Citation Nr: 21028778 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-59 046 DATE: May 12, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to an initial evaluation in excess of 10 percent for right knee strain and patellofemoral pain syndrome is remanded. Entitlement to an initial evaluation in excess of 10 percent for left knee strain and patellofemoral pain syndrome is remanded. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran's PTSD is related to his active service. CONCLUSION OF LAW The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1997 to June 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran appeared at a teleconference hearing before the undersigned. A transcript of the hearing is of record. Entitlement to service connection for PTSD is granted. The Veteran contends that he has PTSD as a result of a traumatic experience during his period of active service. Specifically, the Veteran relates his PTSD to an occurrence during service in which he was at a bus stop and witnessed an individual pushed from a vehicle and shot multiple times in the street. Establishing service connection generally requires (1) evidence of 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD specifically requires: (1) a medical diagnosis of PTSD utilizing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders criteria, in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service treatment records, including the Veteran's separation examination, are silent for any complaints, treatment, or diagnosis for a psychiatric disorder or related symptoms. A July 2010 VA treatment record notes that the Veteran reported longstanding problems with concentration, beginning when he was a child. A diagnosis of attention deficit disorder was noted. No additional symptoms or diagnosis was provided. Medical treatment records are otherwise silent for any complaints, treatment, or diagnosis for any psychiatric disorder. Upon filing his claim for service connection, the Veteran submitted an affidavit detailing the events that he witnessed in August 1998, to include what he believed to be his resulting symptoms. Specifically, the Veteran described waiting for a bus in California when he saw a man get pushed from a car and shot five to six times. After ensuring his own safety, the Veteran attempted to render aid to the man prior to the arrival of the police. Since this event, the Veteran indicated that he was "quickly triggered" and loud noises "set [him] off". He reported that he did not have much time to think about the event during service, but he has thought about it since and he remained apprehensive about his surroundings and sudden noises startle him. A March 2016 VA Memorandum indicates that there was insufficient information to verify the Veteran's reported stressor. An October 2016 VA examination notes a diagnosis of PTSD and substance use disorder. The examiner reviewed the Veteran's STRs, VA treatment records noting his diagnosis of attention deficit disorder and negative PTSD screenings, and his lay reports of symptoms and in-service stressor. The examiner opined that the Veteran's PTSD was at least as likely as not incurred in and/or caused by witnessing a shooting at a bus stop in 1998 during his military service. The examiner indicated that the opinion was based exclusively upon the Veteran's endorsement of exposure to the 1998 shooting incident that reportedly resulted in the emergence of PTSD-like symptomatology (i.e., exaggerated startle response, recurring dreams, avoidance of memories of this event, etc.). However, the available records within the Veteran's claims file do not appear to further inform this opinion. The examiner further opined that the Veteran's substance use disorder was less likely than not incurred in or caused by active service because the Veteran disclosed problems with substance abuse prior to his military service. At his Board hearing, the Veteran detailed the events that occurred around August 1998, in which he witnessed the shooting, indicating that, since this incident, he continued to experience symptoms of hypervigilance and exaggerated startle. The Veteran indicated that he was with a fellow service member at the time of the shooting, and he recalled telling another service member about the incident when he returned to the ship upon which he was stationed at the time. He indicated that toward the end of his service, he started to notice that he was hyperalert and anxious and did not want to be around people, but he did not seek any mental health treatment at the time because he thought it was viewed as weakness. He reported that he continued to experience these symptoms since his separation from service, but he managed them on his own, primarily by exercising. The Veteran indicated that he had attempted to retrieve police records to corroborate the shooting; however, he was unable to obtain these records, indicating that he was informed that the records had since been purged. A buddy statement, received in January 2021, provided by a fellow service member indicates that he remembered the Veteran telling him about an incident when they were stationed in California in which he saw a man get thrown out of a car and shot multiple times in the middle of the road. As an initial matter, the Board notes that statutes and VA regulations provide that no compensation shall be paid if a disability is the result of a Veteran's own willful misconduct, including the abuse of alcohol and drugs. See 38 U.S.C. §§ 105, 1110; 38 C.F.R. §§ 3.1(n), 3.301; see also VAOPGPREC 2-97 (January 16, 1997). The law also precludes compensation for primary substance abuse disabilities, and secondary disabilities that result from primary substance abuse. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Thus, in order for service connection to be granted for alcohol or drug dependence, it must be established as secondary to, or a component of, a service-connected disability. However, the evidence does not reflect, nor does the Veteran claim, that he has substance dependence as a result of a service-connected disability, and a direct service connection theory is legally precluded. With regard to the claim for PTSD, after a review of the evidence, the Board finds the VA medical opinion is highly probative evidence. The examiner provided sufficient rationale that addressed the Veteran's lay statements and were based on a complete review of the medical record. The examiner determined that the Veteran had a current diagnosis of PTSD that was directly related to his reported in-service stressor. Additionally, the January 2021 buddy statement is credible in supporting his reported in-service stressor. Accordingly, the Board finds that the Veteran's PTSD is due to his in-service stressor, and as such, service connection is warranted. Therefore, the Board resolves all doubt in his favor and finds that service connection for an acquired psychiatric disorder is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. To the extent that the Veteran contends that VA did not fulfill its duty to assist in attempting to obtain police records to corroborate his in-service stressor, as this decision represents a full grant of the benefit on appeal, there is no prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). REASONS FOR REMAND Entitlement to an initial evaluation in excess of 10 percent for right and left knee strain and patellofemoral pain syndrome is remanded. At his January 2021 Board hearing, the Veteran testified that his service-connected bilateral knee symptoms had worsened since his last VA examination. As such, a remand is necessary to afford the Veteran a new VA examination for his bilateral knee disabilities to determine its current level of severity. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination, with an appropriate clinician, to determine the current level of severity of his service-connected bilateral knee disabilities. The electronic claims file must be made available to the examiner for review in conjunction with the examination. The examiner should conduct the proper diagnostic tests, including X-rays, and describe the severity, frequency, and duration of all symptoms associated with the Veteran's disability. The examiner should also consider all of the evidence of record, including the Veteran's lay statements. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hite, 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.