Citation Nr: 21031077 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 13-29 482 DATE: May 20, 2021 ORDER Entitlement to service connection for a right knee disorder, diagnosed as status post lateral collateral ligament tear and repair for chondral defect of the right femoral condyle, is granted. Entitlement to service connection for a right knee disorder, diagnosed as patellofemoral pain syndrome and medial meniscus pathology, is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, insomnia, anxiety, and memory loss, is remanded. Entitlement to service connection for alcohol dependence, to include as secondary to an acquired psychiatric disability, is remanded. FINDINGS OF FACT 1. The competent evidence of record reflects that the Veteran's pain associated with the lateral area of his right knee which existed prior to service was aggravated beyond its natural progression by his active military service and the evidence against this finding does not constitute clear and unmistakable evidence to rebut the presumption of aggravation. 2. Resolving all doubt in the Veteran's favor, his pain associated with the medial area of his right knee is related to his active military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right knee disorder, diagnosed as status post lateral collateral ligament tear and repair for chondral defect of the right femoral condyle, have been met on an aggravation basis. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for right knee disorder, diagnosed as patellofemoral pain syndrome and medial meniscus pathology, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 2008 to June 2012. These matters are on appeal from a November 2012 and an October 2014 Regional Office (RO) rating decisions and were previously before the Board in September 2015 and July 2018, respectively when they were remanded for further development, and subsequently, in November 2019 when the Board denied the Veteran's two claims seeking service connection for psychiatric disorders and remanded his claim for service connection for a right knee disorder. The Veteran thereafter appealed the Board's denial of his claims to the United States Court of Appeals for Veterans Claims (Court). Consequently, in a January 2021 Joint Motion for Partial Remand (JMPR), the Board's decision was vacated, and these matters were remanded for further proceedings consistent with the Motion. The JMPR determined that the Board's November 2019 decision denying the Veteran's service connection claim for an acquired psychiatric disability was erroneous because the Board did not provide adequate reasons or bases in support of its denial of the Veteran's claim. Specifically, that the Board failed to discuss favorable relevant evidence reported by the Veteran during his September 2012 post deployment assessment when he screened positive for PTSD and depression based on his subjective reports of his symptoms; yet, it was noted that Veteran did not report, or seek treatment for his psychiatric symptoms prior to October 2015. In addition, the JMPR also determined that the Board failed to discuss the Veteran's report of additional symptoms during an initial clinical visit, right before his positive screening for PTSD and depression, when the Veteran stated that he has feelings of "hopelessness", that he has "nightmares," and "can get easily startled with loud noises." During this appointment, it was noted that the Veteran exhibited "bizarre behavior," which was also not adequately addressed. The JMPR further reflects that a remand for the Veteran's claim for service connection for alcohol dependence, to include as secondary to an acquired psychiatric disability, was also warranted, as it was intertwined with the other psychiatric disorder claim. Service Connection To establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303 (b), Walker v. Shinseki, 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or in air service. 38 U.S.C. §§ 1110, 1131. Service connection may also 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). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a), such as arthritis, is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question," Walker, 708 F.3d at 1339) or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service," the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service-connected disability compensation is sought." Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and service, and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker, 703 F.3d at 1336; 38 C.F.R. § 3.303(b). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 C.F.R. § 3.304(b); VAOPGCPREC 3-03, 69 Fed. Reg. 25,178 (2004); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). An injury or disease that has been determined to be preexisting will then be presumed to have been aggravated by service where there is an increase in the severity of the disability during service. The burden to show no aggravation of a pre-existing disease or disorder during service lies with the government. Cotant v. Principi, 17 Vet. App. 117, 131 (2003). However, the presumption of aggravation is rebutted where there is a specific finding that the increase is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In deciding an aggravation claim, after having determined the presence of a preexisting disability, the Board must determine whether there has been any measurable worsening of the disability during service and whether this worsening constitutes an increase in disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 1. Entitlement to service connection for a right knee disorder The Veteran contends that his preexisting knee disability was aggravated by his service, resulting in his current knee disorder. The Board notes that the medical evidence of record reflects that the Veteran has three current diagnoses associated with his right knee disability, one associated with his preexisting disability, (status post lateral collateral ligament tear and repair for chondral defect of the right femoral condyle) and the other two (patellofemoral pain syndrome and medial meniscus pathology) deemed independent of his preexisting disability. As such, the first element of service connection, a current diagnosis, is satisfied. a) Lateral femoral condyle defect (preexisting knee disability) In regard to in-service occurrence, the Veteran claims that his right knee disorder is due to or was aggravated by his military service, specifically reporting during his February 2013 VA examination that his right knee got sore when wearing gear in service. The record reflects that prior to the Veteran' induction into service, he underwent surgery on his right knee to repair a torn ligament in 2002, and that this condition was noted at entrance and subject to a medical waiver. As such, the Board finds that the Veteran had a preexisting right knee disability that was noted upon entry. Thus, the presumption of soundness does not apply in this case as to this disability. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). As the presumption of soundness does not apply, the issue of contention is whether the presumption of aggravation applies and if so, whether there is clear and unmistakable evidence that shows that the Veteran's preexisting right knee disability did not undergo a permanent worsening beyond the normal progression of the disability during active service. The Board notes that although there are no documented in-service complaints and treatment for his preexisting right knee disability, the record reflects the Veteran's lay statements of experiencing swelling of his knee during his active duty service. After active duty, the Veteran was evaluated for right knee pain and a subsequent MRI in September 2012 revealed pathology to the lateral aspect of the knee, specifically, a lateral femoral condyle defect and evidence of iliotibial band syndrome. During his initial VA examination in February 2013, the examiner confirmed the Veteran's 2002 lateral collateral ligament tear diagnosis but did not provide a nexus opinion. Following the Board's initial remand for such, a February 2016 cited to lack of in-service knee pain complaints and a "normal knee" report during the Veteran's separation physical examination, including the diagnosis of the chondral defect of the right femoral condyle in 2013, as the examiner's basis for a negative nexus. He found "[i]t less likely in my opinion that his surgical procedure prior to service was aggravated or caused by his time while on active duty; rather, that his knee disorder is most likely caused by a natural progression of his prior surgery in 2002, and that there is no evidence of record to support that the Veteran's preexisting right knee disorder was aggravated (permanently worsened) as a result of his military service." The Board requested a clarifying opinion because the February 2016 examiner did not address the Veteran's lay statement of experiencing swelling of his knee during his active duty service. A January 2020 provided the requested clarifying opinion. The January 2020 VA opinion made it clear that the Veteran's reports of pain on the medial side of the right knee (which he reported experiencing during and after service) is unrelated to the pre-existing defect and disability that required surgery on the lateral side of the same knee prior to his service entrance, thus finding a lack of aggravation for the Veteran's preexisting knee disorder. The January 2020 VA examiner cites to an orthopedic specialist's office note dated 6/26/2013 which documents the Veteran's "pain is on the opposite side of his pathology", and concluded that the Veteran's pain to medial knee was not attributable to the findings on the (September 2012) MRI because the medical records indicate that there is no clinical correlation between the MRI findings and the Veteran's reports of right knee pain. This was the primary basis for the examiner's negative nexus finding, stating that "[p]er the medical evidence, the veteran's reported right knee pain is less likely than not (less than 50 percent probability) due to, or a manifestation of, his pre-existing right knee condition involving the lateral aspect of the knee." Specifically with respect to aggravation of his preexisting right knee disorder, the examiner also found that there is no medical evidence that his active duty service aggravated his pre-existing injury to the lateral aspect of the knee, finding that the Veteran's report of pain involved the medial knee, which is not attributable to the pre-existing lateral knee injury; rather, that this was an osteochondral defect, and as such, "[r]egardless of the time of occurrence, is not the cause of the veteran's reports of pain, the veteran's preexisting knee condition was less likely than not (less than 50 percent probability) aggravated by active duty service." However, the Veteran has submitted a July 2020 private orthopedic report which reflects the Veteran's lay statements of his in-service symptoms of right knee pain which the author of the report, Dr. B.J.B., attributes to a worsening of the Veteran's preexisting right knee injury, and two new diagnoses (separately discussed below). Dr. B.J.B.'s opinion is that the Veteran's post-service diagnosis of a right knee lateral defect ("lateral femoral condyle defect") was not present at the time of his 2002 surgery because the 2002 operative report did not show any damage or injury to the Veteran's cartilage in that area of his knee, and as such, his post-service diagnosis of such lateral defect was sustained while in active duty. As such, there are conflicting opinions on record with records to whether the Veteran's preexisting right knee disability was aggravated (beyond natural progression) while in active service. Consequently, notwithstanding the January 2020 VA examiner's finding of a lack of aggravation, which was based on a low probability standard (at least 50 percent), the Board notes that this conclusion does not rise to the level of "clear and unmistakable evidence" that is required to overcome the high evidentiary burden needed to rebut the presumption of aggravation. Furthermore, the evidence of record includes competent, credible treatment records establishing that the Veteran developed other right knee disabilities (discussed below) as a result of his active duty service. Therefore, in weighing the medical evidence, and the lack of clear and unmistakable evidence to rebut the presumption of aggravation, the Board finds that service connection for the Veteran's preexisting right knee disorder, diagnosed as status post lateral collateral ligament tear and repair with chondral defect lateral femoral condyle of the right knee, based on aggravation, is warranted. b) Patellofemoral pain syndrome and medial meniscus pathology As previously referenced, the Veteran submitted a July 2020 private orthopedic evaluation by Dr. B.J.B. This report reflects MRI findings of the Veteran's pre-existing right knee chondromalacia with a LFC Full thickness chondral defect and two new right knee diagnoses. This orthopedic report also reflects the Veteran's lay statements of his in-service symptoms of right knee pain that Dr. B.J.B. associates with these two new knee diagnoses, specifically with the Veteran's military occupational specialty (MOS) as an artillery infantry. Specifically, that jumping and hiking 10-15 miles a day are consistent with the Veteran's reported pain in the anterior part of his knee, including the Veteran's report of swelling and stiffness, continuing post service. Dr. B.J.B. also noted that activities such as ascending stairs, deep knee bent positions and long periods of time on his feet can account for the Veteran's medial right knee pain. The Board accepts Dr. B.J.B.'s reports that the reports of the Veteran's medial right knee pain is consistent with his artillery infantry service, and as such, with respect to these two diagnoses, finds that the second element of service, in-service occurrence, is also satisfied. This July 2020 orthopedic report by Dr. B.J.B. also found a positive nexus, stating that the Veteran's diagnoses "just as likely related to the his military service, especially given that 2002 operation report did not reveal injury to the cartilage in the medial area of his knee, and so finds it likely that this was later sustained while in active service." Because this July 2020 orthopedic evaluation report provides answers to the questions raised in the January 2020 examiner's opinion with regards to nature, and etiology of the disability resulting in the pain on the medial aspect of the right knee, that is separate from the Veteran's pre-existing right knee disorder, the Board has also afforded Dr. B.J.B.'s opinion high probative weight with regards to direct service condition for the Veteran's patellofemoral pain syndrome and medial meniscus right knee disorder. Consequently, in light of this evidence, and in giving the Veteran the benefit of the doubt for his right knee disorder associated with medial aspect of his knee, the Board finds that service connection is warranted for the Veteran's right knee disorder, diagnosed as patellofemoral pain syndrome and medial meniscus pathology. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, insomnia, anxiety, and memory loss, is remanded. 2. Entitlement to service connection for alcohol dependence, to include as secondary to an acquired psychiatric disability, is remanded. With regards to his claim for PTSD, the Veteran reported three stressors, two of which the examining psychologist acknowledged are adequate to support a PTSD diagnosis and are related to a fear of hostile military or terrorist activity, but concluded that the Veteran does not have a diagnosis of PTSD that conforms to DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition) criteria. His primary basis was that the Veteran's report of stressors during the March 2016 examination differs significantly from his report of stressors from the 2012 examination, and that even if conceded, he finds the Veteran is not currently reporting symptoms consistent with PTSD. However, the examiner failed to address the Veteran's prior positive screening of PTSD and associated symptomology. Further, according to the examiner, the Veteran has two current psychiatric disorders, namely, "Unspecified Depressive Disorder," and" Alcohol Use Disorder." However, he opined that the majority of Veteran's impairment in functioning is attributable to his Unspecified Depressive Disorder, for which he did not find a positive nexus to his military service. He also opined that the Veteran's Alcohol Use Disorder, "more likely than not exacerbates his psychiatric symptoms as alcohol use increases mood lability, sleep disturbance, and irritability." However, the examiner did not state his rationale with regards to why the Veteran's unspecified depressive disorder is not attributed to his miliary service, and he also failed to explain how the Veteran's alcohol use disorder exacerbates his psychiatric symptoms. Further, this examiner did not address the Veteran's report that he used alcohol to self-medicate to alleviate his pain, as he reported during a September 2012 assessment, when the following was noted under Alcohol/substance use: "[V]eteran reports drinking daily or almost daily. He reports that when he gets a migraine or has pain, he will "take a couple shots of jack daniels and benedryl and pass out." The Board notes that although the Veteran is not currently service connected for migraine or knee disorder, he is service connected for bilateral upper extremity (shoulder), which may be inclusive of the "pain" the Veteran was seeking relief from. VA law and regulations generally preclude a grant of service connection for a disability that originated due to substance abuse, as that is deemed to constitute willful misconduct on the part of the Veteran. See 38 U.S.C. § 105; 38 C.F.R. § 3.301 (d); see also, VAOPGCPREC 7-99, 64 Fed. Reg. 52,375 (June 9, 1999). There is a limited exception, however, when there is clear medical evidence that the alcohol or drug abuse is secondary to a primary service-connected disability. Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). In sum, service connection may be established for alcohol abuse if it is found that such is caused or aggravated by the Veteran's psychiatric disorder if service connection is established for the latter. For the above-stated reasons, the Board finds that the current psychiatric VA opinion of record (March 2016) is inadequate. The examiner found that it is less likely than not (50% or less probability) that Veteran's Alcohol Use Disorder was incurred in or caused by his military service; rather, that this disorder [m]ore likely than not exacerbates his psychiatric symptoms as alcohol use increases mood lability, sleep disturbance, and irritability," yet failed to specifically explain how he came to this conclusion. Given the JPMR findings, the Board finds that it must remand these issues for a new psychiatric VA examination and opinions with regards to the nature and etiology of the Veteran's claimed psychiatric disorders, including PTSD, that should also determine whether the Veteran's alcohol disorder is secondary to his acquired psychiatric disability, or any service-connected disability which was not adequately addressed in the VA's prior examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate examination by a VA psychiatrist or psychologist to determine the nature and etiology of any diagnosed acquired psychiatric disabilities, including PTSD, under the DSM-V criteria. The claims file, including all pertinent VA and private medical reports of record and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the Remand have been reviewed. Thereafter, the examiner must provide respective answers the following questions: a) It is at least as likely as not (50 percent or greater probability) that the Veteran's PTSD is due to his fear of hostile military or terrorist activity? Fear of hostile military or terrorist activity means 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, such as from an actual or potential improvised explosive device, vehicle-imbedded explosive device, incoming artillery, rocket, or mortar fire, grenade, small arms fire, including suspected sniper fire, or attack upon any friendly military aircraft, and the response to the event or circumstance involved a psychological or a psycho-physiological state of fear, helplessness, or horror. b) As to each current acquired psychiatric disorder, is it at least as likely as not (50 percent or greater probability) that the disorder manifested in or is otherwise related to the Veteran's military service? c) Is it as least as likely as not (50 percent or greater probability) that any current acquired psychiatric disabilities had its onset within one year of the Veteran's discharge from active duty? In rendering the requested opinions, the examiner should specifically consider and discuss the Veteran's contentions, lay statements of record, and medical records regarding the conditions and experiences in service and their effect on the Veteran. This includes the Veteran's positive screening for PTSD and depression in September 2012, and the Veteran's prior reports of feelings of "hopelessness"; that he has "nightmares," and "can get easily startled with loud noises", a noted observation that the Veteran exhibited "bizarre behavior." With respect to the Veteran's alcohol dependency disorder claim, obtain a VA medical opinion from an appropriate clinician regarding whether the Veteran's claimed alcohol dependency disorder is at least as likely as not caused or aggravated beyond its natural progression by the Veteran's acquired psychiatric disability and/or proximately due or aggravated by physical pain from his now service-connected right knee disability or any other service-connected disability (shoulder). If the examiner finds that that the Veteran's alcohol abuse was aggravated by his acquired psychiatric disability, the examiner should quantify the degree of aggravation. The examiner should also take into consideration the Veteran's report of self-medicating with alcohol during a September 2012 assessment, where it was noted that the "[V]eteran reports drinking daily or almost daily. He reports that when he gets a migraine or has pain, he will "take a couple shots of jack daniels and benedryl and pass out." The examiner must explain the rationale for all opinions given, citing to supporting factual data and medical literature as deemed appropriate. 2. After the above development, and any additional development deemed necessary has been completed, the RO should readjudicate the Veteran's claims on appeal. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.