Citation Nr: 1516372 Decision Date: 04/15/15 Archive Date: 04/21/15 DOCKET NO. 09-33 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. 2. Entitlement to service connection for migraine headaches. 3. Entitlement to service connection for temporomandibular joint disorders (TMJ). 4. Entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran served on active duty from February 2002 to May 2002 with additional periods of service in the Texas National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified at a Board hearing at the RO in Houston, Texas in September 2012. This transcript has been associated with the file. In September 2013, the Board remanded these issues for additional development. They have now returned for appellate review. The previously remanded claims for entitlement to service connection for a right knee disability and entitlement for service connection for GERD were granted in a November 2014 rating decision and are no longer on appeal. A review of the Virtual VA and VBMS paperless claims processing systems was conducted. The issue of entitlement to service connection for a left knee disability is addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, the evidence of record is in equipoise as to whether the Veteran's acquired psychiatric disorder, to include PTSD and depression is related to service. 2. Resolving all doubt in the Veteran's favor, the evidence of record is in equipoise as to whether the Veteran's migraine headaches are related to a service-connected disorder. 3. Resolving all doubt in the Veteran's favor, the evidence of record is in equipoise as to whether the Veteran's TMJ is related to a service-connected disorder. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for an acquired psychiatric disorder, to include PTSD and depression have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2009); 38 C.F.R. §§ 3.303 (2014). 2. The criteria for the establishment of service connection on a secondary basis for migraine headaches have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2009); 38 C.F.R. §§ 3.303, 3.310 (2014). 3. The criteria for the establishment of service connection on a secondary basis for TMJ have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2009); 38 C.F.R. §§ 3.303 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Given the favorable disposition of the claims for service connection for an acquired psychiatric disorder to include PTSD and depression, migraines, and TMJ, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. Merits of the Claim The Veteran contends that her acquired psychiatric disorder, to include PTSD and depression, migraines headaches, and TMJ, are related to her active duty service or secondarily to a service-connected disorder. As the evidence is found to be in equipoise with regard to the Veteran's psychiatric, migraine, and TMJ claims, these claims will be granted. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. However, the U.S. Court of Appeals for the Federal Circuit held that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of a service-connected disease or injury or that a service-connected disease or injury has chronically worsened the disability for which service connection is sought. 38 C.F.R. § 3.310(a) (2014); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). Initially, the Board notes that the Veteran is currently diagnosed with PTSD and depression on Axis I, migraine headaches, and TMJ, as noted in VA examinations dated in December 2013 and January 2014. As such, the Veteran has a current disability with regard to these claims and element (1) under 38 C.F.R. § 3.303 has been met. As to element (2), inservice incurrence, for the claim regarding an acquired psychiatric disorder, the Veteran reported gender based discrimination while serving in the National Guard. She reported feeling harassed, discriminated against, treated like an outcast, and vilified by her military supervisor because she was a woman. The Veteran reported that she filed several complaints with the Inspector General's office as well as Congressional complaints regarding this discriminatory treatment, to no avail. Prior to the gender-based discrimination, the Veteran was sexually abused while participating in a ROTC program in college. The trauma experienced was then exacerbated by the gender-based discrimination. The December 2013 VA examiner determined that the trauma suffered as a result of repeated discrimination was sufficient to cause PTSD. The second element of a service connection claim is therefore, satisfied as well with regard to the claim for an acquired psychiatric disorder to include PTSD and depression. With respect to element (3), a nexus or relationship, for the claim regarding an acquired psychiatric disorder, the Veteran was afforded a VA examination in October 2007 in which the VA examiner determined that the Veteran met the criteria for PTSD based on the sexual trauma experienced during ROTC. The examiner further noted that the Veteran was diagnosed with depression which was only partially related to the Veteran's PTSD. The examiner noted the documented changes in the Veteran's personality and behavior following her time in ROTC. Subsequently, the Veteran was provided another VA examination. The December 2013 VA examiner determined that the Veteran met the criteria for PTSD based on both the sexual assault and repeated gender discrimination. While the sexual assault did not occur during a period of recognized service for service connection purposes, the gender discrimination did. The examiner further noted that the Veteran's depressive symptoms were part and parcel of her PTSD. The examiner opined that the Veteran's PTSD was most likely caused by or the result of sexual trauma and gender discrimination experienced during her military service. As such, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's acquired psychiatric disorder to include PTSD and depression is related to her military service. With regard to the Veteran's claims for migraine headaches and TMJ, the Veteran's service treatment records are absent any complaints of headaches or TMJ. Therefore, element (2), service-incurrence, is not met. However, as the Veteran has claimed both disabilities as secondary to her PTSD and PTSD is now a service-connected disability, secondary service connection must be considered. In this regard, a December 2013 VA examination for headaches noted that the Veteran's migraines were less likely than not proximately due to or the result of the Veteran's psychiatric condition as there is no documented evidence that migraines are caused by psychiatric illness. A January 2014 and subsequently an August 2014 VA examination for TMJ failed to provide any nexus opinion either direct or secondary. The Board notes, however, that the December 2013 psychiatric examination noted that the Veteran frequently awoke from stressful nightmare filled sleep and discovered she had been grinding her teeth (TMJ) and that she held on to muscle tension causing migraine headaches as a result of the stress brought on by her PTSD. The examiner further noted that repeated exposure to trauma could cause or exacerbate stress-related medical conditions. Specifically somatic conditions such as TMJ and migraines are known to be stress-related physical ailments. The examiner further opined that the Veteran's TMJ and migraines were at least as likely as not caused by or aggravated by the Veteran's PTSD. As such, the Board notes that the evidence is at least in relative equipoise as to whether the Veteran's TMJ and migraine headaches are secondarily related to her acquired psychiatric condition. Because the evidence is at least in equipoise as to all required elements for a finding of service connection either direct or secondary, the Board finds that the criteria for service connection for an acquired psychiatric condition to include PTSD and depression, TMJ, and migraine headaches are approximated. ORDER Service connection for an acquired psychiatric disorder, to include PTSD is granted. Service connection for migraine headaches is granted. Service connection for TMJ is granted. REMAND With regard to the claim for entitlement to a left knee disability, the Board notes that the record indicates that the Veteran has a limited range of motion in the left knee and was diagnosed with patellofemoral knee syndrome, bilateral knees in a November 2010 VA examination. The Veteran's right knee was subsequently service connected for the right knee as secondary to the Veteran's service connected right ankle issue. The November 2010 VA examination provided a negative nexus with regard to direct service connection, but no opinion with regard to secondary service connection as due to the Veteran's service-connected right knee and right ankle has been provided. For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of a service-connected disease or injury or that a service-connected disease or injury has chronically worsened the disability for which service connection is sought. 38 C.F.R. § 3.310(a) (2014); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran should be afforded a VA examination to determine if she has a left knee disability that is secondarily related to her service-connected right knee or right ankle disorders. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination by a physician with appropriate expertise. The purpose of the examination is to determine the etiology of any left knee disability and whether this disability is related to her service-connected right ankle or right knee disabilities. The following considerations must govern the examination: a. The claims file and a copy of this remand must be made available to the physician, who must acknowledge receipt and review of these materials in any report generated. b. The physician must review all medical evidence associated with the claims file. In particular, the Board draws the physician's attention to the Veteran's contentions that her service-connected right knee and right ankle disabilities affect her gait and therefore affect her left knee. c. All indicated tests and studies must be performed. d. The examiner must provide an opinion as to whether any left knee disability is caused by or aggravated by her service-connected right ankle or right knee disability. Specifically, the examiner should address whether any left knee disability is proximately due to, or alternatively, aggravated by the Veteran's service-connected right ankle or right knee disability. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. e. In all conclusions, the physician must identify and explain the medical bases of his or her opinion with reference to the claims file. The examiner is advised that the Courts have imposed a requirement on the Board to evaluate any medical opinions by examination of multiple factors, including but not limited to: whether the examiner conducted a personal interview of the Veteran; whether clinical testing was conducted; whether a comprehensive review of the claims file and other medical and factual evidence was considered, including lay statements and other medical opinions, with consideration of conclusions reached and whether they are based on the current state of medical knowledge. The examiner is also advised that by law, the mere statement that the claims file was reviewed by an examiner with expertise is not sufficient to find an examination or the opinion adequate. In addition, the examination report must include a complete rationale for any opinions expressed. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and her representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, 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 2014). ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs