Citation Nr: 21068380 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 18-51 348 DATE: November 10, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Evaluation of residuals of fracture vertebra to include degenerative arthritis of the spine and intervertebral disc syndrome (previously rated as compression fracture L1 vertebra), which is currently 10 percent disabling, is remanded. FINDING OF FACT The Veteran's PTSD manifested during and as a result of his active military service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty during the Gulf War Era in the United States Air Force from April 19, 1995 to November 5, 1997 and from November 2001 to January 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in April 2018 by a Department of Veteran's Affairs (VA) regional office (RO). The Veteran filed a notice of disagreement (NOD) in July 2018 and the RO issued a statement of the case (SOC) in November 2018. The Veteran filed a VA form 9 and requested a hearing before the Board in November 2018. The Veteran attended a hearing before the undersigned Veterans' Law Judge (VLJ) in February 2021. This matter is now properly before the Board. Service Connection Service connection is warranted where the evidence of record establishes that an injury or disease resulting in a disability was incurred in the line of duty during active military service or, if an injury or disease pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) 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 present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. §§ 1113(b); 38 C.F.R. §§ 3.303(d). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the 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). 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. 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 Veteran 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 to the Veteran. 1. PTSD The Veteran contends that he should be service connected for his currently diagnosed PTSD. The Veteran was diagnosed with PTSD in March 2018. During the hearing held in February 2021, the Veteran testified that his first job in the United States Air Force was as a transportation specialist. The Veteran testified that he drove air crew to and from their planes. The Veteran drove Generals to different functions and drove the base bus route. The Veteran stated that one day during his active service his supervisor advised him to report to duty in his dress uniform to drive a General and a chaplain to a site. When the Veteran arrived at the site, he discovered that an airman who had been on his bus previously had killed himself and died by hanging. The Veteran reported that it appeared that the airman had almost beheaded himself. The Veteran stated that this incident was traumatic for him. The Veteran further testified that he was deeply affected, and it really bothered him especially after he saw the response from the airman's wife. The Veteran said he tried not to say anything about how he felt. After that time in service the Veteran was then stationed in Iraq, and he testified that after that he had a big fear of getting his head cut off on TV, and the memories of the prior in-service event came rushing back. He realized that the previous trauma from his first job was giving him nightmares, keeping him up at night, and causing him to have dreams of being beheaded. The Veteran stated that he had nightmares two to three times a week. The Veteran's testimony indicated that he suffered from PTSD symptoms for several years, starting in service and continuing since service. The Veteran also testified, and the medical records reflect, that the Veteran was prescribed medication for his PTSD. The Board acknowledges that the Veteran was not diagnosed with PTSD until 2018; however the Board finds the Veteran's lay testimony regarding symptoms to be competent, credible and highly probative. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997. In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board has an inherent fact-finding ability. Id. at 1076. The United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). The Veteran is competent to report on his own experiences and the traumatic events he experienced while in service. The Board also finds that the Veteran is competent to report his symptoms of PTSD he had prior to his formal diagnosis. The Veteran's statements are credible and there is no indication for the Board not to accept his statements as truthful. The Veteran's testimony painted a vivid picture as to the trauma he faced in service and the symptoms he has suffered since service and is therefore highly probative. The Veteran does have a current diagnosis of PTSD. The Veteran suffered trauma during service as outlined herein and was vividly described in the Veteran's testimony before the undersigned VLJ. The Veteran is also competent to report a continuity of symptoms since service. The Board finds that there is a nexus between the current symptoms and current diagnosis and symptoms that began in and since service. The Board recognizes that the Veteran has reported a number of different stressful events both during his active service and as his time as a contractor in Iraq. Also, the Board has reviewed and considered the March 2018 VA examination report. According to the examiner, it was less likely than not that the Veteran's PTSD was related to his military service because the stressor events described by the Veteran during the examination occurred not while on active duty but while serving as a contractor in Iraq. The Board finds no reason to question the competency or the credibility of this examination. However, as discussed above, the Board finds no reason to question the competency or credibility of the Veteran's in-service stressor events reported during his hearing. As the examiner was not privy to the Veteran's assertions provided during the hearing, and as the Board finds both the Veteran's testimony and the examination report to be of equal credibility, the Board will weigh the evidence in favor of the Veteran. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran is entitled to service connection for PTSD. REASONS FOR REMAND Evaluation of residuals of fracture vertebra to include degenerative arthritis of the spine and intervertebral disc syndrome (previously rated as compression fracture L1 vertebra), which is currently 10 percent disabling. The Veteran contends that he is entitled to a disability rating greater than 10 percent for his degenerative arthritis of the spine and invertebral disc syndrome. The Veteran contends that his condition has worsened. The Veteran was last afforded a VA examination in March 2018. VA's duty to assist includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69, 76 (1995). This includes providing a new medical examination when a veteran asserts or provides evidence that a disability has worsened, and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that the Board should have ordered a contemporaneous examination of Veteran because a 23-month-old exam was too remote in time to adequately support the decision in an appeal for an increased rating). The Veteran's most recent medical examination is over two years old, and he stated during his February 2021 hearing before the Board that his degenerative arthritis of the spine and invertebral disc syndrome has increased in severity. As such, a remand is required so that the Veteran can be afforded a new examination to determine the current severity of his service-connected condition. The matters are REMANDED for the following action: 1. Contact the Veteran and his representative and request that they provide or identify and authorize release of any outstanding medical records regarding current treatment of the Veteran's degenerative arthritis of the spine and invertebral disc syndrome. 2. Associate any treatment records obtained with the Veteran's claims file. 3. Schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity and manifestations of degenerative arthritis of the spine and invertebral disc syndrome. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must include a notation that this review of the evidence of record occurred. 4. A complete rationale must be provided for all opinions. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should provide an explanation stating why this is so. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, Associate 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.