Citation Nr: 21074736 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 20-10 559 DATE: December 16, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, including PTSD, Generalized Anxiety Disorder, and Major Depressive Disorder, is granted. REMANDED Entitlement to service connection for a low back disorder, to include as secondary to service-connected bilateral foot pes planus, is remanded. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected bilateral foot pes planus, is remanded. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected bilateral foot pes planus, is remanded. Entitlement to service connection for an eye disorder manifested by blurred vision and eye pain is remanded. FINDING OF FACT The Veteran has an acquired psychiatric disorder, including PTSD, Generalized Anxiety Disorder, and Major Depressive Disorder, that is as likely as not related to his active military service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD, Generalized Anxiety Disorder, and Major Depressive Disorder, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Army from January 2008 to December 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal of March 2017 and July 2017 rating decisions by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). See March 2017 Rating Decision (denying entitlement to service connection for PTSD and a low back condition); July 2017 Rating Decision (denying entitlement to service connection for a left and right knee condition and a vision disorder). In January 2021, the Veteran testified before the undersigned Veterans Law Judge at a virtual telehearing. A copy of the transcript has been associated with the claims file. 1. Service connection for an acquired psychiatric disorder, including PTSD, Generalized Anxiety Disorder, and Major Depressive Disorder, is granted The Veteran maintains that he has a current psychiatric disability that is related to his active service. Specifically, he maintains that he developed PTSD, anxiety, depression, and/or additional related psychological symptomatology as the result of stressors incurred during his active duty service, including as a result of combat in Afghanistan. See, e.g., August 2016 Statement in Support of Claim for Service Connection for PTSD (VA Form 21-0781); January 2021 Board Hearing Transcript. 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) the existence of 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 disease or injury incurred or aggravated during service (the medical "nexus" requirement). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)). See, too, 38 C.F.R. §§ 3.304(f), 4.125(a) (reflecting that, specific to claims for PTSD, service connection generally requires medical evidence diagnosing the condition in accordance with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-5), a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors, and credible supporting evidence that the claimed stressors actually occurred). The medical evidence of record, including the Veteran's VA psychiatric treatment records and VA and private examination reports, establish that the Veteran has a current acquired psychiatric disability, alternatively diagnosed as Major Depressive Disorder, Generalized Anxiety Disorder, PTSD, and adjustment disorder with mixed anxiety and depressed mood. See, e.g., February 2021 Psychological Evaluation by P.D.W., Ph.D. (diagnosing PTSD, Major Depressive Disorder, ad Generalized Anxiety Disorder); August 2019 VA Primary Care History and Physical Note (reflecting an assessment of "Depression with Anxiety Likely PTSD"); September 2019 VA Mental Health Outpatient Note (noting that the Veteran exhibited symptoms and manifestations "consistent with Generalized Anxiety Disorder," and "significant s[ymptoms] of depression"); February 2017 Initial Post Traumatic Stress Disorder (I-PTSD) Disability Benefits Questionnaire (DBQ) (declining to diagnose PTSD and instead reflecting a diagnostic impression of adjustment disorder with mixed anxiety and depressed mood). See also McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). See, too, Cohen v. Brown, 10 Vet. App. 128, 140 (holding that where there is "a clear (that is, unequivocal) PTSD diagnosis by a mental-health professional [it] must be presumed (unless evidence shows to the contrary) to have been made in accordance with the applicable DSM criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor") (1997). In statements and testimony put forth during the pendency of the claim, the Veteran maintained that he has experienced progressively worsening psychiatric symptoms including anxiety, depression, irritability, difficulty with interpersonal relationships, and passive suicidal ideation, since his active duty service in Afghanistan. See, e.g., January 2021 Board Hearing Transcript. Moreover, the Veteran's medical records, including records of VA and private psychiatric evaluation, confirm these reports regarding his psychiatric manifestations. See, e.g., February 2017 I-PTSD DBQ (noting the Veteran's report of experiencing recurrent psychiatric manifestations including exaggerated startle response, sleep disturbances, depressed mood, anxiety, isolating behaviors, and outbursts of anger and aggression, since his discharge from service); August 2019 VA Primary Care History and Physical Note (stating that the Veteran experiences "depression [and] anxiety which has been chronic and dates back to his Service in Afghanistan"); September 2019 VA Mental Health Outpatient Note (reflecting psychiatric symptoms including "frequent" passive suicidal ideation, "severe symptoms of anxiety," and "moderately severe symptoms of depression"); February 2021 Psychological Evaluation by P.D.W., Ph.D. (documenting symptoms including depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss; flattened affect; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships; obsessional rituals that interfere with routine activities; impaired impulse control, such as unprovoked irritability with periods of violence; persistent flashbacks, delusions, or hallucinations; and neglect of personal appearance and hygiene, and noting that the Veteran's psychiatric pathology has progressively worsened in the years since his discharge). The Veteran has also credibly reported psychologically stressful events during his active service, including participation in combat in Afghanistan. See, e.g., August 2016 Statement in Support of Claim for Service Connection for PTSD (VA Form 21-0781); January 2021 Board Hearing Transcript. Significantly, the Veteran's service personnel records reflect that his military occupational specialty (MOS) was as a motor transport operator and further show that he served in a combat support role in Afghanistan from October 2011 to October 2012. See Veteran's Certificate of Release or Discharge from Active Duty (DD Form 214); December 2013 Enlisted Record Brief. Additionally, the Veteran received combat pay throughout his Afghanistan deployment. See January 2017 Veterans Affairs/Department of Defense Identity Repository (VADIR) Military History (showing that the Veteran received "Hostile Fire/Imminent Danger Pay" and a "Combat Zone Tax Exclusion" from November 2011 to October 2012). Accordingly, given the places, types, and circumstances of the Veteran's service, including his MOS as a motor transport operator and his service in Afghanistan, the Board finds the Veteran's statements concerning the nature of his service to be competent and credible. See VAOPGCPREC 12-99 (October 18, 1999) (reflecting that, where there is no medal specifically indicating combat service, determinations as to whether a Veteran engaged in combat should be made on a case-by-case basis). See also 38 U.S.C. § 1154(a) (Due consideration shall be given to the places, types, and circumstances of a Veteran's service.); Caluza v. Brown, 7 Vet. App. 498, 511, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (holding that, in determining whether statements submitted by or on behalf of a claimant are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). It is thus highly probable that he was engaged in combat as he described. See 38 C.F.R. § 3.102. As such, the occurrence of the claimed stressful events during his service is established, as it is consistent with the circumstances of his service. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d), (f)(2). See also 38 U.S.C. § 1154(a). See, too, Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012) (holding that, in the case of a combat Veteran, not only is the combat injury presumed, but so is the disability due to the underlying injury). Thus, in light of the foregoing, the Board finds the Veteran's statements concerning the onset and continuity of his psychiatric symptomatology to credible. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), 492 F.3d at 1377 ; Baldwin v. West, 13 Vet. App. 1 (1999); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). This report of a continuity of symptomatology since his discharge suggests a link between the Veteran's current psychiatric complaints and his active service. See Duenas v. Principi, 18 Vet. App. 512 (2004). Moreover, in a February 2021 psychiatric evaluation, a private psychologist, P.D.W., Ph.D., opined that the Veteran's psychiatric diagnoses were related to stressors he experienced during his military service, including specifically his combat service in Afghanistan. See February 2021 Psychological Evaluation by P.D.W., Ph.D. (finding it to be "more likely than not" that the Veteran's diagnosed psychiatric disorders, including PTSD, Generalized Anxiety Disorder, and Major Depressive Disorder, were "caused by his military service"). This determination was based on a review of the claims file and the pertinent medical evidence of record, a full psychological examination of the Veteran, and the examiner's own medical knowledge and experience. Additionally, the opinion is supported by a clear, well-reasoned explanation with citations to both the evidence of record and relevant medical scholarship. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion depends upon whether it is factually accurate, fully articulated, and contains sound reasoning for the conclusion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The February 2021 opinion thus constitutes highly probative evidence of a nexus between the Veteran's acquired psychiatric disability and his active service. See id.; see also Prejean v. West, 13 Vet. App. 444, 448 (2000) (indicating that the Board may determine the probative value of medical opinions based on their detail, the persuasiveness of their opinions, and the physicians' access to a Veteran's medical records). The Board acknowledges that there is an unfavorable opinion of record in the form of the February 2017 VA Initial PTSD examination report. Significantly, the February 2017 VA examiner declined to diagnose PTSD and instead diagnosed "Adjustment Disorder with Depressed Mood and Anxiety," finding that the Veteran's psychiatric symptoms were "likely related to adjusting to civilian life." See February 2017 I-PTSD DBQ. However, aside from this bare statement, the VA examiner failed to provide any additional rationale to support the determination that the Veteran's psychiatric symptoms were unrelated to his reported psychologically stressful experiences. See id. Moreover, while the VA examiner apparently acknowledged that the Veteran's psychiatric symptoms persisted since his discharge, the examiner failed to provide any opinion regarding whether the Veteran's condition had its onset during active service. See id. Accordingly, the February 2017 opinion is inadequate, and, as such, it cannot form the basis of a denial of entitlement to service connection. See Stefl, 21 Vet. App. at 124 ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992) (reflecting that the Board is free to assess medical evidence and is not obligated to accept a physician's opinion). Rather, considering the medical evidence diagnosing a current psychiatric disability, given the Veteran's credible reports of experiencing stressful events and resulting psychiatric symptomatology during and since his active service, and in light of the medical evidence of a nexus between the Veteran's current psychiatric symptomatology and the claimed in-service stressors, the Board finds that the evidence is at least in equipoise as to whether his current acquired psychiatric disability is related to his active service. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1166-67. Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for an acquired psychiatric disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND Although the Board regrets the additional delay, further development is necessary prior to adjudication of the claims for service connection for a low back disability, right and left knee disabilities, and an eye disorder. 1. Entitlement to service connection for a low back disorder, to include as secondary to service-connected bilateral foot pes planus, is remanded. The Veteran contends that he has a low back disability that is related to his active service. Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4)(i). Further, when VA undertakes to provide the Veteran with an examination, it must ensure the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran was afforded a VA back examination in February 2017. The VA examiner noted the Veteran's complaints of experiencing low back pain with flare-ups of increased symptoms occurring with activity including lifting and carrying. See February 2017 VA Back Conditions DBQ. Additionally, examination findings included pain on both flexion and extension and pain on weightbearing, described as "[p]aravertebral muscle tenderness across lower back." Id. Despite this, the VA examiner found that the Veteran had no low back pathology because the February 2017 x-ray did not show any lumbosacral spine abnormalities. See id. However, in a recent decision, Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that pain alone can be a functional impairment and therefore qualify as a disability for the purpose of establishing service connection. Specifically, the Federal Circuit expressed that "disability" as employed in 38 U.S.C. §§ 1110 and 1131, "refers to the functional impairment of earning capacity, not the underlying cause of said disability;" thus, pain can function as a "disability" without any current underlying condition, as pain itself diminishes the body's ability to function. Nonetheless, the Federal Circuit explained that to establish the presence of a disability based on subjective pain, a Veteran "will need to show that his or her pain reaches a level of a functional impairment of earning capacity." Here, although the February 2017 VA examiner determined that the Veteran did not experience any functional impairment as a result of his reported back pain, the examiner failed to reconcile this determination with the Veteran's reported flare-ups of low back pain and the objective findings of pain on weightbearing and painful low back flexion and extension. Furthermore, the Veteran has reported progressively worsening low back symptoms in the years since the VA examination. See January 2021 Board Hearing Transcript. Accordingly, because it is unclear from the record the degree to which the Veteran's low back pain causes functional impairment, the Board finds that a new VA examination is necessary in order to obtain an opinion regarding functional impairment that considers the Veteran's competent lay reports of symptomatology, consistent with the Federal Circuit holding in Saunders. 2. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected bilateral foot pes planus, is remanded. 3. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected bilateral foot pes planus, is remanded. 4. Entitlement to service connection for an eye disorder manifested by blurred vision and eye pain. The Veteran contends that he has disabilities of the right and left knees and an eye disorder manifested by blurred vision and eye pain that are related to his active military service. See, e.g., January 2021 Board Hearing Transcript (describing the onset and continuity of bilateral knee symptoms following an in-service car accident and reporting experiencing eye pain and blurred vision since undergoing a photorefractive keratectomy (PRK) during active service). The Veteran has not been afforded VA examinations to determine the etiology of these claimed conditions. Given the medical evidence of record showing in-service treatment for bilateral knee and eye problems, in light of the Veteran's competent statements concerning the onset and continuity of bilateral knee and eye symptoms during and since his active service, see, e.g., Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology), and in the absence of evidence necessary to decide the claims, the Board finds that VA examinations and opinions are warranted to determine the nature and etiology of these claimed conditions. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (reflecting that VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, or with another service-connected disability, but the record does not contain sufficient medical evidence to decide the claim); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Additionally, as the case is being remanded, all outstanding VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the Veteran's claims file. 2. After completion of the above development, schedule the Veteran for an appropriate VA examination(s), with an examiner(s) other than the VA examiner who performed the February 2017 VA back examination, if possible, to assist in determining the nature and etiology of his claimed low back and left and right knee disabilities. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a complete copy of this REMAND should be reviewed in association with the examination. The examination report must reflect that such a review was undertaken. All indicated tests and studies deemed necessary by the examiner(s) should be performed and all clinical findings reported in detail. After eliciting a full history from the Veteran, conducting a complete review of the claims file (including all available Service Treatment Records (STRs) and VA medical treatment records), performing an examination of the Veteran, and completing any clinically indicated diagnostic testing, the examiner(s) should diagnose and describe in detail all current disorders affecting the Veteran's back and bilateral knees found to be present. As to EACH identified pathology affecting the Veteran's back and/or knees identified on examination or diagnosed during the pendency of the claim, the examiner(s) must provide an opinion as to whether it is at least as likely as not (i.e., 50% or greater probability) that any diagnosed disability affecting back and/or knees either (1) had its clinical onset during active service, (2) is related to any in-service disease, event, or injury, (3) was manifest within a year of service separation, or (4) was noted during service with continuity of the same symptomatology since service. The examiner(s) must also specifically indicate whether the Veteran has, or has had at any point during the pendency of the claim, functional impairment of earning capacity due to his reported symptoms of pain and discomfort affecting his low back and/or bilateral knees, in accord with the holding of Saunders v. Wilkie, 886 F.3d 1356, 1363-68 (Fed. Cir. 2018), and if so, the examiner should express an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any such impairment had its clinical onset during active service or is related to any in-service disease, event, or injury * For the purpose of rendering this opinion, the examiner(s) should consider and address the Veteran's STRs reflecting in-service treatment for low back and bilateral knee symptoms. Additionally, the examiner(s) should consider the Veteran's statements and testimony concerning the in-service origin of his low back and left knee manifestations and that he has had continuing low back and left and right knee symptoms since that time. Additionally, if a direct relationship to service is not found, the examiner(s) should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any identified pathology / functional impairment affecting the Veteran's back and/or knees identified on examination or diagnosed during the pendency of the claim was either (a) caused by, or (b) aggravated by any service-connected disability, to specifically include the Veteran's service-connected bilateral foot pes planus and any associated gait disturbance. The examiner(s) must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor it as it is to find against it. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report(s). If any examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed vision/eye disorder manifested by blurred vision and eye pain. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a complete copy of this REMAND should be reviewed in association with the examination. The examination report must reflect that such a review was undertaken. All indicated tests and studies deemed necessary by the examiner should be performed and all clinical findings reported in detail. After eliciting a full history from the Veteran, conducting a complete review of the claims file (including all available Service Treatment Records (STRs) and VA medical treatment records), performing an examination of the Veteran, and completing any clinically indicated diagnostic testing, the examiner should diagnose and describe in detail all current disorders affecting the Veteran's eyes found to be present. As to EACH identified pathology affecting the Veteran's eyes identified on examination or diagnosed during the pendency of the claim, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50% or greater probability) that any diagnosed disability affecting the eyes either had its clinical onset during active service or is related to any in-service disease, event, or injury, to include as a residual of the in-service photorefractive keratectomy (PRK) procedure. * For the purpose of rendering this opinion, the examiner should consider and address the Veteran's STRs reflecting in-service treatment for vision/eye problems, including specifically the records related to the May 2011 PRK procedure. Additionally, the examiner should consider the Veteran's statements and testimony concerning the in-service origin of his eye manifestations and that he has had continuing blurred vision and eye pain since that time. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor it as it is to find against it. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.