Citation Nr: 0814335 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 06-09 614 ) DATE ) MERGED APPEAL ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a left knee condition, claimed as secondary to a left ankle condition. 2. Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD L. L. Mollan, Associate Counsel INTRODUCTION The veteran served on active duty from June 1972 to June 1974. These matters come before the Board of Veterans' Appeals (Board) on merged appeal from a July 2003 RO decision, which denied a claim for service connection for PTSD, and a May 2003 RO decision, which denied a claim for service connection for osteoarthritis, status post-quadriceps muscle rupture, left knee (claimed as a left knee condition secondary to a left ankle condition). The Board notes that the RO recharacterized the veteran's claim for service connection for PTSD as a claim for service connection for a psychiatric disorder, to include PTSD in the June 2006 supplemental statement of the case (SSOC). FINDINGS OF FACT 1. The veteran's left knee condition is not etiologically related to service or a service-connected disability. 2. The most probative medical evidence of record reveals that the veteran does not have PTSD as a result of an in- service stressor event. 3. A psychiatric disorder is not shown by competent medical evidence to be etiologically related to a disease, injury, or event in service. CONCLUSIONS OF LAW 1. The veteran's left knee disability was not incurred in or aggravated by active military service and is not proximately due to or the result of any service-connected disability. See 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2007). 2. Service connection for a psychiatric disorder, to include PTSD, is not warranted. See 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claims for service connection, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. VCAA letters dated in July 2003, March 2004, November 2006, and April 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio, at 187. The veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Since the Board has concluded that the preponderance of the evidence is against the claims for service connection, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot, and no further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The veteran's service medical records and relevant private and VA medical records are in the file. All records identified by the veteran as relating to these claims have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claims. VA has fulfilled its duty to assist. With a service connection claim, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2007). With respect to the veteran's left knee disability claim, VA opinions were obtained most recently in April 2003 and May 2007. These opinions are thorough and complete. The examiner noted that the claims file had been reviewed. Therefore, the Board finds these opinions sufficient upon which to base a decision. With regards to the veteran's claim for service connection for a psychiatric disorder, to include PTSD, the Board notes that the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board concludes that an examination is not needed in this case for the claim of service connection for PTSD, as there is no corroborating evidence verifying that his claimed in- service stressors occurred. Such evidence is insufficient to trigger VA's duty to provide an examination. The Court has held, in circumstances similar to this, where the supporting evidence of record consists only of a lay statement, that VA is not obligated, pursuant to 5103A(d), to provide an appellant with a medical nexus opinion. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the veteran's claim because there was no evidence, other than his own lay assertion, that " 'reflect[ed] that he suffered an event, injury[,] or disease in service' that may be associated with [his] symptoms"). See also Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (holding that 3.159(c)(4)(i) is not in conflict with § 5103A(d) and evidence of record "establishing that the veteran suffered an event, injury, or disease in service," is required to trigger VA's duties pursuant to § 5103A(d)); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003) (holding that the Secretary's obligations under § 5103A to provide a veteran with a medical examination or to obtain a medical opinion is triggered if the evidence of record demonstrates "some casual connection between his disability and his military service"). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2007). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2007). In order to establish direct service connection for a disability, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the current disability. See Gutierrez v. Principi 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection may also be established 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(a) (2007). The Court has construed this provision as entailing "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability. Id; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board notes that 38 C.F.R. § 3.310, the regulation which governs claims for secondary service connection was recently amended. The intended effect of this amendment is to conform VA regulations to the Allen decision. 71 Fed. Reg. 52, 744 (Sept 7, 2006) (to be codified at 38 C.F.R. § 3.310(b)). Since VA has been complying with Allen since 1995, the regulatory amendment effects no new liberalization or restriction in this appeal. Absent a causal relationship, these provisions do not apply. Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2007). If the evidence establishes 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. See 38 C.F.R. § 3.304(f)(1) (2007); see also, 38 U.S.C.A. § 1154(b) (West 2002). Otherwise, the law requires verification of a claimed stressor. Where a determination is made that the veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet. App. 128, 42 (1997). As an initial matter, it is noted that there is no corroborative evidence that the veteran had combat service; as such, 38 U.S.C.A. § 1154(b) is not for application. His DD-214 Form does not reflect that he received any medals which are indicative of combat service. In addition, the veteran claims his primary stressor events are the death of two service members in a non-combat situation and the witnessing of a helicopter crash, as opposed to personal exposure to combat. Therefore, in order for service connection for PTSD to be awarded, his claimed stressors must be corroborated. 1. Entitlement to service connection for a left knee condition, claimed as secondary to a left ankle condition. The veteran is currently seeking service connection for a left knee disability, secondary to a service-connected left ankle disability. See Claim, November 2001. Specifically, the veteran claims that, while he was walking to his car, his left ankle collapsed, causing him to fall directly on his left knee cap. See veteran's statement, October 2002. The veteran has been service-connected for a left ankle syndesmotic injury since August 1999. The evidence of record establishes that the veteran sustained injury to his left knee from a fall he suffered in February 1995. See Sinai Samaritan Medical Center treatment record, February 1995. At this time, the veteran reported that he fell after slipping on ice. Id. The veteran was later diagnosed with a rupture of the left quadriceps tendon, probably incomplete. See S.P.K, M.D. treatment record, May 1996. At an October 2002 VA examination, the veteran was found to have minor osteoarthritis of the left knee. As an initial matter, the Board notes that the veteran's service medical records contain no evidence indicating complaints, treatment, or diagnosis of a left knee disability. Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2007). As the claims folder contains no in- service evidence of a left knee injury or disability and no opinions linking the veteran's current osteoarthritis of the left knee to his active duty, the veteran's claim cannot be granted on a direct basis. See Hickson, supra. In regards to granting service connection on a secondary basis, the Board notes that the veteran claims instability of his service-connected left ankle joint caused him to fall and injure his left knee. See notice of disagreement (NOD), April 2004. The veteran's wife, who was with him at the time of his fall, has specifically stated that he did not injure his left knee by slipping on ice. See wife's statement, October 2002. However, February 1995 medical records from Sinai Samaritan Medical Center, where the veteran sought treatment immediately after this incident, indicate that the veteran complained of having a fall after slipping on the ice. In addition, the veteran reported in private treatment records from May 1996 that he hurt his left knee by slipping on a sheet of ice. See S. P.K., M.D. treatment record, May 1996. The Board believes the descriptions of his injury offered during the course of receiving actual medical treatment to be much more credible than recent statements offered by the veteran and his wife almost a decade later while pursuing a claim for monetary benefits. The claims folder also contains varying opinions in regards to the etiology of the veteran's left knee injury. At an October 2002 VA examination, the veteran reported that, in February 1995, he was just walking, and his left ankle collapsed, causing him to fall on his left knee. Upon examination, it was noted that the veteran had minimal narrowing along the median joint compartment in a non-weight bearing AP view, tiny osteophytes at the tibial spines and patellar poles, a low-positioned patella, and narrowing at the femoral patellar space. The examiner also noted that no objective evidence could be found on examination to substantiate problems with the left knee. X-rays, however, revealed minor osteoarthritis. The examiner went on to conclude that it is as likely as not that the veteran's left ankle could have given way at some point in time in 1995, approximately 7 years ago, resulting in a fall on his left knee with subsequent injury to the left quadriceps muscle. In April 2003, a VA opinion was rendered based on the October 2002 VA examination, as well as the May 1996 private treatment record. In light of the fact that no mention was made at the October 2002 VA examination of slipping on the ice, the examiner concluded that it is not as likely as not that the veteran's left knee injury was caused by the service-connected left ankle injury. In May 2007, this same examiner reiterated his opinion by stating that, based on the 2002 VA examination and the 1996 evidence, it is not as likely as not that the veteran's left knee injury was caused by, nor aggravated by, his service-connected left ankle injury The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board notes that October 2002, April 2003, and May 2007 opinions were all based on a review of the claims folder. However, the October 2002 opinion was rendered before the 1995 and 1996 private treatment records, indicating that the veteran originally claimed to have fallen due to ice, had been associated with the claims folder. In addition, at no point in the October 2002 VA examination report was the possibility that the veteran's fall could have been due to slipping on ice, rather than left ankle instability, ever considered. As noted, the October 2002 VA opinion was based solely on the veteran's report that he had fallen due to his ankle collapsing, and the Board has found that report to not credible in light of contradictory statements in the course of receiving treatment. For this reason, the Board concludes that the April 2003 and May 2007 opinions are more credible. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005); see, e.g., Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on a veteran's statement renders a medical report incredible only if the Board rejects the statements of the veteran). The Board also finds that the competent medical evidence of record does not otherwise reflect that the veteran's left knee injury is related to instability of the left ankle. Thus, the veteran's claim cannot be granted on a secondary basis. In summary, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 2. Entitlement to service connection for a psychiatric disorder, to include PTSD. The veteran contends that he has a psychiatric disorder, to include PTSD, as the result of his active duty service. See Claim, June 2001. Specifically, he reports that, while sleeping on the ground in a sleeping bag, he was awoken one night and informed that two soldiers has been driven over and killed in their sleep by an armor tank. See Stressor Details form, August 2001. He did not know these men, nor did he witness this event. See veteran's statements, November 2001 and February 2004. The veteran also stated that, at one point, he was asked if he would like to ride in a helicopter. See Stressor Details form, August 2001. He declined but witnessed this helicopter collide into another helicopter in the air a few minutes later. Id. The Board notes that the claims folder contains diagnoses of depression, a nightmare disorder, and an anxiety disorder with specific simple phobias. See VA Medical Center (VAMC) treatment records, April 2006 and March 2007. The evidence of record reflects that the veteran has tested positive on a screening for PTSD and receives PTSD counseling. See VAMC treatment record, January 2006; Vet Center treatment record, May 2001. The claims folder also contains a VAMC treatment record from July 2006, in which it was noted that the veteran did not meet the sufficient criteria for a PTSD label. It is unclear from the evidence of record whether or not the veteran has been diagnosed with PTSD based on the full criteria of the disability according the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). However, despite the uncertainty of the basis for the treatment of the veteran for PTSD, the Board notes that, according to the DSM- IV, for a diagnosis of PTSD, the person must have been exposed to a traumatic event in which both of the following were present: 1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and 2) the person's response involved intense fear, helplessness, or horror. While the veteran reports the death of two fellow service members as a stressor event, he acknowledges that he was not present at this event and was only informed of it after the fact. See veteran's statements, November 2001 and February 2004. In regards to the incident in which the helicopters crashed into one other, the evidence of record does not confirm that the veteran was ever exposed to such an incident. In fact, exhaustive efforts were made to verify both of these events. However, in a June 2003 letter from the Center for Unit Records and Research, it was found that these stressor events could not be verified due to insufficient stressor information. The veteran was given adequate notice in the July 2003 letter that more information was needed to verify his alleged stressor events. The veteran responded in a February 2004 statement that he was unable to provide names of any casualties. As such, the veteran's stressors cannot be verified and service connection cannot be granted for PTSD. The Board notes that a September 2000 letter from the veteran's private physician indicated that the veteran had "intermittent bouts of headaches which was described as Post Traumatic Stress Headaches first manifested while he was on active military service." See J. B.V., M.D., S.C. treatment record, September 2000. However, as mentioned above, the veteran's alleged stressor incidents in service were unable to be verified, as required under the criteria of 38 C.F.R. § 3.304(f) to establish service connection for PTSD, and medical opinions premised upon an unsubstantiated account of a claimant are of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant). In regards to the possibility of granting service connection for a psychiatric disorder other than PTSD, the Board acknowledges that the veteran has been diagnosed with depression, a nightmare disorder, and an anxiety disorder. See VAMC treatment record, March 2007. Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2007). Currently, there is no evidence of record that the veteran had depression or an anxiety disorder in service. In a July 2006 VAMC treatment record, it was noted that the veteran has an anxiety disorder with phobias, and the veteran's phobias could be linked to incidents in service. In addition, a February 2006 VAMC treatment record noted that the veteran has general anxiety and depression that appear to be related to stress experiences in the military. As mentioned above, medical opinions premised upon an unsubstantiated account of a claimant are of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993). Therefore, the Board finds that the claims folder contains no competent medical opinion relating the veteran's anxiety disorder or depression to service. Thus, the veteran's claim must fail. See Hickson, supra. The Board is sympathetic to the veteran in that it is clear that he sincerely believes he has a psychiatric disorder, to include PTSD, as the result of his active duty service. See Claim, June 2001. However, the competent medical evidence of record does not support this contention. As a lay person has not been shown to be capable of making medical conclusions, his statements that he developed a psychiatric condition as a result of his active duty are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a psychiatric disorder, to include PTSD, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for a left knee condition, claimed as secondary to a left ankle condition is denied. Entitlement to service connection for a psychiatric disorder, to include PTSD is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs