Citation Nr: 20005348 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 16-35 989 DATE: January 23, 2020 ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is granted. Service connection for bilateral hearing loss is granted. Service connection for right knee strain is denied. Service connection for left knee strain is denied. REMANDED Service connection for a back condition is remanded. FINDINGS OF FACT 1. The Veteran has a current diagnosis of PTSD that is attributable to his active service. 2. Resolving all doubt in the Veteran’s favor, his bilateral hearing loss is more likely than not related to his active duty service. 3. The Veteran’s bilateral knee strain is not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309. 3. The criteria for service connection for bilateral knee strain are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1975 to June 1983. In November 2019, the Veteran testified before the undersigned Veterans’ Law Judge. A copy of the proceedings is associated with the claims file. With regard to the Veteran’s claims of service connection for PTSD and anxiety/depression, the Board finds that the Court of Appeals for Veterans Claims (Court) holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009) is applicable. In Clemons, the Court held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Thus, the Veteran's claim for service connection for an acquired psychiatric disorder has been combined and is deemed to include any acquired psychiatric disability and has been recharacterized as reflected on the title page of this decision. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Acquired Psychiatric Disorder Service connection for PTSD generally requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). For stressors unrelated to combat, credible supporting evidence is necessary in order to grant service connection. “Credible supporting evidence” of a noncombat stressor may be obtained from service records or other sources. Moreau v. Brown, 9 Vet. App. 389 (1996). The Court has held that the regulatory requirement for “credible supporting evidence” means that “the appellant’s testimony, by itself, cannot, as a matter of law, establish the occurrence of a noncombat stressor.” Dizoglio v. Brown, 9 Vet. App. 163 (1996). The Board notes at the outset that the Veteran’s VA medical center (VAMC) records show that in December 2014 a VA staff psychiatrist diagnosed the Veteran with PTSD and was prescribed medication for treatment of his PTSD. A May 2016 VAMC record showed that the Veteran was still receiving treatment for his PTSD which included daily medication. Throughout the course of the Veteran’s claim he has reported that his in-service stressor was the death of a fellow recruit stationed at the same recruiting station as the Veteran. The Veteran’s military personnel file showed he was stationed at the recruiting station at the same time as the death of the trainee. The Veteran’s file also contains a Department of Defense memorandum, submitted in September 2015, which confirmed the death of the fellow recruit and the circumstances surrounding the incident. The Department of Defense memorandum confirms the Veteran’s recounted stressor about the circumstances of the recruit’s death. The Board notes that the medical records associated with the Veteran’s file and his diagnosis/treatment for PTSD all include the death of the recruit as the Veteran’s main PTSD stressor. His recounting of the facts surrounding the recruit’s death, including in his November 2019 hearing testimony, and his response to the incident remain consistent throughout his appeal. Thus, the evidence of record confirms that the Veteran has diagnosis of and treatment for PTSD by a VA psychiatrist at a VA facility which was related to an in-service stressor, the occurrence of which has been confirmed by a Department of Defense memorandum. As such, the Board finds that the Veteran has met the requirements set forth by § 3.304(f) and service connection for PTSD is warranted. The Board does acknowledge VA examinations found the Veteran did not have a diagnosis of PTSD and that his other diagnosed mental health disorders were not related to his active duty service. However, the Board finds that the Veteran’s primary mental health care provider’s PTSD diagnosis via the VAMC facility where the Veteran receives PTSD treatment carries greater probative weight. Additionally, the Board also notes that a private examination did find the Veteran’s mental health care disorders, including PTSD, were related to his active duty service. Accordingly, and resolving all doubt in the Veteran’s favor, the Board finds that service connection for PTSD is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Bilateral Hearing Loss For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran’s STRs are negative for complaint or finding of hearing loss. His military occupational specialty (MOS) was that of a motor vehicle operator. The Board notes that noise exposure has been conceded and that the Veteran is service connected for tinnitus due to that in-service noise exposure. See October 2014 Rating Decision. A September 2014 VA examination found the Veteran had hearing loss, but that his hearing loss was less likely than not related to his active duty service. However, the Board notes that the examiner based that conclusion upon the Veteran’s normal hearing at his separation from active duty. In his November 2019 hearing testimony, the Veteran stated that his hearing loss began during his active duty. He stated he was exposed in-service noise from the trucks and that he was occasionally provided hearing protection. He denied any civilian noise exposure. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran has consistently stated that his hearing loss began while in-service. He provided lay testimony which supported this assertion. The Veteran is competent to describe observable symptoms of hearing loss and relate when such symptoms began. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There has been no other documented noise exposure either civilian or recreational which could account for the Veteran’s hearing loss. As such, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for the Veteran’s bilateral hearing loss is warranted. The Board acknowledges that a VA examination indicated that the Veteran’s bilateral hearing loss was less likely as not related to the Veteran’s active duty service. However, the Board does not afford that examination any probative weight as it based the finding on the Veteran’s normal hearing at separation. Thus, the Board finds that service connection for the Veteran’s bilateral hearing loss is warranted. Bilateral Knees In addition to the above, service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309(a). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § § 3.303(b). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptoms after service may serve as an alternative method of establishing service connection. 38 C.F.R. § § 3.303(b). Continuity of symptoms may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptoms applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the instant matter, the Veteran has asserted that his bilateral knee disability, diagnosed as bilateral knee strain, was related to his active duty, specifically an in-service motor vehicle accident. At the outset the Board notes that there is no objective evidence that the motor vehicle accident occurred; furthermore, the Board also notes that the Veteran’s service treatment records (STRs) are incomplete. See August 1976 STR which indicated that replacement STRs were being opened after his original health record was lost. As such, the Board affords the Veteran the benefit of reasonable doubt and assumes for purposes of this decision that the claimed in-service motor vehicle accident did occur. The Veteran’s STRs also show that in December 1975 he reported right knee pain for the past three days. He reported a history of trauma. There was no contusion or edema. His flexion, extension, and abduction were all within normal limits. His adduction was noted to have a tingling feeling. A January 1976 STR indicated the Veteran had complaint of right knee pain after exercise the night prior. He reported knee pain the month prior. He was diagnosed with a strained muscle. In May 1977, the Veteran was diagnosed with right calf strain after reporting right knee pain after pulling a muscle in his right calf. He was noted to have full range of motion. Subsequent STRs show that the Veteran did not report knee pain or problems. Specifically, a July 1978 medical examination did not note knee symptoms or any diagnosis of any knee disorder. Also, the Veteran did not list either right or left knee symptoms or problems in a June 1982 report of medical history and no knee disorder or symptomology was found on a concurrent medical examination. A December 2014, VAMC record showed the Veteran reported knee pain after an in-service motor vehicle accident. A right knee X-ray showed no abnormalities. In December 2014, the Veteran submitted three buddy statements which indicted he had reported an in-service motor vehicle accident in which he injured his knees and relayed a belief that the Veteran’s in-service knee problems are related to his current knee problems. In a private medical report submitted in September 2015, the examiner stated that the Veteran’s knee pain was service related. In April 2015, a VAMC record showed the Veteran reported chronic knee pain. He reported he received injections. In September 2015, a VA examination found the Veteran had a diagnosis of bilateral knee strain. Concurrently performed X-rays did not find any abnormalities of either of the Veteran’s bilateral knees. The examiner noted review of the Veteran’s claims file. The examiner reported that the Veteran stated that his knee pain began after an in-service motor vehicle accident in which his knee struck the dashboard of the vehicle he was driving. He stated he sustained contusions to both kneecaps. The examiner stated that the Veteran’s bilateral knee disability was less likely than not related to his active duty, including the Veteran’s report of an in-service motor vehicle accident. The examiner stated that there was no credible medical evidence to support the claim that his right knee pain in service was the cause of his current knee pain. The examiner noted the Veteran’s civilian job duties as a postal worker and also that his VAMC records were essentially his personal reported history of pain without any objective evidence documenting knee pain or treatment from 1976 to present day. In his November 2019 hearing testimony, the Veteran stated that while he was driving a truck in-service, he was involved in a motor vehicle accident in which his knees hit the dashboard. He stated he received treatment for his knees while in-service. He reported that his knees had hurt him since the accident. Direct service connection necessitates a finding that the Veteran’s bilateral knee strain is related to an injury or disease incurred in service. The evidence of record does not support such a finding. Though the Veteran did have injury and treatment of for his right knee in-service, there is no evidence of record which supports a finding that the Veteran had treatment for any knee pain after his separation from service until December 2014 – over thirty years after his active duty service. Furthermore, none of the Veteran’s VAMC care showed that any of his providers related his knee pain to his active duty service or that the Veteran continued to seek treatment after his September 2015 VA examination. The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Furthermore, the September 2015 VA examiner did not find that the Veteran’s knee strain was linked to his active duty service. The Board assigns great probative weight to the September 2015 VA examination, as the examiner reviewed the Veteran’s claims file in its entirety and considered the Veteran’s reported history, including his reports of knee pain after service. After considering the record and examining the Veteran, the examiner concluded that the Veteran’s knee disabilities were not causally related to active duty. The examiner provided a reasoned conclusion and clear rationale to support her determination. The Board assigns more probative weight to the findings of the VA examiner, given her clinical expertise and the rationale she provided. The Board did take note of the private medical opinion submitted in September 2015 which related his knee pain to his active duty service. However, the Board also notes that this private medical opinion did not indicate that any of the Veteran’s medical records or STRs had been reviewed. Also, the medical records submitted in conjunction with the opinion do not contain any treatment for or diagnosis of any knee disability. As such the Board does not afford the private medical opinion any probative weight. The Board has also considered the Veteran’s statements, including his November 2019 hearing testimony, and the buddy statements that the Veteran submitted in support of his claim. However, though the Veteran and his friends/family are competent to describe observable symptoms or relate their belief regarding the etiology of his knee pain, those opinions lack probative value as they have not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). In sum, the preponderance of the evidence is against a finding that the Veteran’s bilateral knee strain was related to his service, and, accordingly, there is no doubt to resolve in his favor. REASONS FOR REMAND Back condition Though the Board notes that a private medical report submitted in September 2015 stated the Veteran’s lumbar spine disorder was related to his active duty service, that examination did not provide a rational upon which the conclusion was based and is, therefore, inadequate for adjudication purposes. Other lumbar spine examinations did not provide an opinion regarding the etiology of the Veteran’s lumbar spine disorder. The Board finds that a VA examination is necessary. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of his lumbar spine disorder. The claims file must be made available to and reviewed by the examiner. All necessary tests and studies should be accomplished. The examiner should opine as to whether it is at least as likely as not (50% or greater probability) that the Veteran’s lumbar spine disorder had its onset in service or within one year following separation from service; or was causally related to service. A complete rationale must be provided. (Continued on the next page)   The Veteran’s lay assertions as to onset and continuity of symptomatology, including his November 2019 hearing testimony, as well as the buddy statements submitted by the Veteran in support of his claim, should be recorded and considered. The examiner is asked to assume for purposes of the opinion that the Veteran was involved in an in-service motor vehicle accident as described by the Veteran. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.