Citation Nr: 21013581 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-47 595 DATE: March 9, 2021 ORDER Service connection for a low back condition is denied. Service connection for a left hip condition is denied. Service connection for sleep apnea is denied. Service connection for esophageal reflux (also claimed as acid reflux) is denied. The severance of service connection for right knee arthritis with limitation of extension, being improper, restoration of service connection is granted. The severance of service connection for right knee arthritis being improper, restoration of service connection is granted. The severance of service connection for osteoarthritis, left knee, being improper, restoration of service connection is granted. REMANDED Service connection for a psychiatric condition, to include posttraumatic stress disorder (PTSD). FINDINGS OF FACT 1. The Veteran does not have a low back condition, left hip condition, sleep apnea, or esophageal reflux (also claimed as acid reflux) that started during a period of qualifying service, is related to an in-service injury or event, or is secondary to a service-connected disability. 2. It is not clear and unmistakable that the Veteran’s right and left knee conditions were not due to injuries during a period of active duty for training. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left hip condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for esophageal reflux (also claimed as acid reflux) have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The severance of service connection for right knee arthritis with limitation of extension, was improper. 38 U.S.C. § 5112; 38 C.F.R. § 3.105 6. The severance of service connection for right knee arthritis was improper. 38 U.S.C. § 5112; 38 C.F.R. § 3.105 7. The severance of service connection for osteoarthritis, left knee, was improper. 38 U.S.C. § 5112; 38 C.F.R. § 3.105 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1989 to July 1989, November 2010 to April 2011, and July 2011 to October 2011. The case is on appeal from August 2014, June 2016, and August 2016 rating decisions. Although claimed as PTSD, the Board finds that the scope of this claim includes any psychiatric diagnosis, including, but not limited to PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Active service includes periods of active duty for training (ACDUTRA) when service connection may be granted for disabilities resulting from a disease or injury incurred in or aggravated while performing ACDUTRA. 38 U.S.C. § 101(22), (24); 38 C.F.R. § 3.6(a), (c). Active service also includes periods of inactive duty training (INACDUTRA) when service connection may be granted for disabilities resulting from an injury incurred in or aggravated while performing INACDUTRA. 38 U.S.C. § 101(23), (24); 38 C.F.R. § 3.6(a), (d). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. 1. Service connection for a low back condition The Veteran contends that he has a current back condition after hurting his back in June or July 2010 while lifting sandbags. See 9/20/2016 VA Form 9; 10/7/2013 notice of disagreement (NOD). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease, as alleged. The Board concludes that, while the Veteran has a current diagnosis, and evidence shows that an injury occurred, the preponderance of the evidence weighs against finding that the injury occurred during a qualifying period of service and, even if it did occur during a qualifying period of service, that it caused aggravation of a preexisting back condition. As confirmed by a September 2013 VA examination, the Veteran has a current diagnosis of lumbar degenerative disc disease with intervertebral disc syndrome (IVDS) and radiculopathy involving the left femoral and sciatic nerves. The evidence also tends to show that the alleged injury event did in fact occur. He filed supporting statements from two different service members, dated in January 2013 and October 2013, respectively. They indicated that they had witnessed the Veteran lifting sandbags. The Veteran did not have any periods of active duty or ACDUTRA in June or July 2010. He had periods of INACDUTRA from June 1 to June 4, 2010; June 9 to June 11, 2010; July 8 to July 11, 2010, July 16, 2010, and July 19 to July 23, 2010. The Veteran has not been able to identify which, if any, of these periods of INACDUTRA in which the injury occurred. In fact, he has been inconsistent in this regard. According to a May 2012 private (non-VA) consultation, the Veteran reported low back pain since lifting sandbags in 2009. A Narrative Summary report from October 2013 likewise notes that the injury occurred in 2009. A November 2011 service department memorandum also states that the injury occurred in 2009. A September 2013 VA examiner, by comparison, recorded the Veteran’s statement that this event occurred in 2011. Hence, it is unclear if the injury actually occurred in 2010. Even if it did occur in June or July 2010, as alleged, the service department found that the injury was not incurred coincident with a qualifying period of service. According to the November 2011 service department memorandum, he was not deployed or on military duty when the injury occurred. It was noted that he claimed he was injured while filling sandbags in preparation for a 2009 operational readiness inspection (ORI), but he never received medical attention, nor did he report the injury to the supervisor of the work party at that time. Likewise, the October 2013 Narrative Summary report states that he initially developed low back and radiating leg pain following a “non-duty lifting injury in 2009.” A December 2013 memorandum also states that he was not on military status when the injury occurred. In fact, the Veteran himself has never asserted that he was performing INACDUTRA at the time. He has implied that the injury occurred while lifting sandbags in connection with his service, but he has not consistently expressly identified the injury as occurring during a period of service. The only time he did so was at a January 2016 private psychiatric evaluation when he stated that the injury occurred during a military drill. Overall, this evidence establishes that the event did not occur during a period of qualifying service. Moreover, there is conflicting evidence as to the nature and extent of the injury. In connection with his claim, he has written that he first hurt his back prior to the sandbag lifting injury, but he was then “fine” and was able to pass a physical examination in 2009. See 9/20/2016 VA Form 9; 10/7/2013 NOD. He feels there should not be a preexisting condition because it was not until after injuring his back lifting sandbags that his back was “never the same again.” See 9/20/2016 VA Form 9. Private medical records in May 2008 note a prior history of being initially seen for pain in June 2007 at which time he had been diagnosed with symptomatic lumbar radiculopathy treated with a steroid injection. By the time of the May 2008 treatment, the pain had recurred one month prior. He was given a second injection. According to a private medical record from June 7, 2010, he had a history of low back disc disease with “back pain returning.” One month later, in July 2010, he sought private treatment for a three-year history of low back pain with no known inciting event that had brought on the pain. He was seen again in October 2011, when he reported “heating and cooling” with increased back problems. According to a June 2012 record, he complained of chronic low back pain affecting him since 2007. At the May 2012 private consultation, he was noted to have low back pain since lifting sandbags in 2009 with pain starting one week later. This evidence indicates that he already had a diagnosed lumbar spine condition prior to June 2010. While there were some reports of back pain beginning from the sandbag lifting event, other times he reported pain occurring chronically prior to that time. At even other times he denied any inciting event, which would include lifting sandbags. Also inconsistently, he also reported the pain first occurring one week after the sandbag lifting event. Overall, this evidence is too inconsistent and vague to establish that there was as likely as not a condition was incurred in or permanently increased in disability during a qualifying period of service. Rather, this evidence tends to indicate that any increase in his low back pain, if it occurred, was a temporary flare-up with no permanent worsening of the underlying disability. Hence, neither in-service incurrence nor aggravation is established. See Hill v. McDonald, 28 Vet. App. 243, 255 (2016); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness) A private examiner in June 2019 reviewed the Veteran’s case and opined that it is at least as likely as not he did aggravate an asymptomatic back condition while lifting sandbags during service in 2011. The examiner reasoned that the service treatment records (STRs) showed no report of back pain before 2011, and he was first diagnosed in 2010 with report of symptoms beginning in approximately 2007. The examiner acknowledged that he did receive a steroid injection in 2008, but he was more likely than not asymptomatic by the time he entered the period of service in 2010-2011. And, the examiner opined, lifting sandbags is certainly an activity that could aggravate a lumbar spine condition, so following the injury, his lower back permanently worsened as shown by the STRs, VA and private medical records. The Board finds that this opinion is of limited probative weight. The examiner felt that the Veteran was asymptomatic by the time of his service in 2010. However, this is an unexplained, speculative inference. Importantly, the examiner did not reconcile this opinion with the conflicting evidence indicating that he was symptomatic prior to June 2010 and, also, that he denied any inciting injury. The examiner also opined that his low back was permanently worsened “as shown by” the STRs, VA and private medical records, but the examiner did not explain how the evidence shows the condition was permanently worsened. This is another unexplained conclusory inference. Overall, the private examiner’s opinion is supported only by selective facts and unsupported, conjectural reasoning. Such an opinion is essentially nonprobative. See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In sum, the evidence shows that the Veteran had a preexisting lumbar spine condition prior to June/July 2010. He then participated in an activity that involved lifting sandbags. This event did not occur during a period of ACDUTRA or INACDUTRA. Hence, a VA examination is not needed. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Moreover, the evidence is too inconsistent and conflicting as to whether this event actually incited low back pain or only temporarily increased his pain (without an underlying permanent worsening). As such, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and therefore, the claim of service connection is denied. 2. Service connection for a left hip condition The Veteran contends that a current left hip condition is secondary to a low back condition or a right knee disability. See 6/2/2015 NOD; 9/20/2016 VA Form 9. The evidence of record establishes that the Veteran has a left hip strain secondary to a low back condition. This was the opinion of a September 2013 VA examiner and a June 2019 private examiner. There is no indication it may be related to a right knee disability. Because the claim of compensation for the primary disability, the lumbar spine condition, is denied, the derivative claim of secondary service connection for a left hip condition, cannot be granted as a matter of law. See 38 C.F.R. § 3.310; DeLisio v. Shinseki, 25 Vet. App. 45, 59 (2011). As such, the preponderance of the evidence is against the claim, and the appeal is denied. 3. Service connection for sleep apnea The Veteran maintains that he first noticed symptoms of sleep apnea in tech school. He explained that he had issues staying awake, and complained about his sleep, but was not given a sleep study. Rather, he was misdiagnosed as having a cold. See 10/7/2013 NOD; 2/6/2015 statement; 9/20/2016 VA Form 9. A secondary theory of service connection is also reasonably raised. The preponderance of the evidence is against the claim. The Veteran had an initial period of ACDUTRA from November 2010 to April 2011, including completion of his heating, ventilation, and air conditioning (HVAC) education course. He was diagnosed with sleep apnea after a private sleep study in July 2012. At that time, he reported symptoms involving nocturnal snoring. It was noted that there was a “relative paucity of symptoms.” The study was positive for very mild, positional sleep apnea. The Board finds this assessment significant as it shows a “paucity of symptoms” even by the time of diagnosis in July 2012, where the Veteran now maintains that he first started having symptoms many years earlier. Approximately one year later, in July 2012, he filled out a sleep study questionnaire. Where asked when his symptoms began, he wrote June 2010. Hence, his statements have been inconsistent where he now maintains that his symptoms began in tech school, which did not start until after June 2010. In support of his claim, the Veteran submitted an October 2013 statement from his wife. She wrote that she witnessed her husband snoring and choking while sleeping. She noticed when he came home for a break from tech school in December 2011 that he was dozing off all the time. He also submitted an October 2013 statement from a witness, who wrote that he had witnessed the Veteran having a sleep problem during tech school in November 2011 to April 2012. He was falling asleep in class and sometimes when they went out. The Veteran said he could not help it. He went to a base doctor who told him he had allergies. A VA examination has not been conducted to address the direct theory of entitlement raised by the Veteran. However, a VA examination is not warranted based only on the conclusory, generalized lay statements, where there is no other supporting evidence in the record. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010); Euzebio v. Wilkie, 31 Vet. App. 394 (2019); cf Colantonio v. Shinseki, 606 F.3d 1378, 1381-82 (Fed. Cir. 2010). With regard to the secondary theory, the August 2013 VA examiner noted that the Veteran weighed 165 pounds when he entered Reserve service and was now 220 pounds. The examiner identified this as a two-fold situation involving a low back condition, inability to exercise, plus eating more. A private examiner in June 2019 agreed that the conditions causing his sleep apnea, such as habitus or weight, were most likely being aggravated by his significant back and radiculopathy disabilities, both in the form of contributing to additional weight gain, but also additional direct contributors to disrupted sleeping at night. Because the claim of compensation for a low back disability is denied, the derivative claim of service connection for secondary sleep apnea cannot be granted on a secondary basis as a matter of law. See 38 C.F.R. § 3.310; DeLisio v. Shinseki, 25 Vet. App. 45, 59 (2011). The June 2019 private examiner also noted the Veteran’s chronic use of a prescribed opioid medication for his low back and knees. The examiner then cited a study titled “Obstructive sleep apnea, pain, and opioids: is the riddle solved?” Here, the examiner implied a relationship between the opioid medication use and sleep apnea, but did not offer an opinion or any rationale to this end. As such, it is not entirely clear if the private examiner felt there was an actual relationship or only a possible one. This is too vague and imprecise to be considered a probative opinion. In sum, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and therefore, the claim of service connection for sleep apnea is denied. 4. Service connection for esophageal reflux (also claimed as acid reflux) The Veteran contends that he has had symptoms involving acid reflux beginning during service. He never had trouble prior to service. He believed it was due to the change in foods and his eating habits, so his service contributed to the condition. He also wrote that he had had issues ever since service. See 2/3/2014 testimonial statement; 6/2/2015 NOD; 9/20/2016 VA Form 9. The preponderance of the evidence is against the direct theory. Where the Veteran now maintains that his symptoms began coincident with his service, his STRs show treatment in February 2012 for complaints of heartburn symptoms off and on for 10 years and increasing in severity over the prior two months. Ten year prior to February 2012 would have been approximately February 2002, which was many years prior to service. He indicated an increase in symptoms over the prior two months. He did not serve on active duty or ACDUTRA during that timeframe. He had a period of INACDUTRA from December 2011 through February 2012. However, the evidence does not show both that (1) he experienced a permanent increase in disability beyond the natural progress of that disease and (2) that the worsening was caused by the period of service. See Donnellan v. Shinseki, 24 Vet. App. 167, 174-75 (2010); Smith v. Shinseki, 24 Vet. App. 40 (2010) (explaining that the presumption of aggravation only applies with active duty service). Hence, the evidence does not support the direct theory of entitlement. With regard to the secondary theory of entitlement, the June 2019 private examiner opined that the Veteran currently relied on an array of medications that as likely as not directly contributed to his GERD condition. The examiner identified meloxicam for back and leg pain as commonly causing heartburn and indigestion. The examiner also noted that hydrocodone can also increase acid reflux. The Board finds that this opinion does not support a grant of service connection. The examiner noted meloxicam for back and leg pain, but the Veteran is not service-connected for back and leg pain. The examiner noted hydrocodone, which a June 2016 private medical record lists as medication for knee pain. However, the examiner only stated that this medication “can” increase acid reflux. The examiner did not explain how the isolated use of hydrocodone in this Veteran’s case actually did increase his acid reflux. This type of speculative, unsupported opinion is essentially nonprobative. See Horn v. Shinseki, 25 Vet. App. 231, 240 (2012); Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009). Although a VA medical examination or opinion was not provided in connection with the claim, the Board finds that one is not necessary to make a decision on the claim. As explained, the evidence contains sufficient evidence to decide the claim by addressing all the complex medical questions raised. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In sum, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and therefore, the claim of service connection is denied. Severance of Service Connection 5. Whether the severance of service connection for right knee arthritis with limitation of extension, was proper 6. Whether the severance of service connection for right knee arthritis was proper 7. Whether the severance of service connection for osteoarthritis, left knee, was proper A September 2013 rating decision granted service connection for (1) right knee arthritis with instability and (2) right knee arthritis with limitation of extension. The RO found that, although not shown in service, service connection for right knee arthritis was warranted on the basis of a presumption. An August 2014 rating decision granted service connection for osteoarthritis, left knee (claimed as left knee condition). The RO found that, although not shown in service, service connection was warranted on the basis of a presumption. A June 2016 rating decision proposed to sever service connection. The RO found that there was clear and unmistakable in the grants of service connection because the Veteran did not have active military service upon which presumptive service connection could be granted. The RO explained that the Veteran’s STRs showed treatment for knee pain during ACDUTRA from July 2011 to October 2011, but no injuries sustained to the knees during this (or any) period of service. According to the RO, there were no Line of Duty determinations for any injuries. Furthermore, the STRs showed that the Veteran reported not sustaining any specific injury, and X-rays revealed osteoarthritis. The RO found that this clear and unmistakable error applied to the grants of service connection for both right knee disabilities and the left knee disability. The August 2016 rating decision on appeal made the severance of service connection for all three disabilities final effective from November 1, 2016. The RO cited the proposed rating decision, but provided no further discussion. The Veteran contends that the severance was improper. He wrote in his December 2016 substantive appeal that he started to experience problems during training. According to his doctor, the constant kneeling, crawling, and stooping during active duty for training (ACDUTRA) in November 2010 caused the knee disabilities. He was just put on light duty due to injuries received from wear and tear. He argued that the presumption should apply as far as the arthritis was due to the constant strain past normal progression. He conceded that there was no direct injury where a line of duty determination was filed, but he maintained that there was an injury that started and occurred due to his many years of service. A. Applicable Law Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (CUE) (the burden of proof being on the Government). 38 C.F.R. § 3.105(d). When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(d). A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. 38 C.F.R. § 3.105(d). To establish that a grant of service connection was the product of CUE, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. See Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007); Stallworth v. Nicholson, 20 Vet. App. 482, 487-88 (2006); cf. Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14, 319 (1992) (en banc). A clear and unmistakable error is one about which reasonable minds could not differ. See, e.g., 38 C.F.R. § 20.1403(a). In most respects, the CUE standard for severing service connection under § 3.105(d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38 C.F.R. § 3.105(a). See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Section 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned. See id. However, the determination is not limited to the law and the record that existed at the time of the original decision. VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous. Stallworth, 20 Vet. App. at 488. The Secretary’s burden is not to prove clear and unmistakable error in the original decision in the same manner a claimant would show CUE under sections 5109A or 7111. Id. A decision that is reversed or amended on the basis of CUE is revised to conform to the true state of the facts or the law that existed at the time of the original adjudication. Allen, 21 Vet. App. at 62 (internal quotations omitted). B. Discussion The Board concludes that the severance of service connection was improper in this case. There is no material dispute as to the existence of the present diagnoses. The Veteran served a period of ACDUTRA from July 2011 to October 2011. During that period of service, his STRs include an August 2011 telephone consultation indicating knee pain starting approximately five days prior. He reported working in HVAC during this period of service, which required a lot of crawling and kneeling. During an in-person consultation later that same day, the Veteran gave a similar history. X-rays were negative. He was referred for further evaluation with a note indicating there was no known mechanism of injury other than crawling around. He was then seen again during this period of service in September 2011. It was found that there was no deployment-related injury, but that he worked in HVAC and had been extensively crawling around. He then started physical therapy for his symptoms, where it was again noted that he had been doing extensive crawling around. During a physical therapy session in October 2011, the Veteran specifically voiced his belief that his symptoms may have started after working extensively crawling on his hands and knees. This evidence indicates that the Veteran’s symptoms began in approximately August 2011 coincident with his period of service. The symptoms appear to have related to crawling around in connection with his duties in HVAC. The Board finds that the impact to his knees from crawling around in such a situation is not clearly and unmistakably inconsistent with an “injury” for which service connection can be granted during a period of ACDUTRA. See 38 U.S.C. § 101(24). More recently, a private (non-VA) examiner in June 2019 opined that the Veteran’s current bilateral knee conditions at least as likely as not started during service in 2011 due to crawling. Hence, there is evidence of an in-service injury and a nexus to service. There is some evidence of preexisting disease. During the August 2011 telephone consultation and the October 2011 physical therapy session, the Veteran gave a history of previous right knee arthroscopic surgery at age 16 years. An entrance examination, however, was not conducted prior to this period of ACDUTRA. Hence, the presumption of soundness cannot apply. See Smith v. Shinseki, 24 Vet. App. 40 (2010) (explaining that the presumption of aggravation only applies with active duty service). It is not clear and unmistakable that the Veteran had a preexisting condition when he entered ACDUTRA in July 2011. The medical records beginning in August 2011 refer to his symptoms beginning that month. According to the private examiner’s June 2019 opinion, the Veteran’s pre-service condition had fully resolved by that time. Hence, a preexisting condition is not established by clear and unmistakable evidence. The RO initially granted service connection based upon the presumptions set forth in 38 C.F.R. § 3.307. This was error as those presumptions do not apply to ACDUTRA. See Smith v. Shinseki, 24 Vet. App. 40 (2010). Nonetheless, the grant of service connection is not clear and unmistakable error at this point in light of the evidence showing a current disability, injuries during service from crawling, and a nexus to those injuries. As such, the basic elements to establish service connection for a period of ACDUTRA are met. Accordingly, the severance of service connection was improper, service connection is restored, and the appeal is granted. REASONS FOR REMAND Service connection for PTSD is remanded. This issue is remanded for a new VA examination. The Veteran contends that he has PTSD due to service. He maintains that he witnessed two men commit suicide during service. See 1/10/2019 VA Form 9; compare 5/23/2016 PTSD questionnaire (he witnessed two separate soldiers slit their wrists from the stress of service; one died). He also went through war simulations, which were very close to the real thing and caused stress. The evidence of record includes a provisional diagnosis of PTSD and a diagnosis of major depressive disorder (MDD) made by a private (non-VA) provider in January 2016. The Veteran was referred for a psychological evaluation in January 2016, which resulted in an assessment of “most likely PTSD.” He underwent a more extensive VA psychological evaluation in March 2016. The primary diagnosis was depressive disorder, and a second diagnosis of anxiety disorder “likely PTSD,” was made. Both the January 2016 private psychologist and March 2016 VA psychologist cited the Veteran’s report of intense fear of hostile military action and thoughts of the past (attempted) suicides. This evidence establishes a diagnosis of MDD. A confirmed diagnosis of PTSD has not been made. Nor do the provisional diagnoses of PTSD expressly link the condition to the Veteran’s service. Nonetheless, this evidence suggests the Veteran may have PTSD related to his service. Hence, a VA examination is needed. Of note, the Veteran has cited fear of hostile military action. He did not serve in combat or a combat zone; he does not contend otherwise. The rule in 38 C.F.R. § 3.304(f)(3), regarding fear of hostile military action, does not apply in his case. The rule has no geographic requirement and is not limited to service in a combat zone or on land. 75 Fed. Reg. 39843, 39844. However, the notice of the new rule addressed comments inquiring as to whether the rule would cover a service member who experienced fear of hostile military or terrorist activity after learning about the experiences of others with such activity but before being deployed to a war zone. VA responded that it was not intended for the new evidentiary standard to apply in such a situation, and the rule was not interpreted to cover that situation. Such a claim would be adjudicated under the generally applicable standard set forth in the introductory text of 38 C.F.R. § 3.304(f). 75 Fed. Reg. 39843, 39845. The instant Veteran’s claim is consistent with the comments in the preamble to the final rule, so must proceed accordingly. Nonetheless, the Board finds sufficient evidence to warrant a VA examination. A private examiner, who was not a specialist in psychology or psychiatry, suggested that the Veteran may have symptoms also related to his physical impairments. As he is service-connected for knee disabilities, the Board finds that a secondary opinion is also needed. The matters are REMANDED for the following action: Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of his psychiatric condition. The AOJ should provide the examiner with a list of verified in-service stressors. (a.) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. (Continued on the next page)   (b.) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. (c.) Regardless of the diagnosis, the examiner must address whether a current diagnosis is at least as likely as not related to, proximately due to, or aggravated beyond its natural progression by a service-connected disability. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, 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.