Citation Nr: 21009865 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-40 026 DATE: February 23, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to secondary service connection for osteomyelitis is granted. REMANDED Entitlement to a compensable rating for pilonidal cyst and sinuses is remanded. FINDINGS OF FACT 1. An April 2002 rating decision denied entitlement to service connection for an acquired psychiatric disorder (claimed as PTSD and major depression). The Veteran did not appeal that decision, and new and material evidence was not received within one year of notice of its issuance. 2. Evidence received more than one year since the final April 2002 rating decision, namely the January 2010 private opinion and the December 2020 Board Hearing testimony, is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder. 3. The Veteran is diagnosed with PTSD; his reported stressors are related to and are consistent with the circumstances of his combat service. 4. The Veteran’s osteomyelitis is proximately due to his service-connected pilonidal cyst and sinuses. CONCLUSIONS OF LAW 1. The April 2002 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria to reopen the claim of entitlement to service connection for an acquired psychiatric disorder are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for PTSD are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.304(f). 4. The criteria for entitlement to secondary service connection for osteomyelitis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 1969 to March 1971, including service in Vietnam. He died in January 2016. The appellant is his surviving spouse and has been substituted as the claimant for the purposes of processing the claims to completion. 38 U.S.C. § 5121A. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In this regard, the claims file shows that additional private treatment records and VA examination reports were associated with the record within a year of the August 2009 rating decision relevant to the Veteran’s claims. However, since the RO never determined whether such records constituted new and material evidence with respect to the August 2009 rating decision, that decision never became final and is the proper rating decision on appeal. 38 C.F.R. § 3.156(b). The appellant testified before the undersigned Veterans Law Judge in December 2020. 1. Entitlement to service connection for PTSD is granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an 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 (Fed. Cir. 2004). Service connection for PTSD has unique evidentiary requirements. It generally requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, the Veteran’s lay statements alone may establish occurrence of the claimed in-service stressor, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressors. 38 C.F.R. § 3.304(f)(2). The Veteran indicated that he developed PTSD as a result of in-service stressors, such as witnessing injuries of fellow servicemembers and exposure to enemy fire during his service in the Vietnam war. The appellant also relates the Veteran’s PTSD to his combat service. As for whether the Veteran engaged in combat during service, a determination that a veteran engaged in combat with the enemy may be supported by any evidence which is probative of that fact, and there is no specific limitation of the type or form of evidence that may be used to support such a finding. See VAOPGCPREC 12-99 (October 18, 1999) (combat determination should be made on a case by case basis where there is no medal specifically indicating combat service). Evidence submitted to support a claim that a veteran engaged in combat may include the veteran’s own statements and an “almost unlimited” variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). Receiving enemy fire or firing on an enemy can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). The Veteran’s military personnel records show that he participated in actions against communist insurgent forces in Vietnam and received the Vietnam Service Medal with one Star. His DD Form 214 lists his military occupational specialty as an antitank assault man. The Veteran was competent to report his exposure to incoming enemy fire in service and seeing wounded soldiers. The Board finds that there is sufficient evidence that the Veteran participated in combat while serving in Vietnam and there is no evidence to the contrary. Thus, as the Veteran’s reported stressors are consistent with the circumstances of his combat service, his lay testimony alone establish their occurrence. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f)(2). Moreover, the Veteran’s private treating psychiatrists, Dr. Jackson and Dr. Traylor, both diagnosed the Veteran with PTSD based on his combat experience in Vietnam. See January 2010 and September 2010 statements. The Board acknowledges that the October 2010 VA examiner found that although the Veteran met the combat stressor criteria based on his reports, he did not meet the criteria for a diagnosis of PTSD. However, the examiner’s finding is contradicted by the above-cited opinions of private clinicians, and the Board affords the Veteran the benefit of the doubt in this regard. Accordingly, service connection for PTSD is warranted. (To the extent the Veteran has also been diagnosed with depression, that diagnosis has been attributed to current medical stressors as opposed to military service, and the Veteran does not assert otherwise.) 2. Entitlement to secondary service connection for osteomyelitis is granted. The Board finds that the issue of secondary service connection has been raised by the record in relation to the increased rating issue on appeal and must be addressed. See Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, before the Veteran’s death, he was diagnosed with osteomyelitis and was service-connected for pilonidal cyst and sinuses. See e.g. September 2015 private treatment record. Therefore, the first two elements of secondary service connection are satisfied. Regarding the last element, nexus, the only adequate opinion of record addressing the etiology of the Veteran’s osteomyelitis is the August 2016 VA examiner, who determined that the Veteran’s osteomyelitis was related to his service-connected pilonidal cyst, based on a review of recent treatment records. This opinion is demonstrative of an etiological relationship between the Veteran’s pilonidal cyst and sinuses and his osteomyelitis, and the Board will afford the Veteran the benefit of the doubt in this regard and find a proximate cause relationship between them. Accordingly, secondary service connection for osteomyelitis is granted. REASONS FOR REMAND 3. Entitlement to a compensable rating for pilonidal cyst and sinuses is remanded. A review of the treatment records show that the Veteran’s pilonidal cyst and sinuses considerably worsened after his last VA examination in 2010, with the appellant testifying to that fact as well. Moreover, the Board finds that the existing record is insufficient to rate the severity of the Veteran’s skin disorder. While a contemporaneous VA examination is not possible, a remand for a medical opinion assessing the nature, extent, and severity of the Veteran’s skin disorder prior to his death is warranted on remand. The matter is REMANDED for the following action: 1. Obtain an opinion from a VA examiner addressing the nature and severity of the Veteran’s pilonidal cyst and sinuses after his October 2010 VA examination and prior to his death in January 2016. The claims file should be made available to the examiner. Following a review of the entire medical record, including the May 2016 photographs, CAPRI records, and the private treatment records submitted in October 2013 and August 2016 the examiner is requested to address the following: (a) Describe the nature and severity of all manifestations of the Veteran’s pilonidal cyst and sinuses, and specifically estimate the percentage of the total area of the body that was affected, as well as the percentage of exposed areas that was affected. (b) Identify all medications used to treat the Veteran’s pilonidal cyst and sinuses between February 2009 and January 2016 and the duration of such treatment. (c) Indicate whether each medication was topical, corticosteroid, or immunosuppressive. (d) Indicate whether the Veteran received constant or near-constant systemic therapy, including but not limited to corticosteroids phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs during a twelve-month period. (e) For any topical treatment, address whether such treatment: (1) operated by affecting the body as a whole; or (2) was “like or similar to” a corticosteroid or other immunosuppressive drug. (f) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any skin disorder diagnosed between February 2009 and January 2016 other than pilonidal cyst and sinuses: (1) was proximately due to his service-connected pilonidal cyst and sinuses; or (2) had been aggravated (worsened) by his service-connected pilonidal cyst and sinuses. (g) Finally, please address questions (a)-(e) for each skin disorder attributed to the Veteran’s pilonidal cyst and sinuses in part (f) above. 2. Then readjudicate the issue of entitlement to a compensable rating for pilonidal cyst and sinuses, with consideration of both former (pre-August 13, 2018) and current (post-August 13, 2018) rating criteria for the skin, applying whichever criteria is more favorable to the Veteran. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.