Citation Nr: 21061349 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 16-28 336 DATE: October 1, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a higher initial rating for status post gunshot wound and fracture of the left distal femur shaft and through and through muscle wound on the anterior thigh muscles (Muscle Group XV), rated 10 percent disabling from September 10, 2012 through December 9, 2019, and noncompensable, from that date, is remanded. Entitlement to a higher initial rating for limitation of extension of the left thigh, rated noncompensable, from December 10, 2019, is remanded. Entitlement to a higher initial rating for limitation of flexion of the left thigh, rated noncompensable, prior to December 10, 2019, and 10 percent disabling, from that date, is remanded. Entitlement to a higher initial rating for limitation of abduction of the left thigh, rated noncompensable, prior to December 10, 2019, and 20 percent disabling, from that date, is remanded. Entitlement to a higher initial rating for functional impairment of the left knee, residuals of gunshot wound, rated noncompensable, prior to December 10, 2019, and 10 percent disabling, from that date, is remanded. Entitlement to an increased rating for status post gunshot wound and fracture of the left distal femur shaft and through and through muscle wound of the anterior thigh muscle (Muscle Group XIV), rated 10 percent disabling prior to December 10, 2019 (except for a period when a temporary 100 percent rating was in effect), and noncompensable, from that date, is remanded. Entitlement to an initial compensable rating for left lower extremity scars is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The Veteran has been diagnosed with PTSD by a VA psychologist based on an in-service stressor involving fear of hostile military or terrorist activity consistent with the circumstances of her service. CONCLUSION OF LAW The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the Army from September 1992 to August 1995. She had additional service with the Army National Guard. These matters come before the Board of Veterans' Appeals (Board) from an August 2013 rating decision, in which the agency of original jurisdiction (AOJ) denied the Veteran's application to reopen a claim of service connection for major depressive disorder, denied service connection for PTSD, and denied entitlement to a rating in excess of 10 percent for status post gunshot wound and fracture of the left distal femur shaft and through and through muscle wound of the anterior thigh muscle (Muscle Group XIV). In June 2016, a Decision Review Officer (DRO) awarded a separate initial 10 percent rating for status post gunshot wound and fracture of the left distal femur shaft and through and through muscle wound on the anterior thigh muscles (Muscle Group XV), from September 10, 2012. The DRO also awarded a temporary 100 percent rating for the service-connected status post gunshot wound and fracture of the left distal femur shaft and through and through muscle wound of the anterior thigh muscle (Muscle Group XIV), from April 20, 2016 through May 31, 2016. A 10 percent rating was resumed from June 1, 2016. In May 2019, the Board remanded these matters for further development. An informal hearing conference with a DRO was conducted in April 2020 in lieu of a formal hearing and a report of that conference has been associated with the Veteran's claims file. In September 2020, the AOJ made the following determinations: awarded a separate 20 percent rating for limitation of abduction of the left thigh, from December 10, 2019; awarded a separate 10 percent rating for functional impairment of the left knee, residuals of gunshot wound, from December 10, 2019; awarded a separate 10 percent rating for limitation of flexion of the left thigh, from December 10, 2019; awarded a separate noncompensable rating for limitation of extension of the left thigh, from December 10, 2019; and awarded service connection for left lower extremity scars and assigned an initial noncompensable disability rating, from August 2, 1995. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a September 2021 hearing. A transcript of the hearing has not yet been associated with the claims file. However, in light of the fact that the Board is awarding service connection for PTSD (thus reflecting a full grant of the benefit sought), the Board is remanding the issues of entitlement to higher ratings for the residuals of status post gunshot wound and fracture of the left distal femur shaft and through and through muscle wound for further development, and the fact that there is no information in the hearing transcript that will affect the decision herein, the transcript is not necessary at this time. As for characterization of the issues on appeal, as the Veteran was awarded a 100 percent rating from April 20, 2016 through May 31, 2016 for her service-connected status post gunshot wound and fracture of the left distal femur shaft and through and through muscle wound of the anterior thigh muscle (Muscle Group XIV), the rating for this disability during this period will not be addressed by the Board. Cf. AB v. Brown, 6 Vet. App. 35, 38 (1993). Moreover, the evidence reflects that the Veteran has been unemployed during part of the claim period and that she has contended that her service-connected disabilities have contributed to her inability to work. Entitlement to a TDIU may be an element of an appeal for a higher initial rating and a claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Given the evidence of current disabilities, the Veteran's claim for the highest ratings possible for her service-connected status post gunshot wound and fracture of the left distal femur shaft and through and through muscle wound, and the evidence of unemployability, the issue of entitlement to a TDIU is properly before the Board as part and parcel of the Veteran's claim for higher ratings for her service-connected status post gunshot wound and fracture of the left distal femur shaft and through and through muscle wound. Lastly, the Board points out that the AOJ initially denied service connection for psychiatric disability (characterized as major depression) by way of an August 1996 rating decision. An application to reopen the claim of service connection for psychiatric disability (characterized as major depressive disorder) was denied in a November 2006 rating decision. The Veteran was notified of the August 1996 and November 2006 rating decisions, she did not appeal either decision within one year of their issuance, and new and material evidence was not received within those years. In May 2019 , the Board remanded the Veteran's application to reopen the claim of service connection for major depressive disorder for further development, to include obtaining outstanding service treatment records pertaining to psychiatric hospitalization during service. Pursuant to the Board's remand, additional service treatment records were received and associated with the claims file. These records were not in VA's possession at the time of the August 1996 and November 2006 decisions. VA regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). 38 C.F.R. § 3.156 (c). The additional service treatment records received following the Board's May 2019 remand are relevant in this instance because they include records of psychiatric treatment in service. As relevant service department records were associated with the claims file following the August 1996 and November 2006 decisions, the Board will adjudicate the Veteran's overall psychiatric claim (to include the claim of service connection for major depressive disorder) on a de novo basis. See 38 C.F.R. § 3.156 (c). Entitlement to service connection for PTSD Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). 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. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as sniper fire, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304 (f)(3). When there is a current diagnosis of PTSD, the sufficiency of a claimed in-service stressor is presumed. Cohen v. Brown, 10 Vet. App. 128, 144 (1997). Nevertheless, credible evidence that the claimed in-service stressor actually occurred is still required. 38 C.F.R. § 3.304 (f). Credible supporting evidence cannot consist solely of after-the-fact medical evidence containing an opinion as to a causal relationship between PTSD and service. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996). In this case, the Veteran contends that she has current psychiatric disability that is related to the threat of injury and death from enemy forces while stationed in Somalia. The Board finds, for the following reasons, that the Veteran has current PTSD that is based on a corroborated in-service stressor. The Veteran's medical records, including the report of a June 2016 VA psychiatric examination, show that she has been diagnosed as having PTSD by a VA psychologist. Thus, current psychiatric disability has been demonstrated. The Veteran has reported that while she was stationed in Somalia during service, her unit received incoming enemy fire on a daily basis, she was in a convoy to get supplies when one of the vehicles in her convoy exploded, and she thought she "was going to die." The June 2016 VA psychiatric examination establishes a link between the Veteran's PTSD and her reported stressor in Somalia. Specifically, the psychologist's PTSD diagnosis was solely based on this reported stressor, and the psychologist indicated that the stressor was related to the Veteran's fear of hostile military or terrorist activity. Moreover, a DD Form 215 completed in April 2019 confirms that the Veteran served in Somalia from May 1993 to September 1993. In light of the above, the Board finds that the Veteran has been diagnosed by a VA psychologist as having PTSD based upon an in-service stressor related to fear of hostile military or terrorist activity in Somalia. Therefore, the criteria for service connection for PTSD are met and service connection for PTSD is warranted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.304 (f). The Board points out that the benefit granted herein is service connection for PTSD. Although the Veteran has been diagnosed as having other psychiatric disabilities during the claim period, to include major depressive disorder, there is no evidence to distinguish between all of the symptoms of her psychiatric disabilities. Therefore, a separate decision as to entitlement to service connection for psychiatric disability other than PTSD is unnecessary, as all of the Veteran's psychiatric symptoms must, therefore, be attributed to her now service-connected PTSD. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability). REASONS FOR REMAND 1. Entitlement to higher initial ratings for limitation of extension of the left thigh, limitation of flexion of the left thigh, limitation of abduction of the left thigh, functional impairment of the left knee, residuals of gunshot wound, and left lower extremity scars, and entitlement to increased ratings for status post gunshot wound and fracture of the left distal femur shaft and through and through muscle wound of the anterior thigh muscle (Muscle Groups XIV and XV) are remanded. The evidence reflects that the Veteran's service-connected residuals of status post gunshot wound and fracture of the left distal shaft and through and through muscle wound of the anterior thigh muscle may have worsened since she was last examined by VA in December 2019. Specifically, she reported during the September 2021 Board hearing that her disability had worsened since the December 2019 examinations. In light this information, the Veteran should be provided an opportunity to report for new VA examinations to ascertain the current severity and manifestations of her service-connected residuals of status post gunshot wound and fracture of the left distal shaft and through and through muscle wound of the anterior thigh muscle. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Central Texas Veterans Health Care System (dated to August 2020), the VA Lebanon Healthcare System (dated to July 2002), the VA Philadelphia Healthcare System (dated to May 2007), the Shreveport Vista electronic records system (dated to August 2020), the VA North Texas Health Care System (dated to December 2017), and the VA Wilkes-Barre Healthcare System (dated to December 2018). Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 2. Entitlement to a TDIU due to service-connected disabilities is remanded. Since the AOJ's implementation of the Board's award of service connection for PTSD and a decision on the remanded higher rating issues could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. The issue of entitlement to a TDIU should be adjudicated in the first instance by the AOJ, to include appropriate notification. The Veteran should also be given an opportunity to submit a formal application for a TDIU (VA Form 21-8940). The matters are REMANDED for the following action: 1. Implement the Board's award of service connection for PTSD, to include the assignment of an initial disability rating. 2. Send the Veteran a letter that provides her with notice as to the information and evidence that is required to substantiate her claim for a TDIU and ask the Veteran to complete a formal application for a TDIU (VA Form 21-8940) and to report her education and employment history and earnings, especially for the period since September 2012. A copy of this letter must be included in the claims file. 3. Ask the Veteran to identify the location and name of any VA or private medical facility where she has received treatment for residuals of gunshot wound and fracture of the left distal femur shaft and through and through muscle wound on the anterior thigh muscles (to include left hip and knee disabilities and left lower extremity scarring), to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of her treatment for residuals of gunshot wound and fracture of the left distal femur shaft and through and through muscle wound on the anterior thigh muscles (to include left hip and knee disabilities and left lower extremity scarring) from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 4. Obtain the Veteran's outstanding VA treatment records from the Central Texas Veterans Health Care System for the period since August 2020; the VA Lebanon Healthcare System for the period since July 2002; the VA Philadelphia Healthcare System for the period since May 2007; the Shreveport Vista electronic records system for the period since August 2020; the VA North Texas Health Care System for the period since December 2017; the VA Wilkes-Barre Healthcare System for the period since December 2018; and all such relevant records from any other sufficiently identified VA facility. 5. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a muscle injury examination by an appropriate clinician to determine the current severity of her service-connected status post gunshot wound and fracture of the left distal femur shaft and through and through muscle wound on the anterior thigh muscles. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must provide reasons for any opinion given. 6. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected left hip disability (as a residual of status post gunshot wound and fracture of the left distal femur shaft and through and through muscle wound on the anterior thigh muscles). The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing of both the left and right hip. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and with repeated use over time based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. The examiner must provide reasons for any opinion given. 7. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected left knee disability (as a residual of status post gunshot wound and fracture of the left distal femur shaft and through and through muscle wound on the anterior thigh muscles). The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing of both the left and right knee. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and with repeated use over time based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. The examiner must provide reasons for any opinion given. 8. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected left lower extremity scars. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should report the nature and severity of any left lower extremity scarring associated with the service-connected status post gunshot wound and fracture of the left distal femur shaft and through and through muscle wound on the anterior thigh muscles, to include whether any scar causes any limited motion or loss of function. Each scar size (including BOTH scar length and width) and whether any scar is superficial, deep, associated with underlying soft tissue damage, nonlinear, unstable, or painful should also be noted. The examiner must provide reasons for any opinion given. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.