Citation Nr: 21031734 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 14-31 818 DATE: May 24, 2021 ORDER 1. Entitlement to service connection for unspecified trauma-and stressor-related disorder (claimed as posttraumatic stress disorder (PTSD)) is granted. REMANDED 2. Entitlement to service connection for a left knee disability is remanded. 3. Entitlement to service connection for a right knee disability is remanded. 4. Entitlement to service connection for a low back disability is remanded. 5. Entitlement to service connection for a neck injury is remanded. 6. Entitlement to service connection for left upper extremity nerve disability is remanded. 7. Entitlement to service connection for right upper extremity nerve disability is remanded. 8. Entitlement to service connection for left lower extremity nerve disability is remanded. 9. Entitlement to service connection for right lower extremity nerve disability is remanded. 10. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. 11. Entitlement to service connection for depression is remanded. 12. Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. 13. Entitlement to service connection for diverticulitis is remanded. 14. Entitlement to service connection for penile infection, status post-circumcision is remanded. 15. Entitlement to service connection for fungus of the genitalia and bilateral feet is remanded. 16. Entitlement to service connection for a skin rash, claimed as due to exposure to contaminated water at Camp Lejeune, North Carolina is remanded. 17. Entitlement to service connection for headaches is remanded. 18. Entitlement to a compensable rating for bilateral hearing loss is remanded. FINDING OF FACT It is reasonably shown by competent evidence that the Veteran's diagnosed unspecified trauma- and stressor-related disorder resulted from events that occurred during his active duty service. CONCLUSION OF LAW Service connection for other specified trauma-and stressor-related disorder is warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from December 1984 to March 1989 and from January 1991 to May 1991. This matter is before the Board of Veterans' Appeals (Board) on remand from the U.S. Court of Appeals for Veterans Claims (CAVC). The matter was initially before the Board on appeal of January 2014 (that granted service connection for bilateral hearing loss, rated 0 percent, effective February 27, 2012, and denied service connection for diverticulitis, IBS, skin rash, right knee arthritis, left knee arthritis, right ankle arthritis, penile infection, depression, PTSD, and OSA), May 2015 (that denied service connection for chronic headaches, a low back disability, a neck injury, left and right upper extremity peripheral neuropathy, and fungus of the genitalia and left and right feet and toenails), and March 2017 (that denied service connection for a vision disability, TBI, and left and right lower extremity peripheral neuropathy) rating decisions. In October 2018, a videoconference hearing was held before the undersigned. An April 2019 Board decision denied service connection for a right ankle disability, PTSD, a TBI, and a vision disability and remanded entitlement to service connection for a left knee disability, a right knee disability, a low back disability, a neck injury, a left upper extremity nerve disability, a right upper extremity nerve disability, a left lower extremity nerve disability, a right lower extremity nerve disability, OSA, depression, IBS, diverticulitis, penile infection, fungus of the genitalia and bilateral feet, a skin rash, and headaches, and entitlement to a compensable rating for bilateral hearing loss. The Veteran appealed that decision to the CAVC. An August 2020 CAVC Order vacated the part of the Board's decision that denied service connection for PTSD and remanded that matter to the Board for further development and re-adjudication consistent with terms of an August 2020 Joint Motion for Partial Remand (JMPR). [The CAVC left undisturbed the part of the Board decision that remanded entitlement to service connection for a left knee disability, a right knee disability, a low back disability, a neck injury, a left upper extremity nerve disability, a right upper extremity nerve disability, a left lower extremity nerve disability, a right lower extremity nerve disability, OSA, depression, IBS, diverticulitis, penile infection, fungus of the genitalia and bilateral feet, a skin rash, and headaches, and entitlement to a compensable rating for bilateral hearing loss. The Veteran did not challenge the Board's denial of service connection for a right ankle disability, a traumatic brain injury, and vision disability. See Pederson v. McDonald, 27 Vet. App. 276, 285 (2015) (en banc) (recognizing an appellant's right to expressly abandon parts of his or her appeal).] 1. Service connection for unspecified trauma-and stressor-related disorder is granted. In the August 2020 JMPR, the parties agreed that vacatur and remand was required because the Board erred by failing to provide an adequate statement of reasons or bases for its denial of service connection for PTSD. Specifically, the Board did not address a November 21, 2013, VA examination report, when the examiner opined that the Veteran's unspecified trauma-and stressor-related disorder was at least as likely as not caused by or a result of injuries which he sustained while serving in the Marine Corps. The Board was directed to address the November 2013 VA medical opinion to determine if service connection is warranted for unspecified trauma- and stressor-related disorder. The parties noted that VA treatment records (specifically May 14, 2014, May 27, 2014, and June 24, 2014 VA psychology and psychiatry treatment records) that (purportedly) note a diagnosis of PTSD. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for PTSD 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, or causal nexus, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's service treatment records (STRs) are silent for complaints, findings, diagnosis, or treatment of PTSD and/or unspecified trauma and stressor related disorder. On November 2013 VA PTSD examination, unspecified trauma and stressor related disorder and major depressive disorder (MDD) were diagnosed. The Veteran described hazing incidents when his rank was pounded into his chest during a promotion ceremony and when he was forced to go through a gauntlet and have his leg kneed by other Marines. He also reported an incident when he was posted on watch, informed an officer in charge that he was tired, and the officer grabbed him by the neck and threatened him. The examiner opined that while the reported stressor of hazing and an assault by an officer in service met Criterion A for PTSD, the Veteran's symptoms did not currently meet DSM-V diagnostic criteria for PTSD and would not have met diagnostic criteria based on the DSM-IV. However, the examiner indicated that such symptoms met the diagnostic criteria for unspecified trauma and stressor related disorder and that it was currently not possible to separate the effects of unspecified trauma and stressor related disorder and MDD on the Veteran's functioning because several symptoms overlap. The examiner also noted that reports of hazing in Marine Corps airborne units had recently been publicized. The examiner explained that the Veteran's anxiety symptoms began during service, while his depressive symptoms began after service and appear to be related to occupational stressors. Therefore, the unspecified trauma and stressor related disorder was at least as likely as not caused by or as a result of his in-service injuries (i.e. hazing incidents and an assault). May and June 2014 VA psychiatric treatment records note diagnoses of PTSD and or "PTSD, chronic," however, the underlying stressors for such diagnoses are not identified. A September 2014 VA treatment record notes a PTSD diagnosis is suggested but that only B, C, and D, criteria were met. A November 2014 VA treatment record notes a diagnosis of chronic PTSD and persistent depressive disorder. However, regarding PTSD, only B, C, and D criteria were met. A May 2015 VA treatment record notes the Veteran reported he was sexually harassed by foreign sailors during a joint operation. The provider indicated that it was unlikely that the Veteran would meet criteria for [a diagnosis of] PTSD, given that his worst event may not meet criterion A, and the intrusive symptoms seem to be more ruminative than intrusive in nature. A February 2016 VA treatment record notes that a PTSD diagnosis is suggested because criteria B, C, and D were met; however, Criteria A was not met. At the October 2018 videoconference hearing, the Veteran testified that one evening he was ordered to stand watch, and after some discussion, an officer approached him, pushed him against a pole, started choking him, and threatened to beat him up. The initial threshold matter that must be addressed here (as in any claim seeking service connection) is whether there is competent evidence that the Veteran currently has (or during the pendency of the claims has had) the disability for which service connection is sought, i.e., PTSD. In the absence of proof of the disability for which service connection is sought, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). No VA treatment records in the Veteran's claims file, and no private treatment records, note current (or that during the pendency of the claims the Veteran has had) a diagnosis of PTSD (based on a verified stressor) or that fully met the criteria for PTSD under DSM IV or V. The threshold legal (see 38 C.F.R. § 3.304(f)) and factual requirements for substantiating a claim of service connection for PTSD are not met. However, it is not in dispute that the Veteran has a diagnosis of unspecified trauma- and stressor-related disorder. It may also reasonably be conceded that given the circumstances of his service (and what is known to have been occurring and practices in the Marine Corps at the time), he was exposed to some level of discomfort during pinning and promotion ceremonies. The November 2013 VA examiner opined that while the Veteran's symptoms did not meet the full criteria for a diagnosis of PTSD in accordance with DSM provisions, he did meet the criteria for a diagnosis of unspecified trauma-and stressor-related disorder related to events in service. The examiner discussed the lay and medical evidence in detail and opined that the unspecified trauma- and stressor-related disorder was related to events that occurred in service including exposure to hazing incidents. As the opinion reflects familiarity with the entire record, and includes rationale with citation to supporting factual data, the Board finds that it is highly probative evidence in the matter, and persuasive. There is no medical opinion to the contrary. Notably, the Veteran is competent to report that he experienced discomfort by having his rank pounded into his chest and his knees hit during various ceremonies (and the examiner determined that the discomfort brought about by exposure to such activities met the criteria for unspecified trauma and stressor related disorder). The Board finds no reason to question the general credibility of his accounts (perhaps with some embellishment). Resolving any remaining reasonable doubt in the Veteran's favor (as required by 38 C.F.R. § 3.102 ), the Board finds that the requirements for establishing service connection for unspecified trauma-and stressor-related disorder are met, and that service connection for such disorder is warranted. [The Board notes that service connection for depression, remanded below, is rated under the same scheduler criteria as the now service-connected unspecified trauma and related disorder. Nonetheless, the Veteran is entitled to establish service connection for the specific diagnosis of depression, if he so desires.] REASONS FOR REMAND 2., 3., 4., 5., 6., 7., 8., 9., 10., 11., 12., 13., 14., 15., 16., 17., 18. Entitlement to service connection for a left and right knee disabilities, a low back disability, a neck injury, left and right upper extremity nerve disabilities, left and right lower extremity nerve disabilities, OSA, depression, IBS, diverticulitis, penile infection, fungus of the genitalia and both feet, a skin rash, and headaches, and entitlement to a compensable rating for bilateral hearing loss. In July 2020, the Veteran's case returned to the Board after the issuance of a June 2020 Supplemental Statement of the Case (SSOC). Subsequently, CAPRI records requested by VA and copies of VA treatment records and "buddy statements" submitted by the Veteran, were added to the claims file. In a September 2020 letter, the Veteran's attorney requested that his case be remanded to the Agency of Original Jurisdiction (AOJ) for review of the additional evidence that was received by the Board. Accordingly, due process requires that the case must be returned to the AOJ for its initial review of the VA treatment records and any other documents submitted by the Veteran (and for any further development found necessary). Additionally, in the above September 2020 letter, the Veteran's attorney raised a challenge to the presumed competency of the VA examiners under Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). She wrote stating that the Veteran is asking that "VA produce the qualifications of all examiners who have performed compensation and pension examinations on him. He questions the qualifications of these examiners." Regarding the issues on appeal, in January 2020 the Veteran was provided a mental disorders examination (with opinion) by T. C., Ph.D., and examinations (with opinions) for headaches, a neck injury, knee disabilities, a low back disability, OSA, skin diseases, central nervous system conditions, intestinal conditions, male reproductive organ conditions, and peripheral nerve conditions by P.C., M.D. In February and October 2020, hearing loss examinations were conducted by A.W., Doctor of Audiology. Although the above examiners hold a Ph.D. in psychology, an M.D. (in Family Medicine), and a Doctorate in Audiology, an explanation of the examiners' training and expertise is not associated with the record, and under Francway, once a claimant raises the issue of the competency of a VA medical examiner, the burden shifts to the VA to establish the examiner's competence. Therefore, remand is necessary to obtain all appropriate documentation regarding the qualifications (such as curriculum vitae) of the VA examiners to address the Veteran's challenge. The matters are REMANDED for the following: 1. Obtain the qualifications, such as a curriculum vitae or similar demonstrable documentation (redacted if deemed warranted) of T.C, the psychologist who provided the January 2020 advisory mental health medical opinion in this matter, P.C., the physician who provided January 2020 advisory medical opinions for headaches, neck injury, knee disabilities, low back disability, OSA, skin diseases, central nervous system conditions, intestinal conditions, male reproductive organ conditions, and peripheral nerve conditions, and A.W., audiologist, who conducted the February and October 2020 audiological evaluations. This information is also to be associated with the claims file. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). [If the requested qualifications cannot be obtained, explain the reason for in the record. and the Veteran should be so advised.] 2. Provide the Veteran and his attorney a copy of the qualifications of T.C., P.C., and A.W., and afford them adequate opportunity to respond. 3. Review the VA treatment records and any submissions by the Veteran received since the June 2020 SSOC; arrange for any further development deemed necessary (to include any further VA examinations/medical opinions); and readjudicate the remaining claims. If any remains denied, issue an appropriate supplemental statement of the case, and afford the Veteran and his attorney opportunity to respond. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.