Citation Nr: 1511859	
Decision Date: 03/20/15    Archive Date: 04/01/15

DOCKET NO.  10-28 885	)	DATE
	)
	)

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


THE ISSUES

1.  Whether new and material evidence has been received a reopen a claim of service connection for a temporomandibular joint (TMJ) deformity.

2.  Entitlement to service connection for a variously diagnosed psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression.

3.  Entitlement to a rating in excess of 10 percent for hallux valgus of the right foot, status post bunionectomy.

4.  Entitlement to a rating in excess of 10 percent for hallux valgus of the left foot, status post bunionectomy.


REPRESENTATION

Appellant represented by:	Daniel Brewer, Attorney at Law


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. Matta, Associate Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from March 1978 to March 1981, from August 1990 to September 1991, from January 1992 to May 1992, from June 1992 to September 1992, and from October 2001 to July 2003.  These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Atlanta, Georgia Department of Veterans Affairs (VA) Regional Office (RO).  A January 2015 videoconference hearing was held before the undersigned; a transcript is in the record.  Additional evidence was submitted after the hearing with a waiver of RO consideration.  

The issues of ratings in excess of 10 percent for hallux valgus of the right and left foot, status post bunionectomy, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action on her part is required.


FINDINGS OF FACT

1.  On the record during her January 2015 Board videoconference hearing, the Veteran withdrew her appeal seeking to reopen her claim of service connection for a TMJ deformity; there is no question of fact or law remaining before the Board regarding this matter.

2.  Resolving all reasonable doubt in favor of the Veteran, the evidence shows that her PTSD and depression are the result of military sexual trauma during active service. 


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a substantive appeal are met; the Board has no further jurisdiction to consider an appeal seeking to reopen her claim of service connection for a TMJ deformity.  38 U.S.C.A. §§ 7104, 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014).

2.  The criteria of service connection for PTSD and depression have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits and applies to the instant claims.  Inasmuch as the Veteran expressed her intent to withdraw her appeal seeking to reopen a claim of service connection for a TMJ deformity, and as this decision grants the benefit with respect to the claim for service connection for an acquired psychiatric disability, there is no reason to belabor the impact of the VCAA on the matters since any notice or duty to assist omission is harmless.  


Legal Criteria, Factual Background, and Analysis

Claim to Reopen 

Under 38 U.S.C.A. § 7104, the Board has jurisdiction where there is a question of law or fact necessary to a decision by the Secretary of VA under a law that affects the provision of benefits administered by VA.  See 38 C.F.R. § 20.101.  Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  The withdrawal of an appeal must be either in writing or on the record at a hearing.  38 C.F.R. § 20.204.  Withdrawal can be by the appellant or by his/her representative.  Id.

On the record at the January 2015 videoconference hearing, the Veteran withdrew her appeal seeking to reopen a claim of service connection for a TMJ deformity.  Thus, there remains no allegation of error of fact or law for appellate consideration with respect to this issue.  Accordingly, the Board has no further jurisdiction to review an appeal on this matter and the appeal must be dismissed.

Service Connection for a Variously Diagnosed Psychiatric Condition

Service connection may be granted for a disability resulting from a disease or injury that was incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  To substantiate a claim of service connection, there must be evidence of:  A current claimed disability; incurrence or aggravation of a disease or injury in service; and a nexus between the claimed disability and the disease or injury in service.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).   

Service connection for PTSD is warranted when the evidence shows: (1) medical evidence diagnosing the condition; (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).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  Caluza v. Brown, 7 Vet. App. 498, 511 (1995).

When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran's PTSD claim is predicated, in part, on a reported history of in-service personal assault.  VA regulations provide that, if 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 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 United States Court of Appeals for the Federal Circuit observed that 38 C.F.R. § 3.304(f)(5) specifically states that a medical opinion may be used to corroborate a personal assault stressor, noting "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated."  See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the United States Court of Appeals for Veterans Claims erred when it determined that a medical opinion based on a post-service examination of a veteran cannot be used to establish the occurrence of a stressor); see also Patton v. West, 12 Vet. App. 272, 280 (1999) (rejecting the requirement that "something more than medical nexus evidence is required for 'credible supporting evidence'" in personal assault cases).

The Veteran contends that the symptoms of her psychiatric disabilities were caused by military sexual trauma (MST).  The evidence shows that she was first diagnosed with anxiety and adjustment disorder in service.  The evidence also shows that she was diagnosed with PTSD as early as 2007 by VA.  This diagnosis has been confirmed by various other (VA and private) medical professionals since.  She has received subsequent diagnoses of schizoaffective disorder, bipolar type, schizophrenia, anxiety, and major depressive disorder.  The Board thus finds that the Veteran has the current psychiatric disabilities of PTSD, schizoaffective disorder, schizophrenia, anxiety, and depression.

While the Veteran's service treatment records are negative for objective evidence of MST, the Veteran is competent to report a history of MST and the onset and recurrence of psychiatric symptoms.  See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 470 (1994).  The Veteran has consistently reported in multiple lay statements, as well as in VA and private medical records, that she was the victim of MST.  Moreover, the mere fact that her assertions are not supported by contemporaneous clinical evidence does not render them inherently incredible.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").  Further, in its capacity as finder of fact, the Board finds that the Veteran's report of a stressor is credible, as it is both internally consistent and consistent with the medical evidence of record.  38 U.S.C.A. § 1154(a); Caluza, 7 Vet. App. at 511.

Finally, medical opinion evidence may corroborate a personal assault stressor and multiple mental health professionals have found the Veteran's report of MST to be credible.  Menegassi, 683 F.3d at 1382.  On August 2007 VA examination, the examiner considered the Veteran's report of an in-service sexual assault by a military policeman to be credible and diagnosed PTSD as a result, in part, on the MST.  On December 2009 VA examination, the Veteran stated that she did not tell anyone about the MST because the military was her only form of income and she was worried about what would happen if she told anyone about the incident.  The examiner noted that she was a reliable historian and diagnosed PTSD and schizoaffective disorder, bipolar type (but determined that a nexus could not be provided without resort to mere speculation).  In January 2010 correspondence, a VA staff psychiatrist opined that the Veteran's PTSD is directly related to the traumatic MST she experienced in service.  VA treatment records from 2010, 2011, 2013, 2014, and 2015 include diagnosis of PTSD secondary to MST; VA treatment records in 2013 link the Veteran's depression to MST.  Additionally, in an undated report, a private psychologist opined that the Veteran's PTSD is due to the MST she experienced in service and noted that this event triggered a series of symptoms commonly associated with PTSD which have worsened over the years.  An undated report from a VA clinical psychologist noted that the Veteran has been treated by the MST team for a primary diagnosis of PTSD and a secondary diagnosis of major depressive disorder.  Considering this evidence and the holding in Menegassi, and resolving reasonable doubt in favor of the Veteran, the Board finds that the medical opinion evidence supports corroborating the stressor.  Thus, the Board finds there was an in-service personal assault stressor.

Finally, there is evidence linking the Veteran's psychiatric disabilities to her MST. As noted above, both private and VA providers have connected her PTSD and depression to her MST. Accordingly, as the Board has found the Veteran's reports of an MST stressor to be credible, and there is evidence suggesting a nexus between her PTSD and depression to the MST, the Board resolves all reasonable doubt in favor of the Veteran and finds that service connection for PTSD and depression is warranted.

The Board notes that the record also shows assessments of anxiety, schizoaffective disorder, and schizophrenia; however, governing caselaw provides that where it is not possible to distinguish the effects of a nonservice-connected disability from those of the service-connected disorder, the signs and symptoms should be attributed to the service-connected disorder.  Mittleider v. West, 11 Vet. App. 181 (1998).  Accordingly, the Board finds that the Veteran's now service-connected PTSD and depression encompasses all of her psychiatric symptoms, regardless of the specific diagnosis assigned to them in any particular record.



ORDER

The appeal seeking to reopen a claim of service connection for a temporomandibular joint disability is dismissed.

Service connection for PTSD is granted.


REMAND

The Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to her increased rating claims for hallux valgus of the left and right feet, status post bunionectomy.  See 38 C.F.R. § 3.159.  

The most recent VA examination to evaluate the Veteran's feet was in April 2010, nearly five years ago.  She has alleged in statements and testimony that the current ratings do not reflect the current state of her bilateral foot condition.  During the January 2015 hearing, she specifically stated that her bunions have grown back and that she was told another surgery may be required.  Her private treatment records support these assertions.  Accordingly, a contemporaneous examination to assess the current severity of her bilateral foot condition is necessary. 

Accordingly, the case is REMANDED for the following:

1. The AOJ should secure for the record copies of the complete clinical records (any not already associated with the claims file) of any VA evaluations or treatment the Veteran received for her service-connected bilateral foot condition.

2.  Thereafter, the AOJ should schedule the Veteran for a VA examination to ascertain the current severity of her service-connected hallux valgus of the right and left feet.  The claims file should be made available to the examiner for review.  

3.  The AOJ should then review the record and re-adjudicate the claims.  If either remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and her attorney the opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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 2014).




______________________________________________
M.C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs