Citation Nr: 22051131 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 18-21 604 DATE: September 8, 2022 September 8, 2022 ORDER Entitlement to service connection for dysthymic disorder is granted. Entitlement to service connection for a right hip disability is granted. Entitlement to service connection for a left hip disability is granted. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT The evidence is at least in equipoise that the Veteran has dysthymic disorder related to service. The evidence is at least in equipoise that the Veteran's left hip disability is related to service. The evidence is at least in equipoise that the Veteran's right hip disability is related to service. CONCLUSION OF LAW The criteria for service connection for a dysthymic disorder are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. The criteria for service connection for a left hip disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. The criteria for service connection for a right hip disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1975 to April 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision. In February 2022, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of 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 (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). 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 dysthymic disorder is granted. The Veteran contends that his dysthymic disorder is related to service. During his hearing, he testified that he believes his mental health issues are the result of his service in Italy, specifically related to fearful experiences while paratrooping including hearing people scream and yell on night jumps. He testified that even in his dreams now, he feels like he is falling, and he hears the screaming noises. The Veteran testified that his treatment for mental health issues includes medication, which was prescribed by Dr. E.H. See February 2022 hearing transcript. In support of his claim for service connection, the Veteran submitted statements authored by his private doctor, E.H., M.D., who noted, in pertinent part, the Veteran's diagnosis of dysthymic disorder. Dr. E.H. reported that the Veteran began having nightmares in 1995, and that he currently has at least once per week, waking and biting his tongue. Dr. E.H. also noted that the Veteran has flashbacks twice per month, and he averages five to six hours of broken sleep per night; he startles easily; he is hypervigilant and cannot tolerate anyone behind him; and he does not socialize. Dr. E.H. reported that the Veteran's recent memory is severely impaired, so much that he cannot remember what he reads; his working memory is 20 percent impaired; and anger, sadness, and fear come upon him without his understanding why 30 percent of the time. The doctor further noted that the Veteran feels depressed 60 percent of the time with low energy and little interest in things. Dr. E.H. stated that he had personally reviewed the Veteran's medical history and his medical notes; he had also reviewed and noted the circumstances of his military service. Dr. E.H. noted that the had examined the Veteran and is familiar with his history. He further stated that the Veteran has no other known risk factors that have precipitated his current condition and that, after a review of the pertinent records, it is his professional opinion that the Veteran's condition is a direct result of his Army service. See January 2016 and February 2018 E.H. statements; see also January 2016 private treatment records. The Board notes that there is no medical opinion against the claim. The Board finds that there is competent and credible evidence of a current diagnosis of dysthymic disorder that is related to service. Accordingly, entitlement to service connection for dysthymic disorder is granted on a direct basis under the provisions of 38 C.F.R. § 3.303. The Veteran has also claimed entitlement to service connection for PTSD. As will be discussed in the Remand section below, VA's regulations governing the award of service connection for PTSD, found in 38 C.F.R. § 3.304, require stressor verification, and the AOJ must conduct all appropriate research in an attempt to do so before an informed decision on this issue can be made. 2. Entitlement to service connection for a right hip disability is granted. 3. Entitlement to service connection for a left hip disability is granted. The Veteran contends that his bilateral hip disabilities are related to impact injuries in performance of his duties as a parachutist. He contends that he hurt his hips during several parachute landing falls. During his hearing, the Veteran testified that he had performed approximately 40 to 50 jumps while in service, and that every jump involved using his hips as a point of contact for a proper landing. He testified that he did hurt himself during hard landings, but that he did not report injuries or go to sick call because he just wanted to be a soldier. The Veteran testified that three to five years after service he started noticing the problems with his hips, and that he hurt for a long time until it got bad enough that he finally went to the doctor. The Veteran testified that he also played football in the Army and took some hard hits during play. The Veteran contends that his hip disabilities are either directly related to the impacts from jumping, and the wear and tear from football; he also suggested that his hip disabilities could be secondary to his service-connected knees or ankles. See March 2018 VA Form 9; see also February 2022 hearing transcript. In connection with the Veteran's claim for service connection, he was afforded a VA examination in July 2016. Based upon an in-person examination and review of the Veteran's VA e-folder and CPRS, the VA examiner noted the Veteran's 2010 diagnosis of bilateral hip osteoarthritis; however, the VA examiner opined that the Veteran's bilateral hip condition is less likely than not (less than 50 percent probability) proximately due to or the result of, or aggravated beyond natural progression by, the Veteran's service-connected knee disabilities. See July 2016 VA examination report. The VA examiner also did not offer an opinion addressing direct service connection. In support of his claim, the Veteran submitted a statement authored by A.P., M.D., noting that the Veteran has had hip pain for a long time, he worked as a paratrooper for the military in the 70s and it involved jumping out of airplanes and landing on the ground, and that the Veteran believes that this job may have caused his hip problem. See August 2015 A.P. statement. The Veteran has also submitted an opinion authored by the Veteran's treating orthopedic nurse practitioner, S.C., PA-C, indicating that it is at least as likely as not that the Veteran's parachute landings and/or playing football in service caused his current bilateral hip impairments. S.C. explained that, since osteoarthritis is the process of wearing out the articular cartilage in a joint, it is reasonable to assume that with high impact activity such as paratrooping and running would at least worsen if not cause that process of wear. SC further explained that osteoarthritis of the hip can be caused and exacerbated by weightbearing activity as well as altered gait and body mechanics; that the condition of his knee and ankle cause him to walk with an antalgic gait, placing abnormal stress on the hips; that an arthritic join is less able to tolerate altered mechanics, particularly in end-stage disease in which the condition of the joint is bone-on-bone, as is the case for the Veteran; and that shift his weight off of the ankle and knee exacerbate his hip. See July 2022 S.C. private opinion. The Board has considered S.C.'s positive nexus statement and its supporting rationale in combination with the Veteran's competent lay statements regarding the history of his injuries and symptoms, and finds it probative. The evidence favors a finding that the Veteran's bilateral hip disabilities are directly related to service. As service-connection for disabilities of both hips is granted on a direct basis, the inquiry as to whether service-connection can also be established on a secondary basis is rendered moot. REASONS FOR REMAND Entitlement to service connection for post-traumatic stress disorder (PTSD) is remanded. The Veteran contends that his PTSD is related to service. During his February 2022 hearing, the Veteran testified that he was stationed in Vincenza, Italy and that during the time period between July 1976 and April 1977, he saw two paratroopers come down to the ground about 100 yards away from him during a jump and learned that they had died. See February 2022 hearing transcript. In support of his claim, the Veteran has submitted statements authored by E.H., M.D., noting his diagnosis of PTSD and relating such to service. However, as noted above, establishment of service connection for PTSD in particular requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). As such, stressor corroboration is still required to support the Veteran's service-connection claim as it relates to PTSD, notwithstanding the positive nexus opinions of record from the private physician. In his October 2016 VA Form 21-0781, the Veteran made clear that his stressor had to do with seeing two paratroopers killed during a jump in Vincenza, Italy, between June 1976 and April 1977. See October 2016 VA Form 21-0781. In August 2017, the Veteran was asked to narrow down the time frame during which stressful incident occurred to a two-month window. The Veteran did not respond. The RO denied the Veteran's claim without attempting to verify the stressful incident following the Veteran's failure to respond. The United States Court of Appeals for Veterans Claims (Court) held in Gagne v. McDonald, 27 Vet. App. 397 (2015)., that VA's duty to assist is not bound by the JSRRC's 60-day limitation for verification requests (in that case, stressor verification was at issue). The Court found that VA was obligated under its duty to assist to submit multiple 60-day requests to the JSRRC for records of a stressor event. Id. at 7. The Court determined that the fact that multiple records searches would burden JSRRC employees does not mean that those efforts would be "futile." Id. However, the Court did not state that the duty to assist requires unlimited searches. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) ("The 'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim"). In Gagne, the Veteran's relevant service period for his claimed in-service stressor covered a 13-month period from August 1967 to August 1968. Gagne v. McDonald, 2015 WL 6114516 at 7. The Court found that a records search over a 13-month period was not "unreasonably long, given the particulars of the stressor provided by the appellant." Id. Here, the RO should have submitted requests for verification of the stressful incident that covered the period from June 1976 to April 1977 to attempt to verify whether the incident involving paratrooper deaths occurred as the Veteran so describes. On remand, the AOJ should attempt to do so. The matters are REMANDED for the following action: 1. Obtain and associate with the file any outstanding VA treatment records. 2. Contact the appropriate records repositories to obtain records to verify whether an incident involving two paratrooper deaths occurred during a parachuting jump between June 1976 to April 1977 in Vincenza, Italy, as the Veteran so describes. Separate responses must be provided for each 60-day period from June 1976 and April 1977, if the requests must be broken into two-month intervals. All attempts at verification should be associated with the claims file. 3. Thereafter, and after undertaking any additional development deemed necessary as a result of this development, readjudicate the issue on appeal. If any benefits on appeal remain denied, issue a Supplemental Statement of the Case. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Fulmer, 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.