Citation Nr: 20052966 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 15-02 944 DATE: August 10, 2020 ORDER Entitlement to an increased evaluation in excess of 10 percent for post traumatic arthritis, right wrist is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for a deviated nasal septum is granted. REMANDED Entitlement to service connection for a right foot condition is remanded. Entitlement to service connection for a left foot condition is remanded. Entitlement to service connection for chronic sinusitis, claimed as a respiratory condition is remanded. FINDINGS OF FACT 1. The Veteran’s limitation of motion of the right wrist has been assigned a 10 percent rating, which is the maximum schedular rating authorized under the applicable criteria; the Veteran does not have ankylosis of the right wrist. 2. Resolving reasonable doubt in the Veteran’s favor, his PTSD is at least as likely as not related to an in-service personal assault. 3. Resolving reasonable doubt in the Veteran’s favor, his deviated nasal septum is at least as likely as not related to an in-service nose injury. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased evaluation in excess of 10 percent for post traumatic arthritis, right wrist have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3. 3.321, 4.71a, Diagnostic Code 5214, 5215. 2. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for entitlement to service connection for deviated nasal septum have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1992 to September 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2011 and January 2015 rating decisions. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in January 2018. In June 2018, the Board remanded the issues for further development. That development was completed, and the case has since been returned to the Board for appellate review. Increased Rating 1. Entitlement to an increased evaluation in excess of 10 percent for post traumatic arthritis, right wrist The Veteran contends the pain in his right wrist warrants a rating in excess of 10 percent. Disability ratings are determined by comparing a veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. “Staged ratings,” or different percentage evaluations for separate periods based on the facts found, may also be awarded. Fenderson v. West, 12 Vet. App. 119, 126-7 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. See generally DeLuca v. Brown, 8 Vet. App. 202 (1995). Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). Where a veteran is receiving the maximum disability rating for limitation of motion, 38 C.F.R. §§ 4.40 and 4.45 are not applicable. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Actually painful, unstable, or malaligned joints due to healed injury are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Joints are to be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if applicable, with the range of the opposite, undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Estimates of additional functional impairment during flare-ups, if any, are also to be recorded, or an explanation with adequate rationale must be given as to why such estimates are not possible. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Ratings for certain disabilities differ depending on whether the extremity being rated is the Veteran’s major (dominant) or minor (non-dominant) extremity. In the case at hand, the Veteran’s right hand is his major hand. Thus, his right wrist will be rated under the criteria for the major extremity. The Veteran is in receipt of a 10 percent rating for limitation of motion of the right wrist pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5215. This diagnostic code provides a maximum 10 percent rating for limitation of motion. Under Diagnostic Code 5214, higher ratings of 30, 40, and 50 percent, for the minor extremity, are available if a veteran experiences ankylosis of the wrist. The evidence of record does not show the Veteran has ankylosis of the right wrist. The May 2019 and July 2019 VA examinations note the Veteran does not have ankylosis of the right wrist. Therefore, a rating under Diagnostic Code 5214 is not warranted. Because the Veteran is receiving the maximum disability rating for limitation of motion, 38 C.F.R. §§ 4.40 and 4.45 are not applicable. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Board again notes that 10 percent is the maximum schedular rating that is available under Diagnostic Code 5215 and notes that the Veteran has not identified any symptoms that are not contemplated by this rating. Thus, a rating in excess of 10 percent is not warranted during this period. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. Service Connection Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 2. Entitlement to service connection for an acquired psychiatric condition, to include posttraumatic stress disorder (PTSD) The Veteran contends that his PTSD is due to an in-service blanket party and seeing a co-worker commit suicide. Generally, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304 (f). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether a veteran engaged in “combat with the enemy.” See Gaines v. West, 11 Vet. App. 353, 359 (1998). If VA determines that a veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor’s occurrence and no further development or corroborative evidence is required, provided that such testimony is found to be “satisfactory,” i.e., credible and “consistent with circumstances, conditions or hardships of service.” See 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (f)(2); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Generally, where a determination is made that a veteran did not “engage in combat with the enemy,” or the claimed stressor is not related to combat, a veteran’s lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence that substantiates or verifies the veteran’s testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If a PTSD claim is based on in-service personal assault, evidence from sources other than a veteran’s service records may corroborate his account of the stressor incident. 38 C.F.R. § 3.304 (f)(5). 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. Id. 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. Moreover, it is well established that if a PTSD claim is based on an in-service personal assault, medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated. Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). Specifically, 38 C.F.R. § 3.304 (f)(5), allows Veterans claiming PTSD from an in-service military assault to submit evidence other than in-service medical records to corroborate the occurrence of a stressor, and this includes medical opinion evidence. Menegassi, 638 F.3d at 1382; see also 67 Fed. Reg. 10,330, 10,330-31 (Mar. 7, 2002). First, the Board notes the Veteran has a current diagnosis. The July 2019 VA examiner diagnosed the Veteran with PTSD including symptoms of anxiety, panic, and depression. VA treatment records dated from February 2014 to January 2019 show the Veteran has been treated for PTSD symptoms. As for element (2), an in-service stressor, the Veteran listed two stressors in his March 2019 Statement in Support of Claim for PTSD. He stated the first stressor occurred in 1992 when he was subjected to a “blanket party” after defending a fellow recruit who had been bullied and harassed by other recruits. He related he was “beat up” while covered with a blanket and suffered a nosebleed. The second stressor occurred in April 1992 when a co-worker and friend of his committed suicide after having been bullied and harassed for being gay. The Board recognizes the efforts undertaken by the RO in an attempt to independently corroborate the Veteran’s stressors. As to the Veteran’s report of having been physically assaulted during military service, he did not provide the names of any individuals that he states assaulted him. In October 2019, the Veteran was sent a request for additional information regarding the suicide victim. The Veteran did not respond. Generally speaking, in-service incidents must be verified by some documentation, through the Veteran’s military personnel records, service treatment records, or other evidence. However, due to the sensitive nature of in-service personal assaults, VA is aware that such incidents frequently go unreported and therefore cannot be confirmed by review of a Veteran’s service treatment records. As such, the Code of Federal Regulations specifically addresses methods of verifying such a stressor. If a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the stressor incident. The Board observes that the Veteran’s description of his stressor event has been generally consistent throughout this appeal and is also consistent with statements made during medical treatment. See, e.g., January 2018 Transcript of Board Hearing; March 2019 Statement in Support of Claim for PTSD. Ultimately, the Board must consider the whole picture in determining whether the Veteran’s reported assault occurred. A lay person is competent to report evidence of which they have firsthand knowledge. 38 C.F.R. § 3.159 (a)(2). Therefore, to the extent that the Veteran was present for his own assault, he is competent to provide this testimony. Further, when assessing the credibility of such testimony, the factors which must be considered include facial plausibility; internal consistency; consistency with other evidence; self-interest or bias; lay statements made during treatment; and personal knowledge or experience. See Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, the evidence as reported by the Veteran to VA, as well as the July 2019 VA examination, weigh in favor of a finding that the assault occurred. The July 2019 VA psychologist found that the Veteran’s assertions of in-service physical assault were credible. As such, the Board finds that the element of credible supporting evidence that the in-service stressors occurred has been met. As for element (3), medical evidence of a link between current symptomatology and the claimed in-service stressor, the Board notes that the July 2019 VA psychologist linked the diagnosis of PTSD to the in-service personal assault. The July 2019 VA examination is a thorough evaluation, and states that the Veteran meets all the requirements for a DSM-V diagnosis of PTSD as a direct result of in-service personal assault. In this case, the Board finds that based on the totality of evidence, the Veteran has a diagnosis of PTSD, based on his in-service stressor. The Board finds no adequate basis to reject the evidence of record that is favorable to the Veteran, based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). In summary, the Veteran’s stressor has been conceded and the Veteran has a current diagnosis of PTSD, which has been linked to his stressor that occurred during service. Therefore, the Board concludes that service connection is warranted for PTSD. 3. Entitlement to service connection for a deviated nasal septum The Veteran contends that his deviated nasal septum is due to a broken and bloody nose injury during service. The December 2014 VA examination shows the Veteran has a current diagnosis of deviated nasal septum. The Veteran’s STRs are negative for a specific injury to his nose during service, but the Veteran contends the injury occurred at the same time as his physical assault. Thus, the question becomes whether the current disability is related to service. On this question there are opinions in favor of and against the claim. The evidence against the claim includes a December 2014 VA opinion in which the examiner opined the Veteran’s deviated nasal septum was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned the Veteran’s STRs show no finding of deviated nasal septum noted. The evidence in favor of the claim includes a June 2018 report, in which Dr. A.A. noted that the Veteran suffered trauma in the service which resulted in a nasal fracture. Dr. A.A. maintained that he believed that the Veteran’s deviated septum is a result of the nasal trauma suffered during his service. Also, in a July 2019 VA opinion, the examiner opined that the Veteran’s deviated nasal septum is at least as likely as not incurred or caused by the Veteran’s military service. The examiner reasoned the records show the Veteran was diagnosed with a nosebleed after a physical altercation with other recruits and treated while on active duty. The Veteran’s current diagnosis is at least as likely as not a continuation of the same condition diagnosed while the Veteran was in military service. Upon further review of the record, the Board finds the Veteran’s account that he sustained trauma to his nose during the in-service physical assault is credible. As such, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current deviated nasal septum is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for deviated nasal septum is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a right foot condition is remanded. 2. Entitlement to service connection for a left foot condition is remanded. Pursuant to the Board’s June 2018 Remand, the Veteran underwent a VA examination in July 2019 and an opinion was provided in August 2019. The Board finds that an addendum opinion should be obtained by a podiatrist. 3. Entitlement to service connection for chronic sinusitis, claimed as a respiratory condition is remanded. The Veteran contends that his chronic sinusitis is due to a broken and/or bloody nose during service. In June 2018, the Board remanded this case to obtain an addendum opinion regarding whether the Veteran’s chronic sinusitis is related to his service, including treatment for URIs documented in the STRs and his lay statements describing a bloody and broken nose. The July 2019 VA examiner opined that the Veteran’s sinusitis was less likely than not related to military service or the bloody or broken nose complaint. The rationale was that there are no medical records showing diagnosis or treatment for the sinusitis condition during active duty. The examiner stated that complaints of sinus congestion did not start until 2014, many years after military separation. The Board finds this opinion is inadequate to the extent the examiner did not specifically address the in-service URIs. Thus, another addendum opinion is necessary. Also, in light of the Board’s award of service connection for a deviated nasal septum, the Board finds that the opinion should also address a secondary service connection theory of entitlement. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a podiatrist on the following questions: (a) For bilateral pes cavus, the examiner is asked to provide an opinion as to is it at least as likely as not the pre-existing condition underwent an increase in severity in-service and, if yes, whether such increase in severity was clearly and unmistakably due to its natural progress. (b) For any currently diagnosed right toe condition, the examiner is asked to provide an opinion as to whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s lay statements regarding a broken index toe caused by running in oversized boots. (c) For any left foot condition (other than pes cavus) that the examiner finds to have been present, the examiner is asked to provide an opinion as to whether it is at least as likely as not (1) caused by the right foot/toe condition or (2) aggravated beyond its natural progression by the right foot/toe condition. The Veteran has advanced an altered body mechanics theory. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. 2. Obtain an addendum opinion from an ear, nose, and throat (ENT) specialist regarding the following questions: (a) Whether the Veteran’s sinusitis is at least as likely as not related to his service, including treatment for upper respiratory infections documented in the STRs. (b) Whether the Veteran’s sinusitis is at least as likely as not (1) caused by the deviated nasal septum or (2) aggravated beyond its natural progression by the deviated nasal septum. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexia E. Palacios-Peters, 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.