Citation Nr: 1803812 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-18 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a psychological disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection to a low back disorder, to include degenerative disc disease (DDD) of the lumbar spine. 3. Entitlement to service connection for a left knee disorder, to include posttraumatic degenerative joint disease (DJD). REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. George, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1970 to April 1974. These claims come before the Board of Veterans' Appeals (Board) on appeal from rating decision issued in September 2009 by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran limited the appeal to the three issues identified on the title page. The Veteran was afforded a video conference hearing before the undersigned Veterans Law Judge in May 2017. VA or private treatment records contain diagnoses for various psychological disorders, such as dysthymic disorder, generalized anxiety disorder (GAD), anxiety not otherwise specified (NOS), depression not otherwise specified (NOS), major depressive disorder, and PTSD. As a result, the Board has recharacterized the Veteran's claim as one for service connection for an acquired psychological disorder, to include PTSD. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The decision below addresses the low back and left knee claims. The issue of entitlement to service connection for a psychological disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDINGS OF FACT 1. The Veteran has experienced back pain, which began during service, and is now manifested as DDD, DJD and strain of the lumbar spine. 2. The Veteran has had extensive medical treatment for the left knee beginning in the years immediately after service and now has DJD of the left knee. CONCLUSIONS OF LAW 1. The criteria for service connection for DDD, DJD and strain of the lumbar spine have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for DJD of the left knee have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection-Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. "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'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Additionally, service connection can be established by sufficient evidence of a continuity of symptomatology between current disability and military service. 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a), such as arthritis). Low Back The Veteran has been diagnosed with chronic sprain, DDD, and DJD of the lumbar spine. The Veteran's entrance examination notes no defects. In 1972, the Veteran's back pain was evaluated. The Veteran has reported that he injured his back when trying to move a safe. His fellow service member who was helping him move the safe slipped, and the Veteran continued to move the safe by himself. He was able to place the safe, but, when standing up, he began experiencing back pain. In fact, the Veteran stated that within minutes of putting down the safe, he could barely walk. As stated in the November 2008 VA examination report, the Veteran has had back problems since that time and now complains of chronic daily back pain. The VA examiner stated that the Veteran's problems during service would have been acute and self-limited; however, no medical opinion as to whether the diagnosed back conditions are related to service was given. A May 2010 letter from the Veteran's private doctor, Dr. Glies, is of record. Therein, he notes that the Veteran has had episodes of back pain over the last 20 years. At the Board hearing, the Veteran stated that, after moving the safe, his back "was never really the same again" (Transcript at 12) and that he could not do much for about three months. He noted that he has been seeing a chiropractor for a long time and uses a teeter to hand upside-down at home. A veteran is competent to report symptoms such as pain, see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), and the Board finds the Veteran's testimony regarding his back pain credible as he has been consistent in relating how he hurt his back in service and back pain is noted in the service treatment records (STRs). Further, the Veteran has been seeing a doctor periodically for back pain since about 1990. It seems that, in stating that any back pain during service was acute, the VA examiner did not consider continuity of symptomatology, which, in conjunction with the lay statements of record, provides a sufficient basis upon which to find that the Veteran's current back disorders are related to service. In view of this evidence, and when resolving reasonable doubt in his favor, the Board finds that the Veteran has experienced back pain, which began during service, and is now manifested as DDD, DJD and strain of the lumbar spine. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As a result, the Board finds that service connection is warranted by way of continuity of symptomatology. See 38 C.F.R. §§ 3.303(b), 3.309(a). Left Knee The Veteran has been diagnosed with DJD of the left knee. He notes having had two operations on his left knee after service. The Veteran states that when he went to basic training, he was in the best shape of his life. He ran 5-7 miles per day and lifted weights four times per week. Prior to service, he also played sports recreationally. During service, the Veteran's military occupational specialty (MOS) was radio electrician. The Veteran notes that this MOS required climbing and reaching. He notes having knee pain in service, which limited his ability to do all tasks assigned him. As a result, working with others, he would do the things that he could do most easily with his knee. STRs reflect repeated treatment for left knee problems during service. For instance, in June 1971 an injured, swollen left knee was treated. The Veteran was placed on a profile that precluded marching, physical training, and prolonged standing. Again in July and August 1973, a swollen left knee was noted. The Veteran first started seeking treatment for a knee disorder in the mid-to-late 1970s. As related by his father, the Veteran underwent his first knee surgery in September 1977. Private treatment records regarding the left knee from 1995 are also of record, and Dr. Glies, in his May 2010 letter, noted that he has treated the Veteran for period knee problems since about 1990. At the November 2008 VA examination, the Veteran noted minor tweaks to his knee while playing football in high school. The Veteran was then experiencing chronic daily knee pain deep inside the joint. The examiner noted that the Veteran had a pre-existing knee condition when he entered service. The examiner's observation that there was some history of knee symptomatology prior to service need not delay the Board. Active duty service members are presumed sound, except as to defects noted on the entrance examination, unless the preexisting defect clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). No knee defect was noted on the Veteran's entrance examination. Though there is some (though not necessarily clear and unmistakable) evidence that a knee condition preexisted service, the Board cannot say that the left knee was clearly and unmistakably not aggravated by service given repeated treatment for a swollen knee noted in the STRs. Thus, for the legal purposes of the claim, there is no preexisting left knee disorder. In fact, there is strong evidence that the Veteran has had knee problems continually since service. First, the Veteran, before reaching 30, and only a few years after service, had left knee surgery. There is also evidence of more recent treatment dating back to 1995. The Veteran is also competent to report the history of his left knee symptoms. See Jandreau, 492 F.3d at 1377. Therefore, particularly when resolving reasonable doubt in his favor, the Board finds that the Veteran has had extensive medical treatment for the left knee beginning in the years immediately after service and now has DJD of the left knee. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board finds that service connection is warranted based on continuity of symptomatology. See 38 C.F.R. §§ 3.303(b), 3.309(a). ORDER Service connection for DDD, DJD and strain of the lumbar spine is granted. Service connection for posttraumatic DJD of the left knee is granted. REMAND A remand is warranted to resolve the Veteran's claim of service connection for a psychological disorder. There are two conflicting medical examinations and opinions. One is a November 2013 VA opinion in which the examiner concluded that the Veteran did not have PTSD because there was no history of exposure to a life threatening or traumatic event of which he was experiencing flashbacks, nightmares, or distressing recollections. Rather, the Veteran was found to have anxiety NOS, causing anxiety, panic attacks less than weekly, chronic sleep impairment, and disturbances of mood and motivation. Unfortunately, whether the Veteran's anxiety is related to service was not explored. Given that the Veteran's claim has been expanded under Clemons, additional medical opinion evidence is necessary to resolve this inquiry. The other opinion of record, dated July 2010, is from the Veteran's private psychologist, Dr. Jurgenson. Dr. Jurgenson noted that the Veteran described difficulty coping with stress related to the Israel-Egypt conflict in 1973 because the Veteran feared World War III would erupt. Difficulty concentrating, obsessive thinking, sleep disturbance, insomnia, nightmares, night sweats, hypervigilance, and re-experiencing were noted. The Veteran also noted anger and irritability, self-isolation, poor short-term memory, disorientation, and confusion. Upon examination, the Veteran's mood appeared depressed with anxiety and panic symptoms. He reported transient suicidal ideation, but was not in imminent danger of harming himself or others. PTSD and major depression recurrent were given as diagnoses. The diagnoses within these two reports are at odds and clarification is needed. Specifically, given that the Veteran has been diagnosed with various psychological disorders during the claims period, a new examination is necessary to confirm what diagnosis(es) the Veteran has had during the claims period and whether each of those diagnoses are related to service. Further, the insight of an examiner would help the Board weigh the two opinions currently of record. Accordingly, these issues are REMANDED for the following actions: 1. Schedule the Veteran for a VA psychological/ psychiatric examination. After a review of the entire file, the examiner should (A) Confirm which of the following diagnoses the Veteran has had during the claims period, which began on July 23, 2008: dysthymic disorder, generalized anxiety disorder (GAD), anxiety not otherwise specified (NOS), depression not otherwise specified (NOS), major depressive disorder, PTSD, and/or any others not listed. (B) For any diagnosed psychological disorder(s), other than PTSD, opine as to whether it is at least as likely as not (50 percent or greater probability) that the disorder is related to service. (C) If PTSD is diagnosed, opine as to whether it is at least as likely as not (50 percent or greater probability) that PTSD is related to his claimed stressor-the 1973 Israel-Egypt conflict. A rationale should be provided for any opinion rendered. 2. Finally, readjudicate the issue remaining on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The Veteran 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 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. ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs