Citation Nr: 18146669 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 15-22 020 DATE: October 31, 2018 ORDER Entitlement to service connection for asthma is granted. REMANDED Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected metatarsalgia with hammer toes, is remanded. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected metatarsalgia with hammer toes, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is remanded. FINDING OF FACT The most probative evidence of record demonstrates that the Veteran’s asthma began during a period of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for asthma have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably from November 1978 through March 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during a September 2017 travel board hearing. A transcript of this hearing is of record. As a preliminary matter, the Board finds that this claim should be construed broadly so as to consider other psychiatric disorders. A review of the record, as discussed below, indicates that the Veteran has other psychiatric diagnoses. As such, the Board reads the Veteran’s claim for entitlement to service connection for PTSD sympathetically and broadly to encompass a larger claim for service connection for a psychiatric disorder, to include PTSD and depression. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). Entitlement to service connection for asthma. The Veteran asserts that his asthma manifested during service as a result of inhaling fumes during basic training. See September 2017 hearing transcript. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)) (internal quotation marks omitted). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service. 38 U.S.C. § 1111 (2012). When no preexisting condition is noted upon entry, the veteran is presumed to have been sound upon entry and the presumption of soundness attaches. “Noted” means only such conditions as are recorded in examination reports, and the history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304 (2017). In order to rebut the presumption of soundness, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2017). The absence of evidence is not a sufficient basis to show a disease or injury was not aggravated by service. Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). In determining whether service connection is warranted for a disease or disability, VA must determine whether the evidence supports the claim, or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After considering all information and lay and medical evidence of record, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). Here, the Veteran’s November 1978 service entrance examination noted a normal clinical evaluation of the lungs and chest. Although the accompanying report of medical history, the Veteran reported ear, nose, and throat issues, he expressly denied asthma. Accordingly, the presumption of soundness attached. Here, however, the evidence of record does not support a finding that asthma clearly and unmistakably pre-existed service. The Veteran provided conflicting statements as his entrance history indicated a denial of such, but later statements of record indicated that he had asthma as a child. There is no medical evidence of record supporting a diagnosis of asthma prior to service entrance. Accordingly, the claim on appeal must be considered under direct service connection standards. 38 U.S.C. 1111; 38 C.F.R. 3.304(b). First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). A January 2012 VA examination diagnosed asthma. Thus, the first element of service connection is met. Second, the Board finds that there was an in-service disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). An October 1979 service treatment record provided a diagnosis of adult asthma. Two months later, the Veteran reported trouble breathing since October 1979. See December 1979 service treatment record. Accordingly, the second element of service connection is met. Third, the Board finds that the evidence of record supports a finding that the asthma is related to active service. The Veteran has reported that his symptoms have continued. Additionally, private treatment records document continuing symptoms. Although a January 2012 VA examination reported provided a negative nexus opinion, it was premised on the conclusion that the asthma preexisted service; the Board has found that the asthma did not, for legal purposes, preexist service. Thus, it is of no probative value. Accordingly, the most probative evidence of record demonstrates that asthma began during service and has existed since that time; service connection is thus warranted. See 38 U.S.C. § 5107(b) (2012); Derwinski, 1 Vet. App. at 53-56. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected metatarsalgia with hammer toes. Remand is required to determine whether a back disorder is directly related to service or to service-connected metatarsalgia with hammer toes. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Here, there are several diagnoses of record, including degenerative joint disease, stenosis, and invertebral disc syndrome. See February 2015 private Disability Benefits Questionnaire. Additionally, service treatment records from December 1978 through March 1979 show the Veteran complained of foot pain from his boots. Additionally, the Veteran reported back pain in December 1979. The Veteran is service-connected for metatarsalgia with hammertoes and has reported that his back pain has existed since service. Although a February 2015 DBQ was submitted, it did not contain a nexus opinion. Furthermore, the physician wrote that the Veteran’s back pain did not start until 2009. Because there is evidence of currently diagnosed disabilities, an in-service event, and an indication that the current disabilities may be associated with the in-service event or a service-connected disability, remand for a VA examination is required. 2. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected metatarsalgia with hammer toes. Remand is required to determine whether the Veteran has a current left knee disorder that is related to service or secondary to his service-connected metatarsalgia with hammer toes. VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83-86. VA’s treatment records demonstrate reports of chronic left knee pain without a diagnosis. The Veteran has reported recurrent symptoms of left knee pain. The Veteran’s service treatment records are silent for left knee symptoms, diagnosis, or treatment. At the September 2017 hearing, the Veteran testified that due to the foot pain caused by his boots, he needed to alter his gait during marches by putting pressure on the left leg more than the right. The Veteran testified that he started developing left knee pain a little bit after service. Therefore, remand is required. 3. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. Remand is required to determine if the Veteran has a psychiatric disorder that is related to service. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). As stated above, VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim and there are sufficient facts within the record to warrant an examination. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83-86. The Veteran provided statements recounting in-service events, such as alleged verbal abuse during basic training, allegedly witnessing suicides or attempted suicides in December 1979, and the loss of his marriage as reasons for current feelings of worthlessness. See November 2010 claim, and May 2011 statement. Service personnel records indicate that the Veteran received two Article 15s in October and December 1979, which was shortly before he was recommended for general discharge from service due to poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially, and failure to demonstrate promotion potential. See February 1980 service personnel records. The Veteran reported bad dreams and nightmares since service and that family members said he came back from service with these issues. See September 2017 hearing transcript. Post-service VA records confirm a diagnosis of depression. See February 2010 VA treatment record. The Veteran has participated extensively in VA managed group therapy for veterans living with substance abuse and/or dual diagnoses. See March 2010 VA treatment record. During the Veteran’s Board hearing, he testified that his psychological issues first presented after leaving active duty service and were the result of seeing an individual killed. See September 2017 hearing transcript. The Veteran is competent to testify and to provide facts or circumstances that can be observed and described by a lay person. Because there is evidence of a currently diagnosed psychiatric disorder, evidence of a change in behavior after the Veteran allegedly suffered verbal abuse, and allegedly witnessed suicides or attempted suicides, as well as the Veteran’s testimony linking the two, remand for a VA examination is required. Remand is also required for additional development. The Veteran has asserted witnessing in-service stressors that are not combat related. See November 2010 claim; September 2017 hearing transcript. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, VA medical records, records from facilities with which the VA has contracted, and records from Federal agencies. 38 C.F.R. § 3.159(c)(2). In the case of records requested to corroborate a claimed stressful event in service, the claimant must provide information sufficient for the records custodian to conduct a search of the corroborative records. 38 C.F.R. § 3.159(c)(2)(i). In this case, the Veteran supplemented the information within his November 2010 claim, but it appeared to be internally inconsistent. See May 2011 statement. The Veteran alleged witnessing the suicide or attempted suicide of fellow servicepersons, but only provided one date for incidents that occurred in different states. Although VA sent a February 2012 letter requesting clarification, it was not sent to the Veteran’s current address. See generally March 2012 VA treatment record. Therefore, remand for further development is required. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. Attempt to corroborate the Veteran’s in-service stressors, including allegedly witnessing the suicide or attempted suicide of fellow servicemembers. Contact the Veteran and ask that he provide the month, date, year, location, unit assignment, description, and names for each serviceperson he alleges committed suicide or attempted to commit suicide, as well as the month, date, year, location, unit assignment, description, and name for each person he alleges committed personal assault(s). Regardless if the Veteran provides such information, attempt corroboration based on the 2010 claim and his assertions of his location at Fort Sill and/or Fort Hood. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his low back disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a.) For each currently diagnosed low back disorder, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s low back disorder had onset in, or is otherwise related to, active military service. (b.) For each currently diagnosed low back disorder, the examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the disorder was caused or aggravated by the service-connected metatarsalgia with hammer toes. (c.) The examiner must specifically address the following: 1) the STRs noting complaints of back pain; 2) the Veteran’s assertions of a low back disorder due to altered gait; and 3) the February 2015 private DBQ. 5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of any currently diagnosed left knee disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The entire claims file must be made available to and be reviewed by the examiner. (a.) The examiner must comment on whether there is a left knee disability or whether any complaints of left knee pain alone have resulted in functional impairment of earning capacity. (b.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed left knee disorder or left knee symptoms that result in functional impairment of earning capacity, had onset in, is otherwise related to, or manifested within one year of service discharge, or is otherwise caused by active service. (c.) For each diagnosed left knee disorder and left knee symptoms that result in functional impairment of earning capacity the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the disorder was caused or aggravated by the Veteran’s service-connected metatarsalgia with hammer toes. (d.) The examiner must specifically address the following: 1) the Veteran’s assertions of that he walked differently due to feet pain which caused his left knee symptoms; and 2) private and VA medical records. 7. After the Veteran’s reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any psychiatric disorder(s). The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If the Veteran’s stressor is based on an in-service personal assault - the examiner must opine whether the evidence of record, including the Veteran’s lay statements, third party statements, if any, and the Veteran’s service records, corroborate the claim that a personal assault occurred in service. 38 C.F.R. § 3.304(f)(5). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran’s active service, the examiner must opine whether any PTSD is at least as likely as not (50 percent or greater probability) related to the in-service personal assault. For all other psychiatric disorders that are diagnosed, including depression, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the psychiatric disorder had onset in, or is otherwise related to, active military service, to include his alleged stressors. The examiner must specifically address the Veteran’s assertions of in-service events, to include allegedly witnessing the suicide or attempted suicide of fellow servicemembers, drilling in excessive heat, verbal abuse, and lack of recognition. The examiner must also specifically address the apparent change in behavior contained in the Veteran’s personnel records. 8. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Martinez, Associate Counsel