Citation Nr: 1608602 Decision Date: 03/03/16 Archive Date: 03/09/16 DOCKET NO. 15-28 052 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a disorder of the lumbar spine. 3. Entitlement to service connection for a disorder of the left knee. 4. Entitlement to service connection for a disorder of the right foot. 5. Entitlement to service connection for a disorder of the left foot. REPRESENTATION Veteran represented by: Robert C. Brown, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from September 1979 to October 1984. The Veteran's character of discharge from September 1979 to September 1983 met the provisions for an unconditional discharge and is considered honorable for VA purposes. The period of service from September 1983 to October 1984 is considered dishonorable, though the Veteran remains eligible for health care and related benefits for any disability incurred in or aggravated in the line of duty during active service for the second, dishonorable period. See Administrative Decision [undated]. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2014 and April 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified during the undersigned during a Board hearing held in December 2015. A copy of the hearing transcript (Transcript) has been associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for disorders of the lumbar spine, left knee, and bilateral feet are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence of record stands in relative equipoise as to whether the Veteran carries a diagnosis of PTSD related to events during his period of active duty. 2. Resolving all doubt in favor of the Veteran, an acquired psychiatric disorder resulted from his honorable period of military service. CONCLUSION OF LAW An acquired psychiatric disorder is etiologically-related to the Veteran's period of active service. 38 U.S.C.A. §§ 1101, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this case, the Veteran alleges that he has a current diagnosis of PTSD stemming from a traumatic in-service event. The United States Court of Appeals for Veterans Claims (Court) held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a 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 of a nexus between the claimed in-service disease or injury and the present disease or injury. See generally Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for PTSD specifically requires: (1) a current medical diagnosis of PTSD, (2) credible supporting evidence that the claimed in-service stressor actually occurred, and (3) medical evidence establishing a nexus between the claimed in-service stressor and the current symptomatology of PTSD. See 38 C.F.R. § 3.304(f) (2014); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997); Pentecost v. Principi, 16 Vet. App. 124, 129 (2002). Effective July 13, 2010, the regulations governing PTSD claims eliminate the requirement for corroborating that the claimed in-service stressor occurred if a stressor claimed by a Veteran is related to his/her 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-provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. 75 Fed. Reg. 39843-52 (July 13, 2010); 38 C.F.R. § 3.304(f)(3). While the record is silent for such an opinion authored by a VA examiner, the Veteran's claimed, in-service stressor has been corroborated by the Joint Services Records and Research Center (JSRRC). Per an October 2015 Memorandum, it was noted that the Veteran served on a Quick Reaction Force (QRF), and that his military occupational specialty (MOS) was Infantry. It was explained that infantry Marines typically served on the QRF team aboard ships and conducted combat operations. Personnel records indicate that the Veteran was awarded the Marine Expeditionary Medal for operations in the Afghanistan/Iranian Contingency. As such, it was extremely likely that the Veteran would have been in helicopters flying in and out of "hot zones." The Veteran's service treatment records do not provide a diagnosis of PTSD or any other psychiatric disorder. Post-service, a February 2015 private psychiatric examination report noted the Veteran's reports of serving in Afghanistan during the Iran crisis and Soviet invasion. Specifically, and also pursuant to the Veteran's Board hearing testimony, he indicated that he was part of a hostage rescue mission and was exposed to the threat of imminent death. Following this incident, per the Veteran, he suffered from bad nightmares and memories of those events. Following an interview, the provider, a licensed clinical psychologist, diagnosed the Veteran with PTSD and major depressive disorder. It was also noted that the Veteran was a reliable historian, and that he appeared to have some paranoid personality traits with reality testing difficulty. He was encouraged to remain in VA psychiatric care. No other stressor was cited by the Veteran and, as noted above, the Veteran's claimed stressor has been corroborated in this case. In contrast, a VA opinion authored in April 2015 found that the Veteran's reported stressor failed to meet the first criterion to establish a PTSD diagnosis (in that it was non-specific and difficult to follow the Veteran's train of thought). An additional opinion, authored in November 2015, indicated that the Veteran's depression was secondary to a combination of poor health, family problems, legal issues, substance abuse, and financial difficulty. Further, it was noted that a review of the Veteran's extensive treatment notes did not link his depression to stressors encountered in the Iranian/Afghanistan Contingency. While true, it appears as though a February 2015 opinion linked PTSD to such an occurrence (likely not referenced by the VA examiner as a PTSD diagnosis was not rendered at the time). As such, and despite the VA opinions which did not conclude that a diagnosis of PTSD was of record, and that no psychiatric diagnosis was linked to an in-service stressor, medical evidence dated after the Veteran was discharged from service nonetheless satisfies the first and third elements of a PTSD claim under the criteria of 38 C.F.R. § 3.304(f), because it shows that the Veteran has been diagnosed as having PTSD as a result of a stressful incident he reportedly experienced during service. With regard to the second element (credible supporting evidence that the claimed in-service stressor actually occurred), the Board observes that corroboration of his alleged PTSD stressor was accomplished in this case. Because a PTSD diagnosis has been rendered in this case, based upon a stressor which was confirmed by VA, the Board finds that each criterion necessary for the grant of service connection for PTSD has been established. Resolving all doubt in favor of the Veteran, service connection for PTSD is warranted. ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is granted. REMAND The Veteran testified that he injured his back, left knee, and bilateral feet during his period of active service. He indicated that his knees started hurting because of the weight he carried on his back. He further noted an incident in 1980 or 1981 in which he was required to jump from a train with a 60 mm mortar in his pack with other ammunition. He testified that his feet "just went way out," and that he had been having foot problems prior. He stated that the sesamoid bones in his feet were fractured and that a lumbar compression fracture was shown on x-ray. He stated that this test occurred on the U.S.S. New Orleans, and then again at Tripler Medical Center. See Transcript, pp. 9, 10. Following a review of the evidence, the Board notes that these records may be outstanding. Evidence that is of record indicates diagnoses of chronic back, knee, and foot pain. A spinal fracture was noted following a motor vehicle accident in 1998. A May 2014 private examination noted complaints of back, knee, and foot pain. An in-service history of a left foot injury was noted, as was a later procedure to remove the sesamoid bone of that extremity. The Veteran walked with a limp. While a 2001 knee x-ray was normal, crepitus was observed on objective testing. Prior lumbar spine x-rays confirmed the presence of an old compression fracture of the lower back. Neither x-ray nor MRI testing was performed, and the Veteran was simply diagnosed with chronic back, knee, and foot pain. As such, the record indicates fractures of the lumbar spine, as well as the left foot, with consistent complaints of pain in the back, knees, and feet. However, there are no recent records to determine the current state of these orthopedic areas. Due to the Veteran's competent, consistent reports of an in-service injury (at least partially supported by the evidence currently of record), as well as the documentation of chronic pain in the back, knees, and feet, a VA examination is required under McLendon v. Nicholson, 20 Vet. App. 79 (2006), to determine whether any current disorder of the back, left knee, or bilateral feet is causally-related to his period of honorable active service. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Ensure that all available service treatment records have been associated with the record, to include any available records from Tripler Medical Center. 2. Thereafter, schedule the Veteran for a VA examination(s) to determine the current nature and etiology of any current disorder of the lumbar spine, left knee, and bilateral feet. The examiner should review the Veteran's Board hearing transcript, as well as VA treatment reports to include, but not limited to, a notation of foot trouble in September 1984. Also of note are private medical records following a motor vehicle accident in December 1998. The examiner should address the following questions: a) Is it at least as likely as not (50 percent or greater probability) that any current lumbar spine disorder either began during or was otherwise caused by the Veteran's honorable period of military service (September 1979-September 23, 1983)? Why or why not? b) Is it at least as likely as not (50 percent or greater probability) that any current left knee disability either began during or was otherwise caused by the Veteran's honorable period of military service (September 1979-September 23, 1983)? Why or why not? c) Is it at least as likely as not (50 percent or greater probability) that any current left foot disorder either began during or was otherwise caused by the Veteran's honorable period of military service (September 1979-September 23, 1983)? Why or why not? d) Is it at least as likely as not (50 percent or greater probability) that any current right foot disorder either began during or was otherwise caused by the Veteran's honorable period of military service (September 1979-September 23, 1983)? Why or why not? Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. 3. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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). 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). ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs