Citation Nr: 21077104 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-49 818A DATE: December 28, 2021 ORDER Service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD), generalized anxiety disorder, and posttraumatic stress disorder (PTSD), is granted. REMANDED Entitlement to an increased rating for lumbar strain with spondylolisthesis is remanded. Entitlement to an increased rating for right knee strain is remanded. FINDING OF FACT The preponderance of evidence supports that the Veteran's acquired psychiatric disorders were incurred during military service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include MDD, generalized anxiety disorder, and PTSD, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 2010 to April 2014. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified at a video virtual hearing from Atlanta, Georgia, before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. Entitlement to service connection for an acquired psychiatric disorder, to include MDD, generalized anxiety disorder, and PTSD The Veteran seeks service connection for an acquired psychiatric disorder, originally claimed as service connection for posttraumatic stress disorder. After review of the record, the Board has expanded the claim to include additional diagnoses shown in the record of major depressive disorder and generalized anxiety disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110,; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). There are particular requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304(f) that are similar, but nonetheless separate, from those for establishing entitlement to service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Entitlement to service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5); (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. See 38 C.F.R. §§ 3.304(f) and 4.125. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The record shows that during his active military service, the Veteran underwent counseling treatment for depression and adjustment disorder. See August 2014 Service Treatment Record, p.22 (January 2013 record). Military records additionally show that the Veteran was engaged in combat in Afghanistan as a fire support specialist and he served in an imminent danger pay area. See, e.g., DD Form 214. The Veteran has expressed that he believes his psychiatric difficulties today are the result of combat stressors, including (but not limited to) sniper fire and improvised explosive device attacks while stationed on a mountain outpost in Afghanistan. See, e.g., June 2019 VA Form 21-0781, Statement in Support of Claim for PTSD, and May 2021 Hearing Transcript. The Veteran's wife joined him in testifying before the Board. She described the Veteran's ongoing psychiatric symptoms since service, which include instances of suicidal ideation, severe bouts of anger, mentally "shutting down," alcohol abuse, and episodes of crying and sadness. See May 2021 Hearing Transcript. Private medical records received by VA in November 2018 show that the Veteran has been diagnosed by a psychologist under DSM-5 criteria with PTSD, generalized anxiety disorder, and major depressive disorder. See November 2018 Medical Treatment Record Non-Government Facility, p.4 (July 2018 record). Thus, the first Shedden requirement of a present disabling condition is satisfied. The second Shedden requirement of an in-service event, injury, or incurrence is satisfied by both the Veteran's in-service treatment for depression, and his credible testimony of combat stressors. Regarding the third Shedden requirement for a medical link between the in-service event or incurrence, the Board observes that the record does not contain a clear statement by a psychiatrist or psychologist linking the Veteran's present psychiatric conditions to his military service. However, psychiatric records repeatedly note the Veteran's combat experiences when discussing his present psychiatric conditions. See id., and see June 2021 Medical Treatment Record Government Facility (containing a letter from a VA psychiatrist who discusses the Veteran's combat experiences along with a statement that the Veteran receives ongoing treatment for diagnosed PTSD). At a VA examination in September 2014, the examiner indicated that the Veteran's several claimed combat stressors were sufficient to support a diagnosis of PTSD. However, the examiner did not find that any diagnosis could be rendered at that time based on DSM-5 criteria, and no diagnosis under DSM-5 criteria was then shown in the record. The Board is aware that the Veteran's diagnoses by a private psychiatrist had not been received by VA at that time. See September 2014 Compensation and Pension (C&P) Examination. Weighing the probative evidence of record, and resolving doubt in the Veteran's favor, the Board concludes that records of the Veteran's in-service depression and adjustment disorder constitute the same disease entity as his presently-diagnosed major depressive disorder, generalized anxiety disorder, and PTSD. The Veteran and his spouse are competent to provide evidence of ongoing symptoms since military service, and they have credibly done so. The Board is mindful that the specific statutory requirements of 38 C.F.R. §§ 3.304(f) and 4.125 have not been satisfied with regard to PTSD. Further development could certainly be useful. For instance, another VA examination could address the updated medical records received by VA since the Veteran's last exam, which now include a PTSD diagnosis rendered by multiple psychiatrists under DSM-5 criteria. Regardless, the Veteran was treated for depression during service, and his depression continues today. As the Board has expanded the scope of Veteran's claim based on evidence developing during the course of this appeal. As such, it now includes his present major depressive disorder and generalized anxiety disorder diagnoses as well, the preponderance of evidence supports that the Veteran's acquired psychiatric disorders were incurred during military service. The claim for service connection for an acquired psychiatric disorder, as variously diagnosed, is granted. REASONS FOR REMAND 1. Entitlement to an increased rating for lumbar strain with spondylolisthesis is remanded. At his hearing in May 2021, the Veteran stated that his lumbar strain disability had worsened since his last VA examination in September 2014. In this regard, the Veteran also reported bouts of severe pain three to five times per week, which cause increased swelling and limits mobility, especially forward and backward. During such flare-ups, the pain radiates into both his legs. He described having to use a lumbar support pad to drive a vehicle, and being functionally limited in doing work around the house or even at his job. See May 2021 Hearing Transcript. In light of the foregoing, a remand is necessary so the Veteran can be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his lower back disability. 38 C.F.R. § 3.327(a). 2. Entitlement to an increased rating for right knee strain is remanded. At his hearing in May 2021, the Veteran stated that his right knee disability had worsened since his last VA examination in September 2014. In this regard, the Veteran reported that he experiences regular swelling, popping and cracking in his right knee, and that he experiences flare-ups of his right knee pain three to five times per week which further limit his movement due to increased pain and swelling. For pain, he wears a knee brace and takes over-the-counter medications. See May 2021 Hearing Transcript In light of the foregoing, a remand is necessary so the Veteran can be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his right knee disability. 38 C.F.R. § 3.327(a). These matters are REMANDED for the following actions: 1. Schedule the Veteran for VA examination to evaluate the current level of severity of his lumbar strain with spondylolisthesis. All required testing should be performed, to include range of motion testing, and the examiner should report limitations of motion due to pain. The examiner should further address the Veteran's lay statements, including his testimony before the Board regarding flare-ups and pain radiating into his bilateral extremities. If possible, the examiner should offer an opinion as to any further limitations of motion and functional loss (in terms of degrees) due to weakness, fatigue and swelling during flare-ups. If a response cannot be provided, the examiner must explain why. Simply being unable to observe a flare-up is an insufficient basis for declining to estimate its functional impact. 2. Schedule the Veteran for a VA examination to evaluate the current level of severity of his right knee strain disability. a. Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare ups of his service-connected knee disability, and how he or she characterizes the additional functional loss during a flare. b. If the Veteran describes experiencing flare ups, identify the: frequency; duration; precipitating factors; and alleviating factors. c. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (approximately 50 percent probability or greater) that during a flare up range of motion (flexion) is additionally limited to 30 degrees. Please explain why or why not. d. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (approximately 50 percent probability or greater) that repetitive use over time additionally limits motion to 30 degrees or less (for flexion) or 10 degrees or more (for extension). Please explain why or why not. e. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up the disability is manifested by effusion and/or locking. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). 3. If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hermsdorfer, 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.