Citation Nr: 18106940 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 14-09 466 DATE: June 1, 2018 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. Service connection for insomnia is granted. An increased rating in excess of 10 percent for a tender scar of right heel is denied. REMANDED Entitlement to service connection for Raynaud's disease is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to a higher initial rating in excess of 20 percent for right Achilles tendonitis with exostoses and plantar fasciitis is remanded. Entitlement to a higher initial rating in excess of 20 percent for left Achilles tendonitis with exostoses and plantar fasciitis is remanded. Entitlement to special monthly compensation based on the need for aid and attendance or housebound status is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Currently diagnosed PTSD is etiologically related to the Veteran’s in-service stressor. 2. Currently diagnosed insomnia is due to or aggravated by service-connected tinnitus and PTSD. 3. The Veteran has one stable, painful surgical scar on the right heel. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). 2. The criteria for service connection for insomnia, claimed as secondary to a service-connected disability, have been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 3. The criteria for an increased rating, in excess of 10 percent, for a right heel scar have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1963 to May 1965. The Veteran testified at a May 2017 Board videoconference hearing. The hearing transcript is of record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 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). 1. Entitlement to service connection for PTSD In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran’s military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154 (a) (2012); 38 C.F.R. § 3.304 (f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran “engaged in combat with the enemy.” Id. If VA determines that a veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the veteran’s lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (f). No further development or corroborative evidence is required, provided that the claimed stressor is “consistent with the circumstances, conditions, or hardships of the veteran’s service.” Id. If, however, VA determines that the veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the veteran’s lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the veteran’s testimony or statements. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff’d on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(3). The Veteran contends that currently diagnosed PTSD is related to an assault in service, or is alternately related to his fears during the Cuban missile crisis. With regard to the in-service assault, the Veteran reported in a December 2014 statement that it occurred while he was aboard the U.S.S. Sperry in 1964. He reported that while he was cleaning, a fellow shipmate, T.C., came up behind him and hit him on the right side of the face, and when he was on the ground, kicked him repeatedly. He reported having his teeth knocked out, right side vision loss, and neck and back problems. In an April 2015 statement, during his VA examination, and in May 2017 hearing testimony, the Veteran reported that service treatment records were wrong in identifying a fall down the stairs in January 1964, and reported instead that treatment was for the assaulted with injury to the head, neck and back. He indicated that the incident appeared to have been covered up in service. Service treatment records show that in January 1964, while the Veteran was stationed aboard the U.S.S. Sperry, reported to sick bay after he fell down a ladder causing injury. He was seen with a contusion on the left cheek. Hand-written clinical notes from the same incident show that the Veteran fainted in the treatment room dock. On examination, he had a large edema on the left side of the face. The written report appeared to be incomplete. In February 1964, the Veteran was seen for a left maxilla complaint and had a root canal of teeth 9, 10, and 11. While complaints in service do not match the Veteran’s description of injuries sustained in the assault in service, as injury was shown to be to the left side of the face and left maxilla, rather than the right, with no lost teeth and no eye, neck, or back complaints, service treatment records from that day also appear to be incomplete, and somewhat inconsistent in identifying injury due to a fall down the stairs versus fainting. Resolving reasonable doubt in the Veteran’s favor, the Board finds that service treatment records identifying an injury to the left cheek and subsequent dental treatment to the teeth of the left maxilla tend to support the Veteran’s report of sustaining physical injury during an assault in service. The Board finds that the Veteran has a current diagnosis of PTSD, rendered by a VA psychologist and finds that PTSD has been shown to be related to his in-service assault. See 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA treatment records and an April 2016 VA psychiatric examination show the Veteran has a current diagnosis of PTSD. The VA examiner did not provide an opinion addressing the etiology of PTSD. However, the Veteran’s initial December 2014 diagnosis of PTSD was provided based on his reported in-service stressors, and the VA psychiatrist stated that he had PTSD symptoms related to a military assault and fear of annihilation during the Cuban missile crisis. Additionally, a May 2016 opinion signed by two of the Veteran’s treating psychologists relate his PTSD diagnosis to the physical assault described in service. The opinion was based on the diagnosis of PTSD, his PLC-5 score, and the witnessed emotional response of the Veteran when he discussed the event, which was reported to be genuine. The Board finds that the opinions provided by the Veteran’s treating VA mental health providers are probative. Thus, resolving reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for PTSD. 2. Entitlement to service connection for insomnia Service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). 38 C.F.R. § 3.310 (b) provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury. These evaluations of baseline and current levels of severity are to be based upon application of the corresponding criteria under the VA rating schedule for evaluating that particular nonservice-connected disorder. The Veteran contends that insomnia is secondary to service-connected tinnitus. An April 2016 VA psychiatric examination identifies a current diagnosis of insomnia secondary to tinnitus. The VA examiner opined based on examination that insomnia was secondary to tinnitus. In a supplemental April 2016 opinion, the examiner opined that insomnia was at least as likely as not proximately due to or the result of the Veteran’s service-connected condition, reasoning that his sleep related impairments were further complicated by chronic physical and mental health conditions. The weight of the evidence shows that currently diagnosed insomnia is due to or aggravated by service-connected tinnitus and PTSD. Accordingly, service connection for insomnia is granted. Increased Rating 3. Entitlement to an increased rating in excess of 10 percent for a right heel scar. The Veteran’s right heel scar is evaluated 38 C.F.R. § 4.118, Diagnostic Code 7804 (2018). Diagnostic Code 7804 contemplates scars that are unstable or painful. A 10 percent disability rating is assigned for one or two scars that are unstable or painful. 38 C.F.R. § 4.118. A higher 20 percent rating is assigned with three or four scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note 1. If one or more scars are both unstable and painful, an additional 10 percent is to be added to the evaluation based on the total number of unstable or painful scars. Id. at Note 2. Diagnostic Code 7805 provides that other scars (including linear scars), not otherwise rated under Diagnostic Codes 7800-7804, in addition to the other effects of scars which are otherwise rated under Diagnostic Codes 7800-7804, are also to be rated based on any disabling effects not provided for by Diagnostic Codes 7800-7804. This includes, where applicable, diagnostic codes pertaining to limitation of function. 38 C.F.R. § 4.118. The Board finds that the Veteran has one painful, stable surgical scar located on the right heel. Service connection was initially granted in a December 2007 rating decision for a tender, well healed, four-centimeter long surgical scar on the posterior aspect of the right heel. The RO construed an April 2016 claim for an increased rating for Achilles tendonitis to include a claim for an increased rating for the right heel scar. A July 2016 VA examination identified a scar in the area of the right Achilles tendon. Additional scars of the right middle to lower leg and left middle to lower leg from a venous surgery were stated to be unrelated to his service-connected Achilles tendonitis and scar. The VA examiner reported that the service-connected scar was not painful or unstable (involving frequent loss of covering of the skin of the scar), and did not have a total area equal or greater than 39 square centimeters. During May 2017 Board hearing testimony, the Veteran reported that the scar continued to hurt. He reported some limitation of motion in the ankle, which the Board notes he is already rated for in conjunction with his Achilles tendonitis. He reported that the scar was painful, and reported that it became inflamed when it rubbed against his shoes. The Veteran is currently in receipt of a 10 percent rating under Diagnostic Code 7804, assigned for one scar which is painful. A July 2016 VA examination shows that the Veteran’s right heel surgical scar is not unstable, with no skin breakdown or ulcerations shown on examination. While the Veteran provided credible testimony with regard to pain and inflammation in the area of the scar, the Board finds that a higher 20 percent rating is not warranted under Diagnostic Code 7804 where the Veteran’s scar is not shown to be both unstable and painful. See 38 C.F.R. § 4.118. The Board finds that a separate or higher rating is not warranted under Diagnostic Code 7801 and 7802, where the Veteran’s scar is not shown to be deep with underlying soft tissue damage, where his scar is shown to be linear, and covers an area of less than 144 square inches. See 38 C.F.R. § 4.118. Moreover, the Board finds that any functional limitations shown in the area of the Achilles tendon related to the scar have already been considered by his rating under Diagnostic Code 5010-5271 for Achilles tendonitis. See 38 C.F.R. § 4.118, Diagnostic Code 7805. For these reasons, the Board finds that the criteria for an evaluation in excess of 10 percent for the service-connected right heel have not been met or approximated. REASONS FOR REMAND 1. Entitlement to service connection for Raynaud's disease is remanded. VA treatment records identify a diagnosis of Raynaud’s disease in 1989. However, during a May 2017 Board videoconference hearing, the Veteran reported that he was treated for Raynaud’s disease just after service separation at the VA Medical Center in Ann Arbor, Michigan. Accordingly, a remand for outstanding VA treatment records is warranted. 2. Entitlement to service connection for a back disability is remanded. The Veteran testified in May 2017 that he received treatment for his back at the VA Medical Center in Ann Arbor, Michigan since his separation from service in 1965 through the early 1990s. He contends in a March 2016 statement that his back disability is secondary to his service-connected Achilles tendonitis. While the Veteran was afforded a VA examination in April 2016, the opinion only addressed the cervical spine, and did not address the question of secondary service connection. Accordingly, a remand for outstanding VA treatment records and a supplemental medical opinion is warranted. 3. Entitlement to an increased rating for Achilles tendonitis with exostoses and plantar fasciitis, right and left, is remanded. While a July 2016 VA examination of the ankles addressed the current severity of Achilles tendonitis, he was not afforded a foot examination to address the severity of planter fasciitis and exostoses, or heel spurs, shown on x-rays. Accordingly, a remand for a VA examination of the bilateral feet is warranted. 4. Special monthly compensation based on the need for aid and attendance or housebound status is remanded. While the record includes a VA aid and attendance examination and an examination submitted by the Veteran’s VA physician, the examinations do not differentiate the Veteran’s impairment due to his service-connected versus non-service connected conditions, which include COPD, syncope, and peripheral neuropathy. Accordingly, the Board finds that a supplemental medical opinion is necessary to address whether the Veteran requires the aid and attendance of another individual solely as the result of his service-connected disabilities. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is remanded. The Board has granted service connection for PTSD and insomnia. The Board finds that a supplemental medical opinion is necessary to address the Veteran’s functional limitations due to his combination of service-connected physical and psychiatric disabilities. While a vocational opinion of record identifies current unemployability, the opinion addressed the effects of a combination of service-connected and nonservice-connected disabilities in its rational. Moreover, the Board finds that the appeal for a TDIU is inextricably intertwined with the service connection and increased rating claims that are being remanded. The matters are REMANDED for the following action: 1. Evidence indicates that there may be outstanding relevant VA treatment records from the VA Medical Center in Ann Arbor Michigan dated from 1965 to 1995. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. 2. Obtain an addendum opinion from an appropriate clinician regarding: (a) whether a currently diagnosed cervical, thoracic, and/or lumbar spine disability is at least as likely as not related to service, to include a reported assault in service. (b) whether a currently diagnosed cervical, thoracic, and/or lumbar spine disability is at least as likely as not, proximately due to service-connected Achilles tendonitis with exostoses and plantar fasciitis, or aggravated beyond its natural progression by the service-connected disability. 3. The Veteran should be provided an opportunity to report for a VA foot examination to ascertain the current severity and manifestations of plantar fasciitis and exostoses associated with service-connected Achilles tendonitis. 4. Obtain an addendum opinion from an appropriate examiner to address whether the Veteran requires the aid and attendance of another individual to perform activities of daily living solely as the result of his service-connected disabilities, and whether he is permanently housebound due to his service-connected disabilities. 5. Develop the claim for a TDIU, to include obtaining a VA examination or addendum opinion to address the Veteran’s occupational or functional limitations due to his service-connected physical and psychiatric disabilities. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christine C. Kung, Counsel