Citation Nr: 21042484 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-39 146 DATE: July 13, 2021 REMANDED Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) based on an alleged personal assault / pattern of harassment, is remanded. Service connection for right carpal tunnel syndrome is remanded. Service connection for left carpal tunnel syndrome is remanded. An increased rating higher than 30 percent for bilateral foot pes planus with callosities (calluses), prior to March 8, 2021, is remanded. An increased rating higher than 50 percent for bilateral foot pes planus with callosities (calluses), on and after March 8, 2021, is remanded. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. INTRODUCTION The Veteran had active duty service in the U.S. Army from January 1985 to December 1989. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions dated in October 2014 (carpal tunnel syndrome), March 2016 (psychiatric disorder / PTSD), and July 2016, May 2018, and May 2021 (increased ratings for the feet), issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). With regard to the TDIU issue on appeal, during the course of the increased rating appeal, the Veteran has submitted evidence of unemployability partially due to his service-connected feet, such that a request for TDIU was reasonably raised by the record. See 38 C.F.R. § 3.156(b); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part and parcel of a claim for an initial rating or increased rating for a disability). In fact, the AOJ has already adjudicated and developed the TDIU issue (see e.g., April 2019 and March 2020 and March 2021 rating decisions). It is unnecessary for the Veteran to appeal any of the earlier denials of TDIU by the AOJ, in order for the TDIU issue to be in appellate status before the Board. Payne v. Wilkie, 31 Vet. App. 373, 389 (2019). Therefore, the issue of entitlement to a TDIU has been added to the present appeal. The Veteran requested a Board videoconference hearing before a Veterans Law Judge in his August 2016 VA Form 9. As such, a Board videoconference hearing was scheduled for the Veteran for June 2019. However, in a June 2019 letter from the Veteran's attorney, the Veteran explicitly withdrew his request for this hearing. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2020). This case was previously before the Board. In a May 2020 Board decision, the Board denied service connection for right and left carpal tunnel syndrome and denied service connection for sleep apnea. The Veteran appealed the Board's May 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2021 Order, the Court partially vacated and remanded the Board's earlier decision for the right and left carpal tunnel syndrome issues, pursuant to a March 2021 Joint Motion for Partial Remand (JMPR). However, the Veteran did not challenge the Board's denial of service connection for sleep apnea. Therefore, the appeal of the sleep apnea issue was abandoned by the Veteran and dismissed by the Court. See Pederson v. McDonald, 27 Vet. App. 276, 283-85 (2015) (en banc). For the right and left carpal tunnel syndrome issues, the reasons for the Court's Order and the specific instructions of the JMPR will be discussed in further detail below. In any event, this case has now returned to the Board to implement the Joint Motion's instructions for the right and left carpal tunnel syndrome issues. In the above May 2020 Board decision, the Board also separately remanded the following issues for further development: entitlement to service connection for an acquired psychiatric disorder (to include PTSD) and an increased rating in excess of 30 percent for both feet. These particular issues have since been returned to the Board for appellate review, after the AOJ substantially complied with the Board's remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Finally, in a recent May 2021 rating decision on appeal, the AOJ granted an increased rating of 50 percent for the Veteran's bilateral foot disability on and after March 8, 2021. A 30 percent rating for the Veteran's bilateral foot disability remained in effect prior to March 8, 2021. Thus, the increased rating issue on appeal for the feet has been staged by the AOJ for different periods of time. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Presumably, the Veteran has continued to disagree with both the 30 percent and 50 percent ratings assigned. See Breniser v. Shinseki, 25 Vet. App. 64, 79 (2011) (citing AB v. Brown, 6 Vet. App. 35, 38 (1993) (a veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise). REASONS FOR REMAND 1. Service connection for an acquired psychiatric disorder, to include PTSD based on an alleged personal assault / pattern of harassment, is REMANDED. 2. Service connection for right carpal tunnel syndrome is REMANDED. 3. Service connection for left carpal tunnel syndrome is REMANDED. 4. An increased rating in excess of 30 percent for bilateral foot pes planus with callosities (calluses), prior to March 8, 2021, is REMANDED. 5. An increased rating in excess of 50 percent for bilateral foot pes planus with callosities (calluses), on and after March 8, 2021, is REMANDED. 6. Entitlement to a TDIU is REMANDED. First, for the PTSD issue, a remand is required for the AOJ to send additional notice to the Veteran pursuant to 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) formerly known as the Veterans Claims Assistance Act of 2000 (VCAA). In this regard, the Veteran's PTSD claim is based on "constant harassment" by a warrant officer supervisor during active duty from 1985 to 1989. The Veteran believes that the constant harassment he experienced by this supervisor resulted in anxiety, depression, and drug use during service, and eventually the development of PTSD. See October 2015 statement from Veteran (on a VA Form 21-4138); April 2018 VA Form 9. The Court has set a relatively low bar for interpreting a claim for PTSD as one involving a personal assault stressor for which the provisions of 38 C.F.R. § 3.304(f)(5) are applicable. See, e.g., Bradford v. Nicholson, 20 Vet. App. 200 (2006) (veteran alleged that his sergeant kicked him down a set of stairs). In this regard, VA has defined "personal trauma" in a broad sense. Personal trauma for the purpose of VA disability compensation claims based on PTSD refers broadly to stressor events involving harm perpetrated by a person who is not considered part of an enemy force. Examples include assault, battery, robbery, mugging, stalking, and harassment (emphasis added). See VBA Live Manual M21-1, IV.ii.1.D.5.a. (June 7, 2021). In any event, as pertinent to the present Board remand, VA will not deny a PTSD claim that is based on in-service personal assault / harassment without first advising the claimant that alternative evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor. The Veteran should also be allowed the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 38 C.F.R. § 3.304(f)(5). In fact, in Bradford v. Nicholson, 20 Vet. App. 200 (2006), the Court held that 38 C.F.R. § 3.304(f) "unequivocally" provides that VA cannot deny a PTSD claim without first providing the requisite notice discussed above. See also Gallegos v. Peake, 22 Vet. App. 329, 336-37 (2008); Patton v. West, 12 Vet. App. 272, 281-82 (1999) (noting that the AOJ must send the claimant a "special PTSD personal-assault letter" and questionnaire to assist VA in identifying alternative sources of evidence to establish an in-service stressor). In this case, the AOJ did send VCAA notice letters to the Veteran dated in January 2019 and May 2019 relative to his PTSD claim, but these letters failed to advise him of the evidence necessary to substantiate a claim for service connection for PTSD based on an assault / pattern of harassment. VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that alternative evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor. Therefore, a remand is necessary to ensure that the Veteran is provided a proper VCAA notice letter for the PTSD claim based on an alleged personal assault / pattern of harassment. This letter should include the appropriate questionnaire for the Veteran to complete - a VA Form 21-0781a (Statement in Support of Claim for PTSD Secondary to Personal Assault). Second, for all issues on appeal, on multiple occasions since 2018, the Veteran has reported applying for Social Security Administration (SSA) disability benefits due to the functional impairments caused by his psychiatric problems and by various other medical conditions. See e.g., October 2018 and May 2019 VA primary care nurse practitioner outpatient notes; January 2020, February 2020, and May 2020 VA mental health medication management notes; July 2020 VA PTSD telehealth examination by VA psychiatrist; and October 2020 VA allergy outpatient consult. The above VA treatment records are split on whether the Veteran was ultimately awarded or denied SSA disability benefits. Regardless, VA is required to obtain relevant federal records that the claimant adequately identifies and authorizes VA to obtain. 38 U.S.C. § 5103A(c)(1)(C); 38 C.F.R. § 3.159(c)(2). Although disability determinations by the SSA are not controlling on VA, they are pertinent to the adjudication of a claim for VA benefits and VA has a duty to assist a claimant in gathering these records. Voerth v. West, 13 Vet. App. 117, 121 (1999); Hayes v. Brown, 9 Vet. App. 67, 74 (1996). However, VA need only obtain "relevant" SSA disability records, which, under 38 U.S.C. § 5103A, are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the claim. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). This is the case here. In particular, for the TDIU issue on appeal, the Court has emphasized that a SSA disability determination is critical to a determination of the a veteran's ability to engage in substantially gainful employment. Martin v. Brown, 4 Vet. App. 134, 140 (1993). Therefore, VA must make as many requests as necessary to obtain the Veteran's "relevant" SSA records to include the SSA decision and accompanying medical records, unless a determination is made that the records do not exist or that further efforts would be futile. 38 C.F.R. § 3.159(c)(2). Third, the AOJ must obtain a VA addendum opinion on the etiology of the Veteran's current right and left carpal tunnel syndrome. On this point, pursuant to the March 2021 Court Order and Joint Motion, the parties agreed that in the previous May 2020 Board decision, the Board erred by failing to provide an adequate statement of reasons or bases for its decision to deny service connection for right and left carpal tunnel syndrome. See 38 U.S.C. § 7104(d)(1). In particular, the Board erred by failing to address relevant lay evidence that might explain why the Veteran did not report symptoms of carpal tunnel syndrome both during service and post-service prior to 2010. That is, the Board in its earlier decision had found the Veteran's lay reports that he had symptoms of carpal tunnel syndrome since service not credible, in part, because he had not reported them before 2010. However, the Board failed to address the Veteran's explanation that he did not report carpal tunnel symptoms (e.g., numbness or tingling in his hands) at any time prior to 2010 because he did not know that these symptoms were related to any kind of medical or neurological problem. See April 2014 Veteran statement. The Board acknowledges that the AOJ secured an earlier September 2014 VA peripheral nerve examination and opinion pertaining to the Veteran's carpal tunnel syndrome. However, this VA medical opinion addressing the etiology of his carpal tunnel syndrome, although probative, is not fully adequate. When VA provides a VA examination or obtains a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In a June 2021 attorney brief, the Veteran's attorney pointed out the September 2014 VA peripheral nerve examiner, in providing a negative nexus opinion for carpal tunnel syndrome, relied on the absence of clinical treatment records in service, but did not provide sufficient detail regarding the medical plausibility of the Veteran's lay statements discussed above. See Miller v Wilkie, 32 Vet. App. 249, 259-60 (2020) (a VA examiner should explain whether the claimant's lay assertions are generally "consistent or inconsistent" with medical knowledge). In short, for the carpal tunnel syndrome disorder on appeal, the AOJ must obtain a VA addendum opinion on the etiology of this disorder, after a review of the record. This VA addendum opinion should be secured from the same VA examiner who performed the earlier September 2014 VA peripheral nerve examination, if this VA examiner is available. However, if the same September 2014 VA examiner is not available, another qualified VA clinician will provide the VA addendum opinion. Another VA examination for the Veteran's carpal tunnel syndrome is not necessary unless the VA clinician specifically requests one. Therefore, this matter is REMANDED for the following action: 1. For the PTSD claim based on an alleged personal assault / pattern of harassment, send the Veteran a corrective notice letter pursuant to 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) formerly known as the VCAA. This letter should comply with 38 C.F.R. § 3.304(f)(5) and advise the Veteran of specific examples of alternative forms of evidence to corroborate his account of an in-service assault / pattern of harassment and that behavioral changes may constitute credible supporting evidence of the stressor. Also, this letter should include the appropriate questionnaire for the Veteran to complete - a VA Form 21-0781a (Statement in Support of Claim for PTSD Secondary to Personal Assault). 2. Request from the Social Security Administration (SSA) all records associated with the Veteran's application for SSA disability benefits. In particular, the AOJ should request copies of any SSA disability determination and all associated "relevant" medical records. Document all requests for information from the SSA as well as all responses received from the SSA in the claims file. 3. After completion of steps 1 2, for the carpal tunnel syndrome of the hands, obtain a VA addendum opinion from the September 2014 VA peripheral nerve examiner. If this VA examiner is no longer available, another qualified VA clinician must provide the VA addendum opinion. The VA examiner must review the claims file. The VA examiner must provide a rationale to support the opinions. The VA examiner is asked to provide a response to the following questions: (a.) Is the Veteran's carpal tunnel syndrome of the hands "at least as likely as not" (i.e., 50 percent or more probable) causally or etiologically related to the Veteran's service in the Army from 1985 to 1989 specifically, whether the Veteran's frequent use of handling heavy tools with his hands during service, due to his military occupational specialty (MOS) as a tank mechanic / track vehicle repairer caused his carpal tunnel syndrome to progressively develop over time post-service? In answering this particular question, the VA examiner is directed to medical treatise evidence cited by the Veteran's attorney in his June 2021 attorney brief - "[c]lear associations have been established between [carpal tunnel syndrome] and workplace activities involving exposure to hand-transmitted vibration and / or repeated and forceful movements of the hand / wrist. See Keith T. Palmer - Carpal Tunnel Syndrome: The Role of Occupational Factors, Best Pract. Res. Clin. Rheumatol. 2011 Feb: 25(1): 15-29, Summary (supporting that occupational activities including forceful hand or wrist movements can cause carpal tunnel syndrome). Please also explain based on the Veteran's personal and clinical history whether other factors may have led to the development of his carpal tunnel syndrome such as genetics, obesity, diabetes mellitus, etc. (b.) Is it "at least as likely as not" (i.e., 50 percent or more probable) that the Veteran's documented in-service treatment for neck and shoulder pain were early indications of carpal tunnel syndrome? In answering this particular question, the VA examiner is directed to a June 1987 STR showing treatment for back and neck pain, without a traumatic cause. The military provider noted in June 1987 that use of "certain extremities" increased the Veteran's pain. In November 1987 and December 1987 STRs, the Veteran was treated for right shoulder pain. The X-ray for the right shoulder was negative. The military provider found no neurological deficit. The military provider diagnosed the Veteran with "probable tendonitis" of the right shoulder in December 1987. In answering this particular question, the VA examiner is also directed to medical treatise evidence submitted by the Veteran's attorney in June 2021, advising that shoulder and neck pain are common symptoms of central sensitization that is caused by carpal tunnel syndrome. See Marmara Medical Journal 2016 article - "Ultrasonographic assessment of the shoulder in patient with carpal tunnel syndrome." See also copy of scholarly article - "Understanding central sensitization for advances in management of carpal tunnel syndrome." (c.) Is the following lay explanation from the Veteran for why he failed to report symptoms of carpal tunnel syndrome inconsistent with medical knowledge or implausible? The Veteran says he did not report carpal tunnel symptoms (e.g., numbness or tingling in his hands) either during service or at any time prior to 2007 because he did not know that these symptoms were related to any kind of medical or neurological problem. (Continued on the next page) A complete rationale should be provided for all opinions. 3. Thereafter, readjudicate the remanded claims. A. Yaffe Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. Rubin, 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.