Citation Nr: 20009936 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 17-15 053 DATE: February 6, 2020 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for a left-hand condition is remanded. Entitlement to service connection for a right-hand condition to include as secondary to the right shoulder condition is remanded. Entitlement to an initial compensable rating for a status-post right shoulder injury is remanded. Entitlement to an initial compensable rating for patellofemoral syndrome of the left knee is remanded. Entitlement to an initial compensable rating for patellofemoral syndrome of the right knee is remanded. FINDING OF FACT The Veteran’s PTSD is due to in service stressors involving fear of hostile military or terrorist activity. CONCLUSION OF LAW The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Marine Corps from January 2002 to October 2015. 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown,7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). 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); 38 C.F.R. § 4.125 (requiring PTSD diagnoses to conform to the DSM-IV/5). A stressor may be proven with lay statements alone if the Veteran claims a stressor due to fear of hostile military or terrorist activity, the claimed stressor is consistent with the circumstances of service, and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a PTSD diagnosis and that the Veteran’s symptoms are related to the claimed stressor. 38 C.F.R. § 3.304(f)(3). Here, as will be further explained below, the service-connection elements for PTSD are satisfied. The Veteran experienced an in-service stressor, he has a current diagnosis of PTSD, and the record supports the causal relationship between the stressor and the current diagnosis of PTSD. Because the evidence supports that all three elements of service connection have been met, the Veteran’s claim for service connection for PTSD will be granted. With regard to an in-service event or stressor, the Veteran reported several stressor events. As detailed at the November 2019 Board hearing, the Veteran reported the following stressors: serving in a combat region during Operation Red Wings and Operation Whalers in 2005 and 2006 which included many military personnel being injured, having to drive injured service members who ultimately did not make it, and running out of room in the morgue. The Veteran also noted his other deployments involving not knowing “who the bad guys are.” The Board notes the Veteran’s service treatment records (STRs) do not show treatment for PTSD or any other mental health related treatment. However, although the Veteran’s claimed stressors have not been verified, the Board finds the Veteran’s statements regarding his in-service stressors to be credible and related to fear of hostile or terrorist activity. Further, a December 2019 statement from his treating psychologist indicated that the Veteran’s PTSD stemmed from the aforementioned in-service stressors. This is consistent with the PTSD diagnosis and discussion of in-service stressors in his VA treatment records. With regard to a current diagnosis, VA medical center (VAMC) treatment records show the Veteran was referred for a mental health consult and was shown to meet the diagnostic criteria for PTSD. See July 2016 VAMC treatment. The Veteran was also noted to have a PTSD diagnosis from his primary care physician in August 2019. The forgoing diagnoses of PTSD are presumed to accord with the DSM-5 criteria, and were rendered during the pendency of this claim. Cohen v. Brown, 10 Vet. App. 128, 139-42 (1997). The Board also notes the Veteran has not been afforded a VA examination. However, the Veteran has been diagnosed with PTSD by a treating physician on two occasions. Therefore, the current diagnosis element is satisfied. Finally, there is a medical nexus between the in-service stressors and the Veteran’s current PTSD diagnosis. In August 2019, the Veteran’s treating physician noted the Veteran had PTSD was related to his two military deployments to Afghanistan in 2005-2006 and 2010. Further, in December 2019, an independent evaluator opined following a review of the Veteran’s medical and military records and a personal interview that the Veteran’s PTSD is more likely than not directly service connected. In light of the favorable evidence and lack of conflicting evidence, the Board finds that the evidence weighs in favor of a finding of nexus. Accordingly, resolving reasonable doubt in the Veteran’s favor, the Board finds that a medical nexus exists between the Veteran’s PTSD and the stressors incurred in service. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; 38 C.F.R. § 3.304(f); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Because all three service connection elements are satisfied, service connection for PTSD is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; 3.304(f). REASONS FOR REMAND Although the Board regrets the delay, remand is required to ensure there is a complete record on which to decide the Veteran’s claims. 1. Entitlement to service connection for a low back condition is remanded. The Veteran contends he has a current low back condition which is related to his active duty service. The Board notes he has been receiving treatment for low back pain. See VAMC treatment dated August 2019. Further, the Veteran testified at the November 2019 Board hearing that he experienced ongoing symptoms of back pain. Finally, the Veteran was treated for back pain during service in January 2013. Considering the Veteran has demonstrated both a current impairment and at least one in-service complaint of back pain, the Board believes that a medical examination with opinions based on full consideration of the Veteran’s documented medical history and assertions, and supported by clearly stated rationale, would be helpful in resolving the service-connection claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. at 79. 2. & 3. Entitlement to service connection for a bilateral hand condition to include as secondary to the right shoulder condition is remanded. The Veteran contends he has a current bilateral hand condition which is related to his active duty service. While the Board notes that there is not evidence of a current diagnosis of a bilateral hand impairment, the Veteran testified at the November 2019 Board hearing that he experienced ongoing symptoms bilateral hand pain and numbness, which was possibly related to his service-connected right should condition. Additionally, the Veteran testified that while he did not complain about hand pain during service, he experienced pain in the hands as related to gripping and firing machine guns. The Veteran’s service personnel records show he served as an infantry unit leader for four years and a machine gunner for 8 years. Considering the Veteran has demonstrated both symptoms of a current impairment and evidence of injury which is consistent with the Veteran’s line of duty service, the Board believes that a medical examination with opinions based on full consideration of the Veteran’s documented medical history and assertions, and supported by clearly stated rationale, would be helpful in resolving the service-connection claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. at 79. 4. Entitlement to an initial compensable rating for a status-post right shoulder injury is remanded. The Veteran indicated during his December 2019 hearing that his right shoulder disability had worsened. Specifically, he stated he has increased difficulties with limitation of range of motion to the front and side and numbness. In light of this suggestion of a possible worsening, the right shoulder disability claims must be remanded for a VA examination. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim). 5. & 6. Entitlement to an initial compensable rating for patellofemoral syndrome of the bilateral knees is remanded. The Veteran indicated during his December 2019 hearing that his bilateral knee disabilities had worsened. Specifically, he stated he has increased difficulties with pain and lateral instability. In light of this suggestion of a possible worsening, the bilateral knee disability claims must be remanded for a VA examination. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim). The matters are REMANDED for the following actions: 1. The AOJ must contact the Veteran before scheduling any of the following VA examinations due to the Veteran’s job resulting in limited time periods in the United States. An attempt should be made to schedule the following VA examinations while the Veteran is not abroad. 2. In accordance with the first directive, the Veteran should be scheduled for an appropriate VA examination to determine the nature, extent, onset, and etiology of his low back condition. The claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide the following information: (a.) The examiner should identify any currently diagnosed conditions of the back. (b.) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s back condition is due to or otherwise causally or etiologically related to his military service. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) 3. In accordance with the first directive, the Veteran should be scheduled for an appropriate VA examination to determine the nature, extent, onset, and etiology of his bilateral hand condition. The claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide the following information: (a.) The examiner should identify any currently diagnosed conditions of the bilateral hands. (b.) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s bilateral hand condition is due to or otherwise causally or etiologically related to his military service. (c.) whether it is at least as likely as not (i.e. 50 percent or greater probability) that either of the Veteran’s hand conditions are due to his service-connected right shoulder disability. (d.) whether it is at least as likely as not (i.e. 50 percent or greater probability) that either of the Veteran’s hand conditions are aggravated by the service-connected right shoulder disability. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) 4. In accordance with the first directive, the Veteran should be scheduled for a VA examination with appropriate examiner in order to determine the nature and severity of his service-connected right shoulder disability. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. The examiner should identify any symptoms that the Veteran currently manifests or has manifested that are attributable to his service-connected right shoulder disability. All appropriate testing, including range of motion, should be performed. If the Veteran endorses flare-ups, the examiner is asked to describe whether pain significantly limits functional ability during flare-ups, and if so, the examiner must estimate range of motion during flares. If the examination does not take place during a flare, the examiner must glean information regarding the flares’ severity, frequency, duration, and functional loss manifestations from the veteran, medical records, and other available sources. Efforts to obtain such information must be documented. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examination should also record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. In rendering his or her opinion, the examiner should consider the Veteran’s competent and credible testimony given during the November 2019 Board hearing. Specifically, the examiner is directed to address the Veteran’s reports of a limited range of motion and numbness extending to his fingertips. The examiner should state what consideration was given to the Veteran’s credible subjective testimony. The examiner must provide a complete rationale for all the findings and opinions. 5. In accordance with the first directive, the Veteran should be scheduled for a VA examination with appropriate examiner in order to determine the nature and severity of his service-connected right and left knee disabilities. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. The examiner should identify any symptoms that the Veteran currently manifests or has manifested that are attributable to his service-connected right and left knee disabilities. All appropriate testing, including range of motion, should be performed. If the Veteran endorses flare-ups, the examiner is asked to describe whether pain significantly limits functional ability during flare-ups, and if so, the examiner must estimate range of motion during flares. If the examination does not take place during a flare, the examiner must glean information regarding the flares’ severity, frequency, duration, and functional loss manifestations from the veteran, medical records, and other available sources. Efforts to obtain such information must be documented. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examination should also record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. In rendering his or her opinion, the examiner should consider the Veteran’s competent and credible testimony given during the November 2019 Board hearing. Specifically, the examiner is directed to address the Veteran’s reports of has increased difficulties with pain and lateral instability. The examiner should state what consideration was given to the Veteran’s credible subjective testimony. The examiner must provide a complete rationale for all the findings and opinions. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura C. Owens 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.