Citation Nr: 21000271 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 14-22 823 DATE: January 5, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT The evidence is in relative equipoise regarding whether PTSD was incurred in active service. CONCLUSIONS OF LAW The criteria for entitlement to service connection for posttraumatic stress disorder have been met. 38 U.S.C. §§ 1110, 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1980 to June 1991. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In April 2018, the Board denied entitlement to service connection for a psychiatric disability, to include posttraumatic-stress disorder (PTSD) and depression; and entitlement to service connection for a back disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In September 2019, the United States Court of Appeals for Veterans Claims granted a Joint Motion for Remand and vacated the April 2018 decision of the Board of Veterans’ Appeals (Board) to the extent that it denied entitlement to service connection for a back disability and entitlement to service connection for a psychiatric disability, and remanded those issues to the Board for additional action. Service Connection Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in-service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist 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. Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder; (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). The PTSD diagnosis must be made in accordance with the criteria of American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-V). 38 C.F.R. § 4.125(a). Secondary service connection may be established for a disability that is proximately due to, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. §§ 3.159(a)(2). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked evidence that is not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). 1. Entitlement to service connection for posttraumatic stress disorder. The Veteran is seeking service connection for a psychiatric disability, to include PTSD. The Veteran contends that current psychiatric disabilities are the result of service in the Gulf War. As an initial matter, the Board notes that, in a September 2019 decision, the parties to the Joint Motion for Remand agreed that the November 2011 and July 2017 VA PTSD examinations, on which the Board’s April 2018 decision was predicated, were inadequate. Therefore, the Court stated that remand was required to obtain a new or addendum opinion to address the listed concerns. Prior to reactivation at the Board, the Veteran was provided a private psychiatric examination from September 2020. Resolving all reasonable doubt in favor of the Veteran, the Board finds that additional remand for a new VA examination and nexus opinion is no longer necessary. The service medical records do not show symptoms of or treatment for any psychiatric disabilities during active duty. In support of the claim, in addition to numerous written statements, the Veteran has provided a private September 2020 psychological evaluation from a psychiatrist. In the private September 2020 psychiatric examination, after review of the Veteran’s medical record, lay statements, ancillary information regarding the Veteran, and clinical interview, in an extensive, detailed report, the examiner, a psychiatrist, diagnosed PTSD related to documented enemy missile attacks during service. After a lengthy discussion of the Veteran’s psychiatric history, the psychiatrist opined that, based on the totality of the evaluation, it was the examiner’s opinion that the Veteran met the diagnostic criteria for PTSD pursuant to DSM-V and that this condition was the direct result of the Veteran’s active duty service in Southwest Asia. The Board assigns great probative value to the September 2020 private psychiatrists’ medical opinion because of the training, experience, and thoroughness of the examiner. Among the factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion he reaches. As is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The September 2020 private psychiatrist opinion was made upon a review of the record, was consistent with the evidence in the case, and provided adequate reasons and basis in support of the conclusion. The September 2020 private psychiatrist opined that the Veteran met the diagnostic criteria for PTSD which, in the examiner’s opinion, was directly related to the traumatic incidents he experienced while on active duty service during the Gulf War. The opinion of the September 2020 private psychiatrist is highly probative because it is supported by detailed rationale and provided by a trained medical professional. The private psychiatrist specifically identified and discussed the Veteran’s contentions and theory concerning service and the claimed disability. Thus, the Board finds the September 2020 private psychiatrists’ medical opinion to be competent and credible. The Board acknowledges that there may be contradictory evidence of record. However, the Board cannot ignore the medical evidence finding that PTSD is due to active service. Because of the detail and thoroughness of the September 2020 private opinion, the Board finds that the evidence is, at least, in equipoise regarding whether current PTSD is related to service. Accordingly, based on the foregoing, and resolving doubt in the Veteran’s favor, the Board finds the competent medical evidence supports a finding that PTSD is etiologically related to active service. Therefore, service connection for a psychiatric disability, to include PTSD, is warranted. Accordingly, service connection for PTSD is granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a back disability. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim for entitlement to service connection for a back disorder. In a September 2019 decision, the parties to the Joint Motion for Remand agreed that the November 2011 VA back examination, on which the Board’s April 2018 decision was predicated, was inadequate. Therefore, remand was required to obtain a new or addendum opinion to address the listed concerns. The Board has no discretion and must remand the appeal for compliance with the United States Court of Appeals for Veterans Claims’ September 2019 Order vacating the Board’s April 2018 decision and remanding the matter for further adjudication consistent with the Joint Motion for Remand. Stegall v. West, 11 Vet. App. 268 (1998); Forcier v. Nicholson, 19 Vet. App. 414 (2006). The Board notes that the Veteran has since provided a private October 2020 medical opinion stating that the Veteran has a current back disability related to an injury sustained while in the Army reserves in April 2002. However, as the record currently stands, it is unclear whether the Veteran's service consisted of ACDUTRA or INACDUTRA at the time of the April 2002 incident. So, before the claim can be adjudicated, the Veteran's dates of ACDUTRA and INACDUTRA must be clarified and another VA examination must be conducted. Accordingly, to address the concerns of the Court and the parties of the Joint Motion, the Board finds that, because of the stipulated inadequacy of the November 2011 VA opinion and the absence of additional evidence pertaining to the claimed disability, a medical opinion is necessary for adjudication of the service connection claim. Accordingly, because the claimed disability may have been caused by service, the Board finds that a VA opinion to determine any relationship between the Veteran’s back disability and service must be requested.  VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran’s claim.  Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Contact the appropriate service department or state agencies to clarify the dates the Veteran was on active duty, ACDUTRA, and INACDUTRA. Specifically, it should be determined what the Veteran’s duty status was on April 7, 2002. 2. Identify and obtain any outstanding VA and private treatment records not already of record. 3. Then, schedule the Veteran for a VA examination to determine the etiology of any back disability. The examiner must review the claims file, including this Remand and the September 2019 Joint Motion for Remand, and should indicate review of the file in the report. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed back disability is etiologically related to active service or any event, disease, or injury during service, including whether any back disability (1) began during active duty, ACDUTRA, or INACDUTRA service; (2) was noted during service with continuity of the same symptomatology since service; (3) was caused by any service-connected disability, or treatment for any service-connected disability; (4) was aggravated (increased in severity beyond the natural progress of the disorder) by any service-connected disability, or treatment for any service-connected disability; or (5) manifested as lumbar spine arthritis within one year after separation from a period of active service. The examiner should address any lay statements, including those made during the Veteran’s March 2015 DRO hearing, regarding the claimed disability and its etiology and should reconcile the opinion with any previous opinions of record. The examiner must discuss any significance of the Veteran’s September 1987 in-service complaint of recurrent back pain, as it relates to the current disability. A clearly stated rationale for each opinion should be provided and cannot be based solely on the lack of an in-service record of the claimed disability. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.