Citation Nr: 20021985 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 17-46 974 DATE: March 30, 2020 ORDER Service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and persistent depressive disorder, is granted. REMANDED Entitlement to service connection for bilateral hearing loss. Entitlement to service connection for left shoulder acromioclavicular joint osteoarthritis. Entitlement to service connection for right shoulder impingement syndrome with acromioclavicular joint osteoarthritis. Entitlement to service connection for Dupuytren's contracture with degenerative arthritis of the left thumb. Entitlement to service connection for Dupuytren's contracture with degenerative arthritis of the right thumb. Entitlement to service connection for a low back disability. Entitlement to service connection for a cervical spine disability. Entitlement to service connection for a left knee disability. Entitlement to service connection for a right knee disability. Entitlement to service connection for multiple joint pain. Entitlement to service connection for headaches. FINDING OF FACT An acquired psychiatric disability is related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, to include PTSD and persistent depressive disorder, have been met. 38 U.S.C. §§ 1101, 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 on active duty from July 1981 to March 1994. This appeal is before the Board of Veterans’ Appeals (Board) from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In December 2019, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. Entitlement to service connection for an acquired psychiatric disability, to include PTSD and persistent depressive disorder The Veteran claims service connection for PTSD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires: (1) a diagnosis of the disorder made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-5); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. §§ 3.304(f), 4.125(a). There are several avenues to document an in-service stressor, other than obtaining verification from the Joint Services Records Research Center (JSRRC) or other government records repository: an in-service PTSD diagnosis with lay testimony; combat service with lay testimony; prisoner of war status with lay testimony; lay evidence of personal assault with appropriate corroboration; and a stressor related to a veteran’s fear of hostile military or terrorist activity, with appropriate medical evidence. 38 C.F.R. § 3.304(f). Lay evidence may establish an in-service stressor 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. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f)(2). The Veteran’s service personnel records indicate that he is in receipt of a combat action ribbon. In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. The incurrence or aggravation may be rebutted by clear and convincing evidence to the contrary. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The standard used to determine whether a veteran engaged in combat with the enemy is reasonable doubt, which is to be resolved in a veteran’s favor. See VAOPGCPREC 12-99. The provisions of 38 U.S.C. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine, 9 Vet. App. at 522-23. The provisions of 38 U.S.C. § 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service treatment records do not reflect any symptoms of or treatment for any mental health disability. The Veteran underwent a VA examination in April 2016. He was diagnosed with persistent depressive disorder with anxious distress. He reported that he first became depressed when his infant son passed away while he was in service, prior to his deployment. He described combat trauma he experienced while deployed to Saudi Arabia. The examiner found that the course and nature of the Veteran’s symptoms were not consistent with the criteria for a PTSD diagnosis, because most if not all of his symptom were unrelated to traumatic events in service. Rather, the examiner found that his symptoms were most consistent with persistent depressive disorder with anxious distress. The examiner did not opine as to whether this disability was related to service. At his December 2019 hearing, the Veteran described the stress of combat he experienced while deployed. In a January 2020 letter, the Veteran’s private treating psychiatrist diagnosed recurrent severe major depressive disorder without psychosis and chronic PTSD. The psychiatrist opined that it was more likely than not that his combat experiences were directly responsible for these diagnoses. The Board finds that the evidence is at least in equipoise as to whether the Veteran’s acquired psychiatric disability is related to service. He is a combat Veteran who reported stressors consistent with his deployment. The April 2016 VA examiner found that he did not meet the criteria for a PTSD diagnosis but failed to offer an opinion as to whether his persistent depressive disorder with anxiety was related to service. His private psychiatrist, in contrast, diagnosed PTSD and major depressive disorder secondary to his combat experience. There is no medical evidence to contradict this opinion. For these reasons, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s acquired psychiatric disability is related to service. Service connection is therefore granted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss The Veteran claims service connection for bilateral hearing loss. The Veteran underwent a VA examination in May 2016. The examiner opined that hearing loss was not related to military noise exposure. This opinion was based on the rationale that the Veteran’s hearing was measured as normal upon entrance and exit from the military. Such an opinion is inadequate, because the Court of Appeals for Veterans Claims (Court) has held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of hearing impairment after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). As such, remand is necessary for an opinion that says more than merely stating that normal hearing was recorded at separation. 2. Entitlement to service connection for left shoulder acromioclavicular joint osteoarthritis 3. Entitlement to service connection for right shoulder impingement syndrome with acromioclavicular joint osteoarthritis 4. Entitlement to service connection for Dupuytren's contracture with degenerative arthritis of the left thumb 5. Entitlement to service connection for Dupuytren's contracture with degenerative arthritis of the right thumb 6. Entitlement to service connection for a low back disability 7. Entitlement to service connection for a cervical spine disability 8. Entitlement to service connection for a left knee disability 9. Entitlement to service connection for a right knee disability 10. Entitlement to service connection for multiple joint pain 11. Entitlement to service connection for headaches At his December 2019 hearing, the Veteran indicated that he was receiving disability benefits from the Social Security Administration (SSA). He subsequently submitted SSA records, but not a complete SSA file. There is no indication in the record that VA took the necessary steps to attempt to obtain any relevant records from the SSA. When VA has actual notice of the existence of relevant SSA records, the duty to assist includes requesting those records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Remand is thus necessary to obtain these records and associate them with the claims file. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any additional medical evidence that may have come into existence but has not been associated with the record. 2. Obtain and associate with the claims file any records in the possession of the Social Security Administration pertinent to the Veteran’s award of disability benefits. Make a notation in the claims file of all attempts to obtain these records and all responses received. 3. Return the claims file to the May 2016 VA audiological examiner, or to another qualified examiner if unavailable. The examiner may order a new examination if deemed necessary. The claims file must be reviewed by the examiner. Following a review of the claims file and any clinical examination results, the examiner should offer an opinion as to whether it is at least as likely as not (i.e. 50 percent probability or more) that the Veteran’s hearing loss is related to service. In providing a rationale, the examiner must address the evidence in more detail than simply stating that the Veteran’s hearing was normal upon entrance and separation from service. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After completing the above, and any other development deemed necessary, readjudicate the appeal. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, 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.