Citation Nr: 21004633 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 12-21 371A DATE: January 27, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Service connection for a low back disability is remanded. Compensation under 38 U.S.C. § 1151 for diabetic retinopathy of left eye with macular edema, claimed as going blind, is remanded. Compensation under 38 U.S.C. § 1151 for left foot osteomyelitis, status post left first ray amputation, claimed as left foot big toe bunion, is remanded. FINDING OF FACT The Veteran did not engage in combat and there is no credible supporting evidence that an alleged stressor in service (underlying a diagnosis of PTSD first noted years after service) occurred; the Veteran's currently diagnosed bipolar disorder is already service-connected and is the only condition medically attributed to his service. All psychiatric manifestations have been medically attributed to bipolar disorder. CONCLUSION OF LAW The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who had active service from March 1964 to June 1964 appeals November 2009 (PTSD and back) and August 2017 (1151) rating decisions that denied these claims. The appeals were then merged. He testified before the undersigned Veterans Law Judge (VLJ) at a September 2019 Board hearing. After the hearing which included a discussion on the subject, the Veteran filed a claim for increased rating for his service-connected bipolar disorder with depression. In December 2019, the Board remanded the PTSD claim to the Agency of Original Jurisdiction (AOJ) for development and denied the other three claims. The Veteran appealed the December 2019 decision as to the three denied issues to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 order, the Court remanded the case as to those three issues to the Board for action consistent with an August 2020 Joint Motion for Partial Remand (JMR). In a January 2020 rating decision, the AOJ increased the rating for bipolar disorder from 50 to 70 percent effective October 17, 2019. That issue is not part of this appeal. In July 2020, the AOJ continued the denial of service connection for PTSD, and that claim has been returned to the Board. The Veteran testified he has PTSD due to sexual assault by a superior which he did not report in service because he was told he would get a better discharge. He testified that PTSD should be service connected, “Well, because the rape that I suffered in service by a staff sergeant, he brutally raped me, beat men and put me unconscious in the hospital. That was during my basic training. And I have never been right since.” We note he has indicated in the record the individual who assaulted him was Sgt S. At the hearing, it was noted that the bipolar rating is based on all of his mental health manifestations. In August 2020, the Veteran was contacted by AOJ personnel; he reported that he did not really understand what the paperwork he received meant but was grateful for the award. The VA employee explained to him that his rating for bipolar disorder was increased and service connection for PTSD was denied. The Veteran responded that VA could return his appeal to BVA. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. §§ 1110 (peacetime), 1131 (wartime). In general, to establish a right 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection for PTSD requires (i) medical evidence diagnosing the condition, (ii) a link established by medical evaluation between current symptoms and an in-service stressor; and (iii) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. §§ 3.304 (f), 4.125(a).   Service connection for PTSD is denied. As an initial matter, the regulations pertaining to psychiatric disorders were amended in August 2014. 79 Fed. Reg. 45,093 (Aug. 4, 2014) (effective Aug. 4, 2014). Specifically, the regulations were updated so that all psychiatric diagnoses must be in conformity with diagnostic criteria in the Diagnostic and Statistical Manual, Fifth Edition, (DSM-5) as opposed to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). Id. However, the regulation states that it was not the intent of the Secretary to have the rule change apply to cases that had been certified to or were pending before the Board at the time of the change. Id. As the Veteran's claim was not certified to or pending before the Board on August 4, 2014, whether the Veteran has a diagnosis of PTSD will be determined based on the criteria in the DSM-5. Specifically, we note that the case was still at the RO as of the critical date, and was certified to the Board in August 2019. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (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 1372, 1377 (Fed. Cir. 2007). However, the Veteran did not engage in combat with the enemy, he does not allege combat and the combat provisions of 38 U.S.C. § 1154 (b) are not applicable to the Veteran’s appeal. When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. “It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As will be discussed below, service connection for PTSD is being denied due to the absence of a diagnosis of PTSD that conforms to VA regulation. The missing element is credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). VA mental health examination in December 2019 reflects that the Veteran’s only mental disorder is Bipolar I Disorder with Most Recent Episode Depressed. It was noted that there were no additional DSM-V mental disorders. Current psychiatric treatment was with VA. VA treatment records reflect an ongoing diagnosis of PTSD based on MST but also acknowledge that he does not meet the criteria for PTSD. See, e.g., November 2019 Mental Health Clinic telephone contact wherein it was noted that the Veteran had met with a therapist in the PSTD clinic but did not meet criteria for PTSD. VA treatment records noting his reported MST and resultant PTSD date from May 2009. See May 2009 MH program consult in which he reported he was beaten and raped in the military in 1964 and has suffered from it since then. Service treatment records do not document the alleged assault. They include his May 1964 service separation examination that included a report of medical history in which he reported nervous trouble that the examiner noted as passive-aggressive personality. Passive aggressive personality, EPTS not line of duty, was the diagnosis on a May 1964 psychiatrist’s evaluation. We note that he had reported in May 1964 emergency treatment that he had been hit by a sergeant. It was noted that he kept mumbling. The examiner could not find any evidence of trauma. Also noted is a Sgt. S. made a statement later in May 1964 recommending his elimination from the service. Social Security Administration (SSA) disability claim records reflect findings of major depression/adjustment disorder with onset of June 2005. See February 2006 SSA case analysis. January and February 2009 stressor statements reflect his report that in May 1964 Sgt. S. took him to his office and beat and sexually assaulted him. He reported that he woke up the next day in the hospital and was instructed to go to a psychologist every day until otherwise told. He reported that he was told by a four star general that if he did not press charges against Sgt. S. he would receive a better discharge. In December 2008 and April 2009, the Veteran was informed about what to submit to support his claim based on personal assault/MST, to include documents that could substitute for STRs. The Veteran was examined by a VA examiner in September 2009 with an addendum in October 2009. The examiner noted that the Veteran was discharged due to personality disorder and had three transfers in three months due to motivational issues. Supervisors saw him as unfit and he reported that Sgt. S. raped him. Also noted was a documented severe attack on him in 1997. The examiner was unable to verify in-service assault or rape through STRs or the personnel file. Sufficient markers or complaints and annotations could not be identified by the examiner. The evidence suggested the assault did not take place while his report suggests otherwise. Here, it was noted that the severe assault in 1997 is documented and the examiner could not rule out that the Veteran was responding to that assault. The examiner stated in October 2009 that they could not ascertain whether the assault happened without resorting to speculation. VA examination in July 2012 reflects diagnoses of PTSD and bipolar disorder. It was not possible to determine which symptoms or portion thereof were related to which disorder. The examiner noted no documentation in the Veteran’s STRs to support the occurrence of an MST. The examiner felt that the severe post military physical assault which was nearly fatal in itself would be sufficient to cause PTSD. However, it was noted this assault occurred in 1997 by which time serious and chronic mental health symptoms were well established (e.g. there had been three suicide attempts two of which were prior to the 1997 assault (1979 & 1994)). This suggests that the 1997 assault was not the sole cause of the Veteran’s current psychiatric symptoms. Per Veteran’s verbal report intrusive PTSD symptoms have content related to both the 1997 physical assault and the alleged in service MST. The examiner found he met DSM IV TR diagnostic criteria for PTSD and those two events were the most likely precipitants. However as there is no evidence for the occurrence of the MST beyond his verbal report it was difficult to say without resorting to speculation whether or not the alleged MST occurred. The examiner did find the bipolar disorder was associated with service, caused by stressors in service to include being Administratively Separated. Following a review of the record, the Board concludes that the stressor of MST is not verified. There is an absence of evidence supporting a conclusion of harassment or personal assault as required by 38 C.F.R. § 3.304 (f). The information he provided concerning the MST included his statements and what he reported at his treatment and VA examination records. A review of the SPRs and STRs does not reveal or suggest confirmation. We note the 2009 VA examiner’s finding of insufficient markers or complaints and annotations in the service records to suggest the assault took place. We also note the 2012 examiner’s observation that there is no evidence for the occurrence of the MST beyond his verbal report, leading to their conclusion that it is difficult to say without resorting to speculation whether or not the alleged MST occurred. Moreover, we note the current mental health examination indicates that the only psychiatric diagnosis is the already service-connected bipolar disorder, and that all psychiatric manifestations are considered due to this condition. All of these medical opinions weigh against the claim. Therefore, there is no diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (a) at any time during the appeal or proximate to the service connection claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 321 (2013). There is no reasonable doubt to resolve.   REASONS FOR REMAND 1. Service connection for a low back disability is remanded. The JMR indicates that the Board erred by failing to provide an adequate statement of reasons or bases for its decision that a current low back disability is related to service. The Board cited multiple factors, to include what it deemed to be minimal treatment in service, as well as a negative medical opinion which cited to only one treatment in service with ‘an apparent follow-up visit’, and no treatment between 1964 and 2009, to support the denial. It was noted in the JMR that, “Put another way, while Appellant served in the military for less than three months, his STRs reflect that he sought treatment at least three times for back pain. The parties therefore agree that the Board did not adequately support its conclusion that the record only reflected “minimal [back] complaints in service.” The JMR also noted the Board did not state why appellant would reasonably have been expected to report his symptoms to providers before he did. Here, we note that the 2009 VA medical opinion also relied upon by the Board was based on the examiner’s premise that there was only one visit in service for back pain and a follow-up visit, and no treatment from 1964 to 2009. Under the circumstances, we find the 2009 examination inadequate, and will remand for a new VA medical examination with opinion that takes the accurate history referenced out in the JMR, along with the current nature of the low back disability, into account.   2. Compensation under 38 U.S.C. § 1151 for diabetic retinopathy of left eye with macular edema, claimed as going blind, is remanded. 3. Compensation under 38 U.S.C. § 1151 for left foot osteomyelitis, status post left first ray amputation, claimed as left foot big toe bunion, is remanded. Regarding the § 1151 claims, the JMR observes that the Board did not adequately discuss whether the record reflected that Appellant had given his informed consent as contemplated by 38 C.F.R. § 17.32(d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment proximately caused the additional disability, it must be shown that the medical treatment caused the additional disability; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the medical treatment without the veteran's informed consent. 38 C.F.R. § 3.361 (d)(1). Benefits may also be paid where residuals result in an event that was not reasonably foreseeable. Id. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Informed consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32 (b), such as in emergency situations. 38 C.F.R. § 3.361(d)(1). Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Failure to advise a patient of a foreseeable risk can be considered a minor, immaterial deviation under the regulation if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk. See McNair v. Shinseki, 25 Vet. App. 98 (2011). VA regulations provide that informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient or the patient's surrogate of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient or surrogate the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and, anticipated results if nothing is done. The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox. The patient or surrogate may withhold or revoke his or her consent at any time. 38 C.F.R. § 17.32 (c). Per VA policy, an event is considered “not reasonably foreseeable” if it is not the type of risk that would be disclosed as part of the informed consent procedures shown in 38 C.F.R. § 17.32. Remand is required to comply with the JMR. It was noted that the Board indicated that the record was replete with reference to the fact that consent was obtained for the relevant procedures. However, the JMR observes “[t]he patient's and practitioner's signature on a form prescribed by VA for that purpose is required for all diagnostic and therapeutic treatments or procedures that . . . [r]equire the use of sedation[ or r]equire anesthesia or narcotic analgesia.” 38 C.F.R. § 17.32(d). It was further noted: Notwithstanding the fact that Appellant underwent multiple VA surgical procedures on his left eye and left foot, presumably all of which required some form of sedation, anesthesia or narcotic analgesia, a review of the record on appeal does not reflect that a signed consent form for any of the procedures in question has been associated with his file. Because the Board did not discuss whether entitlement to disability compensation under § 1151 was appropriate due to the absence of any indication in the record of informed consent, judicial review is frustrated, requiring vacatur and remand. See 38 C.F.R. § 17.32 (c), (d); Gilbert,1 Vet. App. at 57. See also McNair v. Shinseki, 25 Vet. App. 98 (2011) (addressing foreseeable risk and materiality of informed consent). The claim must be remanded for the AOJ to conduct a complete search for any and all consent forms obtained with respect to the Veteran's 1151 claims. The matters are REMANDED for the following action: 1. Schedule the Veteran for VA examination with an appropriate clinician regarding the nature and etiology of his low back disorder. The electronic claims file must be made available to the examiner. The examiner should note in the examination report that the claims file has been reviewed. Based on a review of the record, and examination, the examiner must address the following: Whether it is as least as likely as not (a 50 percent or greater probability) that the Veteran's low back disorder manifested during service or is otherwise related to service? The examiner must address the Veteran's reports of continuous low back complaints since service made in connection with the claim. We note as cited in the JMR that the Veteran had sought treatment for back pain “at least three times in April 1964.” The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The absence of medical treatment for years after service cannot alone be a sufficient basis for finding against a relationship to the in-service activities. Rather, the clinician must consider the nature of the activities and the Veteran's symptoms at the time, and then determine the likelihood that such would be causally related to the Veteran's current disability based on known medical principles. The examiner must also consider the Veteran's own statements regarding the history of back symptoms made in connection with this claim. We make no determination as to credibility. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner is not to rely solely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).The examiner is advised that the Veteran is competent to report symptoms, treatment, events, and injuries in service and that his assertions must be taken into account, along with the other evidence of record, in formulating the requested medical opinion. 2. Obtain and associate with the claims file the signed consent forms for the multiple VA surgical procedures on his left eye and left foot, which, as pointed out in the JMR, presumably required some form of sedation, anesthesia or narcotic analgesia. All attempts to locate the consent forms should be documented in the record. If attempts to locate the signed consent forms are unsuccessful, the RO should notify the Veteran and his representative and associate with the record a formal finding of unavailability. 3. After undertaking any subsequent development found to be necessary, readjudicate the claims. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.