Citation Nr: 21004729 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-16 103 DATE: January 28, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for right knee disability is remanded. Entitlement to service connection for left knee disability is remanded. FINDING OF FACT The Veteran has PTSD as a result of traumatic experiences in service. CONCLUSIONS OF LAW PTSD was incurred in service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1965 to June 1969. He served in Vietnam for several months in 1967. In a June 2015 claim, the Veteran sought service connection for several disorders, including PTSD and disorders of the right and left knees. In a November 2015 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for disorder of the right and left knees. The RO denied service connection for PTSD with panic attacks. The RO also denied service connection for bipolar disorder with alcohol use disorder, claimed as PTSD with panic attacks. The Veteran appealed to the Board of Veterans’ Appeals (Board) the denials of service connection for PTSD and service connection for disorders of the right and left knees. In February 2020 the Veteran had a Board videoconference hearing before the undersigned Veterans Law Judge. Service Connection Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including psychoses and arthritis, may be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2019). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2019). Aggravation of a non-service-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310(b). The United States Court of Appeals for Veterans Claims (Court) has indicated that the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. PTSD The Veteran contends that he has psychiatric disability, including PTSD, that began during his service or is attributable to traumatic experiences in service. The experiences he reports include being under enemy fire as a radio operator in combat operations in Vietnam. PTSD is a mental disorder that develops as a result of traumatic experience. It is possible for service connection to be established for PTSD that becomes manifest after separation from service. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with VA regulations; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). VA considers mental disorders based on the nomenclature in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V) from the American Psychiatric Association. 38 C.F.R. § 4.130 (2019). Diagnosis of a mental disorder must conform to the DSM-V. See 38 C.F.R. § 4.125(a) (2019). In summary, PTSD may be diagnosed when the person was exposed to a traumatic event, the traumatic event is persistently reexperienced, there is persistent avoidance of stimuli associated with the trauma, there are alterations in cognitions and moods associated with the trauma in at least two ways, there are persistent symptoms of increased arousal in at least two ways, the disturbance lasts more than one month, and the disturbance causes clinically significant distress or impairment in functioning. DSM-V at Code 309.81. The evidence necessary to establish the occurrence of a recognizable stressor during service varies depending on the circumstances of the veteran’s service and of the claimed stressor. If the veteran engaged in combat with the enemy, the claimed stressor is related to that combat, and the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, then, in the absence of clear and convincing evidence to the contrary, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). Whether a veteran engaged in combat with the enemy is determined through the receipt of certain recognized military citations or other supportive evidence. West v. Brown, 7 Vet. App. 70 (1994). The Veteran’s service personnel records show that in Vietnam he participated in combat operations against enemy forces, and that he was awarded the Combat Action Ribbon (CAR). The Board accepts that he was exposed to stressful events during his participation in combat operations against enemy forces. The Veteran’s service treatment records (STR) do not reflect any mental health complaints or treatment. On a May 1969 examination of the Veteran for separation from service, the examiner marked normal for the Veteran’s psychiatric condition. The Veteran’s claims file does not contain records from the 1970s through 1990s that address his psychological condition. In private orthopedic treatment in September 2007, the Veteran related a history of heavy alcohol use and current abstinence from alcohol. He reported present bipolar disorder that was being treated with Depakote. In VA primary care in September 2014, the Veteran reported private psychiatric treatment since 1997, with diagnoses of mood disorder, bipolar disorder, and panic attacks, and treatment with Depakote and another medication. The Veteran’s claims file contains notes from a May 2015 treatment visit with private psychiatrist S. P. M., M.D. Dr. M. noted that in October 2014 he adjusted the Veteran’s dosage of Depakote. The Veteran discussed his experiences in service, particularly as a radio operator in field operations in Vietnam. He stated that he learned that he was the replacement for a radio operator who was killed by a sniper. He related that in combat operations he called in targets for artillery gunners to strike. He reported vivid memories of seeing children, some with missing limbs, going into recent strike areas to collect spent ammunition to sell as scrap metal. He related a persistent memory of the smell of burning human flesh. He indicated that after his time in Vietnam he turned to very heavy alcohol use. He reported that after separation from service he had difficulty adjusting. He related drinking heavily to numb his anger and guilt. He stated that he picked fights on slight pretexts. He indicated that his behavior caused his sons to distance themselves from him. Dr. M. found that the Veteran reported experiences in service that were sufficiently traumatic to cause PTSD. Dr. M. found that the Veteran persistently reexperienced his traumatic service experiences. Dr. M. found that persistently avoided stimuli associated with the trauma. Dr. M. found that the Veteran had alterations in cognitions and moods associated with the trauma in multiple ways. Dr. M. found that the Veteran had multiple symptoms of increased arousal. Dr. M. made a diagnosis of PTSD. Dr. M. added the PTSD diagnosis to earlier diagnoses of exhibitionism, pathological gambling, ADHD, and mood disorder. In October 2015 the Veteran’s wife wrote that she met the Veteran in 1970 and they married in 1971. She recalled that from the beginning he had troubling behavior. She related an incident in which he became agitated, believing that another driver was trying to run them off a bridge. She stated that he was not comfortable talking about his time in Vietnam, but that he did indicate that he witnessed deaths and saw dead bodies. She related that over the years he was prone to incomprehensible rages over simple matters. She reported that he had nightmares and impaired sleep. She indicated that he consumed excessive amounts of alcohol and coffee. She related episodes of in which he confronted pilots from a nearby airport, believing that they were provoking him. She indicated that he eventually started psychiatric treatment. On VA examination in October 2015, the Veteran reported that during service he was in Vietnam for five to six months. He stated that he was a radioman for forward observer and artillery operations. He related that he participated in four or five operations and was in a couple of firefights. He indicated that he called in artillery strikes. He stated that he witnessed the destruction from the strikes. He related that he saw dead people, primarily Vietnamese. He reported that through the remainder of his service he engaged in heavy drinking and belligerent behavior. He stated that his behavior twice resulted in the quick reversal of promotions he had earned. The Veteran reported that after service he worked for a telephone company for many years. He stated that people at work irritated him. He indicated that he had heated confrontations, but his boss intervened to keep him from physically fighting. He stated that he worked nights and other quiet shifts to have less contact with people. After leaving the telephone company, he reported, he worked on generators in the engine shop of a smaller business. The Veteran stated that when he returned from Vietnam he was disillusioned. He stated that he used marijuana, mescaline, and LSD for about a year. He indicated that for many years he drank alcohol daily. He stated that he was not in physical fights, but he had angry outbursts, such that his wife wanted him to seek services. He stated that he was a compulsive gambler. He related having suicidal thoughts during the height of his compulsive gambling. He related being depressed. He indicated that he was mean but not violent toward his wife. The Veteran stated that after service he began feeling paranoid. He related an incident soon after service, when he thought another driver was trying to run him off a bridge. He stated that he felt that strangers were staring at him or mocking him, and he angrily confronted those people. He reported that in the 1990s he began to have panic attacks. He stated that in 1997 he began in psychiatric treatment with Dr. M., to address alcohol use, gambling, and mood and temper issues. He related that Dr. M. prescribed Depakote and another medication. He stated that in 2015 he asked Dr. M. about PTSD. He reported that presently he had nightmares, usually about Vietnam, about two days a week. The 2015 examiner found that the Veteran had normal speech and mildly tangential thought content. The examiner observed that the Veteran laughed freely and frequently. The examiner stated that on screenings the Veteran’s answers were consistent with mild depression and did not show signs of PTSD. The examiner found that the Veteran’s experiences in Vietnam met the criteria for stressors that could produce PTSD. The examiner found that the Veteran did not have intrusion symptoms related to his stressors, did not have persistent avoidance symptoms, did not have mood alterations, and did not have hyperarousal. The examiner concluded that the Veteran had bipolar disorder but did not have PTSD. The examiner expressed the opinion that it is less likely than not that the Veteran’s bipolar disorder is related to events in service. The examiner explained that the Veteran did not report experiencing mood symptoms during service, and that his bipolar disorder appeared to have had onset after service. The Veteran’s claims file contains records of his mental health counseling at a Vet Center in 2016 to 2020. In January 2016, the Veteran reported a long history of heavy drinking and a history of compulsive gambling. He stated that he saw Dr. M. from 1997, but he did not discuss his Vietnam experiences with him until 2015. He reported that, before they discussed his Vietnam experiences, Dr. M. diagnosed his problem as bipolar disorder. The Veteran stated that Depakote helped to control his temper outbursts. He also reported insomnia, nightmares, and startle response. In later visits, he and his wife reported that that he had nightmares, teeth grinding, hypervigilance, paranoia, aggressive impulses, and panic attacks. The Veteran indicated that he was disturbed by smells. He indicated that rain reminded him of dangerous events in Vietnam. He recalled that after his time in Vietnam, during the remainder of his service, he had outbursts of excessive anger, episodes of manic energy, and a heightened startle reaction. He related that he faced disciplinary action for his outbursts. He described his tendency to cover up stressful feelings with laughter. The counselors who saw the Veteran listed his conditions as PTSD and bipolar disorder. A counselor opined that his PTSD and bipolar disorder symptoms could be confused, but that his history provided convincing evidence that, from service forward, his symptoms included PTSD symptoms. A VA psychiatrist evaluated the Veteran in February 2016. The psychiatrist found that the Veteran had symptoms of bipolar disorder and symptoms of PTSD. The psychiatrist expressed the opinion that the Veteran has PTSD related to his military service and also has longtime bipolar disorder. In a March 2016 statement, the Veteran wrote that for many years he avoided talking about his Vietnam experiences. He stated that Dr. M. treated him for mood disorder, anxiety disorder, and manic and depressive periods, and ultimately supported a diagnosis of PTSD. He asserted that the 2015 VA examiner misinterpreted his reactions. He stated that the examiner failed to understand that he laughs as a nervous reaction when he discusses traumatic events. The Veteran wrote that his traumatic experiences in Vietnam included exposure to the deaths of two servicemen in an artillery accident. He indicated that he continued to have intrusive memories of the smell of burning human flesh. He related additional examples of events in Vietnam that produce intrusive thoughts, nightmares, and flashbacks. In a March 2017 letter, J. R., the president of a national veterans’ service organization, wrote that he had known the Veteran for over 60 years, and had worked with him at a telephone company before and after service. Mr. R. asserted that the Veteran had seen significant combat in Vietnam and suffered the effects of PTSD. In March 2017 D. B. wrote that he had known the Veteran since 2000 and that he knew him fairly well. Mr. B. stated that the Veteran acted like he was still in a foxhole. He described the Veteran as argumentative, sensitive to criticism, and verbally aggressive when agitated. He stated that the Veteran tended to laugh loudly when nervous. In May 2017 the Veteran’s wife wrote that the Veteran avoided discussion or reminders of his time in Vietnam. She stated that he had trouble falling asleep and had nightmares, moaning, and teeth grinding while asleep. She reported that he had explosive angry outbursts. She stated that for many years he worked late or overnight shifts to reduce contact with people. She indicated that his outbursts caused problems while they raised their children. She stated that while driving or in public he had outbursts at people he believed cut him off or looked at him wrong. She reported that his periods of excessive alcohol and caffeine use were accompanied by increases in his bizarre behavior. She stated that during his period of compulsive gambling he became even more isolated from her and their family. In a June 2017 statement, the Veteran asserted that he has PTSD, with symptoms including intrusive memories of burning smells. He noted that his wife recalls his troubling behaviors soon after service. He also noted that Dr. M., who treated him for eighteen years, diagnosed him as having PTSD. The Veteran’s VA treatment notes from May 2018 to April 2019 reflect diagnoses including bipolar disorder, anxiety disorder, and chronic PTSD following military combat. On VA examination in August 2019, the Veteran reported that he used alcohol before service and that he became a much heavier drinker during service. He stated that after service he continued to use alcohol, and for a period also used other drugs. He related that he gambled heavily for a time. He reported feeling depressed and having angry reactions to perceived slights. He indicated that after he stopped drinking, he began to experience panic attacks, with physical sensations in his chest and throat. He related that in the late 1990s he began to see a psychiatrist, who assessed his issues as anxiety, mood disorder, and panic attacks. The examiner reviewed the Veteran’s claims file. In the examination, the Veteran gave limited, confusing, and unclear descriptions of his traumatic experiences in Vietnam. His descriptions of his symptoms also were somewhat unclear. The examiner expressed the opinion that the Veteran did not presently have PTSD. The examiner also found no evidence of present bipolar disorder, anxiety disorder, depressive disorder, or other mood disorder. The Veteran’s VA mental health treatment notes from October 2019 to September 2020 reflect diagnoses of chronic PTSD, anxiety disorder, and unspecified mood disorder. In the February 2020 Board hearing, the Veteran stated that he tends to laugh when he feels stressed. He reported that he likely did this during the August 2019 VA examination, and the examiner apparently thought he was not taking the examination seriously. He noted that clinicians had provided different diagnoses for his psychological problems. He related that his therapist at a Vet Center told him that the symptoms of different disorders can overlap. He asserted that some treating clinicians have diagnosed him with PTSD. The Veteran reported that in Vietnam he participated in combat operations. He indicated that his group identified targets for artillery strikes. He used his radio to communicate the information to gunners. He stated that at times he and his group came under fire. It was noted that he was awarded a combat-related ribbon or medal. The Veteran’s wife related a frightening incident, soon after the Veteran’s separation from service, in which he thought another driver was trying to run them off a bridge. The Veteran reported that he was an alcoholic for many years and for a compulsive gambler for a period. He stated that in 1997 he started private psychiatric treatment, with Dr. M., to address those problems. He indicated that, after he stopped drinking, he began to experience what felt like heart attacks. He stated that Dr. M. said that they might be anxiety attacks or panic attacks. Clinicians have related several diagnoses for the Veteran’s psychological issues. Their findings contain disagreement as to whether he has PTSD. The clinicians who have diagnosed PTSD, including Dr. M., Vet Center counselors, and some VA mental health clinicians, are largely those who have treated the Veteran. Their repeated opportunities to observe and evaluate him give their conclusions significant persuasive weight. Dr. M. explained in detail how the Veteran’s symptoms meet the criteria for a PTSD diagnosis. The professional opinions that support a PTSD diagnosis are at least as persuasive as the opposing opinions. Resolving reasonable doubt in the Veteran’s favor, the Board concludes that he has PTSD. Similarly, Dr. M. and treating VA clinicians related the Veteran’s PTSD to traumatic events during his Vietnam service. Finally, as noted above, service records showing the Veteran’s combat operations and award of a CAR warrant acceptance of his accounts of his combat-related stressors. As there is medical evidence diagnosing him with PTSD in accordance with VA regulations; a link, established by medical evidence, between his current symptoms and an in-service stressor; and combat experience warranting acceptance of his account of stressors during combat, the Board grants service connection for his PTSD. REASONS FOR REMAND 1. Service connection for right knee disability The Board is remanding this issue for additional VA medical opinion and a search for additional medical records. The Veteran contends that extensive lifting and carrying of heavy objects during service strained and injured his right knee and caused chronic problems in that knee. He also contends that problems with his left knee have caused or aggravated his right knee problems. In service the Veteran had a treatment visit in September 1968 to address right knee pain. He reported that the pain began earlier, while he was on a ship. A clinician provided conservative treatment for the knee pain. On a May 1969 examination of the Veteran for separation from service, the examiner marked normal for the condition of the Veteran’s lower extremities. The Veteran’s claims file contains some post-service medical records from the 1990s forward. In 1994 he had right knee arthroscopic surgery. In 2006 he was seen for left knee pain, and imaging showed problems in both knees. He had left knee replacement surgery in 2010 and right knee replacement surgery in 2014. In the course of the Veteran’s service connection claim, he has reported that in service he experienced pain in both knees with duties requiring extensive lifting and carrying of heavy objects. He noted carrying heavy equipment as a radio operator in Vietnam. He cited in particular repeated carrying of heavy loads of food stores over stairs, through several months of shipboard service. His wife and a longtime friend corroborated that, from soon after separation from service, the Veteran related chronic knee problems. A VA clinician who examined the Veteran in October 2015 opined that his post-service employment as a telephone company technician was the more likely cause of the arthritis in his knees. Two of the Veteran’s coworkers corroborated the Veteran’s assertion that their telephone company duties were not especially physically demanding or hard on the knees. A VA clinician who examined the Veteran in August 2019 opined against a nexus between the right knee problem treated in 1968 and the current knee condition. The examiner noted the negative separation examination and the elapse of many years until the 2014 right knee replacement surgery. In the 2020 Board hearing, the Veteran and his wife reiterated that his knee pain following demanding duty in service continued after service. In addition, the Veteran noted that, not long after his service separation examination, he had a VA or service department examinations addressing his knees and his teeth. The VA examiners who opined about the etiology of the Veteran’s knee problems did not discuss the accounts of the Veteran and others of his knee symptoms in service and continuity of those symptoms after service. The Board is remanding the knee issues for another medical file review and opinion, explicitly addressing the lay accounts of symptom onset and continuity, as to the likelihood of a connection between duties and symptoms in service and post-service right knee problems. The Veteran reported that he had a VA or service department examination of his knees around 1970, at Fort Hamilton, in Brooklyn, New York, or another government facility in that area. His claims file contains the report of a VA dental examination he had in September 1969. On remand, the RO should search for VA or Marines Corps Reserve medical records for the Veteran in the New York City area in 1969 and 1970. 2. Service connection for left knee disability The Board is remanding this issue for additional VA medical opinion and a search for additional medical records. The Veteran contends that extensive lifting and carrying of heavy objects during service during service strained and injured his left knee and caused chronic problems in that knee. He also contends that that problems with his right knee have caused or aggravated his left knee problems. The Veteran’s STRs, including the separation examination, do not reflect any complaints or findings of left knee problems. The Veteran later reported that he had another service or VA examination soon after service, in the New York City area. He reports that left and right knee symptoms began in service with demanding duties, particular extensive carrying of heavy loads, including over a ship’s stairs. He and persons who know him have indicated that, from soon after service, he reported ongoing knee problems. The assembled post-service medical records reflect treatment for each knee, including surgeries and eventual replacement surgeries. As noted above, opinions from VA examiners do not address the lay statements regarding symptoms and continuity. The claims file contains a VA dental examination the Veteran had in the New York City area in 1969. The Board is remanding this issue to search for any other examination report from that period, and for additional medical opinion that includes consideration of lay accounts of the symptom history. The matters are REMANDED for the following action: 1. Determine what VA and service department medical facilities served veterans and Marine Corps Reserve members in the New York City area in 1969 and 1970. Request from those facilities, or from the organizations that hold those facilities’ archives, records of any examinations or treatment of the Veteran in 1969 and 1970. Document in the Veteran’s claims file the records requests and all responses. Associate any records obtained with the claims file. 2. Provide the Veteran’s expanded claims file to an appropriate VA clinician for review and opinion regarding the history and etiology of arthritis of his right and left knees. Ask the reviewer to carefully consider both medical records and statements from the Veteran and persons who know him regarding the history of symptoms in his knees. Ask the reviewer to provide, for each of the Veteran’s knees, opinion as to whether it is at least as likely as not that post-service disorders, including arthritis and eventual replacement surgery, continued from or are otherwise related to pain following demanding duties in service. An opinion should also be provided as to whether right knee disability caused or aggravated left knee disability. Ask the reviewer to provide explanation for each conclusion and opinion, to include explicit consideration and discussion of lay accounts of symptom history and continuity. 3. Then review the expanded claims file and review the remanded claims. If any claim remains denied, issue a supplemental statement of the case and afford the appellant and her representative an opportunity to respond. Then return the case to the Board for appellate review, if otherwise in order. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kunz, Kirsten 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.