Citation Nr: 1804749	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  12-24 532	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES 

1.  Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for a left knee disability.

3.  Entitlement to service connection for a right knee disability.

4.  Entitlement to service connection for headaches.

5.  Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as secondary to service-connected lumbar spine degenerative disc disease.

6.  Entitlement to service connection for peripheral neuropathy bilateral lower extremities, to include as secondary to service-connected lumbar spine degenerative disc disease.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and Mr. T.B.


ATTORNEY FOR THE BOARD

I. Cannaday, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Marine Corps from November 1978 to September 1980. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  

A hearing was held before the undersigned Veterans Law Judge in October 2017.  A transcript of the hearing is of record.  The record was also held open for 60 days in order to allow the Veteran and her representative additional time to submit medical records.  

The United States Court of Appeals for Veterans Claims has held that when a claimant submits a claim, she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  However, the Veteran's entitlement to service connection for depression was denied in an October 2014 rating decision.  The Veteran has not appealed that claim nor has new and material evidence been submitted.  Accordingly, in light of the record in the instant case, the Board has considered the Veteran's claim for all possible acquired psychiatric disorders except for depression.

The issues of entitlement to service connection for a left knee disability, right knee disability, headaches, and peripheral neuropathy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran's current PTSD is at least as likely as not the result of an in-service event or injury.


CONCLUSION OF LAW

Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for PTSD have been met.  38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).  Establishing entitlement to service connection for PTSD requires: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2015).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

The Board finds that the evidence of record supports a grant of service connection for PTSD.  First, there is evidence of a current disability.  The Veteran has been diagnosed with PTSD.  See August 2010 VA examination.

Second, there is evidence of an in-service event, disease, or injury.  In that regard, the Veteran has consistently stated that she was assaulted on multiple occasions while in service.  See August 2010 VA examination; Bd. Hrg. Tr. at 13, 15.  Indeed, an undated service treatment record shows that the Veteran was assaulted while in service. 

Third, the Board finds that the evidence is at least in equipoise as to whether the Veteran's PTSD is related to service.  In that regard, the law is clear.  Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue.  38 U.S.C. § 5107 (2012).  In that regard, the only two potential causes of the Veteran's PTSD are stressors that occurred while not in service, or stressors that occurred while in service. Although the examiner could not determine if the in-service stressors caused or aggravated the Veteran's PTSD, the Board finds that the August 2010 VA opinion, in addition to the evidence discussed above, including the Veteran's statements and service treatment records, weighs in favor of a grant of service connection in this case.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; cf. Jones v. Shinseki, 23 Vet.App. 382, 394 (2010) ("if the medical evidence in the record indicates that a disability has only two potential causes and at least one is related to service, then the inability of the medical examiner to provide a reason why one is more likely the cause of the claimant's disability would place the evidence in equipoise, and the benefit of the doubt rule would apply") (Lance, J. concurring).  Thus, the Board finds that the benefit-of-the-doubt rule applies and service connection for PTSD is warranted.  Gilbert v. Derwinski, 1 Vet.App. 49, 55-56 (1990).


ORDER

Entitlement to service connection for PTSD is granted.


REMAND

Initially, in the September 2010 rating decision, the AOJ denied the Veteran's claim of entitlement to service connection for headaches.  In the Veteran's October 2010 Notice of Disagreement (NOD), she expressed disagreement with the RO's decision to deny her claim.  Although the RO addressed other issues listed on the September 2010 rating decision, it did not address the Veteran's entitlement to service connection for headaches claim.  The Board notes that the RO did list the Veteran's entitlement to service connection for headaches claim in an October 2015 Supplemental Statement of the Case (SSOC).  While a SSOC is a similar document, 38 C.F.R. § 19.31 (a) clearly provides that, "In no case will a Supplemental Statement of the Case be used to announce decisions by the agency of original jurisdiction on issues not previously addressed in the Statement of the Case, or to respond to a notice of disagreement on newly repealed issues that were not addressed in the Statement of the Case."  Thus, the Board is obligated to remand the issue for proper development, to include issuance of a Statement of the Case (SOC).  Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).

To date, the Veteran has not been afforded a VA examination to determine the nature and likely etiology of the claimed left and right knee disability.  An examination or medical opinion is warranted when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim.  38 U.S.C. § 5103A (d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Here, the evidence shows that the Veteran has degenerative changes in her knees.  See March 2010 private treatment record; March 2010 VA treatment record.  Additionally, the Veteran testified that she injured her knees while in an in-service automobile accident.  See Bd. Hrg. Tr. at 5.  Indeed, the October 1979 service treatment records show that the Veteran was in an automobile accident.  Therefore, on remand, a VA examination should be provided for the Veteran's left and right knee disabilities.

The Veteran was afforded an August 2010 VA examination for her claimed spine disabilities.  At that examination, the examiner noted that the Veteran's peripheral nerve reflex was normal, and the sensory examination did not reveal that any extremities had been affected.  Thus, the RO denied the Veteran's entitlement to service connection for peripheral neuropathy claims on the basis of the lack of a current diagnosis.  Subsequently, the Veteran was afforded a VA examination in June 2013 where the examiner noted that the Veteran's deep tendon reflexes were hypoactive, and her sensory examination showed a decrease in sensation to light touch.  Moreover the Veteran's witness testified that she took medication for neuropathy.  See Bd. Hrg. Tr. at 9.  Indeed, the record supports that testimony.  See December 2010 VA treatment record.  Thus, a new VA examination should be provided for the Veteran's claimed neuropathy.

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should issue an SOC to address the issue of entitlement to service connection for headaches.

Thereafter, the Veteran should be afforded the opportunity to perfect an appeal by submitting a timely Substantive Appeal in response thereto.  The AOJ should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of this issue following the issuance of the SOC unless she perfects her appeal.

2.  The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for her bilateral knee disabilities, headaches, and peripheral neuropathy.  After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file.

The AOJ should also obtain any outstanding VA treatment records.  

3.  The AOJ should obtain a VA opinion to determine the nature and etiology of the Veteran's claimed bilateral knee disabilities, and peripheral neuropathy.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  Specifically, the examiner should opine as to whether it is at least as likely as not that the Veteran's disabilities manifested in service or are otherwise causally or etiologically related to her military service.  

Regarding the knee disabilities, the examiner should note that the evidence shows that the Veteran has degenerative changes in her knee.  See March 2010 private treatment record; March 2010 VA treatment record.  Further, that record reflects that the Veteran was in an automobile accident.  See October 1979 service treatment records.

Regarding the peripheral neuropathy, the examiner should note that the Veteran appears to take medication for neuropathy.  See Bd. Hrg. Tr. at 9; December 2010 VA treatment record.

The examiner should also provide an opinion as to whether it is at least likely as not (a 50 percent probability or more) that the Veteran's neuropathy was caused or aggravated by the Veteran's service-connected lumbar spine degenerative disc disease.

The examiner is requested to review all pertinent records associated with the claims file, to include the Veteran's, post-service medical records, and lay assertions. 

It should be noted that the Veteran is competent to attest to factual matters of which she had first-hand knowledge.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.)

A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

4.  In the event that the Veteran does not report for any scheduled examinations, documentation should be obtained which shows that notice scheduling the examination was sent to her last known address.  It should also be indicated whether any notice sent was returned as undeliverable.

5.  The AOJ should review the claims file and ensure that the foregoing development actions have been conducted and completed.

6.  After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 

7.  When the development has been completed, the case should be reviewed by the AOJ on the basis of additional evidence.  If the benefits sought are not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.


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).

These claims 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)


______________________________________________
ANTHONY C. SCIRÉ, JR.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs