Citation Nr: 21026317 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-59 564 DATE: April 30, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened; to this extent only, the claim is granted. REMANDED Entitlement to an increased rating greater than 10 percent for a right hip disability is remanded. Entitlement to service connection for a skin disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is remanded. Entitlement to service connection for a sinus disorder, to include as a chronic qualifying disability under 38 C.F.R. § 3.317, is remanded. Entitlement to service connection for an acquired psychiatric disorder, including PTSD, anxiety, and depression, to include as secondary to a service-connected disability is remanded. FINDINGS OF FACT 1. A July 2013 rating decision denied service connection for PTSD. Notice of that rating decision was provided to the Veteran that same month, and the Veteran did not perfect an appeal of the July 2013 rating decision or submit new and material evidence within one year of the notification of that decision. 2. Evidence received since the July 2013 rating decision is new and relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for PTSD. CONCLUSIONS OF LAW 1. The July 2013 rating decision is final with respect to the Veteran’s claim to establish service connection for PTSD. 38 U.S.C. § 7105(c), 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received since the July 2013 rating decision is new and material, and the claim for entitlement to service connection for PTSD is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1990 to November 2002. The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2021. A transcript of that hearing is associated with the claims file. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for PTSD As an initial matter, the Board finds that new and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. Entitlement to service connection for PTSD was denied in July 2013 because the evidence did not relate the Veteran’s PTSD to a confirmed in-service stressor. Since the July 2013 rating decision, new and material evidence has been received, including the Veteran’s testimony identifying additional in-service stressors which she believes caused her PTSD. Assuming the credibility of the Veteran’s lay statements, the Board finds that new and material evidence has been received which is sufficient to reopen the claim for entitlement to service connection for PTSD. See Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Accordingly, the claim for entitlement to service connection for PTSD is reopened. REASONS FOR REMAND 1. Entitlement to an increased rating greater than 10 percent for a right hip disability is remanded. Review of the claims file reflects that the Veteran last underwent a VA examination assessing the severity of her right hip disability in November 2014, over six years ago. During her February 2021 hearing before the Board, the Veteran that her symptoms had worsened in severity since the November 2014 examination. Accordingly, the Veteran should be provided with a new VA examination to assess the current severity of her right hip disability. 2. Entitlement to service connection for a skin disorder and entitlement to service connection for a sinus disorder, to include as chronic qualifying disabilities under 38 C.F.R. § 3.317 are remanded. The Veteran contends that she has a sinus or respiratory disorder and a skin disorder related to service in the Persian Gulf. During her February 2021 hearing before the Board, the Veteran testified that, while deployed to Germany, she was sent to Saudi Arabia and Kuwait in 45-day rotations. While the Veteran’s service personnel records document service in Germany, they do not confirm service in Southwest Asia. Accordingly, the Agency of Original Jurisdiction (AOJ) should attempt to confirm the Veteran’s reported service in Southwest Asia. During her February 2021 hearing before the Board, the Veteran reported that she experienced symptoms of chronic sinusitis and rash during service and continuously since service discharge. Although the Veteran underwent a VA examination in November 2014, the VA opinion did not consider the Veteran’s statements of in-service symptoms and continuity. Accordingly, new VA examinations are warranted to discuss the etiology of the Veteran’s respiratory and skin symptoms with consideration of the Veteran’s testimony. Additionally, as the Veteran’s service treatment records document treatment for sinusitis and numerous instances of upper respiratory infections, the examiner should provide an opinion as to whether any currently diagnosed disorder associated with the Veteran’s reports of respiratory symptoms were incurred in or caused by active duty service. Additionally, the November 2014 VA examiner did not provide an opinion as to whether the Veteran’s reported symptoms constitute an undiagnosed disability or a medically unexplained chronic multisymptom illness associated with the Veteran’s alleged service in the Persian Gulf. If her service in Southwest Asia is confirmed, the VA examiner should provide an opinion as to whether the Veteran’s respiratory and skin symptoms constitute undiagnosed illnesses or medically unexplained chronic mulitisymptom illnesses associated with service in Southwest Asia. 3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression, to include as secondary to a service-connected disability is remanded. The Veteran contends that her current PTSD, anxiety, and depression had their onset in active duty service, and that they are related to in-service stressors. During her February 2021 hearing before the Board, the Veteran identified three stressors, including: 1) seeing the dead bodies of women and children when on a detail to sweep the mine field; 2) seeing D.B., a fellow soldier assigned to Bravo company, walk down the hallway of a building with a knife in hand after stabbing a soldier and beating his wife. The Veteran noted that D.B. was court martialed and sent to prison, and that the incident occurred in 1992 or 1993; and 3) while visiting a friend who had a baby a hospital in Germany, the husband of her friend’s roommate brought a cake platter with a severed head on it in to the woman after finding out that his wife was cheating on him. Although the AOJ made a formal finding that there was a lack of information to corroborate the Veteran’s reported stressors in January 2015, some of the stressors identified by the Veteran during her Board hearing are new and were not identified at the time of the memorandum. Additionally, the second stressor identified above provides the name, approximate date, and unit information which may be sufficient to corroborate its occurrence. Accordingly, the AOJ should attempt to verify the occurrence of the Veteran’s reported stressors. Furthermore, a new VA examination to determine the etiology of the Veteran’s diagnosed psychiatric disorders is warranted. While a June 2013 VA examination is of record, which provides a diagnosis of anxiety disorder, the VA examiner did not provide an etiological opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced). As the record reflects diagnoses of PTSD, anxiety, and depression, the VA examiner should provide an etiological opinion for each of these diagnosed psychiatric disabilities. Further, as the evidence suggests that the Veteran’s service-connected lumbar spine disorder was “contributing to” her psychiatric disorder, an opinion on secondary service connection should be provided. Last, the Veteran has reported ongoing treatment at the VA Medical Center in Birmingham. As the most recent VA treatment records associated with the claims file are dated in 2013, updated VA treatment records should be obtained and associated with the claims file. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated VA treatment records. 2. Contact the Veteran and request that she provide a detailed statement regarding all claimed in-service stressors, including all stressors identified in the record. The RO must also request that she submit any additional details that she believes will help corroborate her claimed in-service stressors. 3. Thereafter, and regardless of whether or not the Veteran responds, the RO must undertake all necessary development to verify the Veteran’s claimed in-service stressful experiences of (1) seeing the dead bodies of women and children when on a detail to sweep the mine field; (2) seeing D.B., a fellow soldier assigned to Bravo company, walk down the hallway of a building with a knife in hand after stabbing a soldier and beating his wife. The Veteran noted that D.B. was court martialed and sent to prison, and that the incident occurred in 1992 or 1993; and (3) while visiting a friend who had a baby a hospital in Germany, the husband of her friend’s roommate brought a cake platter with a severed head on it in to the woman after finding out that his wife was cheating on him. Such development must include contacting the United States Army and Joint Services Records Research Center (JSRRC), the National Personnel Records Center (NPRC) and obtaining the Veteran’s complete personnel records and unit records. Any additional action necessary for independent verification of a particular alleged stressor, to include follow-up action requested by the contacted entity, should be accomplished. If the search for corroborating information leads to negative results, the Veteran and her representative should be notified of this fact. The efforts taken to verify the stressors should be explained, and any further action to be taken should be described. 4. Schedule the Veteran for a VA examination by an appropriate physician to determine the current severity of her service-connected right hip disability. 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. Range of motion should be reported in degrees, noting by comparison the normal range of motion. The examiner should also test and report the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If there is pain on range of motion, the examiner must state at which point pain began. 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. To the extent possible, the examiner should identify any symptoms and functional impairments due the joint disability alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). 5. Undertake appropriate action, to include obtaining any outstanding service personnel records, contacting the U.S. Army and Joint Services Records Research Center (JSRRC), the National Archives, and/or any other appropriate entity, to attempt to verify the Veteran’s reported service in Southwest Asia. 6. Provide the Veteran with new VA examinations by an appropriate physician to determine the etiology of her respiratory/sinus symptoms and her skin symptoms. The Veteran’s claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, the VA examiner is asked to address the following: (a.) Can the Veteran’s respiratory/sinus symptoms and/or skin symptoms be attributed to a known clinical diagnosis (other than a symptom-based diagnosis)? (b.) For any diagnosed disability, the examiner is asked to opine whether it is at least as likely as not (e.g., a 50 percent probability or greater) that the Veteran’s disability was caused by or incurred during service, to include whether it first manifested during service. (c.) Are the Veteran’s respiratory/sinus symptoms and/or skin symptoms a manifestation of: (i) an undiagnosed illness; (ii) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology; (iii) a diagnosable chronic multisymptom illness with a partially explained etiology; or (iv) a disease with a clear and specific etiology? A complete rationale for all opinions must be provided. The examiner must consider and discuss all pertinent evidence in the claims file, to include the Veteran’s testimony and lay statements that she experienced sinus and skin symptoms in service and continuously since service discharge. Also, the examiner is advised that the Veteran is competent to report observable symptomatology. 7. Provide the Veteran with a VA examination to determine the existence and etiology of her PTSD, anxiety, depression, and any other diagnosed psychiatric disorder. A copy of this Remand and the entire claims file must be made available to and reviewed the VA examiner. Pertinent documents should be reviewed, including service treatment records, post-service treatment records, and the statements and testimony of the Veteran with respect to her claimed stressors. If any of the Veteran’s claimed stressors are corroborated by the AOJ, the examiner should be informed of the corroborated stressor(s). All necessary diagnostic testing should be conducted and commented upon by the examiner. The examiner is asked to provide opinions as to the following: (a.) Does the Veteran meet the diagnostic criteria for any psychiatric disability now or at any time during the appeal period, to specifically include PTSD, depression and/or anxiety? i. If PTSD is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s PTSD was caused by any of her reported in-service stressors. In making such a determination, the examiner is requested to review the historical records, including evidence that might reflect that the claimed stressor actually occurred during military service, and clearly identify the particular records which are felt to provide corroboration of the incident(s), and give an adequate rationale for why it is felt that such records establish that the stressor actually occurred during military service. ii. If PTSD is not diagnosed, the examiner must explain this finding in light of the numerous diagnoses of PTSD in the VA treatment records. (b.) Is it at least as likely as not that the Veteran’s acquired psychiatric disability was incurred in or caused by her active duty service? (Continued on the next page)   (c.) Is it at least as likely as not that the Veteran’s acquired psychiatric disability was caused or aggravated beyond its normal progression by a service-connected disability, including a lumbar spine disability or a right hip disability? A complete rationale for all opinions must be provided. The examiner is advised that a finding that the Veteran’s claimed disability was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. The examiner is advised that the Veteran is competent to report observable symptomatology. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Katz, 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.