Citation Nr: 21029516 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-45 466 DATE: May 13, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is granted. Entitlement to service connection for a neck disability, diagnosed as cervical strain with degenerative changes, is denied. Entitlement to service connection for a right shoulder disability, diagnosed as right shoulder degenerative joint disease (DJD)/rotator cuff tendonitis, is denied. Entitlement to service connection for a right-hand disability, diagnosed as right-hand chronic sprain, is denied. REMANDED Entitlement to service connection for depressive disorder and polysubstance abuse, to include as secondary to the service-connected PTSD and unspecified trauma or stressor related disorder, is remanded. Entitlement to a rating in excess of 10 percent for unspecified trauma or stressor related disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, an acquired psychiatric disorder, diagnosed as PTSD, is related to his military service. 2. A neck disability is not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest to a compensable degree within one year of service discharge. 3. A right shoulder disability is not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest to a compensable degree within one year of service discharge. 4. A right-hand disability is not shown to be causally or etiologically related to any disease, injury, or incident during service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. 2. The criteria for service connection for a neck disability disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for a right-hand disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1979 to July 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2016, the Veteran had an informal hearing before the Decision Review Officer, the informal conference report is of the record. In May 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of the record. SERVICE CONNECTION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1110; 38 C.F.R. § 3.304. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include psychosis and arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and a depressive disorder. The Veteran contends that he is entitled to service connection for psychiatric disorders, to include PTSD, a depressive disorder, and polysubstance abuse disorder. See May 2019 hearing transcript. Specifically, he contends that he has PTSD that is related to verified personal assault in service. He also contends that his current depressive disorder and polysubstance abuse disorder are secondary to his service-connected psychiatric disorder. 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). Personal assault is an event of human design that threatens or inflicts harm. Examples of this are rape, physical assault, domestic battering, robbery, mugging, and stalking. Patton v. West, 12 Vet. App. 272, 277 (1999). If a PTSD claim is based on personal assault in service, evidence from sources other than the veteran's records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304 (f)(5). Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Id. The Board is cognizant that medical opinions in cases of personal assault for PTSD are exceptions to the general rule discussed in Moreau v. Brown, 9 Vet. App. 389 (1996), that an opinion by a medical professional based on a post-service examination cannot be used to establish the occurrence of a stressor. See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011); Patton v. West, 12 Vet. App. 272, 277 (1999); see also 38 C.F.R. § 3.304 (f)(3). The provisions of 38 C.F.R. § 4.125 (a) require that a diagnosis of a mental disorder conform to the American Psychiatric Association's Diagnostic and Statistical Manual, Fifth Edition (DSM-5). However, with respect to this provision, the Board notes that the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), is still applicable for claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). Here, the Veteran's claim was certified in October 2016 and is therefore to be considered under the DSM-5. The question of whether the Veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals, but whether the evidence establishes the occurrence of a stressor is a question of fact for adjudicators. See 38 C.F.R. § 3.304 (f). The Veteran contends that he has PTSD due to an in-service assault. As an initial matter, in addition to unspecified trauma or stressor related disorder, the Veteran has also been diagnosed with depressive disorder and polysubstance abuse disorder. In this case, the Board notes that the Veteran currently is service connected for unspecified trauma or stressor related disorder due to a verified in-service personal assault. As such, the remaining inquiry is whether the Veteran has PTSD as a result of such assault. In this regard, the Veteran underwent VA examination March 2015. At such time, the examiner concluded that the Veteran did not have a diagnosis of PTSD because he did not meet DSM-5 criteria for PTSD. He was diagnosed with unspecified trauma or stressor related disorder which represented a disorder that had a few PTSD symptoms and the examiner concluded that it was due to his military service. However, the examiner explained that the Veteran's major depressive disorder was not considered related to the unspecified trauma or stressor related disorder or to his military service. The examiner stated that, based on the Veteran's treatment records, the depression appears secondary to his ongoing psychosocial stressors and struggle with addiction. A June 2015 treatment record from a Vet Center shows that a PTSD evaluation was conducted by Dr. K.R. who concluded that the Veteran had severe PTSD. Dr. K.R. stated that the diagnosis was based on a diagnostic interview using DSM-5. Dr. K.R. added that the Veteran's diagnosed PTSD was due to his sexual assault while in service. Dr. K.R. explained that the Veteran continued to relive the sexual assault and ongoing threats through dreams, flashbacks, triggers, and intrusive memories. Since the trauma, the Veteran had felt angry, irritable, hypervigilant, and unable to focus or concentrate. It was further noted that the Veteran startled easily and had difficulty sleeping. Additionally, in separate letter Dr. K.R. reiterated that the Veteran had PTSD due to his military sexual trauma and the Veteran had suffered from PTSD since such time. In a January 2016 statement from the Veteran's provider, M.R. MSW, it was noted that the Veteran had a diagnosis of PTSD due to his personal assault. M.R. MSW reported that Veteran met diagnostic criteria for PTSD and he reports symptoms of intrusive thoughts, suicidal ideation, homicidal ideation, difficulty remembering and concentrating, easy startle response, flashbacks, hypervigilance, daily anxiety, panic attacks, difficulty sleeping, distressing dreams, avoidance, distrust of others, feeling alienated, anger, irritability, isolation, and withdrawal. M.R. reported that it was her opinion that Veteran's PTSD symptoms were affecting many aspects of his life including social and occupational relationships and physical health. Subsequently, in April 2016, the Veteran underwent another VA psychiatric examination. The Veteran was diagnosed with other specific trauma related disorder, polysubstance abuse, and depression. The examiner again concluded that the Veteran did not meet the diagnostic criteria under the DSM-5 for PTSD because he did not meet Criterion C. The examiner stated that the Veteran had an established rating for other specific trauma-related disorder. The current evaluation confirms findings of earlier 2015 compensation and pension evaluation. It was noted that earlier assessments through psychiatry at the VA confirmed the impression of subclinical symptoms of post-traumatic stress disorder. Specifically, it was been noted that the Veteran did not endorse symptoms meeting the avoidance criteria (Criteria C for the diagnosis). The examiner further explained that inconsistent information was provided by the Veteran regarding the symptoms and events. Moreover, the examiner stated that a review of the history from 1999 forward suggested that substance abuse issues resulted in significant functional impairment for the Veteran. However, the examiner did not specifically address the diagnoses of PTSD made by M.R. and Dr. K.R. In light of this deficiency, the RO requested an addendum opinion to clarify whether the Veteran has a diagnosis of PTSD in light of the statements by M.R. and Dr. K.R. and the Vet Center treatment records. In an August 2016 addendum opinion, the examiner concluded that the Veteran's diagnosis related to identified index stressor (MST during military service) was other specific trauma-related disorder. The examiner further stated that post-traumatic symptoms were as likely as not related to the index stressor, but not meeting formal criteria for PTSD. This diagnosis was established in an earlier compensation and pension evaluation. The examiner noted that the Vet Center's records appeared to be based on Veteran's subjective report of symptoms. The examiner explained that both VA examinations considered additional information available from service treatment records and ongoing treatment records. The examiner stated that the weight of evidence appeared to suggest that primary impairment related to patterns of conduct and polysubstance use, began during his adolescence and there was also significant trauma prior to military service. After review of all information, the examiner confirmed the previous assessment of post-traumatic symptoms (other specific trauma-related disorder) specifically related to the index stressor as noted in the examination of April 2016. The Board finds that, after weighing the positive and negative evidence, such evidence is in equipoise as to whether the Veteran has a diagnosis of PTSD related to his in-service personal assault. In such situations, a decision that is favorable to the appellant is mandated by 38 U.S.C. § 5107. Accordingly, further evidentiary development is not necessary. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Moreover, such diagnosis was rendered by VA staff clinicians. If a veteran has received a diagnosis of PTSD from a competent medical professional, VA must assume that the diagnosis was made in accordance with the appropriate psychiatric criteria in regard to the adequacy of the symptomatology and the sufficiency of the stressor. Cohen v. Brown, 10 Vet. App. 128, 153 (1997). VA can only reject such a diagnosis on a finding that the preponderance of the evidence is against (1) the PTSD diagnosis, (2) the occurrence of the in-service stressor, or (3) the connection of the current condition to the in-service stressor. Id. In the instant case, the Board cannot find that the preponderance of the evidence does not support the PTSD diagnosis rendered by the Vet Center staff clinicians. As noted, the physician stated that the interview was conducted using DSM-5 criteria. Therefore, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that he has been diagnosed with PTSD due to stressors incurred during service. Thus, service connection for PTSD is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. With regard to the claims of entitlement to service connection for depressive disorder and polysubstance abuse disorder as secondary to service-connected psychiatric disability, such matters will be discussed in the remand section. 2. Entitlement to service connection for a neck disability. 3. Entitlement to service connection for a right shoulder disability. 4. Entitlement to service connection for a right-hand disability. The Veteran contends that he is entitled to service connection for a neck disability, right shoulder disability, and right-hand disability. Specifically, the Veteran contends that the conditions are related to the verified in-service personal assault. Diagnoses of right-hand chronic sprain, right shoulder DJD/rotator cuff tendonitis, and cervical strain with degenerative changes are of record. See May 2016 VA examination report. As previously stated, the Veteran's in-service personal assault has been verified. The Veteran's service treatment record notes a report of right-hand pain and pain on the left side of his back with tenderness between shoulder blades. Therefore, the remaining inquiry is whether the Veteran's neck, right shoulder, and right-hand disabilities are due to his in-service personal assault. In this regard, the Veteran underwent VA examinations for these conditions in May 2016. The examiner diagnosed the Veteran with cervical strain with degenerative changes, right hand chronic sprain, and rotator cuff tendonitis. The examiner opined that each condition was less likely than not related to the Veteran's service. However, the Board previously found that such opinions were inadequate and remanded the case for new medical nexus opinions. In accordance with the November 2019 Board remand, VA obtained an addendum opinion in order to determine the etiology of the Veteran's disorders in April 2020. At such time, the examiner opined that it was less likely as not that the Veteran's neck, right shoulder, and right-hand disabilities were related to his military service. As rationale, the examiner explained that service treatment records only documented a physical assault in November 1980 with minor abrasions to the right hand, but it did not include any right shoulder or neck injuries. With regard to the Veteran's right shoulder, the examiner noted that there was a visit to the medical clinic in June 1982 for a muscular strain at the left rhomboid area, which was not near the right shoulder. The examiner further noted that the Veteran had bilateral mild degenerative joint disease of the acromioclavicular joint and downsloping acromion with suggestion of rotator cuff tendonitis in 2015, which was not related to military service due to decades of no treatment. The examiner further explained that both shoulders showed the same degenerative finding, which was more likely than not due to normal aging processes. Thus, the examiner concluded that there had been no establishment of chronicity for the right shoulder since the events in service in 1980 and 1982, and those events did not involve the right shoulder at all. Therefore, the examiner concluded that it was less likely as not that the Veteran's current right shoulder DJD/rotator cuff tendonitis was proximately due to or caused by active duty military service. The examiner also indicated that the Veteran's neck disability was most likely due to normal aging of the spine. As rationale, the examiner explained that the November 1980 in-service physical assault did not include any neck injuries. The examiner further explained that many years had passed since the Veteran's service and there was a VA emergency room visit in 2016 with a history of only two months of right shoulder and neck pain. The examiner noted that there had been no establishment of chronicity from military service to the present for the cervical spine, and the service treatment records did not document any neck problems. Therefore, the examiner concluded that it was less likely as not that the Veteran's current neck disability was proximately due to or caused by active duty military service. With regard to the Veteran's right hand, the examiner noted that the Veteran's service treatment records documented a physical assault in November 1980 and the Veteran had minor abrasions to the right hand and his 1982 separation examination did not mention chronic issues with the right hand. The examiner concluded that many decades had passed and there were no documented right-hand issues until 2015 when the Veteran injured his right thumb. Therefore, the examiner concluded that it was less likely than not that the Veteran's right-hand injury was proximately due to or caused by a minor remote injury/abrasion to the right hand during active duty service in 1980. The Board accords great probative weight to the April 2020 VA examiner's opinion as it considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Importantly, there is no medical opinion of record to the contrary. The Board also acknowledges the Veteran's statements that his neck disability, right shoulder disability, and right-hand disability are related to the in-service personal assault. However, the Board finds that the question regarding the potential relationship between the Veteran's current disabilities and any instance of his service to be medically complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this regard, while the Veteran is competent to describe the symptoms associated with his neck disability, right shoulder disability, and right-hand disability, the Board accords his statements regarding the etiology of his disabilities little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In the instant case, the question of the etiology of his current neck disability, right shoulder disability, and right-hand disability involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Because the Veteran does not have the appropriate medical training and expertise to offer an opinion as to the etiology of his neck disability, right shoulder disability, and right-hand disability, his lay assertions in this regard have no probative value. The Board has also considered whether service connection is warranted for arthritis of the right shoulder and neck on a presumptive basis or a continuity of symptomatology basis. In this regard, the clinical evidence of record fails to show that the Veteran's right shoulder and neck manifested arthritis to a degree of 10 percent within the one year following his discharge from active duty service. In an April 2020 VA opinion, the examiner noted that the Veteran had no treatment for decades after service. At the May 2019 hearing, the Veteran explained he has not sought treatment for these conditions primarily because of a lack of medical insurance and financial issues. However, a June 1999 VA treatment note indicates that the Veteran's only reported physical health issue was his back, and a December 2006 VA treatment note indicated that the Veteran's neck examination was normal. Moreover, the Veteran's earliest report of right shoulder pain was in June 2012. As such, service connection on a presumptive basis is not warranted. Additionally, the probative and persuasive medical evidence shows that service connection on a continuity of symptomatology basis is not warranted either. Based on the foregoing, the Board finds that a neck disability, right shoulder disability, and right-hand disability are not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis (neck and right shoulder) did not manifest to a compensable degree within one year of service discharge. Therefore, service connection for such disorders are not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for a neck disability, right shoulder disability, and right-hand disability. The benefit of the doubt doctrine is not applicable in this appeal. The claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 5. Entitlement to service connection for depressive disorder and polysubstance abuse, to include as secondary to the service-connected PTSD and unspecified trauma or stressor related disorder. 6. Entitlement to a rating in excess of 10 percent for unspecified trauma or stressor related disorder. The Veteran's claim for service connection for PTSD has been granted herein. Therefore, the Board finds that a remand is necessary to afford the AOJ an opportunity to determine accurately the current severity of the Veteran's acquired psychiatric disorders and to readjudicate his claim for a rating in excess of 10 percent for an acquired psychiatric disorder. Additionally, the Board finds that an opinion should be obtained that addresses whether the diagnosed depressive disorder and polysubstance abuse are secondary to the service-connected psychiatric disorder. 7. Entitlement to a TDIU. The Board observes that the outcome of the remanded claims may impact the TDIU matter. Therefore, the Board finds that the issue of entitlement to a TDIU is inextricably intertwined with aforementioned remanded claims; thus, adjudication must be deferred. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected psychiatric disorder, PTSD and unspecified trauma related disorder. (a) 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 attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected psychiatric disorder alone. (b) The examiner should also opine as to the nature and etiology of the Veteran's depressive disorder and polysubstance abuse disorder. The examiner should address the following: (i) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's depressive disorder is caused or aggravated by his service-connected psychiatric disorder? (ii) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's polysubstance abuse disorder is caused or aggravated by his service-connected psychiatric disorder? The term "aggravation" in the above context refers to any incremental increase in disability - any additional impairment of earning capacity -in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence." A rationale should be provided for each opinion offered. 2. The Veteran's TDIU claim should be readjudicated based on the entirety of the evidence, to include whether a TDIU on a schedular or extraschedular basis is warranted. (Continued on the next page) 3. Thereafter, send the Veteran and his representative a Supplemental Statement of the Case and allow the appropriate time period for response. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brennae L. Brooks, Associate 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.