Citation Nr: 1804545	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  16-56 896	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD).

2.  Entitlement to a rating in excess of 10 percent for a service-connected left knee condition.

3.  Entitlement to service connection for a lumbar spine condition to include as secondary to a service-connected left knee condition.

4.  Entitlement to service connection for a right knee condition to include as secondary to a service-connected left knee condition.


REPRESENTATION

Veteran represented by:	Ralph J. Bratch, Attorney



ATTORNEY FOR THE BOARD

M. Coyne, Associate Counsel


INTRODUCTION

The Veteran served on active duty with the United States Marine Corps from April 2003 to April 2007.  He is a recipient of the Combat Action Ribbon.

These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2013 and November 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Board notes that the Veteran requested a hearing when he filed his formal appeal.  However, the Veteran subsequently withdrew his hearing request in a July 2017 communication.  As such, the Board will proceed to adjudicate the Veteran's appeal.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The issues of entitlement to a higher rating for a left knee disorder and entitlement to service connection for a lumbar spine disorder and right knee disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

According the Veteran the benefit of the doubt, the Veteran has PTSD that is related to his combat experiences in service.


CONCLUSION OF LAW

PTSD was incurred in service.  38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. VA's Duty to Notify and Assist

Because the benefit is being granted in full, any development or notification actions under the Veterans Claims Assistance Act of 2000 (VCAA) do not avail the Veteran in pursuit of his PTSD service connection claim.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126.  As such, a discussion of whether the VA has met its statutory and regulatory duties to notify and assist the Veteran with development of his claim is not necessary.

II. Service Connection for PTSD

As stated above, the Veteran was deployed to Iraq during his active duty service and was awarded the Combat Action Ribbon.  He has filed a claim for PTSD based on his active duty service in Iraq. His military occupational specialty (MOS) was field artillery cannoneer.

When adjudicating disability compensation claims, the Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. 

Additionally, when the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt.  See 38 U.S.C. §5107 (b); 38 C.F.R. §§ 3.102, 4.3 (2016).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  See id.  

Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125 (a); (2) a link, established by medical evidence, between a veteran's present 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) (2017); Cohen v. Brown, 10 Vet. App. 128, 139 (1997).  38 C.F.R. § 4.125 adopts the diagnostic criteria set forth in The American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) (DSM- V) for medical evaluation of mental disorders, but at the time of the Veteran's claim, 38 C.F.R. § 4.125 was still utilizing the DSM-IV criteria.  38 C.F.R. § 4.125(a) (2017).  As such the DSM-IV criteria are applicable to this claim, and if PTSD was diagnosed by a medical professional, VA must assume that the diagnosis meets the DSM-IV criteria relating to adequacy of the symptomatology and sufficiency of the stressor.  See Cohen, 10 Vet. App. at 153.

Moreover, if military citation or other supportive evidence establishes that the Veteran engaged in combat with the enemy during service and the claimed stressor is related to that combat, the Veteran's lay testimony alone may substantiate the occurrence of the in-service stressor so long as: (1) the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service; and (2) there is no clear and convincing evidence to the contrary.  38 C.F.R. 3.304(f)(2); see 38 U.S.C. § 1154 (b); Gaines v. West, 11 Vet. App. 353 (1998).  To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C. § 1154(b) requires that the Veteran have actually participated in combat with the enemy.  See VAOPGCPREC 12-99. 

Credible supporting evidence need not corroborate every detail of a claimed stressor.  Suozzi v. Brown, 10 Vet. App. 307, 311 (1997) (holding that corroboration does not require "that there be corroboration of every detail including the appellant's personal participation in the identifying process."); see also Pentecost v. Principi, 16 Vet. App. 124, 128-29 (2002) (finding that while the veteran's unit records did not specifically show that he was present during the alleged rocket attacks, "the fact that he was stationed with a unit that was present while such attacks occurred would strongly suggest that he was, in fact, exposed to the attacks.").  As such, the record need only imply the Veteran's participation.  See id. 

Additionally, the evidentiary burden of establishing a stressor is reduced when it is related to a fear of hostile military or terrorist activity.  In this situation, if a stressor is related to the Veteran's fear of history military or terrorist activity, a VA psychiatrist or psychologist (or a psychiatrist or psychologist with whom VA has contracted) confirms that the stressor is adequate to support a diagnosis of PTSD, and the Veteran's symptoms are related to the stressor, in the absence of clear and convincing evidence to the contrary, his lay testimony alone may establish the occurrence of the claimed stressor.  38 C.F.R. § 3.304(f)(3) (2017). 

"Fear of hostile military activity" is defined to mean 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.  Id.  Examples of such events include mortar fires and small arms fires.  Id.  However, because, as discussed below, the record reflects that the Veteran engaged in combat with the enemy during his active service, the combat presumption based on fear of hostile military activity need not be addressed.

The Veteran received a diagnosis of PTSD from a private psychologist in September 2011; this diagnosis was predicated on combat stressors reported by the Veteran, and the psychologist utilized the DSM-IV.  Specifically, the Veteran reported that during his tour in Iraq he was shot at, there was an incident during which a fellow Marine almost killed him by incorrectly operating a machine gun, and there was daily exposure to mortar attacks, as well as extensive exposure to improvised explosive devices (IEDs) during convoys.  Prior to filing his PTSD claim the Veteran had reported being in artillery and infantry where he was exposed to weapons fire on a daily basis as well as pulling a lanyard from a 155 mm howitzer.  The Veteran described his weapons-fire experiences in support of his hearing loss and tinnitus claims, which were pending in August 2007.  The September 2011 psychological report diagnosing the Veteran with PTSD also diagnosed him with a deferred Axis II deferred diagnosis of antisocial personality features, as well as depressive disorder.

Although the Veteran was scheduled for and did report to a VA examination for PTSD assessment in November 2013, he apparently left before the examination could be completed and strongly challenged the format of the examination because he did not feel that the questions the examiner was asking him were relevant or felt that she should not have asked them because the information was in the claims file.  The Veteran reported provided response of "I don't know," but then would respond to the question if appropriately coaxed; he was also noted to be very irritable.  The Veteran eventually claimed he needed to use the restroom and did not return to the examination, so no stressor information was provided.  The examiner diagnosed the Veteran with a personality disorder.  VA treatment records document a diagnosis of an anxiety disorder, rule out PTSD and a provisional diagnosis of PTSD.

Applying the above summarized legal standards to the facts of this, the Board finds that the elements of service connection have been met, and that the Veteran is entitlement to service connection for PTSD based on the combat presumption.  In support of this finding, the Board notes that while the November 2013 VA examiner was not able to diagnose the Veteran with PTSD, there is a formal diagnosis of PTSD by a private psychologist that conforms to the DSM-IV, the Veteran has provided credible lay evidence of in-service stressors, and the Veteran's lay statements are consistent with circumstances and nature of his active duty service as documented by his personnel records.  Accordingly, affording the Veteran the benefit of the doubt, an award of entitlement to service connection for an acquired psychiatric disorder to include PTSD is warranted here.  38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017).



ORDER

Entitlement to service connection for PTSD is granted.


REMAND

Unfortunately, due to reasons that follow, a remand is required.  Although the Board regrets this delay, it is necessary to ensure the Veteran is afforded adequate claim development assistance.

With regard to the Veteran's left knee increased rating claim, his most recent VA examination was provided in November 2013; the resulting examination report documents evidence of painful left knee motion.  This fact is notable because recently the United States Court of Appeals for Veterans Claims (Court) held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59."  Correia v. McDonald, 28 Vet. App. 158 (2016).  Pertinently, 38 C.F.R. § 4.59, which addresses musculoskeletal claims manifested by painful motion, indicates that "the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint."  The Board notes further, that in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so."  Moreover, the Board notes that the November 2013 VA examination was conducted over four years ago, and is not sufficiently contemporaneous such that the Veteran's left knee claim can be adjudicated on the basis of that examination report alone.  Accordingly, on remand another VA examination that is Correia compliant should be conducted.

As for the Veteran's service connection claims, VA examinations were conducted in January 2012.  Although the examiner found that the Veteran did not have a current right knee disorder and that diagnostic testing did not reveal arthritis, the results of that diagnostic testing were not included in the examination report.  Additionally, the Veteran submitted a September 2011 medical opinion from a private chiropractor that diagnosed him with right knee degenerative joint disease but also did not provide supporting medical documentation.  As such, remand of the Veteran's claim to confirm whether the Veteran has right knee degenerative joint disease is required and to procure additional supplemental etiology opinions as warranted. 

Addressing the Veteran's lumbar spine claim, at the Veteran's January 2012 VA examination the Veteran reported that he had back pain due to repeated strenuous activities during active duty service, but a direct service connection opinion was not provided.  Additionally, while a proximate cause opinion was provided for the Veteran's lumbar degenerative joint disease, the January 2012 VA examiner did not address the aggravation prong of secondary service connection.  Accordingly, remand of this claim is required for procurement of supplemental etiology opinions.

Finally, as there is evidence that the Veteran is in receipt of VA healthcare treatment and such records may contain evidence relevant to the claims on appeal, on remand, any outstanding VA treatment records should be procured. 

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Obtain the Veteran's outstanding VA treatment records relevant to the claims being remanded and associate those records with the claims file.  Efforts to obtain these records should be documented in the claims file.  If these records cannot be located the Veteran must be notified.

2. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his left knee disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated.

a.  The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding

b.  Taking into account the evidence in the claims file and the Veteran's lay statements, the examiner must determine the current severity of the Veteran's left knee disability and its impact on his daily activities and ability to work.  The examiner should test the range of motion for the Veteran's left knee during active motion, passive motion, weight-bearing, and non-weight-bearing.  If the examiner finds that that Veteran's opposite joint is undamaged, the examiner should complete the same range of motion testing for that opposite joint.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so (i.e. safety, practicality etc.).

c.  The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. 

d.  The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. 

Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 

e.  The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion.

3. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any current right knee disability.  The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated.

a.  The examiner must take a detailed history from the Veteran.  If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding.

b.  The examiner must assess and diagnose any current right knee condition, and must complete diagnostic testing to confirm whether the Veteran has right knee degenerative joint disease, as indicated by the September 2011 chiropractor report.  Any resulting diagnostic report should be included with the examination report.

c.  Then, if a right knee disorder is diagnosed, the examiner should provide the following opinions:

i. Whether it is at least as likely as not (50 percent or greater probability) the Veteran's right knee condition: (1) began during active service; (2) is related to any in-service event or injury; or (3), for arthritis only, manifested within one year of active duty service.

ii. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right knee condition is proximately due to or the result of his service-connected left knee condition.
	
iii. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right knee condition was aggravated beyond its natural progression by his service-connected left knee condition during the appeal period.

d.  The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion.

4. Provide the Veteran's claim file to an appropriate clinician to provide a supplemental opinion addressing the Veteran's lumbar spine condition.  A new examination is only required if deemed necessary by the examiner.  The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. 

a.  If a new examination is warranted, the examiner must take a detailed history from the Veteran.  If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. 

b.  The examiner should provide the following opinions:

i. Whether it is at least as likely as not (50 percent or greater probability) the Veteran's lumbar spine condition: (1) began during active service; (2) is related to any in-service event or injury; or (3), for arthritis only, manifested within one year of active duty service.  The examiner should address the Veteran's lay statements attributing his back pain to repeated strenuous activity during active duty service, as noted in the January 2012 VA examination report.
	
ii. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's lumbar spine condition has been aggravated beyond its natural progression by his service-connected left knee condition during the appeal period.

c.  The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion

5. The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full.  If any development is incomplete, appropriate corrective action must be implemented.  If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action.

6. After undertaking any necessary additional development, readjudicate the issues on appeal.  If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must 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).








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This claim must be afforded expeditious treatment.  The law requires that all claims 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).




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs