Citation Nr: 18146263 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 15-16 728 DATE: October 31, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder, is granted. Entitlement to service connection for left knee strain with arthralgia is granted. Entitlement to service connection for right knee strain with arthralgia is granted. FINDINGS OF FACT 1. The Veteran’s acquired psychiatric disorder, diagnosed as PTSD and major depressive disorder, is related to service. 2. The Veteran has experienced continuity of symptomatology related to his left knee strain with arthralgia since his separation from service. 3. The Veteran has experienced continuity of symptomatology related to his right knee strain with arthralgia since his separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304. 2. The criteria for service connection for left knee strain with arthralgia are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). 3. The criteria for service connection for right knee strain with arthralgia are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from October 1989 to October 1993. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a hearing in July 2018. A transcript of the hearing is of record. At the hearing, the Veteran was granted a 30-day abeyance period for the submission of additional evidence to support his claims. The Veteran, through his attorney, submitted additional evidence with a waiver of RO review of the additional evidence. Following the March 2015 statement of the case, VA added additional medical evidence to the Veteran’s file received August 6, 2018 and August 27, 2018. Pertinent evidence is initially reviewed by the agency of original jurisdiction (AOJ). Additional pertinent evidence that becomes available after the RO’s statement of the case but prior to certification to the Board is to be addressed in an additional supplemental statement of the case. 38 C.F.R. § 19.31(b). After certification to the Board, such evidence must be referred back to the AOJ for initial review. 38 C.F.R. § 20.1304(c). Exceptions are when the Veteran or his attorney waives this review right, or when the Board grants the benefit being sought in full. Id. In the Veteran’s case, the Board is granting all three of the Veteran’s claims for service connection in full. Accordingly, appellate review may proceed without prejudice to the Veteran. The United States Court of Appeals for Veterans Claims (Court) has held that, although a Veteran claims service connection for a specified diagnosed disability, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any disability that may reasonably be encompassed by several factors, including the Veteran’s description of the claim, the symptoms the Veteran describes, and the information the Veteran submits or that VA obtains in support of the claim. The Court reasoned that a Veteran does not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his condition, however described, causes him. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Here, although the Veteran filed his claim seeking service connection for PTSD specifically, a review of the record illustrates the Veteran has also been diagnosed with major depressive disorder. The Board therefore finds that, pursuant to Clemons, the Veteran’s claim seeking service connection for PTSD is more accurately characterized as one for any acquired psychiatric disorder and has recharacterized the issue accordingly. 23 Vet. App. at 5-6. The Board acknowledges that in July 2018 the Veteran submitted VA Form 21-0958, Notice of Disagreement (NOD), with a February 2018 rating decision that denied claims for service connection for sleep apnea and a lumbar spine disability. The Board’s review of the claims file reveals that the AOJ is in the process of taking action on this NOD. As such, the Board will not take any further action on the matters, and they will only be before the Board if the Veteran timely files a substantive appeal after a statement of the case is issued. Lastly, the undersigned grants the Veteran’s the July 2018 motion to advance the Veteran’s appeal on the Board’s docket based on financial hardship pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection 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. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease, such as arthritis, is shown as such in service or during the presumptive period for chronic diseases, subsequent manifestations of the same chronic disease are generally service connected. Entitlement to service connection based on chronicity pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). 1. Acquired Psychiatric Disorder The Veteran and his attorney contend the Veteran is entitled to service connection for an acquired psychiatric disorder, to include PTSD, due to an event that occurred during the Veteran’s service. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., in accordance with DSM-5); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). In the present case, the Board concludes that the Veteran has a current acquired psychiatric disorder, diagnosed as PTSD and major depressive disorder, that is related to an in-service event. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), 3.304(f). VA and private treatment records show the Veteran has diagnoses of PTSD and major depressive disorder beginning in December 2010. VA treatment records from July 2018 and August 2018 reflect the diagnoses of PTSD are under the DSM-5 criteria. Turning to the Veteran’s claimed stressor and in-service event, the Board finds there is competent and credible evidence of an in-service stressor. The record reflects that the Veteran’s daughter died in November 1991 as a result of a homicide while the Veteran was in service. The death certificate reflects the immediate cause of death was complications of a burn due to immersion in scalding water. Accordingly, the Board concludes there is competent and credible evidence of an in-service stressor event. Finally, the evidence establishes a link between current symptoms and the claimed in-service stressor. Specifically, P.W., a licensed psychologist, opined in July 2018 that it is more likely than not that the Veteran’s PTSD and depression are related to military service. In support of his opinion, Dr. P.W., conducted a comprehensive review of the Veteran’s file, performed a clinical interview with the Veteran, and cited to the trauma related symptoms that manifested after the Veteran’s in-service stressor. The Board gives great probative weight to the opinion of Dr. P.W. as the opinion is consistent with the record, he performed an evaluation of the Veteran, and the opinion reflects consideration of the Veteran’s history. The Board resolves any reasonable doubt in favor of the Veteran and concludes that the requirements of 38 C.F.R. §§ 3.303 and 3.304(f) have been met; therefore, service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, is warranted. 2. Left and Right Knee Strains with Arthralgia The Veteran and his attorney contend the Veteran injured his knees in service and the symptoms have continued since service. The Board concludes that while the Veteran’s left and right knee arthralgia was not diagnosed during service and did not manifest to a compensable degree within the applicable presumptive period, they were noted as chronic in service, and there has been continuity of the same symptomatology since service. The January 2012 VA examination report reflects a current diagnosis of left and right knee arthralgia. Service treatment records show the Veteran reported having bilateral knee pain in October 1989 and May 1990. A May 1990 physical examination while in service shows the Veteran had pain on compression. The Veteran reported in April 1993 that he injured his left knee playing basketball. The X-ray of his left knee was normal. Multiple entries in the service treatment records in October 1993 reflect the Veteran reported bilateral knee pain and popping in his left knee. An October 8, 1993 treatment note contains a notation that the Veteran’s bilateral knee pain was “chronic.” An October 22, 1993 treatment note reflects a diagnosis of bilateral knee arthralgia. The Board acknowledges that the Veteran received no treatment for his bilateral knee conditions from October 1993, when he exited service, to July 2001. In July 2001 and October 2001, the Veteran reported having bilateral knee pain off and on for years. The private physician at both visits diagnosed the Veteran with intermittent knee pain. In addition, the Board acknowledges that following the October 2001 private treatment record, there are no records pertaining to the Veteran’s bilateral knee condition until the January 2012 VA examination to evaluate his bilateral knee condition. However, the Board finds there is competent and credible evidence as to the gaps in treatment. The Veteran reported at his July 2018 Board hearing that he has experienced the same symptoms since service. The Veteran explained the reason he did not seek treatment for his bilateral knee condition following service is that the treatment providers in service told him to take Motrin and not to do the activities that aggravated his bilateral knee pain. The Veteran reported that he followed those instructions by not doing activities like playing sports or hiking. In addition, he reported taking pain medications and icing and using heat to treat his bilateral knee condition as directed by his treatment providers in service. Additionally, the Veteran’s mother reported in a July 2018 statement that she heard the Veteran complain of knee pain since service, and she reported she noticed how the Veteran would use something stationary to help him up from a kneeling position. Further, she reported the Veteran did not have health insurance after service and was unable to seek treatment for his bilateral knee condition. The Veteran is competent to report that he experienced symptoms of bilateral knee pain during that period. Further, the Board finds the Veteran to be credible as to the reasons why he did not seek treatment in the years following service. Therefore, the Board gives the Veteran’s lay testimony probative weight. In addition, the record illustrates the Veteran’s bilateral knee condition was noted to be chronic in service, and the January 2012 VA examiner diagnosed the Veteran with a chronic bilateral knee condition. Therefore, given the competent and credible reasons as to why there are periods without treatment, the chronic nature of the Veteran’s bilateral knee condition, and the competent and credible evidence regarding continuity of symptomatology since service, the Board concludes service connection is warranted. The Board acknowledges that a VA examiner opined in June 2013 that the Veteran’s bilateral knee strain with arthralgia was less likely as not incurred in or caused by or a continuation of the treatment during service. In support of the opinion, the examiner stated there is no chronic bilateral knee condition documented in the Veteran’s service treatment records, there is no treatment proximate to his military service, and there are intermittent complaints of pain in 2001 with normal knee findings. However, the Veteran’s bilateral knee condition was noted to be chronic in the service treatment records. Further, the Board finds the Veteran to be competent and credible as to why there is limited treatment following service. As such, the Board places little weight of probative value on the June 2013 VA examiner’s opinion. Accordingly, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s bilateral knee condition is related to his service. Therefore, resolving any doubt in favor of the Veteran, service connection for left and right knee conditions is granted. M. Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Breitbach, Associate Counsel