Frost: Secondary Service Connection Does Not Require Prior Service Connection of the Underlying Disability

Frost v. Shulkin, Case Number 15-3102, decided November 30, 2017 considers service connection for a secondary condition and whether the underlying condition had to be diagnosed or service connected prior to the occurrence of the secondary condition.

The veteran suffered injuries in a train accident while in service and was ultimately granted service connection for PTSD related to such accident.  However, a couple years after discharge and approximately two decades prior to service connection or even diagnosis of the PTSD, he was involved in an altercation wherein he was shot.

The veteran was applied for and was service connected for his PTSD and then a few years later sought service connection for the gunshot residuals saying they occurred due to his PTSD and thus were caused by his service connected PTSD.  The RO and Board denied the claim.  The Secretary initially argued in his brief that the veteran could not be service connected for an injury that occurred before the underlying condition was either diagnosed or service connected.  At oral argument, the Secretary withdrew this contention and conceded that a veteran may be granted secondary service connection on a causation basis even when the purported primary condition is the subject of diagnosis and award of service connection after incurrence of the purported secondary condition.  Id. at *5.

The Court, in an attempt to clarify the issue for future veterans, examined the Secretary’s initial temporal argument.  It noted “However, the plain language of § 3.310(a)—that a disability ‘proximately due to or the result of a service-connected disease or injury shall be service connected’—does not establish such a temporal requirement. See Petitti, 27 Vet.App. at 422. Nothing in the text of the regulation specifies or indicates that the primary condition must be service connected, or even diagnosed, at the time the secondary condition is incurred.” Id. at *6.

It further stated “Because no language in the text refers to such a temporal requirement, the Court concludes that the plain meaning of § 3.310(a) is clear in this regard and we reject the Secretary's interpretation that would have Mr. Frost's claim barred as a matter of law.”  Id. at *7.

The Court also delayed VA delay in resolving claims and used the delay as a reason why the VA’s interpretation does not make sense.  Id. at *7.

The Court then remanded the claim because the Board failed to provide adequate reasons or bases for its failure to seek a VA examination or medical opinion on the issue.  The Court also noted several pieces of evidence ignored by the Board and took the Board to task for making its own medical determination.  Id. at *9-10.

This is a case with unusual facts that solidifies what should have been already accepted by the VA, that a secondary disability can arise before the underlying condition is diagnosed or service connected.  Also, while having unusual facts, they are facts that appear not infrequently in PTSD situations.

Decision by written by Judge Bartley and joined in by C.J. Davis and Judge Schoelen.