Veteran’s case involving a claim for a secondary service-connected disability remanded.

In Frost v. Shulkin, 15-3102, the United States Court of Appeals for Veteran’s Claims recently remanded a case where the Board of Veterans Appeals denied a veteran’s claim for a secondary service-connected disability for an event which occurred nearly 20 years prior to the diagnosis of the veteran’s primary service-connected disability. In doing so, the Court held that the VA was wrong when it took the position that a veteran’s PTSD, which was not diagnosed until 2002, could not have contributed to an incident which led to the veteran sustaining a gunshot wound in November, 1982 as a matter of law. 

Additionally, the Court held that the BVA provided an insufficient list of reasons and bases for its denial of a service-connection for the gun-shot wound, and that the VA failed in its duty to assist the veteran in obtaining a medical opinion which would address whether his PTSD could have contributed to the gun-shot wound. 

Background.

 The veteran in Frost served in the U.S. Army on active duty from 1972 to 1980. Before he was discharged from active duty, the veteran was involved in a train accident in which he suffered some injuries. Following his discharge, in 1982, he was involved in an argument with a store owner, during which the owner shot the veteran in the neck. 

The veteran suffered significant injuries from the gunshot wound. In 1983, the VA granted him a non-service connected pension for his injuries. 

A number of years later, in 2001, the veteran filed a claim with the VA for PTSD. He argued that this condition stemmed from the 1980 train accident he was involved in while still on active duty. The VA granted his claim for service-connected PTSD. As part of its analysis, the VA examiner stated that the symptoms of the veteran’s PTSD had persisted for 20 years. 

The veteran then filed a claim with the VA, arguing that the gunshot wound he suffered was service-connected. He said that his PTSD contributed to his confrontation with the store owner. The implication being that he would not have been shot if he had not suffered from service-connected PTSD. 

The VA disagreed. The veteran’s PTSD was not diagnosed until nearly 20 years after the gunshot wound, and therefore could not have caused the confrontation with the store owner, the VA argued. They contended that there was no way, therefore, that the gunshot would could be service-connected. The Board of Veteran’s Appeals agreed. 

The Court’s Decision.  

The Court disagreed. There are two ways that a veteran can establish a secondary disability, the Court said. A secondary disability can be caused by a service-connected disease or injury, or, alternatively, it may be aggravated by a service-connected disease or disability. 

The Court cited to the Code of Federal Regulations, which state that a where a disability is one that is proximately due to, or the result of a service-connected disease or injury, that disability shall also be considered service-connected. See 38 C.F.R. §3.310(a). The secondary disability is considered to be a part of the original service-connected condition, the Court said.

The VA’s position was that the veteran’s PTSD was not even diagnosed until 20 years after the gunshot wound. The gunshot wound, the VA argued, could not then have been secondary to the veteran’s PTSD as a matter of law. It occurred too far in the past. 

In setting aside the decision of the Board of Veteran’s Appeals, which agreed with the VA, the Court said that there was no such temporal requirement for secondary disabilities in the regulations. The Court said that this was especially so because the VA claims process often takes a number of years to complete. A primary diagnosis of a service-connected disability may not happen within a reasonable time. It is them unreasonable to deny that a secondary service-connected disability can manifest within that waiting period. 

Not only did the Court hold that there was no temporal requirement in the regulations, it also held that the VA failed in its duty to assist the veteran in obtaining a medical evaluation which could establish a connection between his PTSD and the gunshot wound. Finally, the Court also held that the BVA erred because it did not provide adequate reasons and bases for its decision to find the veteran’s statements about his disability not credible. 

This case is important because it stands for the fact that veterans may be entitled to benefits for secondary service-connected disabilities which manifest before the primary service-connected disability is established. It also provided a framework for how that process can be achieved.