Citation Nr: 21002672 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 17-35 647 DATE: January 14, 2021 ORDER Entitlement to service connection for a psychiatric disability, to include chronic adjustment disorder and major depressive disorder, as secondary to service-connected disorders, is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to an initial rating in excess of 10 percent for right knee osteoarthritis is remanded. Entitlement to an initial rating in excess of 10 percent for left knee osteoarthritis is remanded. Entitlement to a compensable initial rating for limitation of extension of the right knee is remanded. Entitlement to a compensable initial rating for limitation of extension of the left knee is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veterans’ chronic adjustment disorder and major depressive disorder are secondary to service-connected lumbar spine disorder and other service-connected disorders. 2. The preponderance of the evidence of record is against finding that the Veteran has PTSD. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a psychiatric disability, to include chronic adjustment disorder and major depressive disorder, as secondary to service-connected disorders have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.310. 2. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the United States Army from August 1984 to January 1992, to include service in Southwest Asia. For his meritorious service, the Veteran was awarded (among other decorations) the Army Commendation Medal, the Air Assault Badge, the Southwest Asia Service Medal, and the Combat Infantryman Badge. These issues come before the Board of Veterans’ Appeals (Board) on appeal of August and September 2012 rating decisions. In February 2020, the Veteran provided testimony at a Board hearing. A transcript of the hearing is of record. At the hearing, the Veteran submitted additional evidence with a waiver of Regional Office (RO) review. Also, the Veterans Law Judge granted a 60-day extension to submit additional evidence. In April and September 2020, the Board granted additional 30 and 60-day extensions, respectively, in order for the Veteran to provide additional evidence. However, no additional evidence has been submitted. The Veteran has raised the matter of TDIU as part and parcel of his claims on appeal. That issue has been added to those on appeal. Service Connection Service connection will be granted for disability resulting from an injury or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for disabilities found to be proximately due to, the result of, or aggravated by an already service-connected disability. 38 C.F.R. § 3.310. 1. Psychiatric Disability, to include Chronic Adjustment Disorder and Major Depressive Disorder An April 2012 VA examination shows that the Veteran was diagnosed with chronic adjustment disorder and the examiner opined that it is at least as likely as not exacerbated by his general medical condition (including back pain and other disorders pending service connection). Service connection was subsequently granted for a lumbar spine condition with associated radiculopathy and other disorders, to include bilateral knee disabilities. Consequently, the preponderance of the evidence is in favor of granting service connection for chronic adjustment disorder on a secondary basis. The Board notes that the medical evidence shows that the Veteran is also diagnosed with major depressive disorder. To the extent that the symptoms overlap, the Board finds that service connection is warranted for a psychiatric disability, to include chronic adjustment disorder and major depressive disorder. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so). 2. PTSD Service connection for PTSD specifically requires that the record show: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (a) (requiring mental disorder diagnoses to conform with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5)); (2) combat status or credible supporting evidence that the claimed in-service stressor actually occurred; (3) medical evidence of a causal nexus between diagnosed PTSD and the claimed in-service stressor. 38 C.F.R. § 3.304(f). Although the Veteran’s lay account of in-service combat stressor events is sufficient to establish service incurrence, the preponderance of the evidence shows that the Veteran does not have a diagnosis of PTSD based on the in-service events. Notably, in April 2012 and in July 2016, VA examiners reviewed the Veteran’s medical record, performed mental status examinations, and specifically opined that the Veteran’s mental symptoms did not meet the diagnostic criteria of PTSD. A link between a PTSD diagnosis and a claimed stressor must be established by medical evidence. 38 C.F.R. § 3.304(f). Although VA treatment records contain several notations indicating a medical history of PTSD, the record reflects that such diagnoses were rendered based on the Veteran’s statements. PTSD diagnoses based on the Veteran’s reported history of PTSD or PTSD symptoms are not valid as such diagnoses are not based on clinical findings. For the foregoing reasons, the Board finds that the weight of the evidence is against finding that the Veteran is currently diagnosed with PTSD consistent with DSM-V diagnostic criteria and the claim for PTSD must be denied. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his bilateral hearing loss is due to combat-related noise exposure during Operation Desert Storm. In an April 2012 VA examination report, the Veteran was found to have bilateral hearing loss for VA purposes. Moreover, the examiner acknowledged that the Veteran was exposed to acoustic trauma during service; however, the examiner concluded that the Veteran’s bilateral hearing loss was less likely than not related to his active service as there is no evidence of hearing loss in the service treatment records. The Board finds that the VA examiner’s opinion is inadequate, as the conclusion rendered was essentially based on an absence of hearing loss documented in the Veteran’s service treatment records. Based on the foregoing, the Board finds that another opinion must be obtained. 2. The claims of entitlement to initial ratings in excess of 10 percent for right and left knee osteoarthritis and compensable initial ratings for limitation of extension of the right and left knees are remanded. The Veteran was last afforded a VA examination of the knees in October 2019. The examination report is inadequate, however, because it fails to comply with Mitchell v. Shinseki, 25 Vet. App. 32 (2011) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner indicated that the Veteran had pain during range of motion which caused functional loss but failed to state the degree at which the pain and functional impairment began. The examiner stated that range of motion and functional limitations depended on the type, intensity and duration of a given activity and as the Veteran was not experiencing a flare-up during the examination, an objective, accurate, measurable estimate of the additional loss of range of motion could not be made. Also, the Veteran testified at the February 2020 hearing that he experiences instability in his knees and that he fallen several times. Accordingly, a remand is necessary to obtain a new examination. 3. Entitlement to TDIU is remanded. In light of the grant of service connection for a psychiatric disability, to include chronic adjustment disorder and major depressive disorder, and because the claim of entitlement to a TDIU is also predicated upon the increased rating claims remanded above, this issue is inextricably intertwined and must also be remanded. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral hearing loss. The claims file should be provided to the examiner in conjunction with the examination. All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the report. The examination must describe the functional effects of the Veteran’s hearing loss. The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that bilateral hearing loss had its onset in service or is otherwise related to service, to include as a result of conceded combat exposure. In addressing this question, the examiner must accept as true that the Veteran incurred acoustic trauma during combat service. The examiner must not solely on the fact that the Veteran had “normal” hearing at separation from service to support the opinion. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Schedule the Veteran for a VA knees examination to obtain an opinion as to the current nature of his right and left knee disabilities. All indicated tests and studies should be accomplished and the findings reported in detail. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Henriquez, 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.