Citation Nr: 20007364 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 16-19 050A DATE: January 30, 2020 ORDER Service connection for a psychiatric disability manifested by posttraumatic stress disorder (PTSD) symptoms is granted. Service connection for a left knee disability is denied. REMANDED The issue of service connection for a low back disability is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his psychiatric disability is at least as likely as not related to a verified in-service stressor 2. The preponderance of the evidence is against finding that the Veteran’s left knee disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disability manifested by PTSD symptoms are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army Reserve from March 1980 to June 1980, in the Air Force from December 1982 to May 1987, and had additional Reserve service and active service in the Air National Guard from May 1987 to September 1990. 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). Service connection for psychiatric disability is granted. In order to grant service connection for PTSD to a non-combat Veteran, there must be credible evidence to support the Veteran’s assertion that the stressful event occurred. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395396 (1996). If the evidence establishes that the 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). The Veteran contends that he incurred PTSD as a result of an in-service stressor. Specifically, he contends that two of his friends/coworkers died, and five others were injured while shutting down engines of a tanker when an explosion occurred due to an overheated fuel pump. The Veteran stated that this occurred while assigned to the 168th Air Refueling Station from May 1987 to September 1990. Internet articles verified that that in September 1989, one of the Alaska Air National Guard’s aircraft exploded on the flight line, killing two people. Personnel records confirm that the Veteran was stationed with the 168th Air Refueling Group at Eielson Air Force Base in Alaska during that time. In its April 2016 Statement of the Case, the RO conceded that the Veteran’s stressor has been corroborated. The Board concludes that the Veteran has a current disability that is related to his verified in-service stressor. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Treatment records from a counselor, Vickie Donohue, reflect that the Veteran sought treatment for substance abuse. He reported that while in the military, he saw a good friend get blown up. He reported that he gets depressed or bothered by things that make him think about the military. He also reported feeling panicked and having intense, vivid memories of the explosion. She diagnosed PTSD. The Veteran underwent a VA examination in August 2019. The examiner conceded that the Veteran witnessed a traumatic event and that he continues to suffer from recurrent dreams in which the content and/or effect of the dream is related to the traumatic event. The examiner, however, found that although Criterion A and B of the DSM-V criteria for PTSD were met, that Criterion C-H were not met. She found that there was not sufficient evidence to meet the diagnostic criteria for PTSD or any other mental health disorder. She stated that she was aware that the Veteran has received a PTSD diagnosis through mental health. She stated that she was unable to reconcile these differences. The Veteran’s stressor has been conceded, and both examiners have found that the Veteran continues to suffer from recurrent dreams of the stressor. The Veteran reported to Ms. Donohue that he feels panicked, and that he has intense, vivid memories of the explosion. Additionally, the August 2019 examiner noted that the Veteran graduated from high school with above average grades. He excelled at football, basketball, and track. He was President of his Class and participated in academic activities. His DD Form 214 from his December 1982 to May 1987 service reflects that he received the Air Force Achievement Medal, the Air Force Outstanding Unit Award, and the Air Force Good Conduct Medal. At some point after the 1989 stressor, the Veteran took his five-year-old child and left Alaska (leaving his wife and four kids). He began using drugs, and from 1993 to 2004, he was in an out of state and community jails for drug offenses. The Veteran’s good conduct throughout service, and then substance abuse starting no later than three years after discharge (and four years after the in-service stressor) is evidence that the Veteran’s substance abuse is at least as likely as not due to the in-service stressor. Even if the VA examiner found that the Veteran did not meet all the criteria for a PTSD diagnosis, there is sufficient evidence to reflect that the Veteran suffers a psychiatric disability manifested by nightmares and intrusive memories of a traumatic, in-service stressor. Upon review of the record, the evidence is at least in equipoise as to whether the Veteran’s current psychiatric disabilities are related to service. Accordingly, after resolving all doubt in favor of the Veteran, service connection for a disability manifested by PTSD symptoms is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service connection for a left knee disability is denied. The Veteran contends that he has a current left knee disability that is related to service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, although the Veteran has a current diagnosis of mild degenerative changes, and evidence shows that he reported left knee pain in April 1980, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of mild degenerative changes of the left knee began during service or is otherwise related to an in-service injury, event, or disease. The service treatment records include a February 1980 induction examination that reflects a left knee scar. On a February 1980 Report of Medical History, the Veteran reported cramps in his legs but denied a “trick” or locked knee, arthritis, and any bone, joint, or other deformity. In April 1980, he reported left knee pain of 3-4 days duration. He denied any trauma or injury. The knee was positive for crepitus. There was no swelling. Range of motion was good. There was some tenderness of the lateral patella. He was assessed with functional “knee pain–muscle.” From April 1980 to the time of his discharge from service in September 1990, there are no additional complaints or findings regarding the left knee. In a March 1987 Report of Medical History, the Veteran once again reported occasional cramps in his legs, secondary to strenuous exercise but denied a “trick” or locked knee, arthritis, and any bone, joint, or other deformity. Post-service treatment records reflect that in August 2014, the Veteran reported bilateral knee pain. He was fitted for knee brace. The Veteran underwent a VA examination in August 2019. He reported that after walking a mile, he experiences aching in his left knee without loss of motion. The examiner acknowledged and correctly cited the findings in the April 1980 treatment report. Upon examination, the Veteran achieved flexion to 130 degrees, and full extension. Range of motion did not contribute to functional loss. There was pain on flexion, and crepitus. There was no pain with weightbearing. There was no objective evidence of localized tenderness or pain on palpation. The examiner noted that diagnostic testing revealed degenerative or traumatic arthritis. He stated that he could not support a chronic left knee disability while in service. He stated that unless additional support is available, it is less likely than not that the Veteran’s left knee disability is related to service. The Veteran believes his disability is related to an in-service injury or disease. He is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires medical knowledge regarding the etiology of the disability. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the opinion of the August 2019 VA examiner. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for entitlement to service connection for a left knee disability must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The issue of service connection for a low back disability is remanded. The Board remanded this issue in October 2018 so that, in part, the RO could obtain a VA medical opinion regarding the Veteran’s low back disability. The examiner was directed to a March 1987 Report of Medical History in which the Veteran reported recurrent low back pain, last occurrence in November 1985, secondary to heavy lifting. It was treated with ice, massage, and unknown medications, with good results. The Veteran underwent a VA examination in August 2019. The examiner rendered a negative nexus opinion based on the fact that he could not find treatment for the Veteran’s back in the service treatment records. The examiner did not acknowledge the March 1987 Report of Medical History. In failing to acknowledge documentation regarding the Veteran’s in-service complaints, the examiner rendered an opinion that is inadequate. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). Consequently, a new VA examination is required. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s March 1987 report of recurrent back pain (and treatment) due to heavy lifting The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Prem, Counsel 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.