Citation Nr: 20005154 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 08-13 208 DATE: January 23, 2020 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to a rating in excess of 10 percent for service-connected residuals of a right ankle fracture is denied. REMANDED Service connection for a stomach disability, to include due to exposure to contaminated water at Camp Lejeune is remanded. FINDINGS OF FACT 1. The Veteran’s PTSD is related to an in-service personal assault. 2. The Veteran’s residuals of a right ankle fracture are manifested by moderate limitation of motion. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have been satisfied. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). 2. The criteria for entitlement to a rating in excess of 10 percent for service-connected residuals of a right ankle fracture have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1977 to November 1982; however, his period of service beginning September 30, 1980 is considered dishonorable for purposes of VA benefits and cannot be considered in this determination. In October 2019, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In January 2010, October 2011 and August 2017 the Board of Veterans’ Appeals (Board) remanded the issues on appeal for additional development. The issues have now been returned to the Board for appellate review. Service Connection for PTSD The Veteran contends his PTSD is due to an in-service personal assault during his first period of active duty service from which he received an honorable discharge. He contends he was assaulted in his sleep by fellow service-members, and that as a result his behavior changed leading to a request to change duty stations, periods of absence without leave and an other than honorable discharge during his second period of active duty. Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the condition; (2) credible supporting evidence that the claimed inservice stressor occurred; and, (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). Lay testimony alone can establish the occurrence of the claimed in-service stressor in certain circumstances, which include: when PTSD is diagnosed during service and the claimed stressor is related to that service, when the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, when the stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and certain other conditions are met, and when the veteran was a prisoner-of-war and the claimed stressor is related to that prisoner-of-war experience. Id. In other cases, the claimed stressor must be corroborated by credible supporting evidence. In addition, there are special evidentiary procedures for PTSD claims based on personal assault. Patton v. West, 12 Vet. App. 272, 278 (1999). In personal assault cases, 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, 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). Service personnel records reflect in May 1982 and September 1982 the Veteran was absent without leave (AWOL) for a total period of 151 days. The Veteran requested separation in lieu of court martial and was separated under other than honorable conditions in November 1982. In a January 2011 statement the Veteran reported the in-service personal assault by other service members while he was asleep. He reported he hid in a friend’s car after the attack and reported the incident to his First Sergeant. He stated that in January 1981 he was attacked while eating at a restaurant. He reported increased absence without an apparent reason as documented by periods of AWOL. He stated he started drinking excessively and quit caring about anything anymore. He reported that prior to this event he was an exceptional Marine and had been promoted to Sergeant within two years of service and had honorable service. The Veteran stated he had severe problems with depression and that he would have panic attacks. He stated his substance abuse increased to include illicit drugs. The Veteran reported he was referred to a psychiatrist during military service and that he had problems with his wife. In December 2010 the Veteran underwent psychological evaluation pursuant to his Social Security Administration disability claim. He was interviewed and given a mental status examination. The treatment provider reviewed the Veteran’s Department of Veterans Affairs (VA) medical center records. The Veteran reported he has not been able to sleep more than 4 hours in the last 30 years and recounted being assaulted during military service. He reported being attacked at Camp Lejeune two years into his tour of duty while asleep in his barracks. He reported requesting a transfer and was transferred to San Diego in 1979. He reported a second attack the following year and that afterwards his military career deteriorated. He stated he did not know what happened after that, that he did not want to go anywhere or do anything and he ended up going AWOL and being dishonorably discharged. The Veteran reported a third assault in 1981. The Veteran stated that after the first assault he started drinking heavily on weekends and continued to do so until 1998. He reported two driving under the influence arrests in the 1990s, the second of which resulted in 5 days in jail. The Veteran indicated he continues to experience symptoms related to the assaults. As to the first assault he reported he sees the face of one of the attackers occasionally when he first wakes from a nightmare and reported seeing occasional darting shadows in his peripheral vision. The treatment provider diagnosed PTSD. He stated the Veteran’s PTSD has probably existed for some time. In multiple lay statements the Veteran has recounted the details of the assaults during his military service. See January 2011 Statement and November 2013 Notice of Disagreement. Upon review, the Board finds that the Veteran has consistently and credibly reported the details of his alleged in-service stressor and that there is sufficient credible supporting documentation for the Veteran’s assertions that he experienced personal assaults during active duty. See 38 C.F.R. § 3.304(f)(5). For example, the Veteran reenlisted early to change duty stations and later went AWOL leading to an other than honorable discharge. With respect to a link between the Veteran’s current symptomatology and the in-service stressor, although a VA examination was not conducted in conjunction with the Veteran’s claim, the December 2010 private psychologist reported the Veteran experiences symptoms of PTSD due to the in-service personal assaults. The Board acknowledges that two of the personal assaults reported by the Veteran occurred during an ineligible period of active duty for service connection. However, the treatment provider did not distinguish which personal assaults led to the Veteran’s current PTSD. Further, the record reflects the Veteran reported changes in his behavior after the first assault, namely that he began drinking heavily on weekends. He reported after the assaults his behavior changed and he eventually went AWOL and was dishonorably discharged. The record supports the Veteran’s periods of AWOL and discharge under other than honorable conditions in lieu of court martial. There is no medical evidence that weighs against the claim for service connection. Resolving the benefit of the doubt in favor of the Veteran, the Board finds the Veteran’s PTSD, is related to military service. Therefore, service connection for PTSD is warranted. See 38 U.S.C. § 5107(b). Increased Rating for Right Ankle Fracture Residuals The Veteran contends that he is entitled to a higher rating for his right ankle fracture. The Veteran’s right ankle fracture is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. According to MERRIAM WEBSTER, “moderate” means “tending toward the mean or average amount or dimension”. See www.merriam-webster.com/dictionary/moderate. “Marked” means “having a distinctive or emphasized character”. See www.merriam-webster.com/dictionary/marked. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran underwent VA examination in December 2006 to evaluate the severity of his right ankle disability. The Veteran reported he can do all daily activities of eating, bathing, grooming, toileting, and dressing. He reported he is stable on his feet without any trauma or falls. He reported there is no mechanical pain in the ankle instead it is stiff and is sore. He reported cracking of the ankle in cool weather. He reported he has no rotation in the ankle but is very stable and he did not use any assistive devices. He reported taking no medication and he denied swelling. The VA examiner stated objective examination revealed no swelling, deformity, or discoloration in the ankle. He reported the Veteran stands and sits normally and has normal gait. He reported the achilles has normal alignment and is nontender to palpation and strength for dorsiflexion and plantar flexion were normal. The Veteran had no instabilities to anterior drawer testing. On examination, range of motion was from 20 degrees of dorsiflexion to 45 degrees of plantar flexion. There was hardly any motion for talar tilt. The examiner reported that it is within reason to believe that the Veteran would lose between 10 to 15 degree of his range of motion, strength, coordination, and fatigability associated with repetitive movement flares. He reported he did not believe this would cause the Veteran any alterations in the sedentary position that he currently has or with his home life. During VA examination in November 2012 the Veteran reported pain with walking and standing. The Veteran denied flare-ups affecting the ankle. Range of motion was from 5 degrees of dorsiflexion to 35 degrees of plantar flexion. In a March 2013 addendum the VA examiner stated the Veteran’s x-rays do not show arthritis or deformity. He stated the range of motion in his right ankle and the unaffected left ankle are the same and reported his right and left ankles were functionally equivalent during the examination. The examiner stated that with the currently available information the Veteran’s right ankle residual problem would be considered mild, with more significant problems and limitations caused by his bilateral foot pain. During VA examination in July 2018 the Veteran endorsed right ankle pain and swelling. He reported flare-ups with prolonged weight-bearing and reported he can only walk about 150 feet before stopping. After repetitive use testing, range of motion was from 10 degrees dorsiflexion to 25 degrees plantar flexion. This was also the examiner’s estimate for range of motion after repetitive use over time or during a flare-up. Joint stability testing was normal. The examiner reported the Veteran would have difficulty with any work that required extensive weight-bearing activity. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the residuals of the Veteran’s right ankle fracture as the disability is no more than moderate in degree. Notably, the March 2013 addendum opinion describes the residuals of the right ankle fracture as mild. The Board acknowledges the Veteran’s lay reports of symptoms and that there was swelling and functional loss due to pain and with flare-ups. See May 2007 Notice of Disagreement. The Veteran’s statements were considered by examiners and range of motion estimates after repetitive use over time or during flare-up have been provided and show that the right ankle is at most limited to 25 degrees plantar flexion and 5 degrees dorsiflexion. See November 2012 and July 2018 VA examinations. Simply stated, the evidence of record does not support finding the Veteran’s right ankle fracture results in marked limitation of motion, and instead they more nearly approximate moderate limitation of motion. The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 10 percent for the residuals of a right ankle fracture. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND The record reflects outstanding VA treatment records relevant to the Veteran’s claim for service connection. An October 1979 service treatment record indicates the Veteran reported that 10 months prior he was hospitalized for 12 days at a VA Hospital in Fort Harrison in Helena, Montana for abdominal pain and that he was diagnosed with shigellosis. Remand is warranted to associate the outstanding treatment records with the claims file. The matter is REMANDED for the following action: Associate with the claims file the treatment records from the VA Hospital at Fort Harrison in Helena, Montana identified by the Veteran during his period of active duty service (reported as a hospitalization in late 1978 or early 1979). If it is determined that records are unavailable, the Veteran should be properly notified of this fact. See 38 C.F.R. § 3.159(c)(2), (e). Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Gonzalez, 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.