Citation Nr: 1756060 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 09-47 472 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral knee disability. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from January 1972 to March 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2014, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge at the Waco, Texas RO. A transcript of the hearing is associated with the claims file. The Veteran initially submitted a claim for entitlement to service connection for "mental health". See VA Form 21-526, Veteran's Application for Compensation and/or Pension, received March 2009. The medical evidence of record includes a diagnosis for major depressive disorder and PTSD. Although the Veteran sought service connection only for "mental health", a claim "cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In essence, a veteran does not file a claim to receive benefits for a particular psychiatric diagnosis that is named on a claims form, such as "mental health", but instead makes a general claim for compensation for the difficulties posed by the mental condition. Id. Accordingly, the Board has reframed the issue on appeal, as shown on the title page. The issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, was previously remanded by the Board in May 2014 and February 2016. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In a February 2016 decision, the Board denied the Veteran entitlement to service connection for a bilateral knee disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In March 2017, the Court issued a Memorandum Decision vacating the decision and remanding the matter to the Board for further consideration. The matter is now before the Board for further appellate consideration. In the February 2016 decision, the Board also denied the Veteran entitlement to service connection for a back disability. The Veteran also appealed that issue to the Court. However, the March 2017 Memorandum Decision did not vacate that portion of the Board's February 2016 decision or remand that issue to the Board. Accordingly, entitlement to service connection for a back disability is not before the Board at this time. In addition to the matters noted above, the Veteran has appealed his claim for entitlement to service connection for pes planus. The electronic record indicates that the AOJ is taking action on this issue. Although the matter is within the Board's jurisdiction, it has not been certified for appellate review and the Board will not undertake review of the matter at this time. If the matter is not resolved in the Veteran's favor, the RO will certify the matter to the Board, which will undertake appellate review of the RO's action. Manlincon v. West, 12 Vet. App. 238 (1999) (holding that the Board's jurisdiction is triggered by the timely filing of a notice of disagreement (NOD)); 38 C.F.R. § 19.35 (2016) (stating that certification is for administrative purposes only and does not confer or deprive the Board of jurisdiction over an issue). The issue of entitlement to service connection for a bilateral knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The probative evidence of record demonstrates that the Veteran has been diagnosed with PTSD that has been linked, by a VA psychiatrist, to in-service fear of hostile military or terrorist activity. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD are met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (f) and (f) (3) (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016). To establish service connection for a disability, the Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). For cases certified to the Board prior to August 4, 2014, such as this case, the diagnosis of PTSD must be in accordance with the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV). 38 C.F.R. § 4.125(a); Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45,093 (Aug, 4, 2014) (Applicability Date) (updating 38 C.F.R. § 4.125 to reference the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5)). If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist confirms that the claimed stressor is adequate to support a diagnosis of PTSD disorder and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. "Fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Veteran contends that he has PTSD with current symptoms that include depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss and hypervigilance. He asserts that the PTSD is related to seeing civilians shot by East German soldiers on the German border. See, e.g., September 2016 VA examination. The record contains conflicting medical opinions as to whether the Veteran has a current diagnosis of PTSD. A December 2012 VA examination from a VA psychiatrist contains a diagnosis of PTSD that meets the DSM-IV diagnostic criteria. On the other hand, June 2014 and September 2016 VA examinations found that the Veteran does not have a current diagnosis based on the DSM-5. The June 2014 VA examiner determined that the Veteran was not credible during the examination. The September 2016 VA examiner stated that the Veteran's in-service stressor was unlikely to provoke the total personality change he described since the incident occurred a significant distance from him. Additionally, the September 2016 VA examiner stated that the Veteran's reported in-service stressor contained inconsistencies in the record. The Board affords relatively little probative weight to the opinion from the June 2014 VA examiner. The June 2014 examiner's opinion is based on a separate in-service stressor. The examiner's rationale does not reflect consideration of the Veteran's reported in-service stressor of witnessing civilians shot attempting to cross the German border. Since the June 2014 VA examiner's opinion does not consider the Veteran's reported in-service stressor it is given relatively little probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000). As to the September 2016 VA examiner's opinion, the opinion is premised, in part, on the idea that the Veteran's account of the in-service stressor contains inconsistencies. The September 2016 VA examiner noted that during the examination the Veteran reported five to six East German soldiers were involved in the incident while he previously stated up to twelve soldiers were involved. Additionally, in a previous examination the Veteran stated dogs were involved during the incident but did not report dogs during the September 2016 VA examination. However, the Board finds no reason to afford grater probative weight to the September 2016 VA examiner's opinion than to the December 2012 VA examiner's conclusion that the Veteran does meet the diagnostic criteria for PTSD. Therefore, the Board finds that the evidence is at relative equipoise as to whether the Veteran has a current diagnosis of PTSD. Therefore, the Board resolves reasonable doubt in the Veteran's favor, and concludes that the Veteran has a current diagnosis of PTSD under the DSM-IV. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Having found that the evidence is in relative equipoise as to whether the Veteran has a current diagnosis of PTSD, the Board will now consider whether the other criteria for entitlement to service connection for PTSD have been met. The Board concludes that the December 2012 VA examination provides a medical link between the Veteran's current symptoms and the reported in-service stressor. Specifically, the VA examination notes that the Veteran's diagnosed PTSD was based on seeing East German soldiers shoot citizens in front of him. As to credible supporting evidence that the claimed in-service stressor occurred, the Veteran's stressor involved a threat to the physical integrity of the Veteran or others and caused the Veteran to feel intense fear, helplessness or horror. As such, the Board finds that the stressor meets the definition for "fear of hostile military or terrorist activity" set forth in 38 C.F.R. § 3.304 (f)(3). The Board further finds that the stressor is consistent with the places, types, and circumstances of the Veteran's service. Specifically, the Veteran's Form DD 214 confirms that he served in Germany. Additionally, the Veteran provided a statement from a fellow service member, W. B. W. B. stated that upon arrival in Germany, each soldier was required to tour the divide between East and West Germany, which was patrolled by American forces to prevent border incidents and crossovers of individuals. W. B. further stated that, although he did not witness the event first hand, the shooting of civilians by East German soldiers had occurred just prior to his arrival and was a major topic of conversation around the unit. Furthermore, W. B. stated that the incident was used as a model to illustrate to the newly arrived soldiers the importance of the unit's mission. Additionally, in July 2013, VA received an article noting that in May 1972 V Corps implemented a border tour program designed to familiarize all V Corps soldiers with the inner German border. Accordingly, and as there is no clear and convincing evidence to the contrary, the Board accepts the Veteran's lay testimony as sufficient to establish the occurrence of the claimed in-service stressor. As such, the Board finds that the Veteran's lay testimony alone may establish the occurrence of that stressor. See 38 C.F.R. § 3.304 (f)(3). In summary, the Board finds that the most probative evidence of record indicates that the Veteran has PTSD, and that the PTSD is linked to an in-service stressor that may be established by the Veteran's lay testimony alone. As such, the criteria for entitlement to service connection for PTSD have been met, and the claim must be granted. 38 U.S.C.A. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304 (f); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for posttraumatic stress disorder is granted. REMAND The February 2016 Board decision denied the Veteran's claim for entitlement to service connection for a bilateral knee disability, in part, based on a finding that a June 2014 VA medical examination and opinion was adequate for decision making purposes. In this respect, the June 2014 VA examiner opined that the Veteran did not have a current bilateral knee disability. However, the June 2014 VA examination contained an impression of spurs in the Veteran's knees. The Court's March 2017 Memorandum decision determined that the February 2016 Board decision failed to provide an adequate statement of reasons or bases for failing to return the June 2014 examination for clarification relating to the Veteran's spurs in his knees. In light of the March 2017 Memorandum decision, the Board finds that a new VA medical opinion is required to determine the nature and etiology of the Veteran's bilateral knee spurs. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the case is REMANDED for the following action: 1. Obtain a VA addendum opinion from a suitably qualified VA examiner concerning the nature and etiology of the claimed bilateral knee disability. The claims file must be made available to and reviewed by the examiner. Following review of the claims file, the examiner is asked to respond to the following: a) Provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's right knee spurs are causally related to his active service or had its onset in active service. b) Provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's left knee spurs are causally related to his active service or had its onset in active service. The examiner must provide a complete rationale for any opinion given. The rationale must contain a reasoned medical explanation connecting the examiner's conclusion with supporting data. 2. After completing the above development and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and allow for an adequate period of time for response. Thereafter, return the appeal to the Board for review. The appellant has the right to submit additional evidence and argument on the matter 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). JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs