Citation Nr: 1808543 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 09-37 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected bilateral knee disabilities, low back condition, and bilateral ankle conditions. 3. Entitlement to service connection for a bilateral foot disability to include as due to service-connected bilateral knee disabilities, low back condition, and bilateral ankle conditions. 4. Entitlement to service connection for diabetes mellitus, type II. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Coyne, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1995 to February 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which denied service connection for the above-listed conditions. In April 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing held at the Seattle RO. A copy of the hearing transcript is of record. The Board then remanded the claims for additional development in July 2015, and again in January 2017, and the appeal has now been returned to the Board for further adjudication. The Board notes that although the National Association for Black Veterans, Inc. was previously representing the Veteran, the Veteran submitted a statement revoking her appointment of that organization as her representative. As the Veteran has not indicated that she wants or is pursuing other representation at this time, the Board will proceed to adjudicate the Veteran's appeal. The issues of entitlement to service connection for a bilateral hip and foot conditions are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's PTSD is related to her reported in-service stressor. 2. The Veteran's diabetes mellitus, Type II was not incurred in, is not related to, and was not diagnosed within one year of separation from active duty service. CONCLUSIONS OF LAW 1. Affording the Veteran the benefit of the doubt, the Veteran's PTSD meets the criteria for entitlement to service connection. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304(f) (2017). 2. The Veteran's diabetes mellitus does not meet the criteria for entitlement to service connection. 38 U.S.C. §§ 1101, 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist The July 2015 remand directives specifically asked that the Veteran's July 1998 glucose intolerance be addressed. An April 2017 etiology opinion based upon a review of the Veteran's claims file, to include a March 2017 Disability Benefits Questionnaire (DBQ) did not specifically comment on the July 1998 glucose intolerance diagnosis but thoroughly discussed in-service laboratory results and the criteria for diagnosis of diabetes mellitus, Type II as well as the Veteran's in-service diagnosis of gestational diabetes. When the Board remands a claim to the RO it has a duty to ensure substantial compliance with the directives contained in that remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Strict compliance, on the other hand, is not required. See id. Accordingly, if evidence is procured in a manner that deviates from the a prior remand, so long as the Board acknowledges the deviation and makes specific findings as to the reliability of the evidence despite the deviation, and those findings are supported by sufficient rationale, the Board may rely on that evidence. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008). As the foregoing applies to the facts of this case, the Board finds that because the April 2017 etiology opinion otherwise addressed the Veteran's relevant in-service laboratory findings, and the Veteran's service treatment records indicate that a diagnosis of diabetes mellitus, Type II was affirmatively ruled out by the Veteran's July 1998 diagnosis of glucose intolerance, the April 2017 etiology opinion is substantially compliant with the Board's July 2015 remand directive. The Veteran has not raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott, 789 F.3d 1375, to a duty to assist argument). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders, 556 U. S. 396 (2009). II. Entitlement to Service Connection The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. Additionally, when the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C. §5107 (b); 38 C.F.R. §§ 3.102, 4.3 (2016). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. See id. Service connection may be granted for a disability resulting from disease or injury that is incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To establish service connection for the claimed disorder, the three following criteria must be met: (1) medical 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) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). For the first criterion of a service connection claim, a disability is considered current so long as it exists at the time the claim is filed or during the pendency of the appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Additionally, VA has identified certain chronic diseases for which medical nexus may be presumed if certain criteria are met; diabetes mellitus and psychoses are such chronic diseases. 38 C.F.R. §§ 3.303(a), (b), 3.309(a). Accordingly, for the purposes of presumptive nexus, the third criterion requiring a nexus between the in-service, event, disease or injury and the claimed disability may be satisfied in one of two ways. First, the nexus element may be satisfied by evidence that the chronic disease at issue here manifested itself to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309. Or, alternatively, the Veteran may show entitlement to service connection by demonstrating a continuity of symptomology after discharge. 38 C.F.R. § 3.303(b); see generally Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Below the Board will apply the foregoing legal framework to the Veteran's PTSD and diabetes mellitus, Type II claims. A. PTSD Service connection for PTSD specifically requires medical evidence to include: (1) diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). Additionally, in PTSD cases in which, as here, the veteran asserts personal assault as the in-service stressor, VA has provided for special evidentiary-development procedures, including interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis. See Patton v. West, 12 Vet. App. 272, 280 (1999). Moreover, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) observed that 38 C.F.R. § 3.304(f)(5) specifically states that a medical opinion may be used to corroborate a personal-assault stressor, noting "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the United States Court of Appeals for Veterans Claims (Court/CAVC) erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor); see also Patton v. West, 12 Vet. App. 272, 280 (1999) (rejecting the requirement that "something more than medical nexus evidence is required for 'credible supporting evidence'" in personal-assault cases). In this case the Veteran has provided Board hearing testimony and several detailed lay statements, including an October 2015 lay statement, regarding a platoon sergeant who chased her around her room and "played touchy feely" trying to get her to have sex with him after a field day inspection. She has stated that after she refused, she got negative write-ups; she did not report her issue because she felt that she would have had more issues, and eventually realized saying no did not do her any good. She also stated that during weight control, she had to give blowjobs to keep within weight standards even when she did meet the weight standards. Additionally, she reported that at one point her car was broken into, and while she was waiting for the cops, another Marine pulled up and tried to force her at gunpoint to get into his car; she refused, and informed him the police were on the way, and the Marine left. Finally, she reported that she was generally harassed by other Marines in the barracks, and that on a couple of occasions when she went out with other Marines to parties, despite the fact that she did not drink, she woke up with no memories of the night before and would be sore as if she had been having sex, but did not report anything because she could not be sure. She indicated that she was accused of bad behavior in the barracks during the same time that the platoon sergeant treated her unfairly. At her hearing she stated that she did not confide in anyone about these issues because she did not think anyone would believe her and she was ashamed and embarrassed. She reported that she fell into a pit of depression, became sexually prolific, and started drinking a considerable amount of alcohol as a way to prevent herself from feeling like a victim. She identified a particular commanding officer who noticed that she was depressed and took her under his wing after her original commanding officer was transferred, but she reported that she did not stay in contact with him. Her October 2015 lay statement and Board hearing testimony are consistent with her initial statement in support of her claim that was submitted in February 2007. At the Veteran's March 2017 VA examination she stated that her sergeant had made several unwanted sexual advances on her and had sexual assaulted her. The Veteran's personnel records document that she was formally put on a weight control program in 1998 and her service treatment records also denote some weight control issues. The Veteran's personnel records also document that the Veteran was not promoted in February 1996, due to showing up late for formation; there are no other negative formal actions regarding the Veteran's performance contained in her personnel records. The March 2017 VA examiner noted that there was no documented history that the Veteran had sought help for mental health issues, but diagnosed her with PTSD based on the reported stressor of multiple sexual assaults during her active duty military service, and recommended that she seek follow up treatment. He also diagnosed her with mild alcohol abuse disorder, persistent depressive disorder related to her PTSD, and borderline personality disorder. However, the examiner provided a separate opinion as to whether it was "at least as likely as not" that the claimed stressor actually occurred. Addressing this opinion, the examiner explained that he could not provide a positive medical etiology opinion because there is no medical documentation during active duty service that she sought psychiatric help or otherwise complained about the sexual assault. However the examiner explained that her symptoms occurred during service and after she left the service and that it was therefore possible that her PTSD is related to service. The Board notes that the Veteran has provided specific lay evidence as to why she did not report the sexual assaults that form the basis of her PTSD diagnosis that is consistent throughout her lay statements and Board hearing testimony. There is no evidence of record contradicting or otherwise undermining the credibility of her lay evidence. Accordingly, as the Veteran's description of her PTSD stressor has been consistent over time, and the Veteran has been diagnosed with PTSD with persistent depression on the basis of that stressor, the Board finds that affording the Veteran the benefit of the doubt, entitlement to service connection is warranted. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304(f) (2017). B. Diabetes Mellitus, Type II The Veteran's service treatment records reveal that the Veteran was found to be glucose intolerant in July 1998, but that a diagnosis of diabetes mellitus was ruled out. Prior to this October 1997 testing showed hemoglobin A1C within normal range. Based on the Veteran's family history of diabetes, it was recommended to her that she watch for symptoms closely and engage in diet management. After the Veteran became pregnant she was diagnosed with gestational diabetes in May 1999. She gave birth in November 1999. Her December 1999 separation physical noted a history of gestational diabetes and that she was six weeks postpartum. June and September 1999 test results indicated that the Veteran's hemoglobin A1c results were 6.0 H percent and 5.5 H percent respectively. At her Board hearing, the Veteran indicated that she cannot remember when she was initially diagnosed with diabetes mellitus, Type II. The January 2013 VA examiner diagnosed the Veteran with diabetes mellitus. Another VA examination was provided in March 2017, which confirmed the Veteran's diagnosis of diabetes mellitus, Type II, and an etiology opinion was provided in April 2017. The examiner provided a negative etiology opinion predicated on the following observations: (1) the Veteran's A1c values during service did not meet the criteria for diabetes mellitus, Type II; (2) although she was diagnosed with gestational diabetes, medical studies indicate that the vast majority of cases of gestational diabetes resolve following birth, that there is no evidence to suggest that her gestational diabetes converted to long-standing diabetes mellitus after she gave birth; (3) and that there was little evidence that her A1c levels had ever met the diagnostic criteria for diabetes mellitus following her separation from active duty service. There are no other post-service medical records in the claims file with regard to the Veteran's diabetes mellitus, Type II. Based on the foregoing evidence, the Board finds that there is insufficient evidence to support a finding of medical nexus. In this regard, the Board notes, that the negative April 2017 etiology opinion provided was based on a thorough review of the claims file, a March 2017 in-person interview, and a detailed discussion of the Veteran's service treatment records and laboratory findings and the diagnostic criteria for diabetes mellitus, Type II. Additionally, the examiner also addressed the Veteran's in-service diagnosis of gestational diabetes, including medical studies that indicate that the vast majority of gestational diabetes resolves after childbirth and the lack of medical evidence suggesting that the Veteran's gestational diabetes was an exception. Moreover, the Veteran has not been able to clearly identify an approximate date of onset for her diabetes mellitus, Type II as she cannot remember when she was diagnosed. Accordingly, there is insufficient evidence of in-service incurrence and medical nexus sufficient to satisfy the second and third elements of service connection, and there is also insufficient evidence to establish continuity of symptoms or diagnosis within one year of separation from active duty service. Accordingly, an award of entitlement to service connection for diabetes mellitus, Type II is not warranted here. 38 U.S.C. §§ 1101, 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 3.306 (2017). ORDER Entitlement to service connection for posttraumatic stress disorder is granted. Entitlement to service connection for diabetes mellitus, Type II is denied. REMAND Unfortunately, due to reasons that follow, a remand is required. Although the Board regrets this delay, it is necessary to ensure the Veteran is afforded adequate claim development assistance. A review of the claims file reveals that the Veteran has raised additional theories of entitlement to service connection for her bilateral hip condition and bilateral foot condition as secondary to her service-connected bilateral ankle disability and lumbar spine disability. Accordingly, remand of these claims is required for provision of addendum opinions addressing these theories of entitlement. Additionally, with respect to the Veteran's bilateral foot claim, the Board notes that the July 2015 remand decision specifically directed the AOJ to address January 2013 VA examination report findings with regard to the presence of an old fracture. However, the March and April 2017 VA examination reports do not address this finding and the March 2017 Disability Benefit Questionnaire (DBQ) does not include imaging results and does not discuss the January 2013 diagnosis of right foot arthritis. Accordingly, on remand a supplemental opinion addressing the January 2013 VA examination findings and right foot arthritis diagnosis should be procured. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran's claims file to an appropriate clinician for supplemental etiology opinions with regard to the Veteran's bilateral foot conditions. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a. If a new examination is warranted, the examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. The examiner should provide the following opinions: i. Whether it is at least as likely as not (50 percent or greater probability) the Veteran's right foot degenerative arthritis: (1) began during active service; (2) is related to any in-service event or injury; or (3), manifested within one year of active duty service. In providing this opinion, the examiner should discuss the January 2013 VA examination findings with regard to the presence of an old fracture. ii. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left and right foot disorders are proximately due to or the result of her service-connected bilateral ankle disability. iii. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left and right foot disorders have been aggravated beyond their natural progression by her service-connected bilateral ankle disability. iv. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left and right foot disorders are proximately due to or the result of her service-connected lumbar spine disability. v. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left and right foot disorders have been aggravated beyond their natural progression by her service-connected lumbar spine disability. c. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 2. Provide the Veteran's claims file to an appropriate clinician for supplemental etiology opinions with regard to the Veteran's bilateral hip conditions. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a. If a new examination is warranted, the examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. The examiner should provide the following opinions: i. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left and right hip disorders are proximately due to or the result of her service-connected bilateral ankle disability. ii. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left and right hip disorders have been aggravated beyond their natural progression by her service-connected bilateral ankle disability. iii. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left and right hip disorders are proximately due to or the result of her service-connected lumbar spine disability. iv. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left and right hip disorders have been aggravated beyond their natural progression by her service-connected lumbar spine disability. c. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 3. The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. After undertaking any necessary additional development, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs