, the Veteran reported that he began limping after a four-hour road march at a Leadership Development Course. He stated that since that time, he experienced occasional aggravation, which had been getting worse over time. Most recently, during his July 2013 hearing before the Board, the Veteran testified that he hurt his right ankle at the Primary Leadership Development Course (PLDC) in the field during the raids and camps training. He stated that he limped so bad that he had to stop the training and needed a ride back to the garrison. He was taken to the emergency room at that time but the right ankle condition got better over time. He stated that he received treatment at the Landstuhl General Hospital in Germany. Lay testimony is competent to establish the presence of observable symptomatology, such as pain in the ankle, and "may provide sufficient support for a claim of service connection." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). The Board has considered the fact that the record includes a statement which is somewhat inconsistent with the Veteran's otherwise reported continuity of symptomatology of right Achilles tendon pain, as, during VA treatment in November 1999, he denied a history of injury. Nevertheless, resolving the doubt in the Veteran's favor, and in light of his other statements, the Board finds that the Veteran's statements as to the continuing symptoms of right ankle pain since service to be credible. Regarding the etiology of the Veteran's current right ankle disability, the record contains a VA medical opinion linking the Veteran's current right ankle Achilles tendinitis to service. To that effect, the November 2011 VA examiner noted that as regards to the Veteran's right ankle, he was not able to find anything in the service treatment records regarding the right ankle; however, beginning in about 2000, the Veteran was very consistent in his report of pain in the right ankle, onset in the late 1980s while in Germany and the remainder of the story remained fairly consistent over that time period between then or beginning in 2000, complete with the MRIs and multiple visits and complaints between 2000 and 2010. The examiner opined that "it is more likely than not that in fact [the Veteran's] right ankle Achilles tendinitis did have its onset in service." The Board attaches significant probative value to the November 2011 VA medical opinion that the Veteran's right ankle Achilles tendinitis had its onset in service The VA examiner reviewed the Veteran's claims file, including and the entire history of the Veteran's right ankle disability, and that it was consistent with the other medical evidence of record. The VA examiner's opinion was based on the accurate history of the Veteran's right ankle disability as reflected in the claims file and consideration of the Veteran's lay statements, which the Board found to be competent and credible evidence. Accordingly, the Board finds that the evidence of record is, at the least, in relative equipoise so as to allow application of the benefit of the doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Therefore, entitlement to service connection for Achilles tendinitis of the right ankle is warranted. ORDER Entitlement to service connection for Achilles tendinitis of the right ankle is granted. REMAND In regard to the claim of service connection for PTSD, the claim has been denied in part on the basis that the record lacks evidence of a verified in-service stressor. During the pendency of this appeal, effective July 13, 2010, VA amended the regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, 38 C.F.R. § 3.304(f) was amended to redesignate former paragraphs (f) (3) and (f) (4) as paragraphs (f) (4) and (f) (5), respectively, and by adding a new paragraph (f) (3) that reads: (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. The Board observes that the primary effect of the amendment of 38 C.F.R. § 3.304(f)(3) is the elimination of the requirement for corroborating evidence of a claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." In place of corroborating reported stressors, a medical opinion must instead be obtained from a VA or VA-contracted psychiatrist or psychologist. In this case, the Veteran claims stressors involving his service while in Saudi Arabia from October 1990 to April 1991 during the Gulf War. Specifically, he contends that he was assigned to a support battalion and worked with grave registration. On January 22, 1991, he handled the bodies of two American soldiers killed during the war who were from the Ft. Hood, 1st Cavalry Division. He also reported that he saw dead bodies of Iraqis with missing limbs and burnt and decapitated bodies while convoying to the northern part of the Iraq through the DMZ in February 1991. He also contends that although he did not come in direct fire or get injured, he was near bombings and SCUD missile strikes around the clock and he could feel the ground shaking. He stated that "the constant noise from the planes and constant bombing made me even more nervous and fearing for my life." As the Veteran's claimed stressors relate to his fear of hostile military activity, if a VA psychiatrist or psychologist confirms that a claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressors, the claim must be granted in the absence of clear and convincing evidence to the contrary. Service personnel records show that the Veteran's military occupational specialty (MOS) was Material Control and Accounting Specialist, and that he was assigned to the 15th Forward Support Battalion under the 2nd Brigade, 1st Cavalry Division. The Center for Unit Records and Research (CURR) reported that the Veteran's unit was tied in with the 2nd Bde., 101st Airborne Division and this liaison remained constant through the brigade's later move to the north of Hafar Al Batin, which was ordered on January 17, 1991. On January 26, 1991, the 2nd Bde. moved from battle positions north of Hafar Al Batin to new battle position; however, the history did not document any specific combat incidents, bomb attacks, or that the unit saw dead bodies. It was also reported that the on February 20, 1991, the 2nd Bde. conducted a recon in force across the berm, and after a five hour battle, they had three enemy soldiers killed in action and nine wounded in action. Based on the above, the Board finds that the claimed stressors are consistent with the places, types, and circumstances of the Veteran's service in the Gulf War zone. Furthermore, the medical evidence of record shows a current diagnosis of PTSD, as evidenced by the Veteran's VA treatment records dating back to January 2003. Therefore, the Veteran must be afforded a VA examination by a VA psychiatrist or psychologist to determine whether the claimed stressors are adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to the claimed stressors. 38 C.F.R. § 3.304(f)(3)(2013); also see Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (noting that when the medical evidence of record is insufficient in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion or ordering a medical examination). Additionally, with regard to the claimed stressor involving receiving the dead bodies of two American soldiers while working with grave registration, the Veteran testified at his July 2013 Board hearing that he was able to identify from the patches on their collar the rank of a sergeant and a private and that they were from the Cavalry. In this regard, the Veteran's representative indicated that he searched the Killeen Daily Herald online and found an old newspaper article reported that two scouts were in killed in action on February 20, four days prior to the main assault on February 24, 1991. The representative stated that the article showed the names and the rank of the two soldiers and that they were from the 1st Cavalry unit; he wanted to submit a printout copy of the newspaper article. However, this evidence has not been associated yet with the claims file. The Board cannot develop or consider evidence in the first instance. See Disabled Am. Veterans (DAV) v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003) (holding that "when the Board obtains evidence that was not considered by the [Agency of Original Jurisdiction (AOJ)] . . . an appellant has no means to obtain 'one review on appeal to the Secretary,' because the Board is the only appellate tribunal under the Secretary"). Applicable regulation provides that the Board shall remand a case to the AOJ if it determines that further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision. 38 C.F.R. § 19.9(a) (2012). Therefore, while the case is on remand, the RO must conduct development necessary to obtain a copy of the newspaper article mentioned by the Veteran's representative during the July 2013 Board hearing. Further, the Board instructed the RO to obtain the records from the Beaufort Memorial Hospital as the Veteran previously reported in a March 2006 VA Form 21-4142 (Authorization and Consent to Release Information) that he was admitted to the mental ward of this facility in June 2003. However, this has not been done. RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. See Stegall v. West, 11 Vet. App. 268, 271 (holding that where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure compliance). In regard to the claim for an increased rating for the Veteran's left shoulder disability, at his July 2013 hearing before the Board, the Veteran testified that the symptoms related to his left shoulder disability had worsened since the most recent VA examination in November 2011. In particular, he reported that he could only lift his left arm 6 inches away from his body and that he now experienced numbness and tingling associated with his left shoulder disability, which started about two years ago. The Veteran also claimed that the November 2011 VA examination was not adequate because the examiner only measured the passive range of motion and did not consider that the range of motion was limited by pain. VA's duty to assist includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69, 76 (1995). This includes providing a new medical examination when a Veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that VA should have ordered a contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). Based on his lay statements that his left shoulder disability has worsened since the last examination, the Board finds that the Veteran is entitled to a new VA examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey, 6 Vet. App. at 381. Finally, in its July 2010 remand, the Board noted that the currently assigned ratings for the Veteran's left shoulder disability may constitute pyramiding, in violation of 38 C.F.R. § 4.14, and that the AMC/RO should ensure compliance with appropriate regulations in evaluating the Veteran's service-connected left shoulder disability. In this regard, the evaluation of the same disability or the same manifestations of a disability under various diagnoses constitutes pyramiding and is prohibited. 38 C.F.R. § 4.14. Here, in a January 2009 rating decision, the AMC granted a separate 10 percent rating for degenerative arthritis of the left shoulder, effective August 23, 2005. This separate rating was assigned for painful or limited motion of a major joint. However, the Veteran is currently in receipt of a 20 percent rating for subluxation of the left shoulder joint pursuant to Diagnostic Code 5201. This diagnostic code provides a 20 percent rating for limitation of the minor arm at shoulder level or midway between the side and shoulder level. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Consequently, to the extent that both ratings are based on limitation of motion, the assignment of a separate 10 percent rating for degenerative arthritis appears to constitute pyramiding. However, the AMC/RO did not undertake any action in accordance with the Board's July 2010 remand in this regard. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all records relating the Veteran's June 2003 psychiatric admission at the Beaufort Memorial Hospital. The RO should also obtain any updated VA treatment records from April 2012 to the present. All records and/or responses received should be associated with the claims file. All attempts to obtain those records should be documented in the claims file. If the VA is unsuccessful in obtaining any identified records, the Veteran and his representative should be so notified. If records are identified, but not obtained, the RO should provide the Veteran with a proper notice that includes (a) the identity of the specific records that could be obtained, (b) an explanation as to the efforts that were made to obtain those records, (c) a description of any further action to be taken by VA with respect to the claims, and (d) that the Veteran is ultimately responsible for providing the evidence, as required by 38 C.F.R. § 3.159(e). The Veteran must then be given an opportunity to respond. 2. Take all appropriate action to attempt to corroborate the Veteran's assertion that on February 22, 1991, he handled the bodies of two American soldiers, who belonged to the 1st Cavalry unit and whose rank was a sergeant and a private. This should include locating an online historical newspaper article of the Killeen Daily Herald for the Fort. Hood, Texas, describing the death of two scouts on February 20, 1991, as mentioned by the Veteran's representative during the July 2013 Board hearing. Any action taken in this regard must be documented in the claims file. 3. Thereafter, the Veteran must be afforded a VA psychiatric examination to determine the etiology of the Veteran's currently diagnosed PTSD. The claims folder must be made available to the examiner in conjunction with the examination. All tests or studies necessary to make this determination must be conducted. All pertinent symptomatology and findings must be reported in detail. Thereafter, based upon review of the service and post-service medical records, the examiner must provide an opinion as to whether the Veteran's currently diagnosed PTSD is related to his military service. The examiner must explain how the diagnostic criteria of the Diagnostic and Statistical Manual for Mental Disorders are met, to include identification of the specific stressor(s) underlying the diagnosis, and comment upon the link between the current symptomatology and one or more of the stressors. If PTSD is found to be related to an in-service stressor, the examiner must specifically state whether that stressor was related to the Veteran's fear of hostile military or terrorist activity. If a diagnosis of PTSD is not deemed appropriate, the examiner must specifically explain how the diagnostic criteria for PTSD of the Diagnostic and Statistical Manual for Mental Disorders have not been met. All requested opinions provided must include a complete rationale. 4. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected left shoulder disability. All indicated tests and studies, to include active range of motion testing of the left shoulder, expressed in degrees, with standard ranges provided for comparison purposes, must be accomplished with the use of a goniometer. If pain is present on any motion, the examiner must state at what degree the pain begins. All clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must describe, in detail, all symptomatology of the Veteran's service-connected disability. Then the examiner must address whether there is any weakened movement, incoordination, excess fatigability, or pain on movement as a result of the Veteran's service-connected left shoulder disability. The same range of motion studies must then be repeated after repetition. The functional impairment due to weakened movement, incoordination, excess fatigability, or pain on movement must, if feasible, be assessed in terms of additional degrees of limitation of motion of the left shoulder. The claims file must be made available to the examiner for review in conjunction with the examination. A complete rationale for all opinions must be provided. The examiner should comment as to whether it is possible to distinguish the symptoms and effects of the service-connected left shoulder disability, from those attributable to any post-service left shoulder injury (to particularly include the injury for which the Veteran filed his 2007 claim for workman's compensation). If it is not medically possible to do so, the examiner should clearly so state, indicating that the above-noted findings are indicative of the Veteran's overall impairment associated with his service-connected left shoulder disability. 5. Notify the Veteran that it is his responsibility to report for the scheduled examinations and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). 6. After ensuring that the development is complete, re-adjudicate the claims. In light of the potential pyramiding issue discussed above regarding the left shoulder disability, ensure compliance with the appropriate VA regulations in evaluating this disability. If any claim is not fully granted, issue a supplemental statement of the case before returning the claims to the Board, if otherwise in order. 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. 2012). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs