Citation Nr: 21071666
Decision Date: 12/01/21	Archive Date: 12/01/21

DOCKET NO. 19-16 677
DATE: December 1, 2021

ORDER

The request to reopen the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is granted.

Entitlement to service connection for PTSD is granted.

Entitlement to service connection for bilateral foot pain is granted.

REMANDED

Entitlement to service connection for traumatic brain injury (TBI) is remanded.

Entitlement to service connection for a bilateral eye disability is remanded.

FINDINGS OF FACT

1. In an April 2015 rating decision, the Veteran was denied service connection for PTSD on the basis that evidence did not reflect his disability was related to service. The Veteran was notified of that decision in correspondence issued the same month. He did not appeal the decision, nor was material evidence received within one year. Therefore, the decision is final.

2. In May 2019 VA treatment records, the Veteran's treating psychologist opined that the Veteran's PTSD was due to his in-service military sexual trauma (MST). This evidence is relevant and probative, and it helps cure a prior evidentiary defect; namely, the lack of a relation to service.

3. The Veteran's PTSD is related to service.

4. After resolving reasonable doubt in his favor, the Veteran's bilateral foot pain was incurred during service.

CONCLUSIONS OF LAW

1. The April 2015 rating decision, which denied service connection for PTSD, is final. 38 U.S.C. § 7105(c) (2018); 38 C.F.R. § 19.52 (2021).

2. The evidence received since the April 2015 rating decision, which denied service connection for PTSD, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2018); 38 C.F.R. § 3.156 (2021).

3. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2021).

4. The criteria for entitlement to service connection for bilateral foot pain have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2021).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 1985 to July 1997.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2018 and January 2019 rating decisions by the Department of Veterans Affairs (VA). 

In November 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge.

Although the Agency of Original Jurisdiction (AOJ) reopened the Veteran's claim of service connection for PTSD, the question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the AOJ may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the issue accordingly.

For the reasons discussed above, the request to reopen the previously denied claim of service connection for PTSD has been granted. The Board will proceed with adjudication of the issue below.

The Board notes that the Veteran filed a January 2019 notice of disagreement (NOD) that was within one year of an original denial of service connection for glaucoma in an August 2018 rating decision. Because the Board has an obligation to interpret NODs liberally, the Board finds that the August 2018 rating decision is the rating decision on appeal for that issue and the current matter is not a request to reopen a previously denied claim of service connection for glaucoma.

After reviewing the evidence of record, and in light of Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has recharacterized the issue of service connection for glaucoma to encompass any bilateral eye disorder and the issue of service connection for plantar fasciitis to encompass any bilateral foot disability.

Service Connection

Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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).

1. Entitlement to service connection for PTSD.

Service connection for PTSD requires credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). However, if the 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. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. 38 C.F.R. § 3.304(f)(5).

The Veteran has been diagnosed with PTSD since at least 2006, see July 2006 Social Security Administration (SSA) records, but recently disclosed he experienced MST during service. See, e.g., May 2019 VA treatment records. He also discussed his experience in August 2019 correspondence.

In May 2019, a VA psychologist evaluated the Veteran and discussed his MST. The psychologist opined that the Veteran had a long history of PTSD struggles and was experiencing increased emotional distress related to his in-service trauma. The psychologist noted that the Veteran's MST occurred in 1985 or 1986 and his drinking increased after that. See May 2019 VA treatment records.

Military personnel records reflect that the Veteran was reprimanded for behavior that included use of illicit drugs. See January 1996 military personnel records. In light of the VA psychologist's opinion regarding the Veteran's MST and altered behavior afterwards, corroborated by military personnel records, the Board finds that there is sufficient credible supporting evidence that the Veteran's MST occurred. Thus, the evidence reflects that the Veteran's PTSD is related to his service, and service connection is warranted.

2. Entitlement to service connection for a bilateral foot disability

The Veteran is diagnosed with chronic general foot pain that is in addition to his forefoot varus. See, e.g., June 2018 VA treatment records. Pain with functional impairment is considered a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). In light of the Veteran's report that he had to avoid work that requires prolonged standing or increased walking, see September 2018 VA examination, the Board finds that the Veteran's foot pain results in functional impairment and that he has a disability for VA purposes.

During a September 2018 VA examination, the Veteran reported that he had foot pain in service that continued since that time. The VA examiner opined that the Veteran's current foot pain was not related to service but relied on the absence of medical evidence immediately after service and did not consider the Veteran's lay statement regarding pain since service. As a result, the opinion is inadequate and afforded no probative weight.

The Veteran's military personnel records reflect that he was a paratrooper and had a parachutist badge. See, e.g., DD 214. A soldier who served alongside him also corroborated that, despite the Veteran's military occupational specialty (MOS) as a supply clerk, he regularly took part in intensive training and airborne operations. See August 2018 buddy statement.

After considering the Veteran's competent and credible reports of foot pain since service, as well as his corroborated paratrooping activities during service, the Board will resolve reasonable doubt in his favor and finds that his bilateral foot pain was incurred during service. As a result, service connection is warranted.

REASONS FOR REMAND

1. Entitlement to service connection for TBI.

The Veteran testified that he injured his head while paratrooping during service and that he was being treated for TBI at the Cincinnati VA Medical Center (VAMC). Records from the Cincinnati VAMC have not been obtained and remand is necessary to obtain such records. Additionally, because there are medical questions outstanding, remand for a VA examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

2. Entitlement to service connection for a bilateral eye disability.

This issue is inextricably intertwined with the other remanded issue related to TBI; accordingly, it must be remanded as well.

The matters are REMANDED for the following action:

1. The AOJ should obtain copies of VA treatment records from the Cincinnati VAMC. Additionally, updated VA treatment records from any other VAMCs, such as the Indianapolis VAMC, from May 2019 to the present should also be obtained.

2. After the above development is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any TBI. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following:

If TBI is diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service? Please explain why.

3. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures.

 

 

E. I. VELEZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Sandler, 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.