Citation Nr: 21072797 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-42 190 DATE: December 6, 2021 ORDER Service connection for a left knee disability is denied. Service connection for an acquired psychiatric disorder, to include depression, anxiety, and posttraumatic stress disorder (PTSD), is granted. REMANDED Service connection for a right foot disability is remanded. Service connection for a left foot disability is remanded. Service connection for a heart disability is remanded. Service connection for pulmonary embolism, also claimed as blood clots, is remanded. Service connection for a back disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a left knee disability that is related to military service. 2. The Veteran's acquired psychiatric disorder, to include depression, anxiety, and PTSD, is etiologically related to his active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for an acquired psychiatric disorder, to include depression, anxiety, and PTSD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from August 1980 to February 1988, from January 1991 to May 1991, and from March 2000 to April 2000 with additional service in the U.S. Navy Reserve. This matter comes before the Board of Veterans' Appeals (Board) from an April 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. This case was previously before the Board in March 2019, at which time the issues on appeal were remanded for the RO to adjudicate the claims in the first instance. This case has now returned to the Board for appellate consideration. The issues of service connection for right ear hearing loss and tinnitus were also remanded by the Board in March 2019; however, in a June 2020 rating decision, the RO granted the claims in full. Accordingly, the issues are no longer before the Board. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Left Knee Disability The Veteran contends that service connection is warranted for a left knee disability. The medical evidence of record shows that the Veteran has diagnosis of left knee osteoarthritis. However, the evidence of record does not show a continuity of symptomatology since service. The August 2009 Veterans Application for Compensation or Pension submitted by the Veteran is the first instance in the record showing a knee complaint, 9 years since the Veteran's active service. Additionally, the medical evidence of record shows that the Veteran was diagnosed with left knee osteoarthritis in 2018. This gap in left knee complaints shows that there have not been continuous symptoms of knee pain since service. Moreover, the Veteran has not asserted that his symptoms have persisted since service. Therefore, service connection cannot be established through the presumptions associated with chronic disease or through continuity of symptomatology. However, this does not preclude service connection to be granted on a direct basis. Regarding the first element of a service connection, a current disability, the Veteran's VA treatment records show he was diagnosed with left knee osteoarthritis in 2018. Therefore, the Veteran has established a current diagnosis for the purposes of establishing service connection. However, after thorough review of the evidence of record, the Board finds that the second element, an in-service incurrence or aggravation of a disease or injury, has not been met. The Veteran has not made any specific contention as to how he injured his knee in service or how it is otherwise related to service. Additionally, upon review of the Veteran's service treatment records (STRs), there is nothing that indicates that he had any type of injury to his knee at any point during service. As such, the second element is not met. The Board acknowledges the Veteran's belief that there is a relationship between his current left knee disability and his military service. The Veteran, however, as a lay person who is not trained in the field of medicine, is not competent to offer an opinion addressing the etiology of his current left knee disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). For the foregoing reasons, the Board finds that the preponderance of the competent evidence does not demonstrate that the Veteran's left knee disability is related to service. As such, the claim is denied. Acquired Psychiatric Disorder The Veteran contends that he has an acquired psychiatric disorder, including PTSD, that is related active service. Entitlement to service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that a claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptoms and the in-service stressor. 38 C.F.R. §§ 3.304(f), 4.125. After complete review of the record, the Board finds that the Veteran's diagnosed depression, anxiety, and PTSD are related to a credible in-service stressor. The Veteran was afforded a VA examination in March 2016. The examiner diagnosed the Veteran with other specified trauma and stressor-related disorder and found that he does not meet the criteria for a PTSD diagnosis. The Veteran submitted a private examination in March 2020. The examiner found the Veteran to have a diagnosis of PTSD with depression and anxiety in accordance with both the DSM-IV and the DSM-5. The private examiner is competent to diagnose the Veteran with a mental health disability and the Board finds the examiner to be credible. As such, the Board finds that the evidence supports a finding that the Veteran has a diagnosis of PTSD with depression and anxiety. Turning to the second element, an in-service stressor, the evidence consists of the Veteran's lay statements and his military personnel records. The Veteran contends that his PTSD stressor is related to fear of hostile military activity. If a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). Fear of hostile military or terrorist activity includes a threat to the physical integrity of the Veteran or others, such as from incoming artillery, rocket, or mortar fire. Id. The Veteran's military personnel records show that he was deployed to Saudi Arabia in support of Operation Desert Shield and Desert Storm from January 1991 to April 1991. During the March 2016 VA examination, the Veteran reported that during his deployment, he experienced incoming mortars and missile attacks, and was exposed to adversive consequences of seeing severely injured or dismembered bodies while at the major hospital in and around Iraq. Additionally, during the March 2020 private examination, the Veteran reported during his deployment he saw and heard missiles overhead and witnessed the unloading of "maimed" soldiers from helicopters to the hospital. The Board finds that there is no reason to doubt the Veteran's credibility with regard to his description of the in-service events as they are consistent with the places, types, and circumstances of service. Furthermore, the March 2020 private examiner found the Veteran's stressors to be adequate to support a diagnosis of PTSD. As such, the Board finds that the Veteran's claimed in-service stressor occurred. Turning to the element of nexus, the evidence of consists of the VA opinion and private opinion. The March 2016 VA examiner opined that it is at least as likely as not that the Veteran's development of a psychiatric condition is due to traumatic and stressful conditions and events he experienced during his deployment. Additionally, the March 2020 private examiner opined that the Veteran's psychiatric disability is at least as likely as not related to his military service. The Board finds these opinions adequate and highly probative as the examiners considered and addressed the Veteran's contentions, conducted a thorough examination of the Veteran, and provided clear conclusions with supporting data and reasoned explanations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Additionally, there is no medical evidence to the contrary. Based on the foregoing, after resolving all doubt in the Veteran's favor, the Board finds that service connection for an acquired psychiatric disorder, to include depression, anxiety, and PTSD, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND The record shows that the Veteran served in the U.S. Navy Reserve. However, the Board is unable to ascertain the Veteran's periods of Reserve service or the status of each such period. The RO should undertake efforts to establish the Veteran's period(s) of Reserve service and ascertain the status of each such period (e.g., active duty for training, inactive duty for training, etc.). Right and Left Foot Disability The Veteran was afforded a VA examination in March 2016 for his claimed bilateral foot disability. However, an opinion was not offered. As such, the Board finds that remand is warranted to obtain a VA medical opinion. Heart Disability and Pulmonary Embolism The Veteran was afforded a VA examination in March 2016 for his claimed heart disability. However, the Board finds that the opinion is inadequate for adjudication purposes because the rationale focuses on the lack of documentation of a heart condition during his Gulf War service. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007) (noting that an examiner cannot rely on the absence of medical records corroborating an injury to conclude that there is no relationship between the veteran's current disability and his military service). Additionally, the medical evidence shows that his heart disability may be related to his service-connected hypertension. Accordingly, remand is warranted to obtain an addendum opinion. The Veteran has not been afforded a VA examination for his claimed pulmonary embolism disability, also claimed as blood clots. The medical evidence of record shows that his claimed blood clot disability may be related to his service-connected hypertension or claimed heart disability. As such, remand is warranted to afford the Veteran a VA examination to determine the nature and etiology of his claimed pulmonary embolism disability, also claimed as blood clots. Back Disability The Veteran contends that his back disability is related to a 1994 motor vehicle accident. He was afforded a VA examination in April 2016; however, the Board finds that the opinion provided is inadequate for adjudication purposes because the rationale focuses on the lack of documentation of a back condition during service. Therefore, the Board finds that remand is necessary to obtain an addendum opinion. The matters are REMANDED for the following action: 1. Verify, to the extent possible, all active duty for training and inactive duty training dates. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. 2. Obtain any outstanding VA treatment records. 3. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's claimed bilateral foot disability, to include plantar fasciitis and onychomycosis. If an examination is deemed necessary by the clinician, then one should be scheduled, and all necessary tests and studies should be completed. Upon review of the claims file, the clinician is asked to opine, with complete rationale, as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's disability had its onset in or is etiologically related to any period of the Veteran's active-duty service, periods of active duty for training, or inactive duty for training, or manifested within one year after any period of the Veteran's active duty. 4. Obtain an addendum opinion to determine the nature and etiology of the Veteran's claimed heart disability. If an examination is deemed necessary by the physician, then one should be scheduled, and all necessary tests and studies should be completed. Upon review of the claims file, the physician is asked to opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's disability had its onset during active service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's disability was otherwise incurred in or caused by any injury, event, or disease during active service, to include exposure to environmental hazards while serving in the Gulf War. (c.) Whether it is at least as likely as not (50 percent or greater probability) that any disability had its onset in or is etiologically related to any disease or injury during any periods of active duty for training, or injury during any periods of inactive duty for training. (d.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's disability was (1) proximately due to or (2) aggravated by the Veteran's service-connected hypertension. A complete rationale must be provided for all opinions offered. If the physician cannot provide the required opinions without resorting to speculation, he or she shall provide a complete explanation as to why that is the case. Further, the physician must state whether the inability to provide the required opinions is based on a personal limitation or on a lack of knowledge among the medical community. The physician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that her reports must be considered in formulating the requested opinion. The physician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. 5. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his claimed pulmonary embolism disability, also claimed as blood clots. The examiner should identify all diagnoses throughout the appeal period that pertain to his claimed blood clot disability, including pulmonary embolism and deep vein thrombosis. Upon review of the claims file, the examiner is asked to opine as to the following for each diagnosis: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's disability had its onset during active service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's disability was otherwise incurred in or caused by any injury, event, or disease during active service, to include exposure to environmental hazards while serving in the Gulf War. (c.) Whether it is at least as likely as not (50 percent or greater probability) that any disability had its onset in or is etiologically related to any disease or injury during any periods of active duty for training, or injury during any periods of inactive duty for training. (d.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's disability was (1) proximately due to or (2) aggravated by the Veteran's service-connected hypertension. A complete rationale must be provided for all opinions offered. If the examiner cannot provide the required opinions without resorting to speculation, he or she shall provide a complete explanation as to why that is the case. Further, the examiner must state whether the inability to provide the required opinions is based on a personal limitation or on a lack of knowledge among the medical community. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. 6. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's claimed back disability. If an examination is deemed necessary by the clinician, then one should be scheduled, and all necessary tests and studies should be completed. Upon review of the claims file, the clinician is asked to opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed back disability had its onset in or is etiologically related to any period of the Veteran's active-duty service, periods of active duty for training, or inactive duty for training, or manifested within one year after any period of the Veteran's active duty. The clinician should specifically consider the 1994 motor vehicle accident. A complete rationale must be provided for all opinions offered. If the clinician cannot provide the required opinions without resorting to speculation, he or she shall provide a complete explanation as to why that is the case. Further, the clinician must state whether the inability to provide the required opinions is based on a personal limitation or on a lack of knowledge among the medical community. The clinician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. The clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Kernen, 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.