Citation Nr: 21029761 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-56 096A DATE: May 17, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is granted. REMANDED Entitlement to a disability rating higher than 10 percent for a back disability is remanded. Entitlement to a disability rating higher than 10 percent for a left hip disability is remanded. FINDING OF FACT The evidence is approximately evenly balanced as to whether the Veteran has PTSD that is related to an in-service stressor. CONCLUSIOS OF LAW With reasonable doubt resolved in the favor of the Veteran, 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2002 to May 2005. In April 2021 the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD The Veteran contends that she currently suffers from PTSD due to her experiences in service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304 (f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Establishing service connection for PTSD requires "(1) a current medical diagnosis of PTSD; (2) a link between the current symptoms and an in-service stressor; and (3) 'credible supporting evidence that the claimed in-service stressor occurred." Kays v. Snyder, 846 F.3d 1208, 1211 (Fed. Cir. 2017) (citing 38 C.F.R. § 3.304 (f)). If a stressor claimed by a veteran is related to the veteran's fear of hostile military activity, and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types, and circumstances of the veteran's service and there is no clear and convincing evidence to the contrary. 38 C.F.R. § 3.304 (f)(3). "Fear of hostile military activity" is defined to mean that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. An example of such an event or circumstance is incoming artillery, rocket, or mortar fire. See id. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran claims service connection for PTSD due to service. She has reported several stressors while deployed to Iraq during the Persian Gulf War. Specifically, on VA examination in February 2015, the Veteran reported that while on guard duty she had to fire shots at a boy carrying a water jug because it was thought he may have been carrying explosives. She has also reported a number of stressors associated learning of the tragic death of fellow service members during service, and cleaning up the bloody equipment of soldiers injured when their convoy was hit by an explosive. The Veteran does not claim, nor does the evidence show, that she engaged in combat. Additionally, although VA treatment records from 2005 to 2020, including on VA examination in 2015, reflect that the Veteran denied military sexual trauma, in statements in connection with her claim for VA benefits after 2020 and at hearing, the Veteran reported military sexual trauma. A review of the Veteran's service personnel records confirm that she was deployed to Iraq from March 2003 to February 2004 with a military occupational specialty of unit supply specialist. Thus, she was deployed to a theatre of combat/combat zone. The service treatment records contain no complaints, history or findings consistent with a psychiatric disorder. In reports of medical history on enlistment in April 2002 and in March 2005, the Veteran denied a history nervous trouble of any sort and depression or excessive worry, as well as a history of mental health counseling or evaluation. After service, the Veteran was seen in 2013 for anxiety and insomnia associated with the pregnancy and birth of her daughter in 2012. Here, there has been conflicting evidence as to whether the Veteran has a valid PTSD diagnosis. VA treatment records starting in 2014, recorded symptoms of PTSD associated with her service in Iraq. In July 2014, her treating psychiatrist noted that the Veteran served in Iraq in a combat zone and diagnosed agoraphobia with panic disorder, major depressive disorder and mild PTSD. The Veteran underwent a VA examination in February 2015. The examiner noted the Veteran's reported stressor of having to fire shots at a boy carrying a water jug while on guard duty because it was thought he may have been carrying explosives. The examiner determined that the stressor was adequate to support a diagnosis of PTSD and it was related to fear of hostile military or terrorist activity. The examiner diagnosed generalized anxiety disorder. The examiner did not render an opinion regarding the etiology of the Veteran's psychiatric disorder. In June 2019, a VA clinician noted the Veteran's report of having been exposed to hostile military activity during service. In July 2019, the Veteran reiterated experiencing trauma while she was deployed to Iraq in 2004. She reported onset of anxiety, depression and sleep disturbances in 2004 due, in part, to learning of the death of a fellow servicemember killed by enemy fire, as well as constantly feeling exposed to hostile military activity. The VA psychologist noted that the Veteran's trauma event and associated symptoms met all criteria for PTSD and rendered a diagnosis of PTSD. The VA psychologist opined that the Veteran's symptoms of anxiety and panic were likely a result of her traumatic experiences during combat deployment in 2004. As noted, multiple VA treatment records after 2014 show that the Veteran's treating psychiatrist and staff psychologists diagnosed PTSD associated with stressful events in service. As such, the evidence is approximately evenly balanced as to whether the Veteran meets the diagnostic criteria for PTSD. See Cohen v. Brown, 10 Vet. App. 128, 139, 140 (1997) (mental health professionals are presumed to know the requirements applicable to their practice and to have taken them into account when diagnosing PTSD). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that the Veteran has a current diagnosis of PTSD associated with the reported in-service stressor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Even though the opinion of the VA treating psychiatrist and psychologists did not provide extensive rationales, this does not render the opinions inadequate. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). In this regard, it is readily apparent that PTSD was diagnosed as a result of the Veteran's claimed in-service stressors. The Veteran also served in a combat zone in Iraq and reported several stressor events, one of which the VA examiner in February 2015 determined was related to fear of hostile military or terrorist activity. Moreover, as the February 2015 VA examiner concluded that the Veteran did not meet the diagnostic criteria for PTSD, there is no direct contrary medical opinion(s) in the record. For the foregoing reasons, the evidence is at least evenly balanced as to whether there is a link between the Veteran's PTSD and military trauma associated with fear of hostile military activity while service in a combat zone. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, and each of the criteria of 38 C.F.R. § 3.304 (f) have therefore been met, entitlement to service connection for PTSD is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a disability rating higher than 10 percent for a back disability is remanded. 2. Entitlement to a disability rating higher than 10 percent for a left hip disability is remanded. The Veteran seeks higher disability ratings than those currently assigned for her back and left hip disorders. The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, a review of the claims file reveals that the prior VA back and hip examination in February 2015, do not fully comport with the requirements of Correia and therefore is inadequate for rating purposes. Thus, at present, none of the medical evidence of record may fully satisfy the requirements of Correia and 38 C.F.R. § 4.59. Accordingly, new VA examinations are necessary. Additionally, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). When again adjudicating the Veteran's claim it should do so under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021, with the criteria that is more favorable to the Veteran being applied. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Next, any outstanding VA and private treatment records should also be obtained and associated with the record. See 38 U.S.C. § 5103A(b). Finally, the Board notes that during the April 2021 hearing, the Veteran's representative appeared to question the accuracy of examination findings because English is the Veteran's second language and there may have been miscommunication between the examiner and her. While the Board recognizes that language barriers may have existed, it also finds that throughout the appeal, including in statements and at hearing, such barriers have not been shown to impede the Veteran's ability to successfully articulate reasons why her benefits should be awarded. Moreover, VA treatment records reflect that in connection with treatment in 2014 the Veteran indicated that her preferred language is English. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom she has received treatment for the disabilities on appeal, and complete and return an appropriate authorization form for each treatment provider identified (if any). After obtaining the completed release forms, request all identified pertinent medical records (if any). If possible, the Veteran should get these records and submit them herself to expedite the case (if any). 2. Schedule the Veteran for a VA examination to assess the current severity of her service-connected back disability. The Veteran's claims file should be made available to and reviewed by the examiner, and he or she must indicate whether such review was accomplished. a) All indicated tests and studies must be conducted, specifically, the Veteran's range of motion on both active and passive motion and in weight-bearing and nonweight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any incapacitating episodes and/or flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given the medical science and known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). b) The examiner should provide findings responsive to the criteria for rating intervertebral disc syndrome (IVDS) and specifically, comment on the existence and frequency of any incapacitating episodes (i.e., a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician), if there are any, in the last 12-onth period. c) Describe all neurological manifestations and symptomatology and offer an opinion as to whether the Veteran has any separately ratable neurological disability (in addition to orthopedic disability) as a manifestation of the service-connected lumbar disc disease. d) To the extent possible, the examiner should identify any symptoms and functional impairments due to her back disability alone and discuss the effect of such on any occupational functioning and activities of daily living. All findings, conclusions, and the rationale for all opinions expressed should be provided in a report. 3. Schedule the Veteran for a VA examination to assess the current severity of her service-connected left hip disability. The Veteran's claims file should be made available to and reviewed by the examiner, and he or she must indicate whether such review was accomplished. All indicated tests and studies must be conducted, specifically, the Veteran's range of motion on both active and passive motion and in weight-bearing and nonweight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any incapacitating episodes and/or flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to her left hip disability alone and discuss the effect of such on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given the medical science and known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.