Citation Nr: 21025743 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-00 598 DATE: April 28, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and posttraumatic stress disorder, is granted. Entitlement to service connection for left foot condition is granted. Entitlement to service connection for right foot condition is granted. Entitlement to service connection for right knee condition is granted. Entitlement to service connection for left knee condition is granted. REMANDED Entitlement to service connection for gastrointestinal esophageal reflux disease (GERD) is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The probative evidence of record is at least in relative equipoise that the Veteran’s psychiatric disorder is related to his active duty service. 2. The probative evidence of record is at least in relative equipoise that the Veteran’s bilateral foot conditions are related to his active duty service. 3. The probative evidence of record is at least in relative equipoise that the Veteran’s bilateral knee conditions are related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include anxiety and posttraumatic stress disorder, have been met. 38 U.S.C. §§ 101, 1131, 1153; 38 C.F.R. §§ 3.6, 3.303, 3.304. 2. The criteria for service connection for left foot condition have been met. 38 U.S.C. §§ 101, 1131, 1153; 38 C.F.R. §§ 3.6, 3.303, 3.304. 3. The criteria for to service connection for right foot condition have been met. 38 U.S.C. §§ 101, 1131, 1153; 38 C.F.R. §§ 3.6, 3.303, 3.304. 4. The criteria for to service connection for left knee condition have been met. 38 U.S.C. §§ 101, 1131, 1153; 38 C.F.R. §§ 3.6, 3.303, 3.304. 5. The criteria for to service connection for right knee condition have been met. 38 U.S.C. §§ 101, 1131, 1153; 38 C.F.R. §§ 3.6, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1981 to June 1984, with additional Reserves service. In May 2019, the Veteran was provided a hearing with the undersigned Veterans Law Judge and a transcript of the proceeding is of record. The claims were brought before the Board in October 2019 and were remanded for further development. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009).  When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)).  The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient.  Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).  1. Entitlement to Service Connection: Psychiatric Disorder The Veteran contends that he currently suffers from a psychiatric disorder that is related to his active duty service. As an initial matter, the Board acknowledges that the Veteran has been diagnosed with generalized anxiety disorder, posttraumatic stress disorder (PTSD), and depressive disorder. Thus, the issue turns upon whether there is evidence of an in-service event or injury and a nexus between the claimed in-service event or injury and the present disability. See Sheldon v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In November 2019, the Veteran was provided a VA examination. The examiner diagnosed the Veteran with generalized anxiety. The examiner then opined that the Veteran’s generalized anxiety disorder was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner rationalized there is report and evidence of weight loss in the military as a result of anxiety and loss of appetite. In December 2020, the Veteran provided an opinion from his private psychologist dated September 2020. The psychologist diagnosed the Veteran with PTSD and depressive disorder. The psychologist opined that the Veteran’s claimed condition was more likely as not incurred in or caused by the claimed in-service injury, event, or illness. The psychologist noted there were several examples of anxiety stemming from service and he has treatment background supporting the same. The examiner noted full review of the record, to include his prior treatment visits and noted his current symptoms are consistent with anxiety, repeated traumas, and health-related depression, and thus, he suffers from trauma induced anxiety, to include PTSD. The examiner also noted that the Veteran’s diagnosis of herpes, which he is service-connected for, has affected his quality of life and his mental health, noting the Veteran described several examples of how the condition affects his family, social life, and self-esteem. The Board notes that the Veteran has often reported being incarcerated and/or disciplined during his active duty service as one of his in-service stressors. Although his records do not show notation for such incarceration or reprimand, his records do include a letter from his former lieutenant colonel dated July 1991 in which, the lieutenant discusses that the Veteran received an Article 15 for possession of marijuana in 1981 and was disciplined. The Board finds this to be corroborating evidence of the Veteran’s claimed in-service stressor. Therefore, the Board finds the November 2019 VA opinion and September 2020 private opinion to be of significant probative value in determining the Veteran’s psychiatric condition is related to his active duty service.  The Board notes that the probative value of medical opinion evidence is based on the medical experts’ personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion.  As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator.  Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  Here, the physicians showed knowledge of the Veteran’s background and based the opinions on the Veteran’s lay contentions, the physicians’ medical knowledge, and examination of the Veteran. Additionally, thorough rationales were provided for the opinions rendered and are consistent with the medical evidence of record.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).   In light of the foregoing, the Board concludes that the probative evidence of record is for the claim and the benefit of the doubt doctrine has been applied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001).   2. Entitlement to Service Connection: Left and Right Foot Conditions The Veteran contends that his left and right foot conditions are related to his active duty service. As an initial matter, the Board acknowledges that the Veteran has been diagnosed with bilateral foot strain and plantar fascitis. Further, the Veteran’s service treatment records show complaints for left foot pain. Thus, the issue turns upon whether there is evidence of a nexus between the claimed in-service event or injury and the present disability. See Sheldon v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In July 2019, the Veteran provided a private opinion dated June 2019. The physician opined that the Veteran’s bilateral foot condition is more likely than not related to injury from vigorous training during active duty service. The physician rationalized that the Veteran began having inflammation of the plantar fascia on the bottom of his foot due to overuse in combat boots. The Veteran reported worse symptoms with frequent short bursts of physical activity. The physician explained that plantar fascitis is common in people who do a lot running, jumping, and jogging on hard surfaces in ill fitted shoes with no arch supports. The physician noted a full review of the Veteran’s records. The Board recognizes that a November 2019 VA examiner found the Veteran’s conditions were not related to his active duty service. However, the Board notes that the examiner only rationalized that the Veteran did not have any complaints or diagnosis of a foot condition in service and did not appear to consider the Veteran’s lay statements regarding his period of service. Further, his records show the Veteran complained of left foot pain during his active duty service in July 1981, which the examiner did not address. Therefore, in applying the benefit of the doubt in favor of the Veteran, the Board finds that the evidence is in relative equipoise that the Veteran’s bilateral foot disability is related to his active duty service. Thus, the Board finds the June 2019 private opinion to be of significant probative value in determining the Veteran’s bilateral foot disability is related to his active service. The Board notes that the probative value of medical opinion evidence is based on the medical experts’ personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Here, the private physician showed knowledge of the Veteran’s background and based the opinion on the Veteran’s lay contentions, the physician’s medical knowledge, and review of his medical records. Additionally, a thorough and complete rationale was provided for the opinion rendered and is consistent with the medical evidence of record. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Given the above, the Board concludes that the probative evidence of record is for the claim and the benefit of the doubt doctrine has been applied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). 3. Entitlement to Service Connection: Bilateral Knee Conditions The Veteran contends that his left and right knee conditions are related to his active duty service. As an initial matter, the Board acknowledges that the Veteran has been diagnosed with bilateral knee strain and osteoarthritis of the bilateral knees. Thus, the issue turns upon whether there is evidence of an in-service event or injury and a nexus between the claimed in-service event or injury and the present disability. See Sheldon v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In October 2014, the Veteran submitted a private opinion dated September 2014. The physician opined that the Veteran’s severe osteoarthritis of the knee was more likely than not caused by his military duties performed during active duty service. The examiner noted that the Veteran was an infantry soldier who performed activities such as running on concrete pavement, prolonged standing and marching, repetitive lifting with 50-pound backpacks, and jumping out of helicopters. In July 2019, the Veteran submitted another private opinion dated June 2019. The physician opined that the Veteran’s right and left knee pain and instability were related to his military service, specifically, his vigorous physical training and overuse. The physician noted the Veteran reported not going to the infirmary for such issues. The physician explained the Veteran reported twisting his knees on several occasions in service and such occurrences put stress on the cartilage and meniscus causing tears. The physician further stated that the overuse, acute hyperflexion, and hyperextension can cause injuries to the muscles and tendons. The physician noted examination of the Veteran and a full review of the record, to include his in-service records. Although the Veteran’s service treatment records do not show specific complaints for bilateral knee issues, the Board finds it is not outside of the scope of his duties to have put excessive stress on his knees during in-service physical training. Thus, the Board puts probative value to the Veteran’s statements. The Board recognizes that a November 2019 VA examiner found the Veteran’s conditions were not related to his active duty service. However, the Board notes that the examiner only rationalized that the Veteran did not have any complaints or diagnosis of a knee condition in service, with no further rationale or consideration of the Veteran’s lay statements regarding his period of service. Therefore, in applying the benefit of the doubt in favor of the Veteran, the Board finds that the evidence is in relative equipoise that the Veteran’s bilateral knee disability is related to his active duty service. Therefore, the Board finds the September 2014 and June 2019 private opinions to be of significant probative value in determining the Veteran’s bilateral knee disabilities are related to his active service. The Board notes that the probative value of medical opinion evidence is based on the medical experts’ personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Here, the private physicians showed knowledge of the Veteran’s background and based the opinion on the Veteran’s lay contentions, the physicians’ medical knowledge, and review of his medical records. Additionally, complete and thorough rationales were provided for the opinions rendered and are consistent with the medical evidence of record. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In light of the foregoing, the Board concludes that the probative evidence of record is for the claim and the benefit of the doubt doctrine has been applied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001).   REASONS FOR REMAND Although the Board sincerely regrets further delay, another remand is necessary to afford the Veteran every possible consideration. 1. Entitlement to Service Connection: GERD The Veteran contends that his GERD disability is related to his active duty service. In November 2019, the Veteran was provided a VA examination. The examiner opined that the Veteran’s GERD was less likely than not incurred in or caused by the claimed in-service event or injury. The examiner rationalized that there are no records showing a diagnosis or treatment for GERD in service. The Board finds the November 2019 VA opinion to be inadequate to fairly adjudicate the Veteran’s claim. Although the examiner found the Veteran did not have any treatment or diagnosis for GERD in service, the Veteran’s records show multiple complaints of abdominal and/or stomach pain, and notations of upper gastrointestinal issues in 1982 and 1983. The Board also notes there are notations of abdominal pain and reflux symptoms in his Reserves service record from 1997. However, it is not clear whether this is during a period of active duty service, and therefore, additional attempts to retrieve all military records to confirm active duty dates is also needed. Given the above, the Board finds that a remand is required in order to retrieve military personnel records confirming active duty dates and obtain an addendum opinion to address the multiple complaints of gastrointestinal issues/stomach pain during the Veteran’s active duty service. 2. Entitlement to Service Connection: Sleep Apnea The Veteran contends that his sleep apnea is related to his active duty service, to include as secondary to his service-connected disabilities due to weight gain/obesity. In November 2019, a VA opinion was obtained. The examiner opined that the Veteran’s sleep apnea was not related to his service-connected disabilities because none of his service-connected conditions caused obesity. However, due to the Board granting the Veteran’s claim for psychiatric disorder, bilateral foot condition, and bilateral knee condition, the Board finds that a remand is required in order to obtain a new opinion considering whether his sleep apnea is caused and/or related to his newly service-connected conditions, to include whether any of the conditions have contributed to his obesity/weight gain. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s electronic claims file any outstanding VA treatment records and private medical records relevant to the Veteran’s claims. Specifically, the Regional Office should make all attempts to verify the Veteran’s periods of active duty for training and retrieve all personnel records for his entire Reserves service through 2003. All attempts to retrieve such records should be associated with the file. 2. Once all records have been obtained, send the claims file to an appropriate examiner to determine the etiology of the Veteran’s GERD condition. If the examiner finds the requested opinion cannot be provided without examination of the Veteran, then such examination should be scheduled and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Following a review of the entire record, to include the Veteran’s lay statements concerning any in-service symptoms, the examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s GERD had its onset during, or is otherwise related to, his active duty service, to include the multiple in-service complaints of abdominal or stomach pain and gastrointestinal issues. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. 3. Send the claims file to an appropriate examiner to determine the etiology of the Veteran’s sleep apnea. If the examiner determines that an opinion cannot be provided without examination of the Veteran, then such examination should be scheduled and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic.  The record and a copy of this Remand must be made available to the examiner. Following a review of the entire record, the Veteran’s competent lay statements, as well as the Veteran’s report regarding the onset and progression of her current symptomatology, the examiner should opine as to the following: (a) Is it at least at least as likely as not (50 percent probability or more) that the Veteran’s sleep apnea is due to his service-connected psychiatric disorder, and service-connected bilateral foot and knee conditions, to include any obesity/weight gain caused by such conditions?     (b) Is it at least as likely as not (50 percent probability or more) that the Veteran’s sleep apnea is aggravated by his service-connected psychiatric disorder and service-connected bilateral foot and knee conditions, to include any obesity/weight gain caused by such conditions? “Aggravation” is defined as any worsening beyond the natural progression of the disability.    (c) If the Veteran’s sleep apnea is NOT related to his service-connected disabilities, then is it at least as likely as not (50 percent probability or more) that the Veteran’s sleep apnea is related to his active duty service, to include reports of excessive snoring in service and interrupted sleep? In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration.  A clearly-stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records.     If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided.   JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Negron, 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.