Citation Nr: 18157219 Decision Date: 12/12/18 Archive Date: 12/11/18 DOCKET NO. 10-31 930A DATE: December 12, 2018 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a schedular disability rating exceeding 20 percent for a cervical spine disability is remanded. Entitlement to an extraschedular disability rating for a cervical spine disability is remanded. Entitlement to an initial compensable disability rating for a right knee disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to an initial compensable disability rating for a right great toenail disability is remanded. Entitlement to service connection for a left great toenail disability is remanded. FINDINGS OF FACT The evidence shows that the Veteran suffers from PTSD related to events in-service including exposure to a soldier’s suicide. CONCLUSIONS OF LAW The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(f) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1988 to May 1992. This appeal comes to the Board of Veterans’ Appeals (Board) from a November 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in March 2015. A transcript of the hearing is associated with the claims file. The Board remanded the issue of entitlement to service connection for PTSD in May 2015 and July 2017 for further development including additional attempts at verifying the Veteran’s claimed PTSD stressors including exposure to the aftermath of soldier suicides. The Agency of Original Jurisdiction (AOJ) made multiple attempts to obtain verification including incident reports. See, e.g., December 2016 VA correspondence to Marine Corps History Division. While the records were not obtained and no formal finding was made on their availability, the AOJ ultimately denied the claim on the basis that the record did not show the Veteran has a current disability of PTSD. See March 2017 Supplemental Statement of the Case. Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). In this case, the Veteran was afforded multiple VA examinations of his mental health. See October 2017 VA mental health examination; February 2017 VA mental health examination. The examiners indicated the Veteran’s major depressive disorder is related to his military service, and the Veteran is currently service connected for that disability. However, they indicated that the Veteran’s mental disability did not satisfy the criteria for a diagnosis of PTSD under applicable diagnostic manuals. The examiners indicated that the Veteran’s claimed symptoms of PTSD overlapped with the symptoms of depression, and they could not attribute relevant current symptoms to any verified in-service traumas. The Board affords the VA examiners’ opinions some probative value as they are based on thorough examinations of the Veteran in the context of his relevant treatment records and lay statements. However, the Board must weigh the VA examiners’ opinions in the context of the totality of the evidence including many years of treatment records from the Veteran’s treating VA psychologists. The treatment records show a diagnosis PTSD continued over many years by the Veteran’s psychologists during his treatment. See generally treatment records from Denver VA Medical Center (VAMC). They appear in the context of the Veteran’s reports of symptoms related to his claimed PTSD stressors over time. While the AOJ was unable to locate incident reports relating to the suicide events the Veteran was exposed to, the Veteran’s service treatment records and submitted newspaper articles support his contentions that he served at the time and place of the events. See, e.g. Veteran’s correspondence received in December 2008; March 1994 Kitsap Sun newspaper article; August 1991 service treatment records. The Board affords this evidence some probative value as well. Competent medical opinions of record differ on whether the Veteran has a current diagnosis of PTSD. While the evidence indicates the Veteran served at a time and place where solider suicides occurred, the record lacks official documentation of the Veteran’s exact whereabouts during the events. The Board ultimately finds the evidence in equipoise regarding whether the Veteran suffers from PTSD related to his claimed stressors. Affording the Veteran the benefit of the doubt, entitlement to service connection for PTSD is granted. REASONS FOR REMAND In a July 2017 decision, the Board denied the Veteran entitlement to a disability rating exceeding 20 percent for a cervical spine disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC), and CAVC ultimately granted a Joint Motion for Partial Remand (JMPR) vacating the decision and remanding the matter for additional development in April 2018. The JMPR indicates the Board erred by (1) failing to obtain a VA examination that provides adequate rationale for why an opinion on the Veteran’s limitations due to flare-ups could not be rendered without resorting to speculation (2) omitting discussion of whether referral for extraschedular consideration is warranted in this case. On remand, the AOJ should obtain a new VA cervical spine examination and consider extraschedular referral after reviewing the totality of the evidence. If the VA examiner cannot offer an opinion on a matter without resorting to speculation, the AOJ should ensure the examiner states 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Additionally, the Veteran submitted timely notices of disagreement in September 2016 and June 2017 in regard to the July 2016 and May 2017 rating decisions respectively, but a Statement of the Case has not yet been issued. A remand is required for the AOJ to issue a Statement of the Case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. The AOJ should schedule the Veteran for an examination of the current severity of his cervical spine disability. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the cervical spine disability alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completing the above action and any other necessary development, the claims must be readjudicated. The AOJ should ensure that a Statement of the Case has been issued for each matter remanded by the Board. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. If a Statement of the Case already exists on an issue and the claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representatives. In readjudicating the cervical spine claim, the AOJ should consider whether referral of the matter to the Director of Compensation Service for extraschedular consideration is warranted based on the totality of the evidence considering symptoms including decreased concentration due to associated tightness, cramping, and headaches. After the Veteran has had adequate opportunity to respond, all remaining appealed issues must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel