Citation Nr: 1803761 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 11-32 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD), bipolar disorder and anxiety disorder 2. Entitlement to service connection for a bilateral knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran, Veteran's brother ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from September 1978 to June 1982 and from December 1990 to September 1991. This matter is on appeal from November 1996, January 2002 and July 2009 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). Regarding the issue of service connection for an acquired psychiatric disability, the Board notes that in an unappealed June 1994 rating decision, the RO denied the Veteran's claim for service connection for psychosis. In March 2001, the Veteran filed a claim for service connection for bipolar disorder which was denied in a January 2002 unappealed rating decision. However, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). As a result, in conjunction with Clemons and as addressed below, the claim has been characterized as entitlement to service connection for an acquired psychiatric disorder, to include PTSD and bipolar disorder. In September 2016, the Veteran testified during a hearing before the undersigned Veterans Law Judge; a transcript of that hearing is also of record. In February 2017, the Board reopened and then remanded these issues for additional development. 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 Resolving reasonable doubt in the Veteran's favor, the Veteran has a psychiatric disability that is a result of his military service. CONCLUSION OF LAW The Veteran's acquired psychiatric disability was incurred during his military service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If psychosis becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of psychosis during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, there is no showing of any chronic psychoses (such as schizophrenia) in-service, or continuous after separation, or which manifest to a degree of 10 percent or more within one year of separation from service. Factual Background and Analysis The Veteran contends that he has a current psychiatric disability that resulted from his service. The Veteran's second period of active duty notably included time in the Persian Gulf during the Gulf War and the Veteran testified at his September 2016 hearing that his psychiatric problems was probably the result of what he experienced during the Gulf War. The Veteran's service treatment records demonstrate that in June 1989 the Veteran nearly drowned as the ocean's undertow took him under. The treatment report noted that the Veteran ingested large amounts of water and that he "almost drowned". The Veteran underwent a VA examination in July 1996. The VA examiner noted that the Veteran reported an incident while on active duty where he witnessed a man fall to his death while traversing a rope. He also reported that when he served in the Persian Gulf during his second period of active duty, he began to experience feelings of anger and mistrustfulness. He reported that while he had no direct combat, he was close to where a scud missile landed and also on several occasions was in a situation where the chemical weapons alarm went off. The diagnosis was chronic PTSD and alcohol and marijuana abuse that was in remission. On VA examination in August 2011, the examiner noted that the Veteran reported that there were several in-service incidents which left him apathetic about the military. Notably, he reported that he lost a friend of his in a training accident. The VA examiner determined that the Veteran did not meet the criteria for a diagnosis of PTSD that confirmed with DSM-IV criteria. The examiner indicated that the Veteran had a diagnosis of bipolar disorder not otherwise specified (NOS) and anxiety disorder NOS. The examiner reported that it appeared that the majority of the Veteran's psychiatric impairment was related to his bipolar disorder. The examiner noted that the Veteran's anxiety disorder did not appear to be related to one specific stressor but rather appeared to be related to the cumulative effects of multiple stressors including almost drowning, fear of hostile military or terrorist activity and death of a friend during a training accident. The examiner also indicated that the etiology of the bipolar disorder was unclear and he was unable to state whether the Veteran's bipolar disorder was caused by his service without resorting to mere speculation. A September 2011 VA treatment report reflected a positive PTSD screen test. After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for an acquired psychiatric disability to include PTSD, bipolar disorder and anxiety disorder is warranted. Initially, the Board notes that while there is some ambiguity over whether the Veteran has a current diagnosis of PTSD, the record contains diagnoses of bipolar disorder NOS and anxiety disorder NOS. Accordingly, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The Board notes that the record contains an in-service incident when the Veteran nearly drowned in 1989. Additionally, the Board notes again that the Veteran served in the Persian Gulf during the Gulf War where he reported being a near scud missile attack and experiencing multiple chemical weapon alarms. The Board also notes that there is positive opinion from the August 2011 VA examiner who associates the Veteran's current anxiety disorder NOS to his service. While the examiner was unable to provide an opinion regarding the etiology of the Veteran's bipolar disorder, he opined that the Veteran's anxiety disorder NOS was related to the cumulative effects of multiple stressors including almost drowning, fear of hostile military or terrorist activity and death of a friend during a training accident. Additionally, there is no competent contrary medical evidence of record that indicates that the Veteran's acquired psychiatric disability was not incurred in service. Therefore, this positive nexus opinion provides the only competent medical opinion as to the relationship between the Veteran's current acquired psychiatric disability and his service. In sum, for the reasons and bases discussed above, the Board has resolved reasonable doubt in favor of the Veteran, and service connection for an acquired psychiatric disability to include PTSD, bipolar disorder and anxiety disorder is granted. See 38 U.S.C. § 5107(b). ORDER Service connection for an acquired psychiatric disability to include PTSD, bipolar disorder and anxiety disorder is granted. REMAND The Board finds that more development is necessary prior to final adjudication of the claim remaining on appeal. As noted above, the Board remanded this matter in February 2017 for further development. As part of the February 2017 remand, the Board instructed the RO to provide an etiological medical opinion for the claim for service connection for a bilateral knee disability to determine whether the Veteran had a bilateral knee disability that was related to the Veteran's active duty service and whether the Veteran had an undiagnosed illness or medically unexplained chronic multi-symptoms illness (to include fibromyalgia) due to his service in Southwest Asia. The instructions specifically indicated that the examiner determine whether the Veteran had a current bilateral knee disability and if so, if it is at least as likely as not related to, or had its onset during service or whether there are symptoms due to an undiagnosed illness or medically unexplained chronic multi-symptom illness, to include fibromyalgia resulting from service in Southwest Asia during the Persian Gulf War. The Board notes that pursuant to the February 2017 Board remand, the Veteran was afforded an examination in April 2017 which demonstrated that the Veteran had a diagnosis of patellofemoral pain syndrome of both knees while x-rays revealed mild cartilage loss of the medial compartments of both knees. The examiner indicated that the Veteran did not have a diagnosable but medically unexplained chronic multi-symptom of unknown etiology that was a presumptive condition related to the Gulf War and he did not have an undiagnosed illness during service. The examiner opined that it was less likely than not that the Veteran's bilateral knee disability was incurred in or caused by the undiagnosed illness during service. However, while the April 2017 VA examiner opined it was less likely than not that the Veteran's bilateral knee disability was incurred in or caused by the undiagnosed illness during service, the examiner failed to specifically address whether it was at least as likely as not that the Veteran had a bilateral knee disability that was related to, or had its onset during service. Thus, this opinion does not adequately address whether the Veteran had a current bilateral knee disability that was related to, or had its onset during service as instructed by the February 2017 Board remand instructions. The April 2017 examination report does not comply with the Board's February 2017 instructions. The United States Court of Appeals for Veterans Claims has held that a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the Board finds that the April 2017 VA examiner should amend her examination report in accordance with the Board's February 2017 directives cited herein to determine whether the Veteran had a current bilateral knee disability that was related to, or had its onset during service. Consequently, a new remand is required to comply with the holding of Stegall. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated her for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review. 2. Return the claims file to the VA examiner that examined the Veteran in April 2017 for his claimed bilateral knee disability. If that examiner is not available, return the file to another examiner with the appropriate knowledge and expertise. If the new examiner feels that an actual physical examination is necessary, such examination should be scheduled. The examiner should furnish an opinion as to whether the Veteran has current bilateral knee disability and if so, if it is at least as likely as not related to, or had its onset during service. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. Ensure that the examination reports comply with this remand and answers the questions presented herein. If any report is insufficient, it should be returned to the examiner for necessary corrective action, as appropriate. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, readjudicate the issue. If any benefit sought on appeal remains denied, the Veteran should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran 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. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs