Citation Nr: 18139916 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 15-30 437 DATE: October 1, 2018 ORDER New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for status-post surgery of the 4th metatarsophalangeal (MTP) joint of the left foot. Entitlement to service connection for status-post surgery of the 4th metatarsophalangeal (MTP) joint of the left foot is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. In an unappealed December 1997 rating decision, the RO denied the Veteran’s original claim for service connection for status-post surgery of the 4th MTP joint of the left foot. 2. The evidence received since the last final rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for status-post surgery of the 4th MTP joint of the left foot. 3. The Veteran has a current status-post surgery of the 4th MTP joint of the left foot disability; a fracture of the 4th MTP joint of the left foot pre-existed service as it was noted upon service entrance, and with resolution of any doubt in his favor, the disability was permanently worsened during service. 4. The Veteran has a current diagnosis of PTSD. 5. The evidence is at least in equipoise as to whether the Veteran was present at the Ramstein AFB, Germany during a wreckage at an airshow, which resulted in injuries and deaths. 6. The PTSD stressor is adequate to support a diagnosis of PTSD, and the PTSD symptoms are related to the claimed stressor. CONCLUSIONS OF LAW 1. The December 1997 rating decision denying service connection for status-post surgery of the 4th MTP joint of the left foot is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.105(a), 20.302, 20.1103 (2017). 2. The additional evidence received since the December 1997 rating decision is new and material, and the claim of service connection for status-post surgery of the 4th MTP joint of the left foot is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for status-post surgery of the 4th MTP joint of the left foot are met. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.304, 3.306 (2017). 4. Resolving any reasonable doubt in the Veteran’s favor, the criteria to establish service connection for PTSD has been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 to September 1996. New and Material Evidence Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2017). If the Board issues a decision on appeal, confirming the RO’s decision, then the Board’s decision subsumes the RO’s decision on the same issue at hand. 38 C.F.R. § 20.1104. Moreover, if the Board’s decision is not timely appealed, then it, too, is final and binding based on the evidence then of record. 38 C.F.R. § 20.1100. An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, the RO denied the Veteran’s service connection claim for a status-post surgery of the 4th MTP joint of the left foot in a March 1997 rating decision, and upon the Veteran’s request for reconsideration, confirmed the denial in a December 1997 rating decision, finding that the Veteran’s disability preexisted his military service, and there was no evidence of aggravation during active duty service. The evidence considered at the time included the Veteran’s service treatment records and a January 1997 VA examination report. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the December 1997 rating decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Relevant evidence received since the December 1997 denial of the claim includes the Veteran’s petition to reopen; VA treatment records; the Veteran’s lay assertions; and medical evidence. This evidence, specifically a December 2010 assessment authored by his private physician, relates to the unestablished element of potential aggravation of a preexisting disability. The additional evidence received since the December 1997 final denial was not considered in the prior denial and is therefore new, in addition to being material. The criteria for reopening the claim for service connection for a status-post surgery of the 4th MTP joint of the left foot disability are therefore met. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2017). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995). A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. §§ 3.304, 3.306. Of note is that the burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. See 38 C.F.R. § 3.306. Service connection for a psychiatric disorder, to include PTSD requires the following three elements: (1) a current medical diagnosis of a psychiatric disorder, to include PTSD, (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred, and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304(f). A Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor if : (1) The claimed stressor is related to fear of hostile military or terrorist activity; (2) The claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service; and (3) a VA psychiatrist or psychologist, or contract equivalent, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and the Veteran’s symptoms are related to the claimed stressor. 38 C.F.R. § 3.304(f)(3). In adjudicating a claim for service connection for a psychiatric disorder, to include PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran’s military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154(a); 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran “engaged in combat with the enemy.” Id. The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff’d on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of a psychiatric disorder, to include PTSD is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107 (b)). Status-Post Surgery of the 4th MTP Joint of the Left Foot The Veteran seeks service connection for status-post surgery of the 4th MTP joint of the left foot. He believes that his disability was considerably worsened by his active duty service. The Veteran has a current disability of status-post surgery of the 4th MTP joint of the left foot. See e.g., January 1997 and April 2013 VA examination reports. The Board next finds that the Veteran’s status-post surgery of the 4th MTP joint of the left foot preexisted service was “noted” on his February 1974 induction examination, which indicated that he had shattered his 4th toe of the left foot when he was ten-years-old, which resulted in the surgical shortening of the bone. Thus, in order to establish service connection for status-post surgery of the 4th MTP joint of the left foot, there has to be a showing of aggravation (worsening beyond normal progression) of the disability during active duty service. After a review of all the evidence, both lay and medical, the Board finds that the evidence is in relative equipoise on the question of whether the Veteran’s preexisting status-post surgery of the 4th MTP joint of the left foot underwent a permanent worsening during service. As indicated above, upon entry, the Veteran’s status-post surgery of the 4th MTP joint of the left foot was simply noted as a past surgery when he was 10-years-old, without an indication that the disability showed any symptoms at the time. However, throughout his active duty service period, the Veteran regularly complained of pain and swelling of his 4th toe of the left foot. For example, service treatment notes dated in August 1974 show that the Veteran complained of pain and swelling of the left 4th toe, at which time, x-rays revealed an old fracture of the 4th left toe and degenerative changes in the MTP joint. In September 1977, the Veteran was placed on a temporary physical profile for his left foot condition, and January 1978 x-rays revealed evidence of a fracture of the proximal phalanx to the fourth toe, with some shortening of the toe and arthritic changes about the head of the fourth metatarsal, as well as there were hypertrophic arthritic changes about the head of the fourth metatarsal. The medical professional assessed an old fracture of the left 4th toe with evidence of traumatic arthritis involving the MTP joint. Thereafter, a May 1978 treatment record documented an excision of the proximal portion of the proximal phalanx of the left 4th toe. The medical professional noted it was an “old injury” and assessed traumatic arthritis of the left toe “Not PR.” In a May 1991 periodic examination, the medical professional noted that the Veteran had chronic foot pain of the 4th toe of the left foot. Thereafter, subsequent treatment notes until the Veteran’s discharge continue to show numerous complaints of chronic pain in this area of the foot. Notably, from being asymptomatic at service entrance, the Veteran’s4th toe of the left foot resulted in continuous chronic pain and swelling during the course of his over two decades of service. This objective evidence, overall, demonstrates worsening of disability during service, leaving only the question of whether such worsening was permanent in nature. Post-service treatment records continue to show complaints of a chronic pain to the area of the 4th toe of the left foot. In support of his claim, the Veteran submitted a December 2010 assessment authored by his private physician who noted that he had a surgery while on active duty (in reference to the May 1978 excision), and continued to experience pain since that time in that region. This physician also indicated that there was clearly a fixation of the 4th toe, and examination of his feet was consistent with plantar fasciitis, which was a development of the 4th toe disability and in-service surgery, which was chronic and “exacerbative in nature.” Evidence weighing against a finding that the Veteran’s status-post surgery of the 4th MTP joint of the left foot disability was aggravated in service includes the April 2013 VA examiner’s opinion that the condition was less likely than not permanently aggravated by his service. The examiner explained that the Veteran’s service treatment records list old injury and surgery to the left 4th digit, and x-rays and repeated evaluations pointed that his problems were chronic and old in nature. The Board finds that this opinion is inadequate and conclusory. Notably, it is noted that the examiner failed to address the fact that the Veteran’s disability was apparently asymptomatic upon entrance and symptomatic during service as evidenced by multiple medical visits and profile. Further development could be undertaken in an effort to obtain an additional opinion. However, based on the facts of this case, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s pre-existing 4th MTP joint of the left foot was permanently aggravated by service. Thus, with resolution of any reasonable doubt in the Veteran’s favor, service connection is granted. PTSD The Veteran asserts that his currently diagnosed PTSD is the result of two separate in-service stressors. One stressor pertains to the time he was stationed at England AFB Louisiana, where his unit was responsible for the “secure and recover” of equipment from wreckage of a fatal airplane crash at Eglin AFB, Florida, which involved the base vice commander being killed while flying an A-7D jet. The second stressor occurred while the Veteran was stationed at Ramstein AFB, Germany. He states that while attending an airshow during off-duty hours, he witnessed the crash of three airplanes at the show, and that the wreckage covered the area the size of a football field. The Veteran indicates that although he was a quarter of a mile away from the airshow, he grabbed a bucket of water and ran towards the crash site, which was on fire, and being trained in first aid, he provided assistance to the numerous onlookers who were either injured or dead. The Veteran has a current diagnosis of PTSD. See e.g., December 9, 2010 Psychological Report – VBMS entry 12/27/2010 titled Medical Treatment Record – Non-Government-Facility. Next, the Board finds that the Veteran’s reported stressor is competent and credible, and the evidence is at least in equipoise to establish his presence at both Eglin AFB in August 1975 and Ramstein AFB in August 1988 at the time of the claimed stressors. Notably, the Veteran’s DD 214 and military personnel records show that his military occupational specialty (MOS) was an electronic warfare systems technician; that he was assigned to the 23rd Avionics Maintenance Squadron at England AFB in August 1975; and that he was stationed at Ramstein AFB in August 1988 and assigned to the 86th Communication Squadron (86th Comm. Sq.). A September 2012 response from the Defense Personnel Records Information Retrieval System (DPRIS) indicates that it was unable to confirm any aircraft fatalities as described by the Veteran, and was unable to verify that the 86th Comm. Sq. was stationed at Ramstein AFB or that an airshow disaster occurred as described. Nevertheless, the response indicated that these records would be kept by the Air Force Historical Research Agency (AFHRA), Maxell Air Force Base. Thereafter, in a January 2013 response by the AFHRA, it was noted that on August 26, 1975, a pilot from the 23rd Tactical Fighter Wing, stationed at England AFB, crashed his A-7D during a night training mission at Eglin AFB, resulting in a fatality. However, it was not possible to verify whether the Veteran witnessed the crash. Regarding his second stressor, research confirmed that, on August 29, 1988, there was an airshow disaster at Ramstein AFB which housed the 86th Wing, including the 86th Comm. Sq.; however, it was not possible to verify the Veteran’s attendance at the airshow or that he was a first responder. Nonetheless, the Board finds that the Veteran has not indicated that he witnessed the A-7D crash, but rather indicated that he was responsible to recover equipment from the site of the crash. In this regard, the Board finds that a flight log shows that on August 26, 1975, there was a night flight from England AFB, LA, to Eglin AFB, FL fatal crash. Furthermore, regarding the Veteran’s second stressor, it is indisputable that the Veteran was stationed at Ramstein AFB at the time of the airshow disaster, and the fact that there is no documentation that he witnessed it or was a first responder is irrelevant, because under the facts of this case, his reports are consistent with places, types, and circumstances of this Veteran’s service. A November 2010 VA treatment record contains a negative PTSD screen. Nonetheless, in December 2010, the Veteran underwent a psychological assessment by a licensed psychologist, who rendered a diagnosis of PTSD. The psychologist discussed in detail the Veteran’s reported stressors and his observations at the time. The psychologist opined that the Veteran’s diagnosis of PTSD was supported by his reported stressors during his military career; he witnessed injury and death while feeling helpless in his capacity to alter the events. Further, the Veteran met the additional criteria for a diagnosis of PTSD, as evidenced by physiological and psychological reactivity to both internal and external cues that represent or symbolize aspects of the original trauma. The Veteran further reported that he experienced difficulty acquiring and sustaining sleep due to recurring dreams of the traumatic events. In addition, manifestations of hypervigilance and ever present ominous feelings resulted in acute symptoms of psychomotor agitation. It was further noted that the Veteran had established poorly adaptable coping mechanisms of social avoidance; lability of mood resulting in appreciable marital, familial, social, and vocational stress; and, reported intrusive thoughts and feelings of guilt. He was noted to be claustrophobic and avoid activities that remind him of the prior trauma. Lastly, the Veteran refused to attend air shows and does not watch programs that correlate to his in-service traumatic events. Notably, the Veteran has consistently reported the same stressors throughout the pendency of the appeal. As noted above, whether a stressor was of sufficient gravity to cause or support a diagnosis of a psychiatric disorder, to include PTSD is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. Here, the December 2010 clinical psychologist clearly linked the diagnosis of PTSD to the Veteran’s reported stressors. With regard to whether the evidence establishes the occurrence of the stressor in question, the Board as the fact-finder notes that the Veteran’s reports are consistent with places, types, and circumstances of his service, as indicated above. Again, objective evidence confirms that he was stationed at England AFB Louisiana and a flight log confirms that a night flight on the date in question left this base after a crash in Eglin AFB, Florida. Furthermore, it is undisputed that the Veteran was stationed at the Ramstein AFB, Germany at the time the airshow disaster occurred, and that he was in very close proximity (approximately a quarter of a mile away) to the confirmed crash. While DPRIS and AFHRA could not confirm the specifics of what the Veteran states he witnessed, this does not negate his assertion that he was a witness to these traumatic events. Further development could be undertaken for yet obtaining another medical opinion or additional attempts to verify the Veteran’s stressors. However, the record already contains evidence of: a current diagnosis of PTSD rendered by a clinical psychologist, a corroborated stressor as determined by the Board herein, and VA medical evidence acknowledging that the stressor is the type that supports a diagnosis of PTSD. Balancing this favorable evidence against the unfavorable evidence of finding that it was not possible to verify what the Veteran did or witnessed during the events in question and one negative PTSD screen in the treatment records, the Board concludes that the evidence is equipoise. With resolution of any doubt in the Veteran’s favor, the Board finds that the criteria to establish service connection for PTSD have been met, and service connection is therefore warranted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel