Citation Nr: 21010195 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-05 225 DATE: February 24, 2021 ORDER Service connection for post-traumatic stress disorder (PTSD) is granted. REMANDED Entitlement to an increased rating in excess of 10 percent for a shell fragment disability with retained foreign body in the anterior to right auricle is remanded. Entitlement to a compensable rating for a scar due to a shell fragment wound in the anterior left thigh is remanded. Entitlement to service connection for a seizure disorder is remanded. FINDING OF FACT PTSD had its onset during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for post-traumatic stress disorder (PTSD) have been met. 38 U.S.C. §§ 1110, 1154, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps (USMC) from July 1967 to December 1968, including combat service in the Republic of Vietnam and his decorations include the Purple Heart Medal. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 and May 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In the June 2010 rating decision, the RO denied the Veteran’s claim seeking an evaluation in excess of 10 percent for residuals of a shell fragment wound with retained foreign body, anterior to right auricle; entitlement to a compensable rating for a scar, shell fragment wound, anterior left thigh; and entitlement to service connection for a seizure disorder. In a May 2013 rating decision, the RO denied the Veteran’s claim of service connection for PTSD. The Board previously notified the Marine Corps League to expedite their submission of an IHP. To date, an IHP has not yet been received. As the deadline to submit an IHP has passed, the case will be re-assigned to the Board to adjudicate the appeal. 1. PTSD The Veteran filed this claim on June 29, 2011. He seeks service connection for PTSD, which he attributes to his combat experiences while serving in the Republic of Vietnam. The Agency of Original Jurisdiction (AOJ) conceded that the Veteran had a combat stressor relating to his PTSD claim. The AOJ noted that the Veteran failed to report for his scheduled May 2010, April 2013, and February 2015 VA examinations which may have been material to the outcome of the claims but could not be considered. The Veteran responded that he was unable to attend due to his incarceration. It was noted in the records that the AOJ was not to cancel the examinations or indicate that the Veteran failed to report without attempting to confer with the prison authorities in setting up the VA examinations whether inside or outside of the prison facility. The record was silent as to whether there was contact with the prison authorities. The Veteran notified the AOJ in November 2016 that he was no longer incarcerated and he was willing to report for the VA examinations. The records show that some of the VA examinations that were cancelled were never rescheduled post the Veteran’s notification. The Veteran contends that he has PTSD caused by stressors during active service. He reported experiencing intense combat. The Veteran was on assignment with his unit Combine Action Platoon (CAP) in March 1968.While walking down the trail in the woods, explosions went off and with the explosions came the screams. The Veteran was hit with shrapnel in the left leg and right side of the head. The Veteran reported witnessing a fellow soldier being blown in half and his upper torso was placed on the helicopter with him as he was being evacuated from the area. He also witnessed a fellow soldier crushed by an overturned truck during training maneuvers and one of his close friends was killed in Vietnam. The incidents are still fresh in the Veteran’s mind. 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 the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303 (d) (2019). Specifically, regulations provide that a grant of service connection for PTSD requires the following: (i) if the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, 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 stressor; (ii) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125 (a); (iii) medical evidence establishing a link between current symptoms and an in-service stressor; and (iv) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304 (f) (2019). Where it is determined that the Veteran was engaged in combat with the enemy and the claimed stressors are related to such combat, his lay testimony regarding the claimed stressors is accepted as conclusive as to their actual existence, absent clear and convincing evidence to the contrary. Where, however, VA determines that the Veteran did not engage in combat with the enemy, or that he did engage in combat with the enemy but the claimed stressor is not related to such combat, lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates the Veteran’s report as to the occurrence of the claimed stressors. 38 U.S.C. § 1154 (b) ; 38 C.F.R. §§ 3.304 (d), (f) (2019); West v. Brown, 7 Vet. App. 70, 76 (1994). The Veteran served in combat in Vietnam and has been diagnosed as having PTSD. The Board acknowledges that the Veteran was not able to attend a VA examination for PTSD due to his incarceration. Specifically, there is not any previous VA examinations for PTSD of record. Based on the above, the Board finds that service connection for PTSD is warranted. REASONS FOR REMANDS The Board regrets that additional development is required before the other claims on appeal are decided. In doing so, the Board acknowledges that these claims have been pending since March 24, 2010. A review of the record shows that the Veteran was complaining about the worsening of symptoms relating to the shell fragment disabilities in his right auricle and anterior left thigh. The Veteran had been experiencing lightheadedness, tightness around the head, and related inner ear issues. Further, the Veteran complained that the small fragments that are embedded in the left calf area have produced scarring and are sensitive to the touch. The Board finds that the Veteran should be afforded the appropriate VA examinations to determine the level of severity of each of the shell fragment disabilities due to his worsening symptoms. See Notice of Disagreement received June 27, 2011. A further review of the record shows that the Veteran complained about the worsening of his seizure disorder due to the shell fragment disability in his head area. The Veteran states that the adverse effect over time could worsen or aggravate his seizure disorder. In this regard, as the Veteran was not noted to have a seizure disorder upon entry into active service, the presumption of soundness attaches. As such, to rebut that presumption, the examiner must find that a seizure disability clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated by service. Therefore, the Board further finds that the Veteran should be afforded a VA examination to determine the nature and etiology of the Veteran’s seizure disorder in light of the shell fragments embedded in the right auricle and/or head region. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination to determine the nature, extent, severity and manifestations of his shell fragment disabilities and shell fragment wound scar 3. Schedule the Veteran for a VA examination by a clinician to determine the nature, onset and etiology of any seizure disorder. Based on the examination results and review of the record, the examiner must respond to the following: The examiner should state the likelihood that any seizure disorder found to be present existed prior to service. If the examiner concludes that seizure disorder found to be present existed prior to service, the examiner should indicate that likelihood that the disability worsened during service. If the examiner diagnoses the Veteran as having a seizure disorder that did not pre-exist service, the examiner must opine as to whether it is at least as likely as not that the condition is related to or had its onset during service. In offering each of these opinions, the examiner should specifically acknowledge and comment on the Veteran’s in-service report of the worsening of his seizure disorder based on the inability to treat the condition with medication and the impact of the seizure disorder in service on the Veteran’s active duty service. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ivan Franklin 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.