Citation Nr: 18159348 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 17-11 309 DATE: December 18, 2018 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for back disability, to include as secondary to service-connected knee disabilities, is remanded. FINDING OF FACT The Veteran served in combat, and his PTSD is related to his claimed combat stressors. CONCLUSION OF LAW The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1977 to October 1981 and from November 1981 to November 1997. His awards include the Combat Action Ribbon. These matters come before the Board of Veterans’ Appeals (Board) from July 2015 and June 2016 rating decisions. As a final preliminary matter, the Board notes that in October 2018 and November 2018 the agency of original jurisdiction (AOJ) issued statements of the case (SOCs) pertaining to the issues of entitlement to service connection for sleep apnea and entitlement to an increased rating for service-connected left knee disability. The issues listed in these SOCs have not been certified to the Board for appellate review (via a VA Form 8, Certification of Appeal). Hence, these issues are not currently before the Board. Entitlement to service connection for PTSD Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of the following three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); 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). When there is a current diagnosis of PTSD, the sufficiency of a claimed in-service stressor is presumed. Cohen v. Brown, 10 Vet. App. 128, 144 (1997). Nevertheless, credible evidence that the claimed in-service stressor actually occurred is still required. 38 C.F.R. § 3.304(f). Credible supporting evidence cannot consist solely of after-the-fact medical evidence containing an opinion as to a causal relationship between PTSD and service. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996). If the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f); see Cohen, 10 Vet. App. at 128; Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he has current PTSD which is related to in-service combat stressors that he experienced during the Persian Gulf War. The Board concludes, for the following reasons, that the Veteran has a current diagnosis of PTSD, that he served in combat, and that his PTSD is related to his claimed combat stressors. 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 treatment records, including a February 2018 VA PTSD clinic team initial assessment note, a March 2018 VA psychiatry treatment plan note, and an April 2018 VA psychology note, show the Veteran has a current diagnosis of PTSD. He contends that his PTSD is related to combat stressors that he experienced while serving aboard the USS Nicholas during the Persian Gulf War. Specifically, he has reported that he was stationed aboard the ship in January/February 1991, at which time the ship was in the Persian Gulf and engaged with enemy Iraqi forces during Operations Desert Shield/Desert Storm. Medical records establish a link between the Veteran’s PTSD and his reported combat stressors. For example, the February 2018 VA PTSD clinical team initial assessment note and March 2018 VA psychiatry treatment plan note reflect that he met the criteria for a diagnosis of PTSD and that this diagnosis was based upon his reported combat stressors in service during the Persian Gulf War. In light of this evidence, the Board concludes that the Veteran has a current diagnosis of PTSD and that there is competent medical evidence of a nexus between his PTSD and his claimed in-service combat stressors. Lastly, the Veteran’s receipt of the Combat Action Ribbon confirms that he engaged in combat with the enemy. His service treatment records reference service aboard the USS Nicholas, including in the early 1990s. Also, he has submitted articles which document the ship’s engagement with enemy forces in the Persian Gulf in January 1991. Hence, the Veteran’s reported combat stressors in service are conceded. In sum, the Veteran has a current diagnosis of PTSD, there is competent medical evidence of a nexus between his PTSD and his claimed in-service stressors, and there is credible evidence that the stressors occurred. Hence, the criteria for service connection for PTSD are met and service connection for this disability is granted. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.304(f). REASONS FOR REMAND Entitlement to service connection for back disability, to include as secondary to service-connected knee disabilities, is remanded. The Veteran contends that he has current back disability that was incurred in service. Specifically, he reported on his February 2017 substantive appeal (VA Form 9) that he hurt his back several times in service. In the alternative, he contends that his back disability is associated with his service-connected knee disabilities. A VA back examination was conducted in May 2016 and the Veteran was diagnosed as having a lumbosacral strain. The examiner who conducted the examination opined that the Veteran’s back disability was not caused by his service-connected left knee disability. He reasoned, in part, that there is no clear scientific evidence to suggest that injury to one leg can cause major problems on the lumbar spine except for certain specific conditions, including major leg length discrepancy (i.e., where the injured leg becomes shorter than the normal leg by 5 centimeters or more). A new opinion as to the etiology of the Veteran’s claimed back disability is necessary because the May 2016 examiner did not have an opportunity to review a February 2018 VA primary care treatment note which indicates that the Veteran’s left leg was approximately ¼-inch shorter than the right leg and that this “produce[d] low back pain due to compensation at walk.” In addition, the examiner did not provide any opinion as to whether the Veteran’s back disability was aggravated by his service-connected knee disability and no opinion has been provided as to whether the back disability is directly related to his reported back injuries in service. Overall, the Board cannot make a fully-informed decision on the issue of entitlement to service connection for back disability because no VA examiner has adequately opined whether the claimed back disability was incurred in service or was caused or aggravated by service-connected knee disability. Thus, an appropriate opinion should be obtained upon remand. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the VA Pittsburgh Healthcare System (dated to November 2014) and the North Florida/South Georgia Veterans Health System (dated to August 2018). Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the remaining issue on appeal. A remand is required to allow VA to obtain them. The matter is REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for back disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for back disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records from the VA Pittsburgh Healthcare System for the period since November 2014; from the North Florida/South Georgia Veterans Health System for the period since August 2018; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding whether any back disability experienced by the Veteran since approximately April 2016 at least as likely as not (1) began during active service; (2) manifested within one year after discharge from service (in the case of any currently diagnosed arthritis); (3) is related to an in-service injury, event, or disease, including the Veteran’s reported back injuries in service (see his February 2017 VA Form 9); (4) is caused by service-connected left and/or right knee disability(ies); or (5) is aggravated by service-connected left and/or right knee disability(ies). The clinician must provide a rationale for each opinion given. In this regard, the clinician shall presume that the Veteran’s reports of any back injuries in service are accurate. Also, the examiner should review and comment on the February 2018 VA primary care treatment note which indicates that the Veteran’s left leg was shorter than the right leg and that this produced back pain with ambulation. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel