Citation Nr: 21072287 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-22 587 DATE: December 2, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for a back disability characterized by pain, to include a dislocated rib is remanded. Entitlement to service connection for a left knee disorder, to include as due to a right knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a psychiatric disorder other than PTSD is remanded. FINDING OF FACT PTSD first had onset in service, has existed since that time, and is etiologically related to in-service stressors. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (f), 4.125(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 2011 to October 2013, including service in Afghanistan in an imminent danger pay area from December 2011 to October 2012. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in August 2021 and a transcript of the proceeding is of record. The record shows multiple psychiatric diagnoses. When a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Board has broadly construed the Veteran's claims as reflected on the title page of this document. 1. Entitlement to service connection for PTSD is granted. The Veteran seeks entitlement to service connection for PTSD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability in accordance with the DSM-5, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. §§ 3.304 (f), 4.125(a). The law provides that if a PTSD claim is based on an in-service personal assault, evidence from sources other than a Veteran's service records may corroborate the Veteran's account of the stressor incident. Gallegos v. Peake, 22 Vet. App. 329 (2008); 38 C.F.R. § 3.304(f)(5). Evidence of behavioral changes following the claimed assault is one type of relevant evidence that may be found in these alternate sources. Examples of behavioral changes that may constitute credible evidence of a stressor include, but are not limited to: request for transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavioral changes. 38 C.F.R. § 3.304 (f)(5). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). Once the presumption of soundness applies, the burden of proof shifts to and remains with VA to prove both preexistence and the absence of aggravation by clear and unmistakable evidence. Horn v. Shinseki, 25 Vet. App. 231 (2012). The "burden is not on the claimant to show that his disability increased in severity," to the contrary, the burden is on VA to "establish by clear and unmistakable evidence that [a preexisting disease] did not [increase in severity during service] or that any increase was due to the natural progress of the disease." Id. This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. Id. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Id. The Veteran asserts PTSD had onset in service and is related to in-service stressors. In particular, the Veteran described an incident during his deployment to Afghanistan when a rocket passed close by him, and that he witnessed injured civilians after an attack at the gate of the base. See February 2015 Statement in Support of Claim. He also reported an in-service sexual assault and harassment from other servicemembers that led to substance abuse. See September 2021 Correspondence. First, there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran was diagnosed with PTSD according to the DSM-5 by a VA mental health provider in January 2015. Second, there was an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran's July 2010 entrance examination showed normal psychiatric findings and he is presumed sound. The Veteran's DD 214 shows that he was deployed to an imminent danger pay area in Afghanistan, which is consistent with the Veteran's reported exposure to rocket fire and injured civilians. The service treatment records (STRs) also show the Veteran first reported trouble sleeping and difficulty with his colleagues in May 2012, when he was deployed to Afghanistan. While deployed, he received mental health treatment and in September 2012 he was diagnosed with social phobia and military operational stress reaction. December 2012 STRs note the Veteran was undervalued and "picked on" by his peers. The STRs also indicate the Veteran first began abusing synthetic cannabinoids around the time of his deployment to Afghanistan. In March 2013, the Veteran was treated for venereal disease and rectal pain and bleeding. No underlying cause was found for the rectal pain and bleeding. Shortly after that incident, service personnel records (SPRs) show synthetic cannabinoids were found in the Veteran's room and he was referred for substance abuse treatment. May and June 2013 STRs document the Veteran's report of chronic symptoms since returning from Afghanistan, including irritability, frustration, hopelessness, racing thoughts, anxiety, memory problems, anger, feeling overwhelmed, and loneliness. He was hospitalized twice in July and August 2013 for suicidal ideations, and reported feeling "disrespected" but he did not provide other details. He also reported homicidal ideations about harming a specific servicemember. During his second hospitalization, he discussed ongoing symptoms of sleep problems, hypervigilance, intrusive thoughts, and nightmares related to his service in Afghanistan. An August 2013 mental health assessment records diagnoses of synthetic cannabinoids dependence, alcohol abuse, chronic PTSD, panic disorder without agoraphobia, opioid dependence in sustained full remission, and cannabis dependence in sustained full remission. The STRs also show diagnoses of rule out antisocial personality disorder and borderline personality disorder, and Cluster B traits. Overall, the STRs document psychiatric symptoms that first manifested during the Veteran's deployment, medical treatment consistent with a sexual assault in March 2013, and a significant deteriorating in performance and functioning afterwards with increased substance abuse. The Veteran first reported the sexual assault at an April 2019 VA medical appointment, stating that he had been keeping it in and realized he needed help. The provider assessed military sexual trauma. Prior to then, VA treatment records document the Veteran's reluctance to discuss a particular traumatic event in service. At a January 2015 mental health appointment, the Veteran reported the incident with the rocket fire and "worse things that happened while he was in the military but he does not yet feel comfortable talking about them." The Veteran's statement regarding the details of the sexual abuse was first received by VA in September 2021. The Board also finds it significant that the Veteran first mentioned the sexual assault when seeking additional treatment for his PTSD, and not in connected with any claim for benefits, further lending to the Veteran's credibility. The Veteran did not disclose the assault in connection with a claim for benefits until over 2 years later. The Board also observes the difficulty the Veteran had at the Board hearing when attempting to discuss the in-service assault. He was ultimately unable to do so, and instead referred to his written account of the abuse that was associated with the claims file in September 2021. In sum, the second criteria are met as the evidence shows in-service events and treatment. The Veteran's reports of in-service stressors, including the in-service sexual assault, are credible and supported by the STRs and VA medical evidence. Also, PTSD was first diagnosed during the Veteran's period of active duty service. Third, the Board finds that the evidence of record does support a finding that PTSD is related to active service. An August 2015 VA examiner found that the Veteran's reported stressors of exposure to rocket fire and injured civilians were sufficient to meet Criterion A for a diagnosis of PTSD due to fear of hostile military or terrorist activity. The August 2015 VA examiner only diagnosed mixed personality disorder, and stated the Veteran had an "extensive" substance abuse history prior to service. The 2015 examiner failed to address relevant VA records showing treatment for PTSD and depressive disorders. Also, the evidence only shows some cannabis and alcohol abuse prior to service, but his use of the synthetic cannabinoids began in service. Further, the Veteran has since submitted credible testimony of an in-service sexual assault. January 2015 VA mental health notes report the Veteran completed a PTSD evaluation and met the DSM-5 criteria for PTSD based on his reported stressors, including the exposure to rocket fire and the traumatic event the Veteran was not willing to discuss, later specified as the in-service sexual assault. See April 2019 VA treatment note. The record does show the Veteran sustained child abuse prior to service and the August 2015 examiner indicated that PTSD symptoms may have preexisted service as a result. The August 2015 examiner's conclusion does not overcome the presumption of soundness. There are no records showing a diagnosis of PTSD prior to service, the Veteran was exposed to traumatic events in service that are sufficient to independently support a diagnosis of PTSD, and PTSD was first clinically diagnosed in service. The presumption of soundness is not overcome. The preponderance of the evidence shows the currently diagnosed PTSD is a continuation of the PTSD that was first diagnosed in service and has existed chronically since that time, and that is etiologically related to the credibly reported in-service stressors. Accordingly, service connection for PTSD is granted. REASONS FOR REMAND 1. Entitlement to service connection for a back disability characterized by pain, to include a dislocated rib is remanded. 2. Entitlement to service connection for a left knee disability characterized by pain, to include as secondary to a right knee disability is remanded. 3. Entitlement to service connection for a right knee disability characterized by pain is remanded. The issues of entitlement to service connection for back and bilateral knee disabilities are remanded to obtain VA examinations and opinions. VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). March 2015 VA treatment records document the Veteran's report of bilateral knee pain and chronic mid back pain since service. A March 2015 VA x-ray showed a displaced rib. Thus, there is an indication of a current disability of the back and knees during the appeal period. The evidence also shows in-service treatment for back and knee complaints. The STRs show the Veteran complained of bilateral knee pain in February 2011 and he was diagnosed with bilateral patellofemoral syndrome. In April 2011 the Veteran was treated for left knee pain diagnosed as patellar tendonitis. In June 2011 the Veteran was treated for bilateral shin splints. In December 2011, the Veteran fell from his bunk, hurt his back, and had ongoing back pain. An October 2012 STR notes the Veteran's mid/lower back problem had not completely resolved almost a year after the fall. The July 2013 medical board report of medical examination documented abnormal findings for the spine identified as pain on forward flexion L4/L5 paraspinal active range of motion. Thus, there are in-service complaints and diagnoses related to the knees and back. The Veteran has reported chronic back and knee symptoms since the in-service onset, indicating that a current disability may have been incurred in service and existed chronically since that time. Because there is evidence of currently diagnosed disabilities, an in-service event, and an indication that the current disabilities may be associated with the in-service event, remand for a VA examination is required. 4. Entitlement to service connection for a psychiatric disorder other than PTSD is remanded. This issue is remanded for an adequate examination and opinion that clarifies all psychiatric conditions other than PTSD diagnosed during the appeal period, and that relevant lay and medical evidence. As discussed above, the August 2015 opinion is inadequate and VA treatment records document psychiatric diagnoses in addition to PTSD. Service connection is now in effect for PTSD. The Board has also found the Veteran's reports of in-service stressors to be credible, and those statements shall be accepted as true by future examiners. On remand, the examiner should also provide an opinion as to whether any currently diagnosed psychiatric condition is caused or aggravated by the service-connected PTSD. The record also indicates that depression may have preexisted service, and a medical opinion is required on whether depression clearly and unmistakably preexisted service and was clearly and unmistakably not aggravated by service. In this regard, the Veteran's July 2010 entrance examination showed normal psychiatric findings and he is presumed sound upon entrance. STRs and SPRs report that the Veteran had a history of cannabis abuse prior to service, physical and verbal abuse as a child, and that he had a prior suicide attempt at age 16. See July 2013 and August 2013 service department records. February 2014 VA treatment notes report a history of depression since high school, but the Veteran first received treatment during active duty. The August 2015 examiner found that the Veteran's premorbid condition was not aggravated by service, but that opinion is inadequate and remand is necessary. The matters are REMANDED for the following action: 1. Provide the Veteran with an appropriate examination to determine the etiology of the claimed psychiatric conditions other than PTSD. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a.) The examiner is requested to clarify all psychiatric conditions other that PTSD present since December 2014. (b.) For each condition, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the psychiatric disorder had onset in, or is otherwise related to, active military service. (c.) The examiner should opinion on whether any psychiatric disorder other that PTSD clearly and unmistakably preexisted service. For any psychiatric disorder other than PTSD which is found to clearly and unmistakably preexist service, please state whether it was clearly and unmistakably NOT aggravated by service. (d.) For each psychiatric disorder other that PTSD, the examiner must opine whether the condition was caused or aggravated by service-connected PTSD. (e.) In providing a rationale for the above opinions, the examiner is instructed to accept as true the Veteran's reported in-service sexual assault. The rationale should contain discussion of the relevant service department and VA treatment records. 2. Provide the Veteran with an appropriate examination to determine the etiology of his claimed bilateral knee disorders. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a.) The examiner must conduct necessary testing to properly identify any current knee condition. If no diagnosis is present, the examiner must provide an opinion as to whether it is at least as likely as not that knee pain causes actual functional impairment in earning capacity. (b.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a knee disorder (or knee pain with functional impairment in earning capacity) had onset in, or is otherwise related to, active military service. (c.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the left knee disorder is caused or aggravated by a right knee disorder. (d.) The examiner must specifically address 1) the STRs showing treatment for bilateral knee pain diagnosed as bilateral patellofemoral syndrome in February 2011, left knee patellar tendonitis in April 2011, and bilateral shin splints in June 2011; 2) the VA treatment records dated March 2015 noting complaints of chronic knee pain since the in-service onset; and 3) the lay testimony of chronic knee pain since service. 3. Provide the Veteran with an appropriate examination to determine the etiology of his claimed back disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a.) The examiner must conduct necessary testing to properly identify any current back condition. If no diagnosis is present, the examiner must provide an opinion as to whether it is at least as likely as not that back pain causes actual functional impairment in earning capacity. (b.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a back disorder (or back pain with functional impairment in earning capacity) had onset in, or is otherwise related to, active military service. (c.) The examiner must specifically address 1) the STRs showing treatment for ongoing back pain in October 2011 after the Veteran suffered a fall from his bunk bed; unresolved mid/lower back problems related to the fall that had not completely resolved a year later, and the July 2013 medical board report of medical examination documenting abnormal findings for the spine identified as pain on forward flexion L4/L5 paraspinal active range of motion; and 2) VA treatment records dated March 2015 noting chronic back pain since service with x-ray evidence of a displaced rib; and 3) the lay testimony of chronic symptoms since service. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Smith, 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.