Citation Nr: 1756783 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 11-22 019 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired mental health disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a right ankle condition. 3. Entitlement to a rating in excess of 20 percent for chronic tendonitis of the right rotator cuff. 4. Entitlement to service connection for a back condition, to include degenerative arthritis. 5. Entitlement to service connection for a neck condition, to include degenerative arthritis. 6. Entitlement to service connection for a left shoulder condition, to include degenerative arthritis. 7. Entitlement to service connection for a right knee condition, to include degenerative arthritis. 8. Entitlement to service connection for a left knee condition, to include degenerative arthritis. 9. Entitlement to service connection for a right hip condition, to include degenerative arthritis. 10. Entitlement to service connection for a left hip condition, to include degenerative arthritis. 11. Entitlement to service connection for a left ankle condition, to include degenerative arthritis. 12. Entitlement to service connection for a left elbow/ arm condition, to include arthritis. 13. Entitlement to service connection for fibromyalgia. 14. Entitlement to service connection for a right breast condition. 15. Entitlement to automobile or other conveyance and adaptive equipment or adaptive equipment only. 16. Entitlement to service connection for numbness and weakness of the right hand is denied. 17. Entitlement to service connection for thyroid nodular disease. REPRESENTATION Appellant represented by: Jan D. Dils, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Samuelson, Counsel INTRODUCTION The Veteran served on active duty in the Navy from November 1982 to December 1984 and the Navy Reserves from December 1984 to November 1990 and July 2004 to February 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2010, August 2013, and June 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a video conference hearing in March 2017. In April 2014, the Veteran filed a claim for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In April 2015, the Veteran filed a claim for chronic fatigue syndrome, secondary to fibromyalgia. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2017). The issues of entitlement to service connection for a back condition, neck condition, left shoulder condition, bilateral knee condition, bilateral hip condition, bilateral ankle condition, left elbow/ arm condition, and fibromyalgia are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. At the Board hearing on March 1, 2017, prior to the promulgation of a Board decision, the Veteran requested to withdrawal his appeal as to the issues of entitlement to a rating in excess of 20 percent for chronic tendonitis of the right rotator cuff and entitlement to service connection for a right breast condition. 2. The Veteran's PTSD was onset in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal as to the issues of entitlement to a rating in excess of 20 percent for chronic tendonitis of the right rotator cuff and entitlement to service connection for a right breast condition are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. PTSD was incurred in service. 38 U.S.C. §§ 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Claims The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran withdrew his appeal of the issues of entitlement to a rating in excess of 20 percent for chronic tendonitis of the right rotator cuff and entitlement to service connection for a right breast condition, at his Board hearing on March 1, 2017. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are dismissed. II. PTSD The Veteran contends that she was sexually harassed and threatened during service. She contends that in August 1983 while stationed in Key West, she went with a group of service members to a restaurant where the Master Chief and Senior Chief took her out behind the facility and molested her until they were stopped by another Chief. She asserts that she was told by her commanding officer to put this incident behind her and not speak of it again. She maintains that she went to medical the following day and informed them that she had been exposed to an STD and asked for preventive medication. She also contends that in service in Greece in June and July 2005, she was given dirt showers, spit on, harassed, and isolated from the other members. See February 2010 application for compensation; March 2010 statement in support of claim; October 2011, June 2013, March 2014, and April 2015 statements from the Veteran; March 2017 Board hearing transcript, pp. 27-31; Scott v. McDonald,789 F.3d 1375 (Fed. Cir. 2015). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Service connection for PTSD 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, unless the stressor is related to a Veteran's fear of hostile military or terrorist activity. 38 C.F.R. § 3.304(f). The Veteran's PTSD claim is predicated, in part, on a reported history of in-service personal assault. VA regulations provide that, 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. 38 C.F.R. § 3.304(f)(5). The United States Court of Appeals for the Federal Circuit (Federal Circuit) observed that 38 C.F.R. § 3.304(f)(5) specifically states that a medical opinion may be used to corroborate a personal-assault stressor, noting "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the United States Court of Appeals for Veterans Claims (Court) erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor); see also Patton v. West, 12 Vet. App. 272, 280 (1999) (rejecting the requirement that "something more than medical nexus evidence is required for 'credible supporting evidence'" in personal-assault cases). In making all determinations, the Board must fully consider the lay reports as to the onset and recurrence of his symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board acknowledges that the September 2008 VA examiner determined the Veteran's stressor was not adequate to justify a PTSD stressor. However, VA treatment records since March 2010 show a diagnosis of PTSD with a history of military sexual assault. The Veteran is competent to report military personal trauma and psychiatric symptoms that began in service. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. Additionally, in March 2017 a private licensed clinical psychologist, John Atkinson, diagnosed PTSD and determined it was more than at least as likely as not related to military sexual trauma suffered while on active duty in the military. Further, in an October 2011 and March 2015 statements, the Veteran's sister contends that the Veteran first began experiencing anxiety attacks and depression after service. Resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for PTSD is warranted. At the March 2017 Board hearing, the Veteran indicated that a grant of service connection for any psychiatric disability, regardless of the diagnosis, would satisfy her appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993); Board hearing transcript, pp. 9-10. ORDER The appeal of the issue of entitlement to a rating in excess of 20 percent for chronic tendonitis of the right rotator cuff is dismissed. The appeal of the issue of entitlement to service connection for a right breast condition is dismissed. Service connection for PTSD is granted. REMAND I. Missing records As an initial matter, it appears the claims file may be missing records. The Veteran testified that she was on active duty in Greece through July 2005 and that her fibromyalgia symptoms began following this active duty. She testified that during that time she performed a lot of physical labor. See March 2017 Board hearing transcript, p. 19-21. However, the claims file does not contain a record showing the Veteran was on active duty in Greece during this time period. While there is a formal finding of unavailability for service treatment records from November 23, 1982 to November 22, 1990; there is no formal finding of unavailability for service records regarding the Veteran's last period of service in the Navy Reserves from July 23, 2004 to February 7, 2006. The AOJ must attempt to obtain these records. Additionally, the November 2014 VA shoulder and arm conditions examination report refers to an August 11, 2014 record by Tristate Arthritis Center for evaluation of joint pain showing a diagnosis of fibromyalgia and arthralgia. This record is not contained in the claims file. As it is relevant to the claims on appeal, the AOJ must attempt to obtain this record. Further, the claims file contains a letter noting the full favorable Social Security Administration (SSA) determination. However, it appears the claims file may be missing the records upon which the SSA disability benefit determination was based. Any outstanding records from the Social Security Administration must be obtained. The AOJ should also ask the Veteran to identify any additional, pertinent medical treatment that she has received related to her claims and any additional, pertinent records should be associated with the claims file. The RO should also ask the Veteran to submit any additional, pertinent lay statements relating to her claims. II. Joint Conditions The Veteran contends that her degenerative arthritis began in December 1984 and was caused by boot camp, commands, and physical training while in service. See February 2012 application for compensation. In the Veteran's September 2013 notice of disagreement, she contends that Dr. L, who is an orthopedic from the VA, advised her that because of the strenuous work and carrying full sea bags, and extreme physical stress, she developed degenerative arthritis. The Veteran contends that arthritis in her neck, back, joints, knees, and ankles has increased over the years since her active duty. See April 2012 statement. At the March 2017 Board hearing, the Veteran's representative clarifies that the Veteran's claim for service connection for degenerative arthritis includes her back, shoulders, knees, hips, neck, ankles, and left elbow/ arm. She also contends that degenerative arthritis of neck and left shoulder is secondary to the Veteran's service-connected right elbow and shoulder conditions. See March 2017 Board hearing transcript, p. 14. In regard to the Veteran's right ankle condition, the Veteran contends that she injured her right ankle stepping off of a boat while on active duty in the Navy on August 15, 1984. At the time, she was four months pregnant with her son and as such was unable to have an x-ray. She was diagnosed with a sprain. She contends that she has had issues with it ever since that time. She further contends that when she entered the Reserves in 2004, she was told by the first class petty officer, who was her recruiter, that she should not mention it. See October 2009 application for compensation; November 2009 and March 2010 statements in support of claim; VA treatment records from November 2009 to October 2010. Service treatment records confirm the Veteran sprained her right ankle it in a boating accident in service in August 1984. Post-service VA treatment records show diagnoses of right ankle sprain and achilles tendonitis and an x-ray report suggestive of degenerative change of the tibiotalar and subtalar joints and a spur of the posterior calcaneus in May 2010; ankle joint instability/ derangement and ankle pain in June 2012; and an MRI showing severe muscular strain, achilles peritendinitis and retrocalcaneal bursitis, and probably loose body in tibiotalar joint August 2013. The record shows there may have been additional injuries to the right ankle since service as the Veteran fell and injured her ankle in January 2007 and was diagnosed with right ankle sprain, see January 2007 treatment record from Methodist Healthcare Emergency Department, and an April 2010 VA treatment record also notes the Veteran was involved in a work-related accident at Walmart in 2004 which caused injury to her right ankle. In regard to the back, the Veteran's August 2012 lumbar spine x-ray shows facet joint arthritis. See August 2012 VA treatment record. In regard to the neck, a May 2014 cervical spine MRI shows multilevel discogenic and degenerative changes which are most pronounces at C4-C5. A July 2017 VA treatment record shows chronic neck pain. A May 2012 VA treatment record shows a diagnosis of osteoarthritis in the knee and ankle. A December 2016 VA treatment record shows a diagnosis of osteoarthritis with chronic pain in the bilateral knees and left ankle. An August 2012 VA treatment record notes a 23 year history of knee problems and a diagnosis of degenerative joint disease of the right knee. A private treatment record shows the Veteran had right total knee arthroplasty in September 2014 due to osteoarthritis. An August 2015 VA treatment record shows the Veteran had a left total knee replacement. Private treatment records from UF Orthopedics and Sports Medicine Institute show the Veteran had a left knee revision arthroplasty in April 2017. The Veteran has a diagnosis of left shoulder degenerative joint disease status post arthroscopy. See December 2016 VA examination. In regard to the Veteran's hips, VA treatment records show complaints of pain and numbness. A VA treatment record also indicates that the Veteran's right knee, hip and ankle pains are probably related to his back. See August 2012 VA treatment record. In regard to the left arm and elbow, VA treatment records show a history of pain and limitation of motion in the left elbow, and pain, swelling, and numbness in the left arm. See November 2014 VA treatment x-ray report, February 2015 and December 2016 VA treatment records; and November 2014 VA elbow and forearm examination. A VA examination has not been conducted is in regard to her back, neck, bilateral knee, bilateral hip, and bilateral ankle conditions. As the Board finds that there is sufficient indication of current disabilities that may be associated with the Veteran's active service, a VA examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In regard to the left shoulder condition, VA examinations were conducted in November 2014, December 2016, January 2017, and October 2017. The December 2016, January 2017, and October 2017 VA examiners determined the left shoulder condition was not caused or aggravated by the Veteran's service-connected right shoulder condition. The January 2017 VA examiner also determined there was no evidence of a left shoulder abnormality during service. In regard to the left elbow, a November 2014 VA examination was conducted in and the examiner determined there was no diagnosis. In light of the outstanding treatment records, a VA examination of the left shoulder and left elbow/arm condition is also warranted to consider the new evidence. The VA examiner must determine whether any back, neck, left shoulder, bilateral knee, bilateral hip, bilateral ankle, and/or left elbow/arm condition is related to service or a service-connected disability. III. Fibromyalgia The Veteran contends that her fibromyalgia is due to her military sexual trauma. See April 2015 statement in support of claim. She asserts that a physician at the VA Hospital told her that her fibromyalgia is related to her sexual assault during service. See September 2013 notice of disagreement. She also contends that her fibromyalgia is secondary to her service-connected right shoulder and right elbow conditions. See March 2017 Board hearing transcript, p. 11. She testified that it began when she returned from active duty training in service in Greece in July 2005, where she was doing physical labor as a builder in construction and was harassed. See March 2017 Board hearing transcript, p. 19. The Veteran has a current diagnosis of fibromyalgia. See April 2013 shoulder and arm disability benefits questionnaire; August 2013 and December 2016 VA treatment records; and June 2014 VA examination. The June 2014 VA examination notes the onset was 10 years prior. In a March 2017 private treatment record, Dr. Dauphin opines that it is arguable that the Veteran's fibromyalgia is secondary to her PTSD events. Dr. Dauphin further notes the recurring visions of those events are enough to trigger fibromyalgia in someone with a genetic predisposition. Accordingly, a VA examination is warranted with an opinion regarding whether the Veteran's fibromyalgia is related to her service, to include her in-service military sexual assault or secondary to a service-connected disability. IV. Manlincon claims In a June 2015 rating decision, the RO denied entitlement to automobile or other conveyance and adaptive equipment or adaptive equipment only, and entitlement to service connection for numbness and weakness of the right hand and a thyroid nodular disease. In August 2015, the RO received the Veteran's notice of disagreement in regard to these claims. An informal conference was held on these issues on November 22, 2016. The claims file does not contain any Statement of the Case (SOC) for these issues, and therefore, the claims must be remanded to provide the Veteran with that document and afford her an opportunity to perfect an appeal of these issues. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). Accordingly, the case is REMANDED for the following action: (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. Issue a statement of the case that addresses entitlement to automobile or other conveyance and adaptive equipment or adaptive equipment only, and entitlement to service connection for numbness and weakness of the right hand and thyroid nodular disease. 2. Attempt to obtain all personnel and service treatment records from the Veteran's service in the Navy Reserves from July 23, 2004 to February 7, 2006. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AOJ must notify the Veteran and (a) identify the specific records the AOJ is unable to obtain; (b) briefly explain the efforts that the AOJ made to obtain those records; (c) describe any further action to be taken by the AOJ with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. Request copies of any medical records on which SSA disability benefit determinations were based that have not been associated with the claims file. Associate these records with the claims file. If the records are not available, the claims file should be annotated to reflect such and the Veteran should be notified of such. 4. Contact the Veteran and request that she identify any additional outstanding VA and private treatment records related to her claims. After obtaining the necessary authorization forms from the Veteran, obtain any pertinent records and associate them with claims file. Any negative response should be in writing and associated with the claims file. This should specifically include the August 11, 2014 record by Tristate Arthritis Center for evaluation of joint pain showing a diagnosis of fibromyalgia and arthralgia referred to at the Veteran's November 2014 VA shoulder and arm conditions examination. 5. Notify the Veteran that she may submit lay statements from herself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed her fibromyalgia, back, neck, left shoulder, bilateral knee, bilateral hips, bilateral ankle, and left elbow/ arm conditions in-service and post-service symptoms. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 6. After obtaining any outstanding treatment records regarding the Veteran's claims, schedule a VA examination of the Veteran's back, neck, left shoulder, bilateral knees, bilateral hips, bilateral ankles, and left elbow/ arm conditions. All indicated tests must be accomplished. The entire claims file must be made available and reviewed by the examiner in conjunction with the examination. The examiner is requested to: a. Diagnose all back, neck, left shoulder, bilateral knee, bilateral hips, bilateral ankle, and left elbow/ arm conditions. b. Provide an opinion as to whether it is at least as likely as not that any back, neck, left shoulder, bilateral knee, bilateral hips, bilateral ankle, and/or left elbow/ arm condition is related to or had its onset in service. c. Provide an opinion as to whether it is at least as likely as not that any back, neck, left shoulder, bilateral knee, bilateral hips, bilateral ankle condition and/or left elbow/ arm is related to a service-connected disability, to include her right shoulder and/or right elbow disabilities. The examiner should acknowledge and consider the Veteran's diagnosis of a right ankle sprain in service in August 1984. 7. After obtaining any outstanding treatment records regarding the Veteran's fibromyalgia, schedule a VA examination. All indicated tests must be accomplished. The entire claims file must be made available and reviewed by the examiner in conjunction with the examination. The examiner is requested to provide an opinion as to the following: a. whether it is at least as likely as not that the Veteran's fibromyalgia is related to or had its onset in service, to include her in-service military sexual trauma. b. whether it is at least as likely as not that the Veteran's fibromyalgia was caused or aggravated (chronically worsened) by a service-connected disability, to include PTSD, a right elbow, and/or a right shoulder condition. 8. Then, readjudicate the appeal. If any benefit sought remains denied, provide the Veteran and her representative with a supplemental statement of the case and allow for an appropriate period for response. The appeal should then be returned to the Board for further appellate review, if 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. §§ 5109B, 7112 (2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs