Citation Nr: 1648494	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  13-05 233	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1. Entitlement to an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD).

2. Entitlement to compensation under 38 U.S.C.A. § 1151 for a right lower extremity disability.


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

K. Parke, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1974 to August 1976. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In March 2016, the Board remanded the claims for additional development and adjudicative action. 

The Veteran testified before the undersigned Veterans Law Judge at a January 2016 videoconference hearing and a transcript of that hearing is of record.

This appeal was processed entirely electronically using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.

As to the issue of entitlement to compensation under 38 U.S.C.A. § 1151 for a right lower extremity disability, the remand directives have not been completed and the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders).


FINDING OF FACT

The Veteran's PTSD is etiologically related to her active military service.




CONCLUSION OF LAW

The criteria for entitlement to service connection for PTSD have been met.
38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection is granted for disabilities resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. 
§ 3.303. In order for a disorder to be service connected, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). 

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection will also be presumed for certain chronic diseases, including a psychosis, if manifest to a compensable degree within one year after discharge from service. 38 U.S.C.A. 
§§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a).

Service connection for PTSD requires medical evidence diagnosing the disorder in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between the 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).

The Veteran submitted a March 2016 medical opinion from Dr. Matthews, her VA treating physician. Dr. Matthews noted that she was treating the Veteran for PTSD and that the Veteran's PTSD was due to Military Sexual Trauma (MST). 

The Veteran had a VA medical examination in June 2016. The examiner diagnosed the Veteran with PTSD, found that the Veteran's service treatment records supported MST during service, and opined that it was at least as likely as not that the Veteran's PTSD was due to MST. 

The Veteran also submitted July 2016 letters from her private counselor, J.M, and her VA treating physician, Dr. Matthews.  J.M. and Dr. Matthews reiterated their opinions that the Veteran has PTSD due to MST.

Although there is substantial evidence against the claim in the file, the Board finds that with the addition of these medical opinions, the evidence is now in relative equipoise.  Accordingly, the evidence establishes that the Veteran's PTSD is due to MST and the claim is granted. 


ORDER

Entitlement to service connection for PTSD is granted.


REMAND

The Veteran is seeking entitlement to compensation under 38 U.S.C.A. § 1151 for a disability of the right lower extremity. The Veteran has alleged that she injured her right leg after falling during a February 2007 treadmill test administered by VA when the staff controlling the treadmill increased rather than decreased its speed. 

The Veteran was afforded a VA examination in April 2012, and the examiner concluded that there was no negligence by VA in the administration of the treadmill test. It appears he based his conclusions on his finding that the Veteran did not suffer any additional disability as a result of her February 2007 fall. However, in December 2012, an MRI of the Veteran's right knee (apparently the first since her 2007 fall) showed a complex tear at the anterior horn body junction of the lateral meniscus. The Veteran's VA orthopedist, Dr. D.C., concluded that it is at least as likely as not that this right knee disability was the result of her February 2007 fall, unless she had any intervening trauma. While this opinion is of limited probative value since the Veteran has in fact suffered a number of falls since 2007, the Board finds that in light of this favorable opinion, as well as the new evidence of a right knee disability that was not available to the April 2012 examiner, the Veteran should at least be afforded a new VA medical examination and opinion. The examiner is asked to opine whether it is at least as likely as not that the Veteran's current right knee disability was caused by her February 2007 fall, and, if so, whether this injury is the result of (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. The examiner should assume that the Veteran did fall as she has claimed during the February 2007 treadmill test, and he or she is asked to determine the nature and severity of the resulting injury.

The Veteran had a VA medical examination in April 2016. However, the examiner did not assume that the Veteran fell as she has claimed during the February 2007 treadmill test and found that there was not sufficient evidence to find that the claimed fall occurred. Therefore, an additional VA medical examination is required.

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a VA examination of her right knee disability. The examiner should note any functional impairment caused by the Veteran's disability, including a full description of the effects of her disability upon her ordinary activities, if any. 

The examiner should assume that the Veteran did fall as she has claimed during the February 2007 treadmill test, and he or she is asked to determine the nature and severity of the resulting injury.

The examiner is asked to opine whether it is at least as likely as not (fifty percent or greater) that the Veteran's right knee disability was caused or permanently aggravated by the fall she suffered during a February 2007 treadmill test. 

If so, the examiner is asked to opine whether this injury is the result of (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable.

A complete rationale for these opinions should be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. 

If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice.

The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. 

All findings should be described in detail and all necessary diagnostic testing performed. 

The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 

2. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefits sought are not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.