Citation Nr: 21041062 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-52 741 DATE: July 8, 2021 ORDER Entitlement to service connection for an abnormal gait is denied. Entitlement to service connection for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD) and anxiety is granted. REMANDED Entitlement to service connection for a lower neck disability is denied. Entitlement to service connection for headaches is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a separate and distinct abnormal gait disability for VA purposes at any time during or approximate to the pendency of the claim. 2. The Veteran's abnormal gait is not secondary to service-connected knee disabilities and is not otherwise related to an in-service injury or disease. 3. The Veteran is diagnosed with PTSD and a depressive disorder which is related to his service in Kosovo. CONCLUSIONS OF LAW 1. The criteria for service connection for an abnormal gait due to service or service-connected knee disabilities are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for PTSD with a depressive disorder are met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1982 until his honorable discharge in June 1982; from January 1985 until his honorable discharge in June 1985; from May 1, 1992 until his honorable discharge on May 9, 1992; and from December 2008 until his honorable discharge in December 2009, with many years of reserve service. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2013 and March 2015 rating decisions of the Regional Office of the Department of Veterans Affairs (VA). The Veteran's lower neck, headaches, and PTSD claims were denied by the Regional Office in June 2013; however, that decision was not final as the Veteran submitted new and material evidence within a year of that decision. As a result, the claims are still pending, and he did not need to file a petition to reopen them. The Veteran's abnormal gait claim was first adjudicated in a March 2015 decision which he timely appealed. The Veteran requested to participate in the Rapid Appeals Modernization Program (RAMP), but he did not have a pending appeal that qualified. As a result, his claim is being processed under the Legacy system. In April 2021, the Veteran testified before the undersigned at a hearing via videoconference. A transcript of his testimony has been associated with the claims file. The record was held open for 30 days for the Veteran to submit VA treatment records in support of his claim. The Veteran submitted treatment records in April 2021 and waived Regional Office consideration of the evidence. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that 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). Generally, service connection may be granted 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(a). To establish a right to compensation for a present disability, a Veteran 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 the so-called "nexus" requirement. Holton v Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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). Furthermore, in deciding whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2014); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. 1. Entitlement to service connection for an abnormal gait. The Veteran asserts that his abnormal gait is the result of his service-connected right knee injury or a vestibular disability that impacts his balance. See April 2021 Hearing Transcript. The Veteran does not have a service-connected vestibular disability or a pending claim for entitlement to service connection for his vestibular disability. VA regulation 38 C.F.R. § 4.14 prohibits duplicate compensation for the same manifestation (symptom) of disability under different diagnoses, known as "pyramiding." See generally Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008) ("[A] veteran cannot be compensated more than once for the same disability."). It follows that, where a certain manifestation of a disability has not been compensated via an assigned evaluation under a particular DC, evaluation of that manifestation under another DC would not constitute pyramiding. See Fanning v. Brown, 4 Vet. App. 225, 230 (1993). A manifestation of disability has not been compensated by an assigned evaluation if the manifestation is "distinct and separate" from the manifestations that form the basis of the assigned evaluation. Murray v. Shinseki, 24 Vet. App. 420, 423 (2011) (explaining that separate knee evaluations may be warranted where "the appellant's symptoms are distinct and separate" (internal quotation omitted)). "[T]he key consideration in determining whether rating under more than one [DC] is in order is whether the ratings under different [DCs] would be based on the same manifestation of disability or whether none of the symptomatology upon which the separate ratings would be based is duplicative or overlapping." VAOPGNPREC 9-2004 (emphasis added). The Veteran was diagnosed with right knee tendonitis on examination in April 2015. See April 2015 DBQ. His symptoms include an abnormal gait, limp, locking of the knee, instability of the knee, and pain. Id. The August 2017 Statement of the Case explained that the Veteran's abnormal gait was already evaluated and considered when his right knee disability was rated. His right knee status post patellar repair with chondromalacia, tendonitis, meniscal tear, osteoarthritis, recurrent patellar dislocation and patellofemoral pain syndrome is rated under 38 C.F.R. § 4.71a, DC 5258-5261. DC 5258 awards a 20 percent rating for "Cartilage, semilunar, dislocated, with frequent episodes of 'locking,' pain, and effusion into the joint." His VA treatment records state on several occasions that the Veteran has a normal gait. In one instance the provider wrote, "He also has an imbalance with intermittent gait abnormality of unclear etiology at this time with possible vestibular, neuropathic, and perhaps psychologic causes on differential." See May 2014 VA Treatment Records. Entries after this date show that the Veteran's gait is normal. Regardless, VA medical records show that he did have an abnormal gait at some point during the period on appeal. To the extent that the Veteran has an abnormal gait, it has been evaluated and included in his right knee disability. As such, his claim for service connection is denied. Service Connection for PTSD Claims Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD in conformance with the DSM criteria; (2) a link, established by medical evidence, between a Veteran's present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). If it is established through military citation or other supportive evidence that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C. § 1154(b) requires that the Veteran have actually participated in combat with the enemy. See VAOPGCPREC 12-99. If VA determines either that the Veteran did not engage in combat with the enemy or that the Veteran did engage in combat, but that the alleged stressor is not combat related, the Veteran's lay testimony, by itself, is generally not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates the Veteran's testimony or statements. However, corroboration of every detail of a claimed stressor, including the Veteran's personal participation, is not required; rather, a Veteran only needs to offer independent evidence of a stressful event that is sufficient to imply his or her personal exposure. See Pentecost v. Principi, 16 Vet. App. 124, 128 (2002) (quoting Suozzi v. Brown, 10 Vet. App. 307 (1997)). In other words, the Veteran's presence with the unit at the time such attacks occurred corroborates his statement that he experienced such attacks personally. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). On July 13, 2010, VA amended its regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. This revision added to the types of PTSD claims that VA will accept through credible lay testimony alone as being sufficient to establish occurrence of an in-service stressor without undertaking other development to verify the Veteran's account. The primary effect of the amendment of 38 C.F.R. § 3.304(f) was the elimination of the requirement for corroborating evidence of a claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." The regulation states: If a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist 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] and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). For purposes of this paragraph, "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 friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The final requirement of 38 C.F.R. § 3.304(f) is medical evidence of a nexus between the claimed in-service stressor and the current disability. However, such after-the-fact medical nexus evidence generally cannot also be the sole evidence of the occurrence of the claimed stressor. Moreau v. Brown, 9 Vet. App. 386, 396 (1996). Furthermore, in deciding whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. 2. Entitlement to service connection for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD) and a depressive disorder. The Veteran asserts he developed PTSD and depression as a result of his deployment in Kosovo where he was "outside the wire" five to six days or nights a week and experienced guilt and depression due to an incident in which his interpreter had a heart attack and later died during a mission. The Veteran has a current diagnosis of PTSD that conforms to the DSM-5. See April 2015 Examination. As a result, he has met the first element of service connection for PTSD. The examiner found that the Veteran's stressor met Criterion A and supported the diagnosis of PTSD. As such, the Veteran has met the second element of service connection for PTSD. Id. The Board, as factfinder, is responsible for assessing the credibility and weight to be given to evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). When assessing the credibility of lay documentary evidence, the Board may consider factors such as facial plausibility, bias, self-interest, internal consistency, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Southall-Norman v. McDonald, 28 Vet. App. 346, 355 (2016). When assessing oral testimony before the Board, the Board may consider the demeanor of the witnesses, the facial plausibility of the testimony, and the consistency of the testimony with other testimony and affidavits submitted on behalf of the veteran. Caluza, 7 Vet. App. at 511. The Veteran testified at his April 2021 hearing that he received combat pay and imminent danger pay while deployed in Kosovo. His DD-214 states that he "served in a designated imminent danger pay area." See DD-214 for period of December 2008 to December 2009. He also testified that it was during this deployment that his stressor took place. While on a mission his interpreter had a heart attack and he was denied an air support evacuation. Instead, the Veteran waited for ground support. He reports that the interpreter was taken away by ground support and the Veteran later learned that he had died. See April 2021 Hearing Transcript. The Board finds this Veteran's testimony to be credible under 38 U.S.C. § 1154(a). His DSM-5 PTSD diagnosis is connected to his in-service stressor and the circumstances of his service, including his deployment to Kosovo, supports the award of service connection. The Veteran's testimony that he was in dangerous territory on a mission with an interpreter is consistent with his service as a field artillery MOS in a designated imminent danger pay area. See DD-214. A recommendation for award in his military personnel record states that he was the "G-7 targeting officer ... responsible for the effective coordination ... in conducting synchronized Information Operations." The record also states that he "coordinated Kosovo Protection Corps (KPC) and Kosovo Security Force (KSF) issues." He subsequently received the Kosovo Campaign Medal with a Bronze Star. The place, type, and circumstances of the Veteran's service supports his testimony that his in service stressor occurred. 38 C.F.R. § 3.304(f). As a result, the Veteran has met the third element of service connection for a PTSD claim and so his claim is granted. REASONS FOR REMAND 3. Entitlement to service connection for a lower neck disability. 4. Entitlement to service connection for headaches. The Veteran asserts that he developed a lower neck disability and headaches due to falls or a Humvee accident during service. In a January 2015 Statement in Support of Claim the Veteran asserted that while on a mission in a mountainous region he "fell anywhere from 15 to 30 feet." He reported that he "visited the troop clinic at NATO HQ at Film City where [he] was stationed." He believes that his medical records from Film City were never included in his medical file. As a result, the claim must be remanded to obtain these records. The matters are REMANDED for the following action: 1. Attempt to obtain the Veteran's medical treatment records from NATO HQ at Film City between December 2008 to December 2009. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, 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.