Citation Nr: 21076976 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 19-07 903 DATE: December 28, 2021 REMANDED Entitlement to an evaluation in excess of 30 percent for PTSD is remanded. Entitlement to service connection for bilateral knee conditions is remanded. Entitlement to service connection for a right leg condition is remanded. Entitlement to service connection for migraines, to include as residuals of a traumatic brain injury is remanded. REASONS FOR REMAND The Veteran served on active duty from April 12, 2011 to June 13, 2015, including service in Afghanistan. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. 1. Entitlement to an evaluation in excess of 30 percent for PTSD is remanded. At the August 2021 hearing, the Veteran reported that his PTSD has worsened since his last VA examination in February 2019. Thus, given such allegations, the Board finds that the Veteran should be afforded a new VA examination. See 38 C.F.R. §§ 3.326, 3.327; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. Entitlement to service connection for bilateral knee conditions is remanded. The Veteran contends that his bilateral knee pain is the result of his active service, to include an injury sustained during training. The Veteran's most recent VA treatment records indicate that he experiences bilateral knee pain, reported as moderate to severe. The Veteran's service treatment records show a history of chronic right knee pain. The Veteran's service treatment records also indicate a sickle cell attack in his left knee during service. In a September 2021 lay statement, a buddy reported that the Veteran injured his knees during a training exercise requiring crutches. The buddy reported he later saw the Veteran limping, which caused him to fail the Army Physical Fitness Test. The Veteran has not been afforded a VA examination with respect to his claims for service connection for his bilateral knee disabilities. 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, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to service connection for a right leg condition is remanded. 4. Entitlement to service connection for migraines, to include as residuals of a traumatic brain injury. is remanded. The Veteran contends that his right leg condition and migraines (also claimed as TBI) were not the result of willful misconduct as they were the result of a poor decision at one time that was related to untreated PTSD. As background, based on the Veteran's service treatment records, the Veteran was involved in a motorcycle accident in July 2013. According to the Veteran's own reports to his providers, he was speeding due to being "in a bad spot" and made a U-turn while being followed by a police car resulting in the crash. The Veteran sustained a moderate TBI and required surgery on his femur. Direct service connection may be granted only when a disability was incurred or aggravated in the line of duty and was not the result of willful misconduct or the result of abuse of alcohol or drugs. 38 U.S.C. § 105; 38 C.F.R. § 3.301 (a). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. A service department finding that injury, disease or death was not due to misconduct will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the facts and the requirements of laws administered by the Department of Veterans Affairs. Willful misconduct requires that it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences, but mere technical violation of police regulations or ordinances will not per se constitute willful misconduct, and willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. 38 C.F.R. §§ 3.31(n), 3.301, 3.302. Multiple lay buddy statements. including from an officer, have been submitted supporting the Veteran's contentions that his motorcycle accident was not the result of willful misconduct, but instead related to underlying untreated PTSD. A colleague of the Veteran submitted a statement in September 2021 indicating that he believed the Veteran's behavior following his return from deployment to Afghanistan was related to his (later-diagnosed) PTSD. In sum, the Veteran argues that his MVA injuries were the result of underlying psychiatric problems that were later diagnosed as PTSD associated with his combat zone service. Therefore, he contends that the injuries and disabilities are not the result of willful misconduct. Having carefully reviewed the record, the Board finds that additional development is necessary to resolve this appeal. To address the validity of the Veteran's credible contention that his reckless driving was due to a psychiatric disorder (PTSD), the Board finds that remand for a medical opinion is necessary to address whether, based on a review of the record it is as likely as not that his reckless driving at the time of the MVA in 2013 was related to an underlying psychiatric disability later diagnosed as PTSD (now service-connected PTSD). The Board recognizes that under 38 C.F.R. 3.1(n), willful misconduct means an act involving conscious wrongdoing or known prohibited action. However, if the misconduct can be associated with underlying psychiatric disorder later diagnosed as PTSD, then it is not willful misconduct within the meaning of the applicable legislation and would not preclude service connection for claimed disabilities here. The matters are REMANDED for the following action: 1. Obtain updated relevant treatment records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his PTSD alone. 3. Schedule the Veteran for a VA examination for his bilateral knee disabilities. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Are the bilateral knee disabilities at least as likely as not related to service, including the injury sustained during training? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 4. Schedule the Veteran for an examination by an appropriate clinician to determine whether his reckless behavior at the time of his July 2013 MVA during service was due to underlying psychiatric problems, later assessed as and service connected as PTSD. A complete medical history should be obtained. Considering the Veteran's medical history as provided by him and documented in the claims file, lay and buddy statements in the file along with any other relevant information (e.g., symptoms, behaviors), the examiner should opine on whether it is as likely as not that his reckless behavior at the time of the MVA in 2013 was related to underlying psychiatric problems, later assessed as PTSD. A complete rationale is required. 5. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, 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.