Citation Nr: 1743975	
Decision Date: 09/15/17    Archive Date: 10/10/17

DOCKET NO.  10-20 276	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression.

2. Entitlement to a rating in excess of 10 percent for service-connected right knee derangement with medical meniscal tear and synovitis, status post arthroscopy (right knee disability).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

G. Johnson, Associate Counsel

INTRODUCTION

The Veteran had active service from November 1977 to November 1981.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.

The case was previously before the Board in August 2014 and June 2016.  In August 2014, the Board granted the Veteran's appeal to reopen the claim for service connection for an acquired psychiatric disorder, and remanded the issue to the Agency of Original Jurisdiction (AOJ) for additional development, including, a VA examination to determine the nature and etiology of any diagnosed psychiatric disorder.  The Board also remanded the issue of entitlement to a rating in excess of 10 percent for a service-connected right knee disability to the AOJ for a VA examination to determine the current severity of the Veteran's service connected right knee disability.

In June 2016, the Board remanded the issue of service connection for an acquired psychiatric disorder to the AOJ for additional development, including, an addendum medical opinion addressing the etiology of the Veteran's depressive disorder.  The Board also remanded the issue of increased rating for the Veteran's service connected right knee disability to the AOJ for a VA examination to determine the current severity of the Veteran's service-connected right knee disability.  

The issue of an increased rating for a right knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDING OF FACT

It is as likely as not the Veteran's acquired psychiatric disorder, diagnosed as anxiety and depression, is related to service.

CONCLUSION OF LAW

The criteria for entitlement to service connection for an acquired psychiatric disorder, diagnosed as anxiety and depression, are met.  38 U.S.C.A. § 1131 (West 2016); 38 C.F.R. § 3.303 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.326(a).  In light of the favorable disposition of the claim for service connection for an acquired psychiatric disorder, the Board finds that any deficiencies with regard to the duty to notify or assist is non-prejudicial, and thus, no further discussion of VA's duties to notify and assist is necessary.

II. Analysis of Claim

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1131, 38 C.F.R. § 3.303.  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).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004).

Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013).  Psychoses are listed as a chronic condition under 38 C.F.R. § 3.309(a); therefore, as the Veteran has not been diagnosed as having a psychosis, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 do not apply to the claim.  Walker v. Shinseki, 708 F.3d 1331, 1337-1338 (Fed. Cir. 2013).

Service connection may also be granted for a disability proximately due to or the result of a service-connected disability and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 446-449 (1995) (en banc).

In adjudicating a claim for service connection for posttraumatic stress disorder (PTSD), the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the Veteran's military records and all pertinent medical and lay evidence.  Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.304(f).  The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the Veteran "engaged in combat with the enemy."  Id.

If VA determines that the Veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the Veteran's lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f).  No further development or corroborative evidence is required, provided that the claimed stressor is "consistent with the circumstances, conditions, or hardships of the Veteran's service."  Id.  If, however, VA determines that the Veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the Veteran's lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor.  Instead, the record must contain service records or other evidence to corroborate the Veteran's testimony or statements.  See Moreau v. Brown, 9 Vet. App. 389, 394 (1996).

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.  "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.  38 C.F.R. § 3.304(f).

If a Veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, and the stressor is not related to "fear of hostile military or terrorist activity," then the Veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors and his testimony must be corroborated by credible supporting evidence.  Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996).  Furthermore, service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors.  Doran v. Brown, 6 Vet. App. 283, 289 (1994).

The question of whether a Veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts.  Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on recon., 1 Vet. App. 406, 407 (1991).  Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators.

Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence, which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994).

III. Service Connection for an Acquired Psychiatric Disorder

The Veteran asserts that an acquired psychiatric disorder is related to his service-connected disabilities.  In May 2011, the Veteran stated that he had suffered nightmares related with the war, blood, airplanes, and soldiers and injured people.  The Veteran stated that he had problems sleeping, was very irritable and aggressive, and had marital problems due to his emotional condition.  In June 2015, the Veteran stated that he was depressed because of his financial situation and medical problems.  He stated that he was having financial difficulties, because most of his income went to food, gasoline, and medication.

The Veteran served in the United States Army from November 1977 to November 1981.  The service treatment records reflect treatment and complaint of symptoms of anxiety and insomnia in March 1979.  A March 1979 service treatment record reflects a possible diagnosis of anxiety with regards to the Veteran's spouse's pregnancy.  The Veteran complained of insomnia for two days.  He reported that his spouse was three months pregnant, and he would wake up when his spouse woke up.  The Veteran also complained of nausea with no vomiting.

Service treatment records reflect that the Veteran was involved in at least two altercations in service.  A December 1979 service treatment record reflects that the Veteran was involved in a fight in his barracks and lost the fight badly.  The treatment provider noted that the Veteran had large bruises all over his forehead, and his eyes were badly bruised.  A February 1980 service treatment record reflects treatment of the Veteran's right forearm and elbow.  The treatment provider noted that the Veteran was allegedly assaulted.

Service treatment records reflect that the Veteran was hit by fireworks in service in December 1979, and received continued treatment, from December 1979 to at least September 1980, for burns as a result of the being hit by fireworks.  January 1979 treatment records reflect that the Veteran sustained third degree burns to his right lateral abdomen and rib cage when he was hit by a fireworks rocket. 

Post-service treatment records reflect treatment for acquired psychiatric disorders from February 1984.  A February 1984 VA treatment record reflects a diagnosis of adjustment disorder with anxious mood.  The Veteran reported that he was temporarily on leave from his job.  He reported that he had anxiety, muscle twitching, and was tense.  He reported that he had difficulty sleeping; he would awaken many times at night, and would find it difficult to go back to sleep.  He reported that his symptoms started a year ago.

A March 1984 VA treatment records reflect that the Veteran underwent psychological testing for diagnostic purposes.  A psychological report reflects a diagnosis of generalized anxiety disorder.  The Veteran reported that he felt forgetful, he did not sleep well, his body was twitching, and he felt nervous.  He reported that one of the reasons he was feeling that way, was because the burned side of his body bothered him.  A March 1984 VA treatment provider noted that the Veteran had somatization and complaints, and opined that it needed to be explored carefully.

August 1997 and October 1997 VA treatment records reflect a diagnosis of insomnia.  In August 1997, the Veteran reported that he had problems with insomnia since 1983.  In October 1997, the treatment provider noted that the Veteran had a history of leg pain and chronic insomnia.

An April 2000 private treatment record reflects a diagnosis of anxiety disorder with depressed mood.  The Veteran reported that while he was on patrol, he was struck by a missile like object, which set him on fire.  He reported that it was a traumatic experience, and he feared that the object would explode inside of his chest.  The Veteran reported that the incident also caused problems with his right leg, which he complained of in 1980.  He also complained of a sleeping disorder, and reported that he was prescribed medication to treat his sleeping problems.  The Veteran reported that his condition caused him problems with work.  He also reported that he had frustration due to his medical conditions, and the changes he had to make in his personal expectations.  The treatment provider noted that family, financial and social problems made the Veteran's adjustment worse.

A January 2010 VA treatment record reflects a diagnosis of depressive disorder not otherwise specified.  The Veteran reported that he had depressive symptoms since 1980 after a military accident with physical injuries.  He reported that he had been suffering from depression for more than 20 years with treatment on and off, and he reported suicidal attempts during this period.  He reported that he had been dealing with moderate depression for all those years, but after a work place conflict, his depressive symptoms were exacerbated.  During a follow-up visit in January 2010, the Veteran reported that he started psychiatric treatment in approximately 1982.  The Veteran reported that he suffered injuries that included a burn of his thorax, while on active duty.  He reported that he visited a psychiatrist on several occasions due to depressive symptomatology, and started visiting the VA in 1999.  He also reported that he received treatment in 2009 by a private psychiatrist after a work incident.

A January 2011 private medical opinion reflects a diagnosis of depression problems.  The Veteran reported that he was hit by a rocket on the right side of his chest.  The Veteran had direct trauma and a burn as a result of the injury.  The Veteran reported that the incident was very traumatic to him, and he reported that he could have died as a result of the impact.  He reported that after the incident he had sleeping problems.  The treatment provider noted that the Veteran was presenting episodes of excessive anxiety and worry, and restlessness.  The treatment provider also noted that the Veteran had been on close psychiatric evaluation and was on medication.  The treatment provider opined that the Veteran's depression problems were more probable than not service connected secondary to his incident while at service with the rocket.

A September 2011 private medical opinion from a psychiatrist reflects a diagnosis of major depressive affective disorder, recurrent episode, moderate and posttraumatic stress disorder per the DSM-IV.  The Veteran reported anxiety, and nightmares, which would cause him to wake up in a sweat.  He reported feeling very sad, with a desire to cry, and irritable.  The treatment provider opined that the Veteran's symptoms were related to his physical condition and traumas suffered during military service.  The treatment provider noted that the Veteran suffered a burn in his chest, which left a scar, he suffered from a degenerative condition of the disks and stenosis of the spinal cord, and his right knee had a rupture of the meniscus and arthroscopy.  The treatment provider noted that the Veteran had been a psychotherapy and pharmacotherapy patient since June 2011.

The Veteran was afforded a VA examination in March 2012.  The examination reflects a diagnosis of mood disorder not otherwise specified.  The examiner noted that the Veteran's psychosocial and environmental problems were a chronic medical condition.  The Veteran reported he went to the VA in the 1980's for anxiety.  The examiner noted that the records show a February 1984 note, which diagnosed the Veteran with anxiety disorder and the stressor that was reported was separation from his first spouse.  The examiner opined that the Veteran's claimed condition was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected condition.  The examiner noted that the Veteran's initial mental examination was three years post active military service, and as per the record, initial mental assessment was secondary to his anxiety secondary to his divorce from his first spouse, and muscle twitching.  The examiner opined that the Veteran's current medical condition, mood disorder not otherwise specified, and his service connected condition, right knee derangement, are two separate conditions, without any relation, and involve different time frames and anatomical areas.

An October 2014 VA examination reflects a diagnosis of depressive disorder, not otherwise specified.  The Veteran reported that he began psychiatric treatment with the VA in 1982.  The examiner noted that those records were not available.  The Veteran reported that he was in private psychiatric treatment in 2011.  The examiner inaccurately noted that the Veteran's service treatment records were silent for mental health referrals, personal requests, findings, diagnoses or treatments for a mental disorder.  The examiner opined that the Veteran's claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the in-service injury, event, or illness.

In July 2016, the October 2014 VA examiner issued an addendum opinion, which reflects a diagnosis of depressive disorder.  The examiner noted that the Veteran did not mention his service-connected medical conditions during the October 2014 VA examination.  The examiner opined that the Veteran's diagnosed depressive disorder was not related to military service, was not secondary to his service connected conditions, and was not aggravated (permanently worsened beyond natural progression) by his service connected conditions, to include his service-connected lumbar spine and knee disabilities.  It does not appear that the examiner considered the Veteran's symptoms of anxiety and insomnia in service.

A February 2017 VA treatment record reflects an assessment of major depressive disorder recurrent, exacerbated by chronic medical conditions and chronic pain.  The Veteran reported that he had been feeling low, and that pain in his back had been affecting his performance.  The Veteran reported that he had chronic on and off depressive symptoms, with partial response to prescribed medications.  The Veteran reported concerns and worries about his chronic medical conditions, and chronic back pain.  The psychiatrist noted that the Veteran had multiple medical conditions, and that the Veteran had a history of adjustment disorder and major depressive disorder recurrent, with prior treatment and current mental health treatment.

A May 2017 mental disorders Disability Benefits Questionnaire (DBQ) reflects a diagnosis of major depressive disorder, moderate, recurring, and anxiety disorder, unspecified, as per history.  The examiner noted that the Axis III medical diagnoses were lumbar back problems.  The examiner did not opine as to the etiology of the Veteran's acquired psychiatric disorder.

Resolving all reasonable doubt in the Veteran's favor, the Board finds that his diagnosed anxiety and depression had their onset in service and service connection for an acquired psychiatric condition is warranted.  Service treatment records reflect a possible diagnosis of anxiety, and treatment for insomnia.  Service treatment records also reflect that the Veteran suffered third degree burns from a fireworks rocket in December 1979, and was in two altercations in December 1979 and February 1980.  VA treatment records reflect that for more than 30 years, the Veterans sought treatment for psychiatric conditions.  A February 1984 VA treatment record reflected a diagnosis of adjustment disorder with anxious mood.  A February 2017 VA treatment record reflected an assessment of major depressive disorder recurrent, exacerbated by chronic medical condition and chronic pain.

The Veteran was afforded VA examinations in March 2012, October 2014, and August 2016.  The March 2012 VA examination is inadequate, as it did not appear to consider whether the Veteran's psychiatric condition was related to the Veteran being burned in service by rocket fireworks.  The October 2014 VA examination is inadequate as it inaccurately noted that the Veteran's service treatment records were silent for mental health referrals, personal requests, findings, diagnoses or treatments for a mental disorder.  As noted above, the Veteran's service treatment records reflect treatment for symptoms of anxiety and insomnia.  The August 2016 addendum opinion is also inadequate, as it did not address the Veteran's treatment for symptoms of anxiety and insomnia in service.  In addition, a May 2017 DBQ is not probative, as it did not address the etiology of the Veteran's psychiatric condition.

The January 2011 and September 2011 private medical opinions establish that the Veteran's acquired psychiatric conditions had its onset during the Veteran's period of active service from November 1977 to November 1981.  The September 2011, treatment provider noted the Veteran's physical condition and experiences in service which the treatment provider opined were related to his psychiatric symptoms.  The January 2011 and September 2011 opinions are competent, credible and probative, and coupled with the other medical evidence of record including the service records, VA treatment records, and lay evidence, support a conclusion that service connection for an acquired psychiatric disorder is warranted.

Additionally, the Veteran has been diagnosed with anxiety, depression, and insomnia.  The scope of a mental health disability claim includes any psychiatric diagnoses that may reasonably be encompassed by the Veteran's reported symptoms.  See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  Accordingly, the Board finds that that January 2011 and September 2011 private medical opinions support a conclusion that the Veteran's diagnosed anxiety and depression are at least as likely as not related to service. 


ORDER

Service connection for an acquired psychiatric disorder, diagnosed as anxiety and depression, is granted.


REMAND

Increased Rating for Right Knee Disability

The Veteran seeks a rating in excess of 10 percent for his service connected right knee disability.  The Veteran asserts that the June 2016 VA examination did not specify whether a goniometer was utilized on examination to ensure accurate range of motion measurements.

In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) found that, pursuant to 38 C.F.R. § 4.59, joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of motion of the opposite undamaged joint.  In this case, the June 2016 VA examination of the right knee did not include range of motion testing in active and passive motion and weight-bearing and nonweight-bearing.  Therefore, the Board finds that another VA examination is necessary with respect to the claim for an increased rating for the Veteran's service connected right knee disability.

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a VA examination of the right knee.  The claims file should be provided for the examiner's review in conjunction with the examination, and the examination report should indicate that the claims file was reviewed.

The examiner should conduct range of motion testing of the right knee.  The examiner should indicate whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the right knee disability.  If pain on motion is observed, the examiner should indicate the point at which pain begins.

The examiner should indicate whether a goniometer was utilized on examination.

In addition, the examiner should indicate whether, and to what extent, the Veteran experiences functional loss of the knee due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion.

The examination must include testing of the right knee joint for pain on both active and passive motion, in weight-bearing and nonweight-bearing.  The examiner is not required to provide range of motion testing of the opposite joint (left knee) as it is not considered undamaged.  A June 2016 VA examination reflects a diagnosis of patellofemoral pain syndrome of the left knee.

If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so.

2. After undertaking any additional development deemed necessary, readjudicate the claim of entitlement to an increased rating for the Veteran's service connected right knee disability.  If the claim remains denied, provide the Veteran with a supplemental statement of the case and afford him a reasonable opportunity to respond.  Then, return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112.




______________________________________________
LESLEY A. REIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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