Citation Nr: 21071531 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-58 867 DATE: November 30, 2021 ORDER Entitlement to service connection for a psychiatric disorder, diagnosed as posttraumatic stress disorder (PTSD), is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. FINDING OF FACT The most probative evidence reflects a diagnosis of PTSD based on the Veteran's credible in-service stressor event. CONCLUSION OF LAW The criteria to establish service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1154; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from May 1986 to May 1989. This case comes to the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with the AOJ's determination, and the present appeal ensued. The Veteran's claims were previously before the Board in December 2018. The Board reopened the Veteran's claim for a right knee disability and remanded the service connection claims for a right knee disability and a psychiatric disability for further development. Entitlement to service connection for PTSD Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In addition to the above criteria, claims of service connection for PTSD require a medical diagnosis of PTSD, an in-service stressor accompanied by credible and supporting evidence that the stressor claimed to be the cause of the disorder occurred in service, and established medical evidence connecting the current disability to the stressor. 38 C.F.R. § 3.304(f). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Regarding the first element of service connection, the Veteran was diagnosed with PTSD by a VA clinician in January 2013, which the Board finds to be sufficiently close the date of claim to constitute a current disorder of PTSD under the McClain, supra, standards. However, in December 2019, a VA examiner stated that the Veteran did not meet the criteria for a PTSD diagnosis, and instead diagnosed the Veteran with unspecified trauma and stressor related disorder and unspecified psychosis. As will be discussed below, the December 2019 examiner believed the Veteran's stressor could not be substantiated, as he found no incidents of bullet injuries contained in the Veteran's service treatment records. As the diagnosis of the December 2019 VA examiner did not consider the claimed stressor, as documented in the Veteran's service treatment records, the more accurate and probative evidence supports the January 2013 diagnosis of a current diagnosis of PTSD. With respect to the second element, Veteran has consistently stated that he experienced trauma in September 1988, when a pallet containing ammunition fell on his knee, and then hit his head. The Veteran's service treatment records include documentation of the incident. In early September 1988 the Veteran was treated after "rounds fell on his knee." The Veteran's service treatment records state the Veteran believed the pallet to have weighed about 80 to 90 pounds. In addition to the Veteran's statements regarding the in-service incident, a buddy statement, written by R.M., was submitted on behalf of the Veteran in August 2014. R.M. stated that in September 1988 the Veteran was moving ammunitions from one vehicle to another, when a strap broke and the heavy load fell on the Veteran. Additionally, R.M. stated that the Veteran was medevac'd out for treatment. Throughout the appeal period, various clinicians, including the December 2019 VA examiner, have stated that the Veteran's statements regarding the September 1988 incident have changed. The Board notes that the inconsistencies are related to the weight of the pallet that fell on the Veteran, and not related to the actual event and injuries sustained by the Veteran. Further, there is no other evidence of record that directly contradicts the Veteran's consistent report of his in-service stressors. As it is clear that the event experienced by the Veteran occurred and the January 2013 clinician who evaluated the Veteran for PTSD acknowledged the Veteran's experience, the second element for establishing service connection for PTSD, an in-service stressor, has been met. The final nexus element required for service connection for PTSD is also satisfied. The January 2013 PTSD evaluation clinician stated that the Veteran's incident of a pallet of gun powder cannisters falling on top of him, described trauma, which supported a diagnosis of PTSD. The clinician indicated that the Veteran "endorsed symptoms consistent with re-experiencing, avoidance, and hyperarousal, which he finds distressing." It is also documented that the Veteran experiences hypervigilance, and that he watches for things that could fall on himself or others. Based on these findings, the examiner diagnosed the Veteran with PTSD based on the in-service stressor experienced in September 1988. The Board notes that the VA examiner in December 2019 opined that the Veteran did not meet the criteria for PTSD under the DSM-V. The examiner noted that although the Veteran reported injuries as the result of an incident in 1988, his medical records indicated an ankle sprain in 1989 and a scaphoid fracture in 1990, without mention of injuries from bullets. The Veteran has not stated his in-service stressor was the result of a bullet injury, rather the in-service stressor was due to a pallet of ammunition falling on him. Additionally, the Veteran's service treatment records do indicate that the Veteran sought treatment in September 1988 for an incident that is consistent with the Veteran's stated stressor. Although the examiner did not diagnose the Veteran with PTSD, as the examiner could not substantiate the stressor, the examiner did diagnose the Veteran with unspecified trauma and stressor related disorder and unspecified psychosis with symptoms of: depressed mood, anxiety, suspiciousness, chronic sleep impairment, difficulty of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. As the examiner relied on an inaccurate factual premise, it is also afforded little, if any, probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Given all of these facts, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran has PTSD related to an in-service stressful event. As there is no evidence to the contrary, the Board will give the Veteran the benefit of the doubt in this matter and find that a grant of service connection for an acquired psychiatric disorder, diagnosed as PTSD, is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for a right knee disability As directed in the Board's December 2018 remand, the Veteran was provided with a VA examination in connection with this appealed issue in July 2021; however, for reasons outlined below, the Board finds this examination to be inadequate for readjudicating this appealed issue, and thus, a remand is necessary to provide the Veteran with an adequate examination. The August 2020 examiner attributed that the Veteran's diagnosed disabilities that included a patellar or quadriceps tendon rupture, and patellofemoral pain syndrome, to an incident in August 2014 and weight gain, age, and improper shoes. Additionally, the examiner stated that the September 1988 right knee injury was acute and resolved. However, the examiner did not address the Veteran's consistent and credible statements of right knee pain, having existed since the in-service injury in September 1988. To the extent that no diagnosis and opinion was rendered regarding the joint and muscle pain, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), that the term "disability" as used in 38 U.S.C. § 1110 refers to the functional impairment of earning capacity, not the underlying cause of said disability," and that "pain alone can serve as a functional impairment and therefore qualify as a disability." Therefore, in light of Saunders, a remand is necessary to obtain an additional VA examination. The examiner is directed to report the Veteran's current symptomatology and to address whether the Veteran's reported joint and muscular pain results in any functional impairment. Saunders, 886 F.3d at 1362. The matters are REMANDED for the following action: 1. The AOJ must obtain and associate with the file all updated records of VA treatment pertaining to the Veteran. 2. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to determine the nature and etiology of the Veteran's right knee disability. The examiner is requested to review all pertinent records associated with the file, including the Veteran's service treatment records, post-service medical records, and lay statements. After review of the complete record, an interview with and examination of the Veteran, and the completion of any testing deemed necessary, the examiner should address the following: (a.) Identify all diagnosed disabilities of the right knee. (b.) For every disability identified in subpart (a), please provide an opinion addressing whether such is at least as likely as not (i.e., a 50 percent probability or greater) proximately due to or the result of the Veteran's service, including the September 1988 incident. (c.) Provide an opinion addressing whether the Veteran's right knee pain is a manifestation of any disability, which is at least as likely as not (i.e., a 50 percent probability or greater) related to service. (d.) If the Veteran's reported pain is not found to be a manifestation of any disability (service-connected or otherwise), please describe the functional impairment that impacts earning capacity resulting from such pain and whether it is at least as likely as not (i.e., a 50 percent probability or greater) related to service. In doing so, the examiner is requested, to the extent possible, to describe any and all functional impairment stemming from the Veteran's diffuse right knee pain, on his ability to stand, walk, run, stoop, lift objects, bend, and maintain balance. *The examiner should note that "pain need not be diagnosed as connected to a current underlying condition to function as an impairment." Saunders v. Wilkie, 886 F.3d 1356, 1364 (Fed. Cir. 2018). In addressing the above, the examiner is on notice that the Veteran is competent and credible to report experiencing pain and such evidence may not be discounted for the sole reason that it is not reflected in the medical evidence. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definite opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing and answer to the particular question. 3. Thereafter, the AOJ must readjudicate the issues remaining on appeal. If any benefit is not granted to the fullest extent, the Veteran must be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. W. Morgan, 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.