Citation Nr: 18152505 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 15-35 549A DATE: November 23, 2018 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. VREMANDED Entitlement to service connection for a right great toe disorder is remanded. Entitlement to service connection for tinnitus is remanded. FINDING OF FACT The evidence demonstrates that the Veteran has a current diagnosis of PTSD that was incurred during active service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1979 to February 1982. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). 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). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) (recently amended as the DSM-V)); (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. 38 C.F.R. § 3.304(f). The law provides that if a PTSD claim is based on an in-service personal assault, evidence from sources other than a veteran’s service records may corroborate the veteran’s account of the stressor incident. Gallegos v. Peake, 22 Vet. App. 329 (2008); see 38 C.F.R. § 3.304(f)(5). Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crises centers, mental health counseling centers, hospitals, or physicians; tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavioral changes following the claimed assault is one type of relevant evidence that may be found in these alternate sources. Examples of behavioral changes that may constitute credible evidence of a stressor include, but are not limited to: request for 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 behavioral changes. 38 C.F.R. § 3.304(f)(5). In cases involving personal assault, the existence of a stressor in service does not have to be proven by the “preponderance of the evidence” because this would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C. § 5107(b). YR v. West, 11 Vet. App. 393, 399 (1998); Patton v. West, 12 Vet. App. 272, 279-80 (1999). Additionally, under 38 C.F.R. § 3.304(f), VA can submit any evidence, including alternate source evidence, to a medical or mental health professional for interpretation. Bradford v. Nicholson, 20 Vet. App. 200 (2006). Most significantly, for claims involving an in-service personal assault, after-the-fact medical evidence can be used to establish a stressor. See id.; Patton, 12 Vet. App. at 278. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. VA is responsible for determining 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. 38 U.S.C. § 5107; Gilbert, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for PTSD In his April 2012 VA claims application, the Veteran contended that his PTSD began during service in December 1981. In his April 2013 VA Form 21-0781, the Veteran described an incident in December 1981 when he was hospitalized after describing visual and auditory hallucinations. He was restrained at the waist and wrists, and woke up to find a man sexually molesting him with his pajama bottoms torn open. He yelled for him to stop, and used his legs and feet to try to fight him off. The man became very angry and began punching and hitting him, resulting in a black eye, bloody noise, small cuts and bruises, and a gash on his forehead. The orderlies described it as a “misunderstanding,” and the person was placed in solitary confinement. In his July 2017 brief, the Veteran contended that his personnel records showed that he was counseled on numerous occasions after his release from the hospital, which was an indication of a “marker” as his conduct or performance declined immediately following the reported traumatic personal assault. Based upon the evidence of record in conjunction with the applicable laws and regulations, the Board finds the evidence demonstrates that the Veteran’s current diagnosis of PTSD was incurred during active service. As an initial matter, the Board finds that the evidence substantiates a current diagnosis of PTSD as a private psychiatrist diagnosed the Veteran with PTSD in November 2016. As such, the requirement for a current disability is satisfied. Additionally, as described above, the Veteran described an in-service sexual and physical assault that occurred while he was hospitalized for psychiatric symptoms. His service treatment records (STRs) reflect that the Veteran was hospitalized in December 1981 after reporting auditory and visual hallucinations. His personnel records reflect that he was cited for misconduct once in December 1981, and for missing formation twice in December 1981 and once in January 1982. In December 1981, a staff psychiatrist recommended that the Veteran be administratively discharged. In January 1982, a general discharge certificate was proposed based on the Veteran’s inability to adapt socially or emotionally. Additionally, the Veteran’s ex-wife provided an April 2013 statement in which she described the Veteran’s report of the sexual and physical assault while hospitalized in December 1981. After this incident, they separated and ultimately divorced. Accordingly, the Veteran’s personnel records, STRs, statements, and lay statement from his ex-wife sufficiently corroborate the Veteran’s contention of a sexual and physical assault during service. Furthermore, in November 2016, the Veteran submitted a PTSD Disability Benefit Questionnaire completed by a private psychiatrist, who noted that the Veteran was exposed to sexual and physical assault while restrained during service. He recalled feelings of intense fear, horror, and physiological distress during this experience, which he re-experienced in the form of nightmares and flashbacks, along with intense physiological distress while re-experiencing. The psychiatrist opined that the Veteran’s PTSD was more likely than not related to service, specifically the threat of death and sexual and physical assault during service. There is no other evidence to contradict the private psychiatrist’s positive opinion. After considering all of the evidence of record, the Board gives the Veteran the benefit of the doubt and finds that his PTSD was incurred during active duty service. REASONS FOR REMAND 1. Entitlement to service connection for a right great toe disorder is remanded. The claim for service connection for a right great toe disorder is remanded for a VA examination. The Veteran has a current diagnosis of degenerative changes to the medial aspect of the interphalangeal joint of the right hallux. Additionally, he reported an in-service injury when he dropped a 50-pound sledge hammer on his right great toe. Although he did not seek treatment at that time, he reported that his symptoms slowly progressed over the years. The Veteran has not yet been afforded a VA examination to determine whether his claimed right great toe disorder is related to service. See 38 C.F.R. § 3.159(c)(4). This should be completed on remand. 2. Entitlement to service connection for tinnitus is remanded. The claim for service connection for tinnitus is remanded for a VA examination. The Veteran has current complaints of tinnitus, which he contends began during service. Specifically, he reports that his tinnitus began after he slipped and fell on ice and hit his head in 1981. Additionally, the Veteran was a generator mechanic during service, which involved exposure to continuous loud noise from vehicles, generators, and other machines. The Veteran has not yet been afforded a VA examination to determine whether his tinnitus is related to service. See 38 C.F.R. § 3.159(c)(4). This should be completed on remand. The matters are REMANDED for the following action: 1. Provide a comprehensive VA examination by an appropriate examiner to determine the nature and etiology of the Veteran’s claimed right great toe disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file, and a copy of this remand, will be available to the examiner, who must acknowledge receipt and review of these materials in any report generated as a result of this remand. Although a complete review of the record is imperative, attention is called to the following: *A February 1981 STR reflecting that the Veteran dropped a 50-pound sledge hammer on his right great toe. *A May 1981 STR reflecting that the Veteran had minor toenail removal of his right big toe, and sharp pains with standing and running. *A March 2012 private treatment record reflecting an assessment of degenerative changes to the medial aspect of the interphalangeal joint of the right hallux, and the Veteran’s report of an in-service injury when he dropped a hammer on the dorsum of his hallux. After reviewing the claims file in its entirety and examining the Veteran, the examiner is asked to address the following: a) Identify all diagnoses involving the Veteran’s right great toe. b) Provide an opinion as to whether the Veteran’s right great toe disorder at least as likely as not had its onset during active service or is otherwise related to it. *In doing so, the VA examiner should consider all evidence, to include the Veteran’s MOS duties and the February 1981 STR.* A complete rationale should be provided for any opinion provided. 2. Provide a comprehensive VA examination by an appropriate examiner to determine the nature and tiology of the Veteran’s claimed tinnitus. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file, and a copy of this remand, will be available to the examiner, who must acknowledge receipt and review of these materials in any report generated as a result of this remand. Although a complete review of the record is imperative, attention is called to the following: *A December 1981 STR reflecting that the Veteran slipped on ice two days prior. *The April 2012 claims application in which the Veteran reported that he was a mechanic during service, which required him to be around continuous loud noise from generators, vehicles, and other machines. *An April 2012 statement from his former spouse, stating that the Veteran slipped on a patch of ice on the sidewalk, fell on his back, and had loud ringing in his ears since. *VA treatment records reflecting the Veteran’s report of tinnitus for 30 years and that it began after he slipped on ice and hit his head in 1981. *His September 2013 Notice of Disagreement in which the Veteran contended that the ringing in his ears started when he slipped on ice at the recreation center and hit his head on the sidewalk.   After reviewing the claims file in its entirety and examining the Veteran, the examiner is asked to address the following: Provide an opinion as to whether the Veteran’s claimed tinnitus at least as likely as not had its onset during active service or is otherwise related to it. *In doing so, the VA examiner should consider all evidence, to include the Veteran’s MOS duties and his contention that the tinnitus began during service and that it was the result of hitting his head on ice in December 1981.* A complete rationale should be provided for any opinion provided. 3. Thereafter, readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jane R. Lee