Citation Nr: 1602881 Decision Date: 01/29/16 Archive Date: 02/05/16 DOCKET NO. 10-12 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a psychiatric disorder other than PTSD, to include depression. 3. Entitlement to service connection for urinary tract infections. 4. Entitlement to service connection for a left foot and right foot disability. 5. Entitlement to service connection for a cervical spine disability. 6. Entitlement to service connection for a thoracolumbar spine disability. REPRESENTATION Veteran represented by: Joseph R. Moore, Attorney WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran served on active duty from April 1989 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) regional office (RO) in St. Paul, Minnesota. The Veteran's claims for service connection for urinary tract infections, a foot disorder, a cervical spine disorder, and a thoracolumbar spine disorder were denied in an August 2009 rating decision. Her claims for service connection for PTSD and depression were denied in a September 2009 rating decision. The Veteran testified before a Veterans Law Judge at a September 2011 videoconference hearing. A transcript is in the record. In February 2012, the Board remanded the appeal for additional development. Thereafter, the Veteran testified at a second videoconference hearing before the same Veterans Law Judge in September 2012. Transcripts are of record. The appeal was returned to the Board in November 2012. The Board granted service connection for headaches. This is considered a complete grant of the benefit sought, and that matter is no longer before the Board. The remaining service connection claims were all denied. The Veteran appealed the November 2012 denials to the United States Court of Appeals for Veterans Claims (Court). In July 2014 the Court vacated and remanded the Board's decision for further development. The appeal has now been returned to the Board for action consistent with the Court's decision. The Veterans Law Judge who conducted the September 2011 and September 2012 hearings is no longer employed at the Board. In addition, the July 2014 Court decision found that the hearings were inadequate for the issues of entitlement to service connection for foot disabilities, a cervical spine disability, and a thoracolumbar spine disability. Consequently, the Veteran was contacted by letter in October 2015 and offered a new hearing. In an October 2015 reply from her representative, it was stated that the Veteran does not wish to attend a VA hearing of any kind. The Board acknowledges that the issue of entitlement to an increased rating for migraine headaches has been perfected, but not certified to the Board. The Board's review of the electronic record reveals that the Agency of Original Jurisdiction is still taking action on this issue. As such, the Board will not accept jurisdiction at this time, but it will be the subject of a subsequent Board decision, if otherwise in order. The issues, other than entitlement to service connection for PTSD, are REMANDED to the Agency of Original Jurisdiction (AOJ). The Veteran will be advised if she needs to take further action. FINDING OF FACT The Veteran has currently diagnosed PTSD that has been medically attributed to an in-service personal assault supported by evidence of behavior changes. CONCLUSION OF LAW The criteria for service connection for PTSD are met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection will be granted for disability that is caused or aggravated by disease or injury during active service. 38 U.S.C.A. §§ 1110, 1131. Service connection for PTSD generally requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, 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) (2015). If a PTSD claim is based on in-service personal assault, evidence from sources other than the service records may corroborate the Veteran's account of the stressor incident and evidence of behavior changes in response to the stressor can provide credible supporting evidence that the stressor occurred. 38 C.F.R. § 3.304(f)(5) (2015). An examining mental health professional may provide the opinion with regard to behavioral changes. Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011). In the instant case, there have been varying opinions as to whether the Veteran meets the criteria for a diagnosis of PTSD. VA examiners have concluded that she did not meet those criteria or that they could not provide an opinion without speculation, while private examiners engaged by the Veteran or her representative have concluded that a diagnosis of PTSD was warranted. In regards to the claim for service connection for PTSD, the Court directed the Board to provide additional reasons and bases to support the determination that July 2009 and May 2012 VA examinations and opinions were more persuasive than a November 2009 private examination. The Court also found that the May 2012 VA examination was inadequate in regards to the claim for service connection for a psychiatric disability other than PTSD, and ordered that the Veteran be provided a new examination. The Veteran submitted the report of an August 2015 private examination for PTSD. The examiner diagnosed PTSD based on in-service personal assaults and noted behavior changes in terms of an inability to establish meaningful social and work relationships after service. Although the May 2012 VA examiner stated that the claims file was reviewed, the examination report does not contain any discussion of the Veteran's behavior as reflected in the service treatment or personnel records, and does not contain an opinion as to whether or not these show any behavioral changes that tend to suggest that a traumatic event occurred during service. As pointed out by the Court, the earlier VA examinations were found to be inadequate. The private opinions are at least as probative. They include diagnoses of PTSD; based on a review of the relevant records, related to in-service assaults for supported by evidence of a pattern of maladjustment after service. Resolving reasonable doubt in the Veteran's favor, the elements for service connection for PTSD are shown, and the claim is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.304(f). ORDER Service connection for PTSD is granted. REMAND The Court determined that the VA examinations for a psychiatric disability other than PTSD and urinary tract infection claims were inadequate, and ordered that she be scheduled for a new examination. The Court also determined that the evidenced triggered VA's duty to provide examinations for the bilateral foot, a cervical spine, and thoracolumbar spine claims. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to evaluate the claim for service connection for a psychiatric disability other than PTSD. The examiner should review the claims file. The examiner should respond to the following: a) Does the Veteran have a current psychiatric disability other than PTSD? A current disability is one shown at any time since 2008. b) If so, is it as likely as not that this disability began in active service or is the result of a disease or injury (including stressors) in service? c) If the depression or anxiety reported in the July 2009 VA examination are not found currently, was the diagnosis made in error or has the disability gone into remission? If in remission, treat the disability as existing currently for purposes of paragraph b). The reasons for all opinions should be provided. If the examiner is unable to provide an opinion without resorting to speculation, the examiner should state whether the inability is due to the limits of the examiner's knowledge, the limits of medical knowledge in general, or there is additional evidence that, if obtained, would permit the opinion to be provided. 2. Schedule the Veteran for a VA genitourinary examination. All indicated tests and studies should be conducted. The electronic record must be made available to the examiner and the examination report must state that it has been reviewed. At the conclusion of the examination and record review, provide the following opinions: Does the Veteran have a current disability from recurrent urinary tract infections? A current disability is one shown at any time since 2008. If yes, is it as likely as not that this disability was incurred in or due to active service? Even if there is no current diagnosis of recurrent urinary tract infections, is it as likely as not that the recurrent urinary tract infections diagnosed in the July 2009 VA examination were incurred in or due to active service? The reasons for all opinions should be provided. The examiner must address the significance, if any, of the post-service urinary tract infections shown in the record to have occurred in February 2000, December 2004, and January 2005. If the examiner is unable to provide an opinion without resorting to speculation, the examiner should state whether the inability is due to the limits of the examiner's knowledge, the limits of medical knowledge in general, or there is additional evidence that, if obtained, would permit the opinion to be provided. 3. Schedule the Veteran for a VA examination of the feet. All indicated tests and studies should be conducted. The examiner should review the claims folder. The examiner should respond to the following: Does the Veteran have a current of either foot? A current disability is one shown at any time since 2008. If so, is it at least as likely as not that this disability began in active service, or is the result of a disease or injury during such service? The reasons for all opinions should be provided. The examiner should state whether the Veteran's reports, if accepted, would show a current disability or that a current disability is the result of a disease or injury in service. If the Veteran's statements would be sufficient, the examiner should state whether there is any medical reason to reject those statements. If the examiner is unable to provide an opinion without resorting to speculation, the examiner should state whether the inability is due to the limits of the examiner's knowledge, the limits of medical knowledge in general, or there is additional evidence that, if obtained, would permit the opinion to be provided. 4. Schedule the Veteran for a VA cervical and thoracolumbar spine examination. All indicated tests and studies should be conducted. The electronic record must be made available to the examiner and the examination report must state that it has been reviewed. At the conclusion of the examination and record review, provide the following opinions: Does the Veteran have a current disability of either the cervical spine or the thoracolumbar spine? If yes, is it at least as likely as not that this disability began in active service, or is the result of a disease or injury during such service? The reasons for all opinions should be provided. The examiner should state whether the Veteran's reports, if accepted, would show a current disability or that a current disability is the result of a disease or injury in service. If the Veteran's statements would be sufficient, the examiner should state whether there is any medical reason to reject those statements. If the examiner is unable to provide an opinion without resorting to speculation, the examiner should state whether the inability is due to the limits of the examiner's knowledge, the limits of medical knowledge in general, or there is additional evidence that, if obtained, would permit the opinion to be provided. 5. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order. The Veteran 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). _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).