Citation Nr: 22014841 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 19-02 993A DATE: March 15, 2022 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, diagnosed as depression and anxiety with chemical dependency, is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for migraines is remanded. Entitlement to service connection for a neck disorder is remanded. Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for chronic pain syndrome is remanded. Entitlement to an initial compensable rating for a right knee scar is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the Veteran has a current diagnosis of PTSD in accordance with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) that is at least as likely as not the result of an in-service stressor event confirmed by credible supporting evidence. 2. Resolving reasonable doubt in the Veteran's favor, his acquired psychiatric disorder, diagnosed as depression and anxiety with chemical dependency, is caused by his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2021). 2. The criteria for service connection for an acquired psychiatric disorder other than PTSD, diagnosed as depression and anxiety with chemical dependency, are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 2001 to December 2002 and from March 2006 to May 2007. This appeal comes before the Board from a November 2015 rating decision issued by a Department of Veterans Affairs Regional Office. In September 2021, the Veteran testified before the undersigned Veteran's Law Judge. A transcript of the hearing is of record. Service Connection 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). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to direct service connection requires evidence of three elements: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Service connection for PTSD specifically requires medical evidence diagnosing this disorder based on examination findings and in accordance with the DSM-5, 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), 4.125(a). Except as provided in § 3.300(c), service connection may be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Under 38 C.F.R. § 3.310, secondary service connection is permitted based on aggravation; compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir. Dec. 17, 2021). Here, the record reflects that the Veteran has a diagnosis of PTSD under the DSM-5, depression, anxiety and a chemical dependency; thus he has a current diagnosis of the claimed disorders. Regarding the in-service stressor, the Veteran testified at the Board hearing that he was falsely accused of rape during his second period of servicean accusation of which he was acquitted. He described how, for eight months, he was locked-down to post and had an escort at all times. The Veteran detailed that he was concerned for his safety and that he was beaten up when he was in bed. He relayed that he was unable to get help because none of his non-commissioned officers would back him up. He stated he contemplated using methamphetamines and ended up getting caught with them and received and Article 15. He was discharged from service and described experiencing depression, anxiety and problems with drinking. Of record is a U.S. Army Criminal Investigation Division report, documenting the allegation of rape against the Veteran, the subsequent investigation and that he was fully exonerated of the charges because evidence was obtained proving his innocence, and his accuser admitted to fabricating the story. Records also show that he subsequently received and Article 15 for possession of methamphetamines. Accordingly, his in-service stressor is verified. Concerning the nexus element, the Veteran underwent a private psychiatric examination in December 2021, using a Disability Benefits Questionnaire. The Veteran reported that he began to withdraw and not trust others after the false accusation, and he described difficulty in personal and work relationships. He relayed that he has tried several psychiatric drugs and was currently taking Duloxetine and Buspirone. He also reported that he began drug use in service to cope with his anxiety and depression. The examiner diagnosed the Veteran with PTSD, and depression and anxiety related to such. She found that the Veteran's PTSD was more likely than not a result of falsely being accused of committing a rape in service. She noted that he had no psychiatric disorders prior to service entrance and explained that studies show that many people who are falsely accused of criminal offences develop PTSD. A supporting study was cited and submitted for this conclusion. She noted that the Veteran suffers from a depressed mood, anxiety and chemical dependence as a result of his PTSD. The Board assigns substantial weight of probative value to the December 2021 examiner's opinion linking the Veteran's PTSD to his in-service stressor, and his depression and anxiety with chemical dependence to his PTSD. Her opinion was based on a thorough review of the medical evidence, is well-reasoned, and supported by medical evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiner thoroughly explained the relevant DSM-5 PTSD criteria and explained how the Veteran's behavior changed from before the in-service stressor incident to after the in-service incident. She also detailed how his PTSD was productive of his depression and anxiety with chemical dependence, noting his symptoms and prescriptions. Moreover, her rationale is supported by other evidence of record, to include post-service treatment notes documenting PTSD, depression and anxiety. There is no conflicting opinion of record. Lastly, the Board recognizes that it is granting service connection for PTSD and separate acquired psychiatric disorders other than PTSD. It is possible to separately grant service connection for both PTSD and another psychiatric disorder. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) ("We recognize that bipolar disorder and PTSD could have different symptoms and it could therefore be improper in some circumstances for VA to treat these separately diagnosed conditions as producing only the same disability"). Accordingly, as the preponderance of the evidence shows that the Veteran has PTSD, and acquired psychiatric disorders other than PTSD, diagnosed as depression and anxiety with chemical dependency, that are related to service, service connection is granted. REASONS FOR REMAND Relevant to all remaining claims, the Veteran testified during his hearing that he was under current VA care. However, the most recent VA treatment records are dated in February 2019. Accordingly, on remand, all outstanding VA treatment records should be obtained. Additionally, further develop is required to specific claims outlined below: Bilateral Hearing Loss and Tinnitus The Veteran was afforded a VA audiological examination in October 2015. At such time, he did not meet VA standards for a hearing loss disability. During his hearing, the Veteran described his in-service noise exposure and stated that his hearing had continued to decline since his October 2015 VA examination. Given this, the Board finds that a new VA examination is warranted. Hypertension The Veteran submitted a December 2021 private opinion stating it was "likely" his hypertension was related to service, based on in-service elevated readings. The correct legal standard is at least as likely as not, or at least 50 percent. As the Board is unable to rely upon the December 2021 opinion, the Board finds that a VA examination and opinion regarding the etiology of the Veteran's claimed hypertension is warranted. Right Knee Scar During the hearing, the Veteran testified that his right knee scar was painful and unstable. He also stated that his scar was tender to the touch and sometimes would open. He was last afforded a VA examination for such in October 2015. Given his description of current symptoms, and the fact that his last examination was over six years ago, the Board finds a current examination is warranted. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Schedule the Veteran for a VA audiological examination with a VA audiologist to determine the nature and etiology of his claimed bilateral hearing loss and tinnitus. The examiner must review the claims file in its entirety, including this REMAND, and must note that review in the examination report. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. A complete history of symptoms must be elicited from the Veteran. Following a review of the record, and an examination of the Veteran, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's current bilateral hearing loss or tinnitus had its onset in, or is otherwise related to, his military service, to include his acknowledged in-service noise exposure. The examiner is reminded that a lack of documented hearing loss during service cannot serve as the sole basis for a negative finding. The Veteran is competent to report his medical history, including when his symptoms began, and such reports must be acknowledged and considered in formulating any opinion. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and military service. All opinions must be accompanied by a complete rationale. 3. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his claimed hypertension. The examiner must review the claims file in its entirety, including this REMAND, and must note that review in the examination report. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. A complete history of symptoms must be elicited from the Veteran. Following a review of the record, and an examination of the Veteran, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran has hypertension that had its onset in service, or within one year of his separation from service, or is otherwise related to service, to include in-service elevated blood pressure readings? All opinions must be accompanied by a complete rationale. 4. Schedule the Veteran for a VA examination to determine the current severity of his service-connected right knee scar. The claims file must be made available to the examiner for review in connection with the examination. All indicated tests and studies must be performed in accordance with the pertinent Disability Benefits Questionnaires for this disability, and all findings should be set forth in detail. The examiner should identify all complications and symptoms attributable to the Veteran's service-connected disability in accordance with the rating criteria. 5. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.Z., 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.