Citation Nr: 21070418 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 11-00 819 DATE: November 23, 2021 ORDER Service connection for a low back disability is granted. Service connection for a right knee disability is granted. Service connection for a left knee disability is granted. Service connection for a right ankle disability is granted. Service connection for a left ankle disability is granted. Service connection for an acquired psychiatric disorder, to include other specified trauma and stressor-related disorder, persistent depressive disorder, anxiety disorder, and bipolar disorder, is granted. REMANDED The issue of entitlement to service connection for a sleep disorder is remanded for further evidentiary development. FINDINGS OF FACT 1. The Veteran's low back disability was incurred in service. 2. The Veteran's right knee disability was incurred in service. 3. The Veteran's left knee disability was incurred in service. 4. The Veteran's right ankle disability was incurred in service. 5. The Veteran's left ankle disability was incurred in service. 6. The Veteran's acquired psychiatric disorder was incurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for service connection for a right knee disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left knee disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a right ankle disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a left ankle disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1983 to July 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2009 and November 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. Specifically, the November 2009 decision denied service connection for PTSD and hepatitis C and declined to reopen the issues of entitlement to service connection for low back pain, right and left knee conditions, and right and left ankle conditions, and the November 2013 rating decision declined to reopen a claim of entitlement to service connection for a sleep disorder. In May 2013, the Veteran testified before a Veterans Law Judge (VLJ) at the RO regarding the issues of entitlement to service connection for hepatitis C and entitlement to service connection for PTSD. The VLJ who conducted that hearing subsequently left the Board, and, in a February 2014 letter, the Board offered the Veteran an opportunity to testify at another hearing before a different VLJ. As the Veteran did not respond to the Board's letter, another hearing was not scheduled at that time. In May 2014, the Board expanded the Veteran's claim of entitlement to service connection for PTSD to entitlement to service connection for an acquired psychiatric disorder pursuant to the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009) and remanded that issue and the issue of entitlement to service connection for hepatitis C for further evidentiary development. In June 2016, the Veteran testified at a Video Conference hearing before the undersigned VLJ regarding all of the issues currently on appeal. In July 2017, the Board remanded the issues currently on appeal for further evidentiary development. In an April 2021 rating decision, the RO granted service connection for hepatitis C, assigning a rating of 10 percent effective May 21, 2009. As the Veteran has not yet appealed his initial rating assignment or his effective date, the Board finds that this grant of service connection constitutes a full award of the benefit sought on appeal with respect to that issue. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the 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. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). 1. Entitlement to service connection fora low back disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a left knee disability. 4. Entitlement to service connection for a right ankle disability. 5. Entitlement to service connection for a left ankle disability. Service connection for a recognized chronic disease can be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. Degenerative disc disease of the cervical or lumbar spine is a chronic disease for VA purposes. 38 C.F.R. § 3.309(a). The Veteran contends that his low back, bilateral knee, and bilateral ankle disabilities are a result of his duties in service. Specifically, the Veteran reports that he performed multiple jumps from both aircraft and a stationary platform, wearing full gear, while being trained as a parachutist during service and that his back, knees, and ankles hurt even more after performing those activities. He also asserts that other training, including running in full gear and participating in hand-to-hand combat training also caused joint pain, and that he has continued to experience pain in his back, knees, and ankles since that time. See June 2016 Board Hearing Transcript. Service treatment records document the Veteran's in-service injuries of both knees in March and May 1986 and November 1990, his back in April 1990, and both thighs in June 1992, and his reports of swollen and painful joints, trick or locked knee, and recurrent back pain on his March 1995 separation medical history report. Post-service treatment records, including July 2019 and October 2019 VA examination reports, document diagnoses of bilateral knee strain, lateral collateral ligament sprain of both ankles, and degenerative arthritis of the lumbar spine. In rendering negative nexus opinions, both the July 2019 and October 2019 VA examiners relied on the lack of treatment records since service until present, a total of 24 years, and did not discuss the Veteran's reports of pain since service or consider the history provided by the Veteran. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of service medical records to provide a negative opinion. Furthermore, the Board also notes that VA medical records from July 2008 to present document that the Veteran sought treatment for bilateral knee pain and generalized arthritis of the bilateral knees and ankles and low back. The Board also notes that the Veteran reported that he sought treatment through VA medical centers from 1995 to 2002 and that in a March 2019 letter, VA noted that it was unable to locate the records. Accordingly, the July 2019 and October 2019 VA medical opinions are inadequate and are accorded no probative weight. After review of the record, the Board finds that service connection for low back, bilateral ankle, and bilateral knee disabilities are warranted. A layperson is competent to report on the onset and continuity of his current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). It is the Board's principal responsibility to assess the credibility, and therefore the probative value of the evidence of record in its entirety. Owens v. Brown, 7 Vet. App. 429 (1995); Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Guimond v. Brown, 6 Vet. App. 69 (1993); Hensley v. Brown, 5 Vet. App. 155 (1993). In determining whether evidence submitted by a Veteran is credible, the Board may consider internal consistency, facial plausibility, and consistency with other information submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept a veteran's uncorroborated account of active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Here, the Board finds the Veteran's reports of service connection for low back, bilateral ankle, and bilateral knee pain, tenderness, and limitation of motion, as documented in post-service treatment records and objectively documented at the July 2019 and October 2019 VA examinations, both competent and credible. The Board also finds that the Veteran is competent and credible to report a history of pain since service. Resolving doubt in favor of the Veteran, the Board concludes that the developed chronic conditions of the back, knees, and ankles during service, and therefore the claims of entitlement to service connection for service connection for low back, bilateral ankle, and bilateral knee disabilities are granted. 38 U.S.C. §§ 1110, 1131, 5107; see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 6. Entitlement to service connection for an acquired psychiatric disorder, to include depression, posttraumatic stress disorder (PTSD), and bipolar disorder. As an initial matter, the Board notes that the Veteran has been diagnosed during the course of the appeal with various psychiatric conditions, including mood disorder, unspecified bipolar disorder, unspecified anxiety disorder, and other specified trauma and stressor related disorder. Although the medical evidence of record does not document a diagnosis of PTSD at any time prior to or during the pendency of the appeal, the first criterion for establishing service connection has been met as the Veteran has been diagnosed with other acquired psychiatric disorders. The outcome of the case, therefore, turns on whether the psychiatric disorders are related to service. The Veteran contends that his psychiatric disorder is due to his duties in service, particularly guard duty, fire watch, and walking patrols, as well as the closing of Subic Bay, and no longer feeling needed. See May 2009 and June 2009 Statement in Support of Claim. He stated that he worked grave registration while he was stationed at the USS Cleveland in the Philippines and was around corpsmen who died on the field. See July 2013 Board Hearing Transcript. The Veteran was afforded a VA mental disorders examination in August 2015. The VA examiner diagnosed the Veteran with bipolar disorder and opined that it was less likely than not related to the Veteran's service-connected traumatic brain injury (TBI). As the August 2015 mental disorders examination was requested in the context of his pending claim of entitlement to service connection for a TBI and did not, as a result, include an opinion on whether his diagnosed psychiatric disorders were related to service, the Board remanded for another VA mental disorders examination in July 2017. Pursuant to the July 2017 Board remand, the Veteran was afforded another VA mental disorders examination in February 2019. The VA examiner determined that the Veteran did not have a mental disorder but noted that the Veteran's medical records contained diagnoses of mood disorder and anxiety. The VA examiner also noted that the absence of any mental health diagnosis did not indicate a formal evaluation of the presence or absence of any mental health condition because the VA examination was a limited examination for service-connected TBI. The Veteran was afforded another VA mental disorders examination in July 2019. The VA examiner diagnosed the Veteran with unspecified bipolar disorder and unspecified anxiety disorder but that she could not differentiate what symptoms are attributable to each diagnosis. Nevertheless, the VA examiner opined that the Veteran's psychiatric disorder were less likely than not related to service-connected TBI or his sleep difficulties in service. The VA examiner did not include an opinion on whether the Veteran's diagnosed psychiatric disorders were related to service, including the Veteran's contentions that his duties in service, including guard duty and grave registration, resulted in depression and other mental health symptoms. Accordingly, this opinion is accorded no probative weight. The Veteran was afforded another VA mental disorders examination in October 2019. The VA examiner noted that the Veteran described sleep disturbances and mood dysfunction while in the Marines related to sexual assault and amplified mood and relational dysfunction after discharge. The VA examiner also referenced the Veteran's reports of sexual assault in service in 1987 and 1993 but that he refused to elaborate. The VA examiner diagnosed the Veteran with other specified trauma and stressor-related disorder, persistent depressive disorder, and alcohol use disorder. The VA examiner opined that the Veteran's psychiatric disorders were at least likely than not related to service. He reasoned that the Veteran had no identified mental health issues prior to military service but that he now has clear symptoms of other specified trauma and stressor-related disorder, persistent depressive disorder, and alcohol use disorder that are related to his claimed in-service stressors. For the purposes of establishing service connection for an acquired psychiatric disability, there is no reason to doubt the credibility of the Veteran's lay statements as they relate to his psychiatric diagnoses. Accordingly, the Board finds that the Veteran's reports of dead bodies during grave registration, sexual assault, and a Humvee accident, as well as psychiatric symptoms thereafter both competent and credible. See Owens v. Brown, 7 Vet. App. 429 (1995); Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Guimond v. Brown, 6 Vet. App. 69 (1993); Hensley v. Brown, 5 Vet. App. 155 (1993); Caluza v. Brown, 7 Vet. App. 498 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). In addressing why the Veteran's psychiatric disorders may be found to be related to service, the Board considers the October 2019 VA medical opinion to carry great probative weight. The Board finds this opinion to be highly probative, as it is supported by the medical and lay evidence of record, which includes post-service treatment records documenting treatment for psychiatric conditions and lay statements documenting symptoms since the Veteran's in-service stressors and his discharge from service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). There is no probative medical opinion of record to the contrary. The Board accordingly finds that the evidence of record for and against the claim is at least in relative equipoise. Resolving doubt in favor of the Veteran, the claim of entitlement to service connection for anxiety disorder is granted. 38 U.S.C. §§ 1110, 1131, 5107; see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND Entitlement to service connection for a sleep disorder is remanded. The evidence suggests that the Veteran's claimed sleep disorder, which he has primarily characterized as insomnia, may be related to his claim of entitlement to service connection for an acquired psychiatric disorder, granted herein. However, no VA examiner has addressed whether the Veteran's sleep disorder is related to his now service-connected psychiatric disorders. Moreover, the Veteran's appeal of the initial evaluation assigned following the grant of service connection for a TBI is still pending, and the Veteran has recently asserted that his sleep disorder was actually a misdiagnosed TBI residual. The Board cannot make a fully informed decision on the issue of service connection for a sleep disorder as related to or aggravated by service-connected acquired psychiatric disorder because no VA examiner has provided an opinion. As such, the issues of entitlement to service connection for a sleep disorder are remanded for an examination. The matter is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination by an appropriate examiner to determine the nature and etiology of any diagnosed disorder. Any necessary test, to include a sleep study, that is needed to make a clinical diagnosis of sleep apnea MUST be performed and if such testing cannot be performed then an adequate explanation must be given. After testing is completed, the examiner should address the following: (a.) Identify all sleep disorders found, to include sleep apnea. (b.) For every sleep disorder diagnosed, is it at least as likely as not (50 percent probability or greater) that sleep apnea began in service, was caused by active service, or is otherwise related to active? The examiner should take a thorough history from the Veteran regarding the onset and pattern of his symptoms. (c.) Is it at least as likely as not (50 percent probability or more) that the Veteran's sleep disorder was proximately caused or aggravated by his service-connected acquired psychiatric disorders? If you find that the Veteran's reports of insomnia are related to a psychiatric disorder, please discuss his report of frequent trouble sleeping on his March 1995 medical history report and his assertion that his current insomnia began in service in issuing the foregoing opinion. The examiner should note that this question requires two separate opinions: one for causation and a second for aggravation. The term "aggravation" means a worsening of the disability beyond its natural progression. If aggravation is found then, to the extent possible, the physician should attempt to establish a baseline level of severity of the sleep disorder prior to aggravation by his service-connected acquired psychiatric disorders. (d.) The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. (e.) The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Bilstein, 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.