Citation Nr: 21032569 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-18 967A DATE: May 27, 2021 ORDER Service connection for depression, anxiety and posttraumatic stress disorder (PTSD) is granted. REMANDED Service connection for a right hand condition. Service connection for a left hand condition. Service connection for a low back condition. Service connection for hypertension. Service connection for memory loss. An increased disability rating in excess of 30 percent for right shoulder calcific tendinitis, residuals dislocation (right shoulder condition). An increased initial disability rating for a right knee disability, currently manifested by degenerative joint disease right knee; status post anterior cruciate ligament reconstruction, in excess of 10 percent from February 28, 1985; in excess 20 percent from March 27, 1987; and in excess of 30 percent since April 23, 2007. A total disability rating based on individual unemployability due to service-connected disability (TDIU). FINDING OF FACT The Veteran has a current psychiatric condition, variously diagnosed as depression, anxiety, and PTSD, is due to traumatic events during service. CONCLUSION OF LAW The criteria for service connection for depression, anxiety, and PTSD have been met. 38 U.S.C. §§ 1110, 1131, 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 March 1977 to February 1985. He also had service in the National Guard. The case is on appeal from August 1986 and September 2014 rating decisions. In March 2021, the Veteran testified at a Board hearing. Additional evidence was received subsequent to the May 2016 statement of the case. As the claim being decided herein is a full grant of the benefit sought on appeal, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1305(c). Service connection for a psychiatric condition, to include PTSD. Background In his January 2014 claim form, the Veteran claimed service connection for memory loss. The RO developed and adjudicated the claim accordingly. In his May 2016 VA Form 9, the Veteran described memory loss, headaches, and PTSD. Hence, it appears the Veteran intended the original claim to be broad in scope to include a neurologic condition involving memory loss and headaches and a psychiatric condition involving PTSD. Grimes v. McDonough, No. 18-1017, 2021 U.S. App. Vet. Claims LEXIS 742, at *22-23 (Vet. App. Apr. 28, 2021) (hyperacusis was raised as part of either his bilateral hearing loss or sinus disability claim). The RO separately adjudicated the psychiatric aspect of the claim in an October 2015 rating decision, wherein it denied service connection for PTSD. The Veteran did not appeal that decision. Nonetheless, as he intended the claim to be broad in scope, the Board finds the psychiatric claim to be on appeal. See id.; Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board has continued to bifurcate the issues in light of the distinct factual and legal posture of the issues. See Boyd v. McDonald, 27 Vet. App. 63, 69 (2014) (the Board has the authority to bifurcate issues and decide them in separate decisions without providing an appellant with advance notice that it would do so). Thus, the psychiatric claim will be addressed in this analysis section and the separate memory loss claim will be addressed in the remand section. The Veteran contends that he has a psychiatric condition related to service. He testified at his March 2021 Board hearing that he was stationed in Korea in 1977, where he was assigned to the 2nd Infantry Division. Board Hr'g Tr. 11. He was in the Demilitarized Zone (DMZ) attached to the South Korean infantry. Id. They patrolled the DMZ and engaged the enemy a few times at the border. Id. He did not participate, but was there between the South Koreans and North Koreans. Id. Also in 1977, they were on red alert and engaged the enemy a couple of times, but the thing that bothered him the most was guard duty during the night. Id. He got nightmares all the time and was afraid of the dark. Id. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with § 4.125(a); 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. 38 C.F.R. § 3.304(f). Analysis VA treatment records show a current diagnosis. In April 2009, when first evaluated, he was diagnosed with depression disorder, not otherwise specified (NOS). In February 2014, he was diagnosed with anxiety disorder, NOS. In September 2014, he was diagnosed with unspecified anxiety disorder. In April 2015, he was diagnosed with adjustment-like disorder. He was diagnosed with PTSD in May 2015. In July 2015, he was diagnosed with other specified trauma- and stressor-related disorder. An August 2015 VA examiner diagnosed anxiety disorder, NOS. His VA provider wrote in a May 2016 Disability Benefits Questionnaire (DBQ) that his diagnosis was PTSD with no other diagnosis. This evidence confirms a current diagnosis and establishes the current disability element of the claim. There has been some debate as to the PTSD diagnosis. The August 2015 VA examiner found that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under the DSM-5 criteria. By contrast, the May 2016 VA provider's DBQ shows, by implication, that his symptoms did meet the diagnostic criteria. Because the PTSD diagnosis was made by a competent professional, the Board assumes that the diagnosis was made in accordance with the appropriate psychiatric criteria in regard to the adequacy of the symptomatology and the sufficiency of the stressor. See Cohen v. Brown, 10 Vet. App. 128, 153 (1997). As such, the Board finds that a diagnosis of PTSD is specifically established. The evidence also shows service in Korea, as alleged. His service treatment records (STRs) show assignment to Camp Casey in Korea. See 3/22/1978 STR. The available records do not confirm the episodes he described at his Board hearing. Nonetheless, those events appear consistent with the time, places, and circumstances of such service. Moreover, the Board has no reason to doubt the Veteran's credibility. As such, the Board finds that the claimed in-service events are established. 38 U.S.C. § 1154(a). Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes multiple VA Mental Health records identifying post-service stressors while he was a police officer as being associated with his condition or being the "most traumatic." See, e.g., 4/9/2015 VA Psychiatry, 7/24/2015 VA Mental Health, 1/9/2014 VA Psychology. These records might indicate that the Veteran considered his in-service stressors to have been less or non-traumatizing. However, this evidence is not particularly probative as it does not entirely exclude the possibility that his in-service stressors also impacted his psychiatric condition. Also, a VA examiner in August 2015 opined that the Veteran's condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that the Veteran sought psychiatric care in 2009, twenty-four years after his discharge, and the events that led to his stressors. The examiner found no change in functional status or in quality of life due to trauma exposure, and the trauma exposure did not cause impairment in social, occupational or other areas of functioning. Rather, the VA examiner found important, the Veteran was gainfully employed until 2012 when he retired eligible by age and duration of work. The VA examiner found that a temporal relationship between the neuropsychiatric disorder and the Veteran's service was not established. The Board finds that this examiner's opinion is of minimal probative value as it does not explain why the Veteran's intervening functioning during the 24-year period after service precluded a nexus between the in-service stressors and the current diagnosis. It does not discuss why a temporal relationship was needed. Absent such clarification, the examiner's rationale is incomplete and does little to inform the Board's decision. McCray v. Wilkie, 31 Vet. App. 243, 257 (2019) The evidence in favor of the claim includes a May 2015 VA Psychiatry note documenting the Veteran's report that "I think I had it all along, but it was more visible after my retirement." The chronological context is not made clear, but the provider noted the Veteran's report of traumatic experiences in Korea. This evidence is somewhat probative as it supports a conclusion that he likely had psychiatric symptoms ongoing after service. Also favorable, an October 2014 VA Psychiatry report states that he had stressors of retirement from his police career and medical conditions such as chronic knee pain. As he is service-connected for a right knee disability, this medical record supports a nexus to a service-connected disability. Most persuasive, the Veteran's VA provider completed a DBQ in May 2016 diagnosing PTSD with identified emotional sequelae and associated dysfunction secondary to exposure to traumatic events during his service. The Board finds this opinion probative as it was based on an accurate factual premise and gives an understandable, albeit cursory, rationale. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current condition is related to service. Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran has a current psychiatric condition, variously diagnosed as depression, anxiety, and PTSD, is due to traumatic events during service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is warranted for depression, anxiety and PTSD. REASONS FOR REMAND 1. Service connection for a right hand condition. 2. Service connection for a left hand condition. The Board has bifurcated the issue of service connection for a bilateral hand condition. The exact nature and extent of his current diagnosis is not yet clear, so the Board finds that each hand should be given distinct and full consideration. The Veteran contends that he was diagnosed with a hand condition "a long time ago," and was told by his doctors that his condition was due to service. Board Hr'g Tr. 6. His STRs reflect treatment for an injury to the left thumb in June 1981, and the left middle finger in February 1984. The Board finds that a remand is warranted for a VA examiner to opine as to whether the Veteran may have a right or left hand condition related to service. 3. Service connection for a low back condition. The Veteran contends that he was diagnosed with a low back condition 7 to 8 years prior, but had been having problems with his back since service. Board Hr'g Tr. 8. He testified that he injured his back several times during training and then National Guard duty, and a doctor had told him his current condition was because of service. Board Hr'g Tr. 8. First, at his Board hearing, the Veteran testified that his VA doctor had referred him to a specialist. Board Hr'g Tr. 8. Remand is warranted to attempt to obtain any outside medical records. Second, the Board finds that a remand is warranted for a VA examiner to opine as to whether the Veteran may have a low back condition related to service. Service connection for hypertension. The Veteran contends that he has had hypertension since service. Board Hr'g Tr. 8. His August 1983 service separation examination noted a history of being told he had high blood pressure. He endorsed a relevant history, including headaches accompanying high blood pressure. The Board finds that a remand is warranted for a VA examiner to opine whether the Veteran may have hypertension related to service. 4. Service connection for memory loss. The Veteran maintains that he has memory loss related to a head injury during service when he was knocked unconscious during training when hit in the head by a steel pot. 5/9/2016 VA Form 9. His STRs confirm the injury. He was treated at the emergency room in January 1980 after running into a steel pot helmet. There was no loss of consciousness. He had swelling of the left eye and pain. At his service separation examination in August 1983, he reported a history of dizziness or fainting spells, and it was noted he had "knocked himself [with] his steel pot in 1978 no sequelae." The Board finds that a remand is warranted for a VA examiner to opine whether the Veteran may have memory loss related to service. 5. An increased disability rating in excess of 30 percent for right shoulder condition. While the record contains contemporaneous VA examinations regarding the Veteran's disability, most recently in December 2019, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016), or Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Moreover, the Veteran testified at his March 2021 Board hearing that his right shoulder condition had been getting worse and worse. Board Hr'g Tr. 3. A new VA examination is needed to evaluate the severity of the condition, including in compliance with Correia and Sharp. 6. An increased initial disability rating for right condition in excess of 10 percent from February 28, 1985; in excess 20 percent from March 27, 1987; and in excess of 30 percent since April 23, 2007. By way of background, the increased rating claim for the right knee arises from the August 1986 rating decision. The Veteran filed a notice of disagreement (NOD) in August 1986, and then perfected an appeal as to that issue in January 1987 by filing a VA Form 9 following issuance of a November 1986 statement of the case (SOC). The RO issued a rating decision in November 1987 granting a staged 20 percent rating effective March 27, 1987. He filed a second NOD in February 1988, after which the RO issued a second SOC in April 1988. The Veteran did not then file a substantive appeal. He did not need to, however, as he had already perfected an appeal as to the issue. The November 1987 rating decision did not grant the maximum benefit sought. Hence, that rating decision did not resolve the previously perfected appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Murphy v. Shinseki, 26 Vet. App. 510, 514 (2014). At that stage, only a Board decision could resolve the issue. See Juarez v. Peake, 21 Vet. App. 537, 543 (2008) (discussing Myers v. Principi, 16 Vet. App. 228 (2002)). During the intervening years, the Veteran filed increased rating claims for the disability, and the RO issued corresponding decisions, which the Veteran did not appeal. Nonetheless, those interim rating decisions did not grant the maximum rating allowable or the earliest effective date. As such, those rating decisions did not resolve appeal pending since 1986. This means, in turn, that the issue has remained pending up to the present. First, there appear to be outstanding medical records. The Veteran testified at his Board hearing that he was being treated by an orthopedic surgeon, who had recommended a new replacement. Board Hr'g Tr. 5. Although not made entirely clear by the hearing transcript, this appears to be a private (non-VA) provider. His VA medical records do contain some consultations by the Orthopedic Surgery department, but none consistent with his testimony. Remand is warranted to ensure that all relevant records are obtained. Relatedly, the period of appellate review now before the Board begins in February 1985. There are intermittent medical records during the intervening years, but upon remand the RO should obtain any further VA medical records and provide the Veteran the opportunity to identify or obtain any private medical records. Second, the most recent examination, conducted in December 2019, was not compliant with Sharp. The examiner commented that "regarding the Court's holding in [Sharp] Veteran was approached toward range of motion l[]imitation during flare ups. This is just an estimate as per [V]eteran lay statement because there were no flare ups on today examination." The examiner, although acknowledging Sharp, did not go on to state what the limitations of motion in degrees actually were. Hence, it is not compliant with Sharp. Relatedly, as indicated, the appeal period for this disability spans from March 1985 to present, as indicated herein above. While the evidence includes some medical records and VA examinations during the intervening time period, there are also long periods of time without any findings. Thus, the Board finds that retrospective findings should be obtained to account for the severity, especially any changes in severity, of the disability during the intervening years. 7. A TDIU. The development and decision on the remanded increased rating issues will significantly impact a decision on the TDIU issue. Therefore, the issues are inextricably intertwined, and a remand of the TDIU issue is required. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any private (non-VA) providers or facilities who may have additional medical records for the remanded issues, including any treatment for the low back since 1985. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's outstanding VA treatment records, including records of all treatment since 1985, any treatment obtained through VA's Choice program, and all records scanned into his electronic health record. 3. Obtain any outstanding service personnel records and service treatment records, including for his service in the National Guard. 4. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the claimed hand and low back conditions. The examiner is asked to address each of the following: (a.) Does the Veteran have a current diagnosis? The examiner must provide a diagnosis for any conditions found extant. In doing so, the examiner must conduct all necessary diagnostic testing, unless it can be explained why such testing is not medically necessary. (b.) If a current diagnosis is not present, does the Veteran nevertheless have any functional impairment? (c.) If any condition is diagnosed or if there has been a functional impairment present, opine whether such condition is at least as likely as not related to an in-service injury, event, or disease. In answering these questions, the examiner is asked to consider the statements from the Veteran regarding his history of symptoms since service. The examiner is asked to explain why his statements make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 5. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the claimed hypertension. The examiner is asked to address whether the Veteran has hypertension that at least as likely as not (1) began during active service, (2) manifested within 1 year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is otherwise related to an in-service injury, event, or disease, including the indication of high blood pressure noted at service separation. In answering this question, the examiner is asked to consider the statements from the Veteran regarding his history of symptoms since service. The examiner is asked to explain why his statements make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 6. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the claimed memory loss. (a.) The examiner must provide a diagnosis for any conditions associated with memory loss found extant (that is distinct from his already service-connected depression, anxiety and PTSD). In doing so, the examiner must conduct all necessary diagnostic testing, unless it can be explained why such testing is not medically necessary. (b.) If a current diagnosis is not present, the examiner should address whether the Veteran nevertheless has any functional impairment associated with memory loss? (c.) If any condition is diagnosed or if there has been a functional impairment present, opine whether such condition at least as likely as not (1) began during active service, (2) manifested within 1 year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) , is otherwise related to an in-service injury, event, or disease, including a head injury in January 1980. (d.) If memory loss is found to be symptom of another disability, the examiner should so state. In answering these questions, the examiner is asked to consider the statements from the Veteran regarding his history of symptoms since service. The examiner is asked to explain why his statements make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 7. Schedule the Veteran for a VA examination to assess the severity of his right shoulder disability. (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (b.) In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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 medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (c.) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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 medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 8. Schedule the Veteran for a VA examination to assess the severity of his right knee disability. (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (b.) In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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 medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (c.) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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 medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (d.) The examiner should provide retrospective findings in regard to pain on range of motion testing and an estimation of functional loss, per Correia and Sharp, for the time period from March 1985 to present. The examiner should estimate the amount in degrees of range of motion lost due to pain in both weight-bearing and nonweight-bearing positions, and on both active and passive motion experienced by the Veteran. The examiner should also estimate the amount in degrees of range of motion lost due to flare-ups and repeated use over time experienced by the Veteran. If the examiner cannot provide some or all such retrospective opinions, the examiner must make clear that he or she has considered all relevant, procurable data, but that any member of the medical community at large could not provide such an opinion without resorting to speculation. (e.) The examiner is asked to identify, to the extent possible, the date on which any change in degree of impairment first occurred. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.