Citation Nr: 20002502 Decision Date: 01/14/20 Archive Date: 01/10/20 DOCKET NO. 17-35 711 DATE: January 14, 2020 ORDER Entitlement to service connection for post-traumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a compensable rating for service-connected residuals of a scar of the left fifth finger is remanded. Entitlement to an increased rating greater than 10 percent for service-connected osteoarthritis of the left hand with post-traumatic changes of the left little finger is remanded. FINDING OF FACT The evidence of record favors a finding that the Veteran’s PTSD is related to an in-service assault. CONCLUSION OF LAW The criteria for service connection for post-traumatic stress disorder (PTSD) have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from October 1975 to October 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. A hearing was conducted via videoconference in October 2019 before the undersigned Veterans Law Judge, with the Veteran and his representative present. A transcript of the hearing has been associated with the file. Entitlement to service connection for post-traumatic stress disorder (PTSD) is granted. By way of background, in March 2014, the agency of original jurisdiction (AOJ) initially denied the Veteran’s service-connection claim for PTSD, in pertinent part based on an inability to verify the Veteran’s in-service stressor(s). See Rating Decision ( Mar. 2014 ). However, VA treatment records submitted within one year of the rating decision included diagnoses of PTSD, and statements from the Veteran’s physician associating PTSD symptoms with the Veteran’s military service. The Board finds that this is new and material evidence under the provisions of 38 C.F.R. § 3.156(b). For this reason, this initial claim is still on appeal, and no reopening is required. 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) (2019). To establish entitlement 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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) (2019). To establish service connection for PTSD, the evidence of record must include a medical diagnosis of the condition; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2019). At the outset, the Board is mindful that veterans claiming service connection for PTSD due to personal assault face unique problems documenting their claims. Since assault is an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, and victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. Accordingly, the regulations governing PTSD provide that where a claim is based on an in-service personal assault, evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a 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 behavior changes. 38 C.F.R. § 3.304(f)(5) (2019). Unlike in other PTSD claims, in PTSD claims based on personal assault, an after-the-fact medical opinion can serve as credible supporting evidence of the stressor. See Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011). The Veteran alleges that his psychiatric disorder is due to physical assaults from other service members while covered in a blanket while undergoing basic training at Parris Island, South Carolina, in 1975, see Form VA 21-0781a ( Dec. 2014 ), as well as physical abuse inflicted by the Veteran’s drill instructor. See Hearing Tr. (Oct. 2019), at 11-12. With respect to changes in behavior, the Veteran testified at his hearing that he suffers from nightmares, routinely wakes up at night to check that his doors are locked, has been unable to maintain steady personal relationships or gainful employment (aside from as-needed construction work for his father’s longtime employer), has been incarcerated on multiple occasions (but never longer than 90 days at a time), was once dependent on drugs and alcohol, exuded suicidal ideations until approximately 2002, and continues to sleep in his clothes—as a result of being assaulted for not changing into his military uniform fast enough. See, generally Hearing Tr. (Oct. 2019), at 17-20. The Board observes that the Veteran was abcent without leave (AWOL) for two days in May 1976, was subsequently reassigned from the military occupational specialty of “rifleman (0311)” to “cook (3371)” in January 1977, and was once counseled concerning “borderline performance of duties and lack of motivation to perform the simplest of assigned tasks” in October 1977. The Veteran’s military personnel records, with accordant deteriorations in work performance, appear to demonstrate in-service changes in behavior. See also, generally, Military Personnel Record (“ Offenses and Punishments ”). Additionally, the Board is in receipt of an opinion from Dr. I.R.M., the Veteran’s longtime psychiatrist at his local VA treatment center. See Letter from Dr. I.R.M. ( Mar. 23, 2015 ); Hearing Tr. (Oct. 2019) at 15. The Board finds Dr. I.R.M.’s diagnosis of the Veteran’s PTSD under the DSM-5, and her after-the-fact medical opinion—to corroborate his personal assault stressors—credible, and with more than 10 years of treatment, the Board deems Dr. I.R.M. competent to link the Veteran’s in-service PTSD stressors to his current PTSD symptoms. See also VA Examination by Dr. I.R.M. (May 29, 2014). The Board places a high probative value on Dr. I.R.M.’s assessments. Moreover, the Veteran’s account of the assault has been consistent since he began speaking about it, both for treatment purposes and in furtherance of his claim for benefits with VA. In this connection, the Board notes that 38 C.F.R. § 3.304(f)(5) allows for VA to submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. This is what VA treating practitioners and physicians have in essence provided, when determining that the Veteran’s claimed assault resulted in the development of PTSD. The Veteran’s PTSD has not been attributed to any other event or injury, and there are no medical opinions of record contrary to those of the VA health care specialist discussed above. In light of the Veteran’s PTSD diagnosis, his uncontradicted and corroborated accounts of physical trauma, and Dr. I.R.M.’s indication that his PTSD is in fact related to his in-service trauma, all elements of service-connection are met, and this benefit sought on appeal is granted. REASONS FOR REMAND 1. Entitlement to a compensable rating for service-connected residuals of a scar of the left fifth finger is remanded. The Veteran is currently service connected for a scar of the left fifth finger, rated noncompensably (zero percent) disabling. As of the Veteran’s last VA examination dated August 2016, the scar measured 2 centimeters long, and the Veteran did not report symptoms of pain. See C&P Examination (Aug. 2016). At his October 2019 hearing however, the Veteran has competently testified that the scar is painful to the touch, and that this has not always been the case. See Hearing Tr. (Oct. 2019), at 9-10. As this may suggest worsening symptoms, an updated VA examination is warranted on remand, to ascertain whether the Veteran is entitled to compensation for his service-connected scar. 2. Entitlement to an increased rating for service-connected osteoarthritis of the left hand with post-traumatic changes of the left little finger is remanded. The Veteran is currently service connected for osteoarthritis of the left hand, with post-traumatic changes of the left little finger, rated at 10 percent disabling. The Veteran has provided competent testimony at his hearing that this disability is in “constant pain, about a 7 [out of 10],” and has gotten worse. See Hearing Tr. (Oct. 2019), at 2-3. For instance, the Veteran reports that he is unable to bear weight, easily pick coins off of a table, manipulate shirt buttons, or make a fist with his left hand. Id. at 2-6. More specifically, the Veteran reports that if he carries weight with his left hand, he is at risk to drop what he was holding. Id. at 5-6. On remand, the Veteran should be scheduled for an updated VA hand and finger examination. The matters are REMANDED for the following action: 1. Associate with the file all outstanding records of VA care. 2. Send the Veteran a letter and ask him to submit, or authorize VA to obtain on his behalf, any records of private treatment for his hand and finger disabilities. All appropriate action should be taken to obtain identified records. 3. Schedule the Veteran for a VA hand and finger examination to assess the severity of his service-connected osteoarthritis of the left hand with post-traumatic changes of the left little finger, as well as his service-connected left fifth finger scar. (Continued on Next Page) 4. Thereafter, and after any further development deemed necessary, the issues on appeal should be readjudicated. If any benefit sought on appeal should be denied, in whole or in part, the Veteran should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate opportunity to respond. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.