Citation Nr: 1754586 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 16-14 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Whether new and material evidence has been submitted in order to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to a service connection for an acquired psychiatric disorder, characterized as post-traumatic stress disorder (PTSD) with depression. 3. Entitlement to an initial rating in excess of 10 percent for stress fractures of the left leg. 4. Entitlement to an initial rating in excess of 10 percent for stress fractures of the right leg. REPRESENTATION Appellant represented by: Kelsey Craveiro, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel INTRODUCTION The Veteran had active service from July 2008 to December 2008. This matter comes before the Board of Veterans Appeals (Board) on appeal from January 2012 and October 2015 rating decisions by the Department of Veterans Affairs (VA), Regional Office (RO), in Providence, Rhode Island. A videoconference hearing was held by the undersigned Veterans Law Judge in September 2017. A transcript of this hearing is of record. The service connection claim on appeal was initially characterized as depression. However, because the record now reflects a diagnosis of PTSD, the claim is recharacterized as a claim for PTSD with depression. See Clemons, 23 Vet. App. 1 (2009). Moreover, the increased rating claims on appeal relate to each of the Veteran's lower extremities. However, because both claims share a common etiology, this decision will address them together. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. In a January 2012 rating decision, the claim of entitlement to service connection for an acquired psychiatric disorder was denied because the RO deemed that the condition preexisted the Veteran's service. 2. The evidence added to the record since the January 2012 rating decision became final is related to an unestablished fact that is necessary to substantiate the claims of service connection for PTSD. Specifically, it shows that the Veteran's acquired psychiatric disorder began during her service, rather than during her adolescence. 3. The Veteran's current PTSD is etiologically related to military sexual trauma that occurred in service. 4. The Veteran's current stress fractures of the bilateral lower extremities have been manifested by pain with prolonged standing and walking. Moderate knee or ankle disability has not been shown. CONCLUSIONS OF LAW 1. The January 2012 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7105 (2014); 38 C.F.R. §§ 3.385, 20.302, 20.1103 (2017). 2. As the evidence received subsequent to the January 2012 rating decision is new and material, the requirements to reopen the claim for entitlement to service connection for an acquired psychiatric disorder, characterized as PTSD with depression, have been met. 38 U.S.C. §§ 5108, 7105 (2014); 38 C.F.R. § 3.102, 3.156 (2017). 3. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have been met. 38 U.S.C. §§ 1111, 5103(a), 5103A (2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307 (2017). 4. The criteria for an initial disability evaluation in excess of 10 percent for residuals of left tibial stress fractures have not been met. 38 U.S.C. §§ 1155 , 5107 (2014); 38 C.F.R. §§ 4.1 , 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5299-5262 (2017). 5. The criteria for an initial disability evaluation in excess of 10 percent for residuals of right tibial stress fractures have not been met. 38 U.S.C. §§ 1155 , 5107 (2014); 38 C.F.R. §§ 4.1 , 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5299-5262 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence To reopen a previously and finally-disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. When evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In this case, the Veteran is claiming entitlement to service connection for an acquired psychiatric disorder characterized as PTSD, due to military sexual trauma (MST). This claim was previously denied by the RO in January 2012 on the basis that her disorder preexisted service. She did not appeal that decision, nor did she submit any new and material evidence within a year of receiving it. See Buie v. Shinseki, 24 Vet. App. 242 (2011). As such, it represents the last final denial of the claim. Based on the evidence submitted since the January 2012 rating decision became final, the Board determines that the claim should be reopened. Prior to the January 2012 decision becoming final, the evidence of record consisted of the Veteran's 2011 compensation claim for depression and anxiety, medical treatment records from October and November 2008 indicating psychological treatment, her service treatment and personnel records, and a November 2007 entrance exam which did not note a psychiatric disorder on entry. Evidence submitted subsequent to the January 2012 rating decision becoming final includes medical records from 2015 indicating diagnoses of major depressive disorder and PTSD, further medical records from February 2017 of treatment for PTSD due to in-service MST, a detailed statement from the Veteran stating that she was sexually assaulted during her time in service, and a February 2017 statement from the Veteran's aunt. Not only is this evidence "new" in that it was not previously considered by the RO, it is also "material," as it relates to an unestablished fact necessary to support the claim, which in this case is that the Veteran's psychiatric symptoms started in service and are caused by the sexual assault she suffered in service. Therefore, the application to reopen the claim is granted and the claim is reopened. Service Connection The Veteran claims entitlement to service connection for an acquired psychiatric disorder, characterized as PTSD, resulting from a sexual assault while she was on active duty. Specifically, she reported being sexually assaulted by a friend and Navy diver, whom she knew as "David," during a hotel party off base. In order to establish service connection for an acquired psychiatric disorder as PTSD due to military sexual trauma (MST), the evidence of record must include a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (a), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 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. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304 (f) (5) (2017). For matters certified to the Board after August 4, 2014, a diagnosis of a mental disorder must conform to the American Psychiatric Association, Diagnostic and Statistical Manual, Fourth Edition (DSM-V). 70 Fed. Reg. 45,093 (Aug. 4, 2014). In this case, the Board finds that service connection for an acquired psychiatric disorder should be granted. A May 2016 clinical psychologist's report reflects a diagnosis of PTSD under the DSM-V criteria. Further, the RO's rating decision and March 2016 Statement of the Case conceded that the Veteran has a current psychiatric disorder. The RO denied service connection because it found that the Veteran's disorder predated her service. However, no psychiatric complaints were noted on the Veteran's November 2007 entrance examination. Indeed, had such symptoms been present, it is unlikely that the Veteran would have been accepted into service. In a March 2015 psychological testing report, and a February 2017 statement, the Veteran described in great detail the events leading up to her in-service sexual assault, and its effect on her behavior. The statement describes how the event caused the Veteran to sink into depression, and to engage in self harm and a suicide attempt in March 2015. She also notes in a March 2015 psychological testing report that she did not approach commanding officers or seek psychiatric treatment in the years after the event because she did not want to get into trouble for underage drinking. She was also in denial that a traumatic event had occurred, and that she needed professional assistance in coping with it. In November 2016, a clinical psychologist interviewed the Veteran and opined that the Veteran began to be depressed immediately after suffering stress fractures in boot camp. He opines that after that, she suffered an in-service military sexual trauma, and as a result, developed PTSD with intensified depression. The psychologist expresses disbelief that the Veteran became depressed after her parents' divorce, which was the basis for denial of service connection. Rather, he opines that the depression was coincident with the Veteran's stress fractures suffered during boot camp, and compounded by her in-service military sexual trauma. In the Board's view, the Veteran's testimony, along with the Veteran's in-service gynecological treatment, medical opinions, her treatment records, and the associated buddy statements from the Veteran's roommate and aunt, are sufficient credible evidence to show that the Veteran's PTSD began in service after her sexual assault, corroborate the Veteran's account of her in-service stressor, and warrant service connection. The Veteran's service treatment records and hearing testimony mention in-patient psychiatric treatment in October and November 2008, which would have been after the September 2008 sexual assault took place. Further, buddy statements from the Veteran's aunt and roommate describe behavioral changes centered around self-harm and fear of authority figures after the Veteran's service. These accounts corroborate the Veteran's in-person account of her ordeal. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2016). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Where evidence indicates that the degree of disability increased or decreased during appeal period following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2017). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform any of the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40 (2017). With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45 (2017). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2017). When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). The descriptive words "slight," "moderate," and "severe," as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6 (2017). For the appeal period, the Veteran receives a 10 percent rating for each leg by analogy under 38 C.F.R. § 4.71a, DC 5262 (2017). Under DC 5262, a 10 percent rating is provided when there is malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted when there is malunion of the tibia and fibula with moderate knee or ankle disability; a 30 percent rating is warranted when there is malunion of the tibia and fibula with marked knee or ankle disability; and a 40 percent rating is assigned when there is nonunion of the tibia and fibula with moderate knee or ankle disability. Id. In this case, the Board finds that the current symptomatology associated with the service-connected left and right stress fractures do not warrant ratings in excess of 10 percent under DC 5262. Specifically, the Veteran's August 2011 VA examiner noted X-ray results showing that the Veteran had no fracture or dislocation of the right tibia and fibula, and that the left tibia and fibula were normal. This is a finding against impairment of the tibia and fibula. Further, the medical evidence of record, including the Veteran's March 2016 VA examination, does not reflect that the Veteran has malunion of the tibia or fibula in either leg. While the Veteran's March 2016 examiner did note a diagnosis of shin splints with prolonged walking, this does not result in a disability severe enough to warrant a higher rating. In addition to the lack of malunion or nonunion of either bone, the Veteran has full or near-full range of motion in both ankles. Further, she has full strength and no crepitus, recurrent subluxation, or instability in either leg. Indeed, the only symptom noted by the Veteran is an increase in pain. While regrettable, this does not constitute a disability. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). As such, the Board cannot grant the next highest 20 percent rating. When determining the severity of musculoskeletal disabilities, VA must also consider the extent of any additional functional impairment above and beyond the limitation of motion objectively demonstrated due to the extent of pain/painful motion, limited or excess movement, weakness, incoordination, and premature/excess fatigability, etc., particularly during times when the symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See DeLuca v. Brown, 8 Vet. App. 202 (1995), see also 38 C.F.R. §§ 4.40 , 4.45, 4.59 (2017). A veteran may receive a compensable disability rating based on pain, pursuant to 38 C.F.R. § 4.59 (2017), which relates to painful motion. This regulation notes: "The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint." 38 C.F.R. § 4.59 (2017). The Court has explained that 38 C.F.R § 4.59 applies when evaluating joint pain, even if such pain is not arthritis-related. Burton v. Shinseki, 25 Vet. App. 1, 4 (2011). A 10 percent evaluation is the minimum compensable evaluation for the disabilities at issue, and as such this is the appropriate rating under the criteria applicable to the Veteran's claims. See 38 C.F.R. § 4.59. Affording the Veteran the benefit of the doubt, the Board finds that the Veteran is entitled to at least the minimum compensable rating of 10 percent for the service-connected residuals of left tibial stress fractures and residuals of the right tibial stress fractures based on the application of 38 C.F.R. § 4.59 as interpreted in Burton. However, the Board finds that the evidence does not show that an initial disability rating in excess of 10 percent for residuals of left and right tibial stress fractures is warranted. It is not demonstrated that the service-connected residuals of left and right tibial stress fractures are manifested by malunion or nonunion of the tibia or fibula of either lower extremity at any point during the appeal period. In considering this rating, the Board has considered the impact of functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). In this case, while the Veteran complains of pain in his back and neck, any additional functional loss caused by the pain is accounted for in his range of motion measurements. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). Put another way, while the Veteran has complained of pain, these complaints are adequately contemplated in the ratings he currently receives. In considering the appropriate disability rating, the Board has also considered the Veteran's statements that her leg disabilities are worse than the ratings she currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses, she is not competent to identify a specific level of disability of his service-connected disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is not competent to state that the presence of scoliosis warrants a higher rating for his lumbar spine disability. Again, the May 2013 examiner determined the Veteran's scoliosis to be idiopathic, and there was no muscle spasm or guarding sufficient to cause the Veteran's scoliosis. Such competent evidence concerning the nature and extent of the Veteran's lumbar and cervical spine and neurological disabilities have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of her relevant symptoms related to the issues on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mitt/eider v. West, 11 Vet. App. 181 (1998). As such, the Veteran's symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, a claim for an increased rating may sometimes encompass a claim for entitlement to a total disability rating based on individual unemployability (TDIU). Rice v. Shinseki, 22 Vet. App. 447 (2009). In order for the issue to be raised, there must be evidence of unemployability. Jackson v. Shinseki. The record does not reflect the Veteran is claiming unemployability as a result of her service-connected disabilities. Consequently, the Board finds there is no implicit claim for a TDIU. Rice v. Shinseki, 22 Vet. App. at 453. As the preponderance of the evidence is against the claim for an increased rating in excess of 10 percent for the service-connected residuals of left tibial stress fractures and residuals of the right tibial stress fractures, the benefit of the doubt doctrine is not for application, and the Veteran's claim must be denied. See 38 U.S.C. § 5107 (b) (2014); 38 C.F.R. § § 3.102, 4.3 (2017); Gilbert, 1 Vet. App. at 55. ORDER The application to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disorder, characterized as PTSD, is granted. Entitlement to service connection for an acquired psychiatric disorder, characterized as PTSD, is granted. Entitlement to an initial rating in excess of 10 percent for stress fractures of the left leg is denied. Entitlement to an initial rating in excess of 10 percent for stress fractures of the right leg is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs