Citation Nr: 1753543 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 13-30 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a right shoulder disability, to include as secondary to a service-connected right knee disability. 3. Entitlement to service connection for a right ankle disability, to include as secondary to a service-connected right knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Miller, Associate Counsel INTRODUCTION The Veteran had active duty service in the United States Army and the United States Air National Guard. The Veteran's available DD-214 forms show active duty service from October 13, 1992 to March 19, 1993; from March 22, 1996 to June 10, 1996; and from December 1, 2002 to November 7, 2003. Possible additional periods of active service are addressed in the remand portion of this decision. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2010 and September 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida (hereinafter Agency of Original Jurisdiction (AOJ)). In September 2016 the Veteran testified at a videoconference hearing with the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. The issue of entitlement to service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Resolving all doubt in his favor, the Veteran's right shoulder disability is proximately due to his service-connected right knee disability. 2. Resolving all doubt in his favor, the Veteran's right ankle disability is proximately due to his service-connected right knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability as proximately due to a service-connected disability have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). 2. The criteria for service connection for a right ankle disability as proximately due to a service-connected disability have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Because the Board is granting the service connection issues in full, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide this claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). II. Service connection The Veteran contends that both his right ankle disability and right shoulder disability are a result of his service-connected right knee giving out and causing him to fall on numerous occasions. A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). In adjudicating claims for VA benefits, the burden of proof only requires an "approximate balance" of the evidence for and against a claim. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is "unique" to the VA adjudicatory process, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54). On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). The question for the Board whether the Veteran's currently diagnosed right ankle functional instability with anterior talofibular ligament inflammation and right shoulder rotator cuff tendonitis with biceps tendonitis are a result of his service-connected right knee disability. Private treatment records dated in October 2004 show that the Veteran sought treatment for a right shoulder disability following a fall after taking 2 to 3 tablets of Effexor, presumably prescribed for his service-connected right knee disability. An April 2008 VA emergency room record notes that the Veteran when his knee gave out. He reported twisting his right knee and ankle. In a July 2010 VA examination, the examiner diagnosed the Veteran's right ankle condition as functional instability with anterior talofibular ligament inflammation and his right shoulder condition as rotator cuff tendonitis with biceps tendonitis. The examiner stated that the Veteran's right ankle condition had objective findings which are "indicative of recurrent ankle sprains" and "this could very likely be due to his right knee condition." However, the examiner noted it would be speculation to make a definitive assessment as there are no objective findings to indicate that one is directly caused by the other. The examiner opined the same for the Veteran's right shoulder condition, saying that there "was no objective evidence for or against" the Veteran's contention that because of his service-connected right knee disability, he has developed a right shoulder condition. In September 2011, an addendum VA opinion was requested as some service treatment records documented a possible ankle injury. The VA examiner was asked to opine if the Veteran's right ankle condition was a direct result of an injury in active service. The examiner noted that the ankle pain reported in service in 1993 most likely resolved itself as subsequent examinations showed a normal ankle. However, the Veteran reported falling out of a truck in 2008 and medical records show treatment at a medical facility for this. The VA examiner opined that the Veteran's right ankle condition was most likely a result of the Veteran's fall and not related to active service. The Board finds the Veteran's report of falling as a result of either his knee giving out, or due to the effects of medication for his knee disability is credible. Further, the evidence shows that as a result of these falls he injured his right ankle and shoulder resulting in disability. Accordingly, the Board finds that there is an approximate balance of competent, credible, and probative evidence for and against the Veteran's claims for a right shoulder disability and a right ankle disability, both as secondary to his service-connected right knee disability. 38 U.S.C.A. § 5107 (West 2014), 38 C.F.R. § 3.102 (2017), and Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for a right ankle disability and a right shoulder disability is granted. ORDER Entitlement to service connection for a right shoulder disability is granted. Entitlement to service connection for a right ankle disability is granted. REMAND Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate process and assistance in developing his claim prior to final adjudication. In the Statement of the Case (SOC) dated May 2010, the RO explained that it had denied service connection for PTSD because, although the Veteran's records (the special order) showed he was stationed in Jacksonville from March 19, 2002 to August 31, 2002, that time in service was not an eligible basis for service connected compensation. The July 2013 SOC issued by the RO stated that the Veteran was not on active duty, active duty for training (ACDUTRA), or inactive duty for training (INACDUTRA), at the time of the claimed event in June 2002 which the Veteran calls the stressor for his PTSD claim. The SOC then explains that the special order submitted by the Veteran pertaining to the period from March 2002 to August 2002 is "not sufficient to confirm" he was on active duty at that time. According to the M-21-1 Adjudication Procedures Manual, a National Guard member activated under the authority of 10 U.S.C. has qualifying service for the purposes of 38 U.S.C. until deactivated. See M21-1, Part III, Subpart ii, 6.A.4.d. The Manual provides that, "If an individual's orders specify activation to temporary duty under 10 U.S.C., further development regarding the purpose of the activation is not needed unless there is evidence in the claims folder showing that the purpose of the activation was to train the individual." Additionally, service of members activated under 10 U.S.C. 12301(d) for training constitutes active duty for training for 38 U.S.C. purposes and should be considered as active duty for training. The Veteran's special order indicates he was activated pursuant to 10 U.S.C. 12301(d). There is no indication that it was specifically for training; in fact the order specifies Veteran was activated in an active duty capacity. The Veteran's records show he was living in northern Florida during the span of time covered by the special order. The Veteran stated he was on duty as a security officer at the gate of Jacksonville Naval Air Station at the time of the car accident in June 2002 which forms the basis of his PTSD claim. There is no DD-214, Certificate of Release or Discharge from Active Duty, from the Veteran or National Personnel Records Center (NPRC), pertaining to this period of time in the Veteran's claims folder. The Veteran's DD 214 from December 2002 to November 2003 stated he was activated under 10 U.S.C. 12302, and reports that the Veteran had a training course in September 2002. The Veteran was last afforded a VA examination for PTSD in April 2010. The examiner noted that the results of the testing suggested malingering and therefore the examiner did not diagnose PTSD under DSM-IV standards. In a previous April 2009 psychiatric assessment, the medical treatment provider suggested that the findings should be interpreted with caution as they may not be accurate due to the Veteran's responses and behavior during the assessment. While mere passage of time, alone, since an otherwise adequate examination, does not obligate VA to have the Veteran reexamined simply as a matter of course, in the present case a new examination is warranted. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the recently updated Diagnostic and Statistical Manual (Fifth Edition) (the DSM-5). See 79 Fed. Reg. 45,094 (August 4, 2014). VA adopted as final, without change, this interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014. See Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14,308 (March 19, 2015). In the present case, the RO certified the Veteran's appeal to the Board in March 2016, which is after the August 4, 2014 changes. Thus, the later version of 38 C.F.R. § 4.125 conforming to the DSM-5 is applicable in the present case. Accordingly, the case is REMANDED for the following action: 1. Locate and obtain from the appropriate source the Veteran's Form DD-214 from the time period on or about March 2002 to August 2002. If there is no Form DD-214 available from this time period, please write a memorandum as to the circumstances for its absence, e.g. an explanation that the Veteran was not serving on National Guard duty at the time, or that the records are unavailable. If any requested records are deemed unavailable, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Obtain any outstanding medical treatment records and personnel records available from the Veteran's purported National Guard duties from March 2002 to August 2002. 3. Then, the Veteran should be afforded a VA PTSD examination. The Veteran's claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The examiner should address the following: (a) Indicate whether the Veteran has a diagnosis of PTSD that conforms to the DSM-5 criteria. (b) If PTSD is diagnosed, the examiner should specifically determine whether it is at least as likely as not (a 50 percent or greater possibility) that the Veteran's PTSD is related to his military service. If a diagnosis of PTSD is deemed appropriate, the examiner must explain how the diagnostic criteria of the DSM-5 are met, to include identification of the specific stressor(s) underlying the diagnosis, and comment upon the link between the current symptomatology and the stressor(s). The examiner must state whether the claimed stressor(s) is adequate to support a diagnosis of PTSD. If a diagnosis of PTSD is not deemed appropriate, the examiner must specifically explain this finding in light of any other previous diagnoses of PTSD of record. 4. After undertaking any necessary additional development, readjudicate the remaining issues on appeal, to include all evidence available. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs