Citation Nr: 18142918 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 16-26 308 DATE: October 17, 2018 ORDER New and material evidence having been received, the petition to reopen the claim for service connection for posttraumatic stress disorder (PTSD) is granted. Service connection for PTSD, to include as due to military sexual trauma (MST), is granted. REMANDED Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for a bilateral knee disability is remanded. FINDINGS OF FACT 1. In an September 2007 rating decision, the RO denied the claim for service connection for PTSD. The Veteran did not appeal, and no new and material evidence was received within a year of the rating decision’s issuance. 2. Additional evidence received since the September 2007 decision is new and related to an unestablished fact necessary to substantiate the claim of service connection for PTSD. 3. The competent and probative medical evidence shows the Veteran’s current PTSD is related to her MST in service. CONCLUSIONS OF LAW 1. The September 2007 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. 2. The evidence received since the September 2007 rating decision is new and material, and the claim for service connection for PTSD is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from December 1989 to May 1990. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran was in the Army National Guard until 1998. The Veteran asserts that she participated in Operation Desert Storm, which is supported by her state award of the New Jersey Desert Storm Support award. Per the State of New Jersey, the ribbon is awarded to active members who served in support of Operation Desert Storm/Desert Shield in time of national emergency during the period 1 August 1990 to 1 October 1991.   New and Material Evidence 1. Whether new and material evidence has been submitted to reopen the claim for service connection for posttraumatic stress disorder. Where a claim has been finally adjudicated, new and material evidence is required in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also, Wakeford v. Brown, 8 Vet. App. 239, 239–40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending. 38 C.F.R. § 3.156(b). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA’s duty to provide a VA examination is triggered. Id. In a September 2007 rating decision, the RO denied service connection for PTSD. The RO determined that the Veteran did not have a current mental health diagnosis of PTSD. The Veteran did not appeal, and the decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b). Since the final denial, the Veteran submitted an examination report, dated in February 2013, by a medical doctor. This report reflects a PTSD diagnosis. The Board finds this evidence is new and material to the Veteran’s claim as it addresses whether the Veteran has a mental health diagnosis. As such, the petition to reopen is granted. Service Connection 2. Entitlement to service connection for PTSD to include as due to military sexual trauma. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences observable by her senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). 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; Gilbert v. Derwinski, 1 Vet. App. 49, 57–58 (1990). PTSD Service connection for PTSD requires a medical diagnosis conforming to the requirements of section 4.125(a), an in-service stressor accompanied by credible and supporting evidence that the stressor claimed to be the cause of the disorder occurred in service, and established medical evidence connecting the current disability to the stressor. 38 C.F.R. §3.304(f); see also 38 C.F.R. § 4.125(a); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). In claims with stressors based on personal assault, evidence from various sources may be used to corroborate the stressor, including evidence of behavioral changes following the claimed assault. 38 C.F.R. §3.304(f)(5); see also Menegassi v. Shinseki, 638 F.3d 1379, 1383 (Fed. Cir. 2011) (stating that medical opinion evidence can be used to corroborate the claimed stressor in personal assault cases). 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). As discussed below, the Veteran’s behavioral changes in service served to corroborate her reported stressor. The Veteran contends that her PTSD was caused by military sexual trauma that she experienced in-service. The Board concludes that the Veteran has a current diagnosis of PTSD caused by her in-service MST. First, as noted above, the competent medical evidence reflects that the Veteran has a current diagnosis of PTSD. The Veteran’s records contain indications consistent with an in-service stressor. In 2006, the Veteran submitted a lay statement that she was sexually assaulted in service. After her MST and harassment from another service member, she detailed how her reputation changed. Moreover, she explained that she has had difficulty retaining employment, and has had nervous breakdowns, as well as increased anger. The Board finds the Veteran to be credible regarding her MST as she consistent in describing her MST and the related markers. The Veteran has also submitted lay testimony. One fellow service member documents another service member sexually harassing the Veteran. The service member explained the Veteran had personality changes, such as the Veteran changing from an outgoing and friendly personality to withdrawn and she would avoid others. Concerning the nexus, the Veteran’s medical records indicate that she developed PTSD after her MST. The psychiatrist opined that the Veteran’s PTSD is more likely than not due to her MST. The psychiatrist detailed the Veteran’s relevant mental health history both prior to service and after. She explained the effects the Veteran’s sexual abuse and harassment had on her mental well-being, culminating in her current PTSD. The psychiatrist examined the Veteran, thoroughly reviewed the Veteran’s medical history, considered the Veteran’s and other lay statements, and aptly supported her reasoning. For those reasons, the Board finds this opinion to be highly probative, and is entitled to much weight. After review of the competent and probative evidence, the Board finds the evidence shows that the Veteran experienced MST which caused her PTSD. The Veteran experienced personality changes after her trauma in that she was withdrawn and avoided others. She has had difficulty in maintaining employment. She has also submitted credible lay testimony from service members. The Board has found the Veteran to be credible to describe her experiences while in service. As such, the Board finds that when resolving reasonable doubt in favor of the Veteran, that her PTSD is caused by her MST. REASONS FOR REMAND The Board notes that the medical evidence of record, including the October 2013 VA examination, indicates that obesity is a risk factor for the Veteran’s disabilities. The Board further notes VA’s Office of General Counsel (GC) issued a precedential opinion on how the issue of obesity is to be assessed. One of the primary holdings of the opinion is that obesity is not a disability for purposes of VA benefits; hence, it cannot be the subject of service connection. VAOPGCPREC No. 1-2017 (Jan. 6, 2017); see also, Marcelino v. Shulkin, No. 16-2149, 2018 U.S. App. Vet. Claims LEXIS 64 (Vet. App. Jan. 23, 2018). The GC recognized further, however, that obesity may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). Hence, the Board will remand for additional medical assessment, to include under the criteria noted by the GC for whether the Veteran’s obesity was a substantial factor for the disabilities on appeal. 1. Entitlement to service connection for a bilateral foot disability is remanded. The Veteran has a current bilateral foot diagnosis — edema, as well as pain. The Board notes that her service treatment records contain foot related complaints. The October 2013 VA examiner found that the Veteran’s bilateral foot edema as well as pain were not related to her service, and were more likely caused by a swelling condition due to chronic vascular disease. However, the Board notes that the VA examiner did not opine on whether the Veteran’s bilateral foot pain caused the Veteran to become obese. The Veteran had complaints of higher pain with walking or standing. Additionally, the Board notes the Court of Appeals for the Federal Circuit recently found that pain alone can constitute a “disability” under §1110, because pain can cause functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). In light of Saunders, the Board acknowledges that the Veteran reports bilateral foot pain, to include some impact on walking and standing. As such, the Board finds that a remand is necessary so that an examination may be conducted of the Veteran’s feet to establish whether the Veteran has a separate, current diagnosed disability, or in the alternative, symptoms including pain which reach to the level of functional impairment of earning capacity. If there is a finding of functional impairment, then a medical nexus opinion must be rendered. Additionally, the new examination is needed to determine the relationship between the Veteran’s bilateral foot pain and her weight gain. 2. Entitlement to service connection for a bilateral knee disability is remanded. The Veteran has a current bilateral knee diagnosis of degenerative joint disease. The Board notes that her service treatment records are absent for bilateral knee disabilities, injuries, or complaints. The October 2013 VA examiner determined that the Veteran’s bilateral joint disease was not related to service as it was more likely that it was related to her weight. However, the Board cannot make a fully-informed decision on the issue of service connection for a bilateral knee disability because it is inextricably intertwined with the above issue concerning her bilateral foot pain and the relationship to weight gain. See Harris v. Derwinksi, 1 Vet. App. 180 (1991) (noting that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). As such, this issue deferred pending the receipt of additional evidence, as directed below. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow her an opportunity to provide the missing records. 2. After associating any treatment records with the claims file, then schedule the Veteran for an appropriate VA examination. The claims file should be made available to the examiner and reviewed in conjunction with the examination. After reviewing the record and examining the Veteran, the examiner is to respond to the following: regarding the feet, the examiner(s) is to provide a diagnosis which accounts for the Veteran’s present symptoms for her feet, separate from bilateral edema. If a medical diagnosis cannot be given, the examiner must state whether the Veteran has any functional impairment, such as loss of range of motion, pain, or instability. Complete the “Functional Impact” section of the report. Then, address: (a.) Is it at least as likely as not (50 percent or greater) that the Veteran’s bilateral foot disability was caused by a disease or injury in service? Next, address whether: (b.) Is it at least as likely as not (50 percent or greater) that the Veteran’s bilateral knee disability was caused by a disease or injury in service? (c.) If the examiner finds that one disability is related to service, but the other is not, then: (d.) Is it at least as likely as not (50 percent or greater) that the Veteran’s non-service connected disability was either 1) proximately due to OR 2) aggravated by her now service-connected disability? Additionally, if the examiner determines that the Veteran’s disability is related to service, then did the Veteran’s disability cause the Veteran to become obese/gain weight? (e.) If so, was the obesity/weight gain as a result of the Veteran’s disability a substantial factor in causing the Veteran’s non-service connected disability; and (f.) Whether the disability would not have occurred but for the obesity/weight gain caused by the now service-connected disability? The term “aggravated” refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training).   If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Morales, Associate Counsel