Citation Nr: 21026911 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-10 574 DATE: May 4, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for a right knee condition is remanded. FINDING OF FACT The Veteran's PTSD is etiologically related to her active service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1996 to July 1998. This matter comes before the Board of Veterans' Appeals (Board) from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously before the Board and was denied in a November 2018 decision. The Veteran appealed the November 2018 denial to the United States Court of Appeals for Veterans Claims (Court), and in September 2019, the matter was vacated and remanded to the Board pursuant to a Joint Motion for Remand. Subsequently, the Board remanded the matter to the RO for additional development in December 2019 and November 2020. The matter has now returned to the Board for further appellate review. Service Connection Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, in order to prevail on the issue of service connection, the evidence must show: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM-5); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) The Veteran is seeking service connection for an acquired psychiatric disorder. In a statement received by VA in February 2011, the Veteran asserted that her psychiatric symptoms began after being in a car crash on active duty. The Veteran stated that she experienced anxiety as a result and began drinking before being referred to a rehabilitation program. The Board notes that 38 C.F.R. § 3.159 (a)(2) indicates lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. Accordingly, the Board finds that the Veteran is certainly capable, as a lay person, to observe and report being in a motor vehicle accident in service. While the Board observes that the Veteran's alleged stressor of a motor vehicle accident is not noted in her military personnel record, a review of the Veteran's service treatment records (STRs) reveal that the Veteran was referred to and attended an alcohol and drug abuse prevention and control program while on active duty service in 1996. Accordingly, the Board finds that the Veteran experienced a qualifying in-service event for purposes of entitlement to service connection. The Veteran received VA examinations regarding the nature and etiology of her claimed psychiatric conditions in January and December 2020. The January 2020 examiner diagnosed the Veteran with posttraumatic stress disorder (PTSD) and opined that the condition was at least as likely as not incurred in or caused by an in-service injury, event, or illness. The examiner stated that the Veteran's treatment records for rehabilitation supports her claim that her anxiety and other symptoms were initiated after a traumatic event. The December 2020 examiner concurred with the January examiner's opinion. Both examiners noted that the Veteran has a co-occurring diagnosis of depression which is less likely than not incurred in or caused by an in-service injury, event or illness. However, both examiners stated that the Veteran's depression and PTSD symptoms overlap to such a degree as to be impossible to differentiate from each other. From the foregoing, it is evident that the Veteran has a current diagnosis of PTSD, credible supporting evidence that the claimed in-service stressor of a motor vehicle accident occurred, and multiple adequate positive nexus statements. Accordingly, the Board finds that the criteria for service connection for an acquired psychiatric disorder have been met and service connection is warranted. REASONS FOR REMAND Entitlement to service connection for a right knee condition is remanded. While further delay is unfortunate, the Board finds that additional development is necessary before a final determination can be made in this matter. Pursuant to the November 2020 Board remand decision, the Veteran received a VA examination in December 2020 regarding the nature and etiology of her claimed right knee condition. The examiner opined that the Veteran's current right knee disabilities are less likely than not incurred in or caused by an in-service event, injury, or illness. By way of rationale, the examiner stated in part that "there is no evidence of care for a right knee condition until 2013, at which time the veteran was diagnosed with a torn meniscus" and that "the veteran's DJD is likely due to, in part, the history of knee injury in 2013, along with natural processes and genetics." The Board notes, however, that the examiner wholly failed to address the Veteran's lay statements regarding continuity of symptomatology after service as noted in a February 2011 correspondence and the Veteran's treatment for right knee meniscus tear in 2010 as noted in her private treatment records. Accordingly, the Board finds this opinion to be inadequate for determining entitlement to service connection for a right knee condition and that remand is warranted to obtain a new medical opinion. The matter is REMANDED for the following action: Forward the entire claims file in electronic records and a copy of this remand to appropriate VA examiners for an addendum opinion addressing the etiology of the Veteran's claimed right knee condition. If examination is indicated, it should be scheduled in accordance with applicable procedures. For each diagnosis present AT ANY TIME throughout the pendency of the claim, the examiner should state whether it is as least as likely as not (i.e. 50 percent or greater probability) that the disability began in or is related to her military service. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between her active service and any knee condition present during the pendency of this claim and appeal. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. (Continued on next page) All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Gorum, 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.