Citation Nr: 1223858 Decision Date: 07/10/12 Archive Date: 07/18/12 DOCKET NO. 05-01 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a bilateral leg disability. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from September 1971 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2004 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Detroit, Michigan. In January 2007, the Board remanded this case for development of the evidence. In September 2010, the Board directed that additional development be undertaken. This has been completed and will be discussed below. In the September 2010 remand, the Board, among other things, noted that the United States Court of Appeals for Veterans Claims (Court) had recently held that a claim for service connection for a psychiatric disability encompassed all psychiatric symptomatology, regardless of how that symptomatology was diagnosed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, although the psychiatric issue on appeal was previously described as a claim for service connection for an anxiety disorder, in light of Clemons, the issue in the instant appeal was now properly understood as a claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). The Board remanded the aforementioned issue for further notice and evidentiary development in consideration of Clemons. The case now returns to the Board following such action and is ready for disposition. FINDINGS OF FACT 1. There is no competent evidence of record showing a current diagnosis of a bilateral leg disability. 2. Even accepting the credibility of the Veteran's contention that he injured his left knee and experienced pain and numbness in his legs during service, the preponderance of the evidence weighs against finding that his currently diagnosed degenerative joint disease of the left knee and peripheral neuropathy are causally or etiologically related to his period of active military service, to include any incident or event therein, or that either disorder manifested to a compensable degree within one year of separation from active service. 3. The preponderance of the evidence weighs against a finding that the Veteran currently suffers from PTSD. 4. An acquired psychiatric disorder, to include depression NOS (not otherwise specified), dysthymic disorder, major depressive disorder, adjustment disorder with mixed mood, and cognitive disorder, was not manifested during service and is not related to the Veteran's period of active service, to include any incident or event therein. CONCLUSIONS OF LAW 1. Entitlement to service connection for a bilateral leg condition is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2011). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA enhanced VA's duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). The VCAA also redefined the obligations of VA with respect to the duty to assist the veteran with the claim. Id. In the instant case, the Board finds that VA fulfilled its duties to the Veteran under the VCAA. Duty to Notify VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. The Board concludes that the letters dated in April 2004, April 2007, and September 2010 that were sent to the Veteran adequately apprised him of the information and evidence needed to substantiate the claims. The RO thus complied with VCAA's notification requirements. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Additionally, on March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Board finds that VA has met these duties with regard to the claims adjudicated on the merits in this decision. There is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in April 2004, April 2007, and September 2010 fulfills the provisions of 38 U.S.C.A. § 5103(a). That is, the Veteran received notice of the evidence needed to substantiate his claims, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly, 19 Vet. App. at 394, 403; see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I) rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In addition, the April 2007 and September 2010 letters also informed the Veteran about how VA determines effective dates and disability ratings, as required by Dingess. The Board also recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice must "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." Written notice was provided in April 2004, prior to the appealed from rating decision, along with the subsequent notice provided in April 2007 and September 2010, after the decision that is the subject of this appeal. With respect to any timing deficiency, the Board notes that the case was subsequently readjudicated in January 2009 and March 2012 supplemental statements of the case (SSOC's) and, as such, the Veteran has not been prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). While the Veteran has not been provided with notice regarding the amendment to the PTSD regulation, the failure to do so is harmless error because the Veteran is not shown to have a current diagnosis of PTSD. Therefore, the amended regulation is inapplicable in this case. The Veteran has been provided the opportunity to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence. Furthermore, he has been provided a meaningful opportunity to participate effectively in the processing of his claims by VA. Duty to Assist VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence. In the September 2010 remand, the Board stated that it was unclear if the Veteran had applied for disability benefits from the Social Security Administration (SSA) and, if so, whether he was receiving them. Thus, upon remand, the Board directed the RO to determine whether the Veteran was in receipt of SSA disability benefits. In a September 2010 Memorandum, the RO reported that the Veteran had been denied SSA disability benefits and was not receiving any payments from SSA. With respect to an examination, in January 2012, the Veteran underwent a VA examination that was pertinent to his claim for service connection for an acquired psychiatric disorder, to include PTSD. Based on review of the claims folder and interview and evaluation of the Veteran, the examiner concluded that the Veteran did not have PTSD. He also concluded that it was less likely as not that the Veteran's currently diagnosed psychiatric disorders were related to his active military service, as will be explained below. The opinion was supported by adequate rationale and is deemed sufficient for the purpose of this adjudication. Thus, the Board finds that the medical evidence of record is sufficient to resolve this appeal. In regard to the Veteran's claim for service connection for a bilateral leg disability, in the September 2010 remand, the Board noted that the Veteran was competent to report that he had injured his left knee during service and had also experienced pain and numbness in his legs since service. The Board further indicated that the evidence of record showed current diagnoses of peripheral neuropathy and arthritis of the left knee. Thus, the Board determined that a VA examination was warranted in order to determine whether the Veteran had a current bilateral leg disability and, if so, whether it was related to his period of active service. Pursuant to the Board's September 2010 remand, the RO scheduled the Veteran for a VA examination in January 2012 in order to determine the etiology of any bilateral leg disability. However, in the January 2012 VA examination report, the examiner stated that although the Veteran arrived for the examination, he was alcohol intoxicated, with symptoms of diarrhea and vomiting. The Veteran was unable to finish the physical examination and his girlfriend took him to the Emergency Room. The examiner stated that he did not feel that he was able to conduct an adequate interview with the Veteran in order to render an opinion on his claimed bilateral leg condition. In light of the above, it is clear that VA has done its utmost to develop the evidence with respect to the Veteran's claim. Any failure to develop the claim rests with the Veteran himself. It is the responsibility of veterans to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994). The Veteran was scheduled for a VA examination in January 2012 in order to determine the etiology of his claimed bilateral leg disability. Although he appeared for the examination, he was intoxicated and the examination could not be completed. The Board finds that this is akin to failing to report to the examination. It is the responsibility of VA adjudicators, based upon their administrative experience and expertise in reviewing many claims of this nature, to determine at what point the record is sufficiently developed to support a reasonably informed decision. See 38 C.F.R. §§ 3.159, 3.326 (2011); see also Shoffner v. Principi, 16 Vet. App. 208, 213 (2002) [holding that VA has discretion to decide when additional development is necessary]. As provided in 38 C.F.R. § 3.159(c)(4), VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. To support this objective, the regulations further provide that "[i]ndividuals for whom an examination has been scheduled are required to report for the examination." See 38 C.F.R. § 3.326(a) (2011); see also Wood v. Derwinski, 1 Vet. App. 190 (1991) [holding that the duty to assist "is not always a one-way street" and that, "[i]f a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence"]. Thus, the regulations clearly indicate it is the duty of VA to determine the adequacy of evidentiary development, and the duty of the veteran to cooperate with VA in these efforts. The regulations also clearly indicate that when the veteran fails to report for an examination scheduled in connection with an original claim, it must be decided based on the evidence of record. See 38 C.F.R. § 3.655. In the May 2012 Informal Hearing Presentation, the Veteran's representative, Vietnam Veterans of America (VVA) stated that the Veteran regretted being drunk for the examination and realized that the Board would not grant a request to afford him a new examination (i.e., for lack of good cause). However, the VVA contended that although the Veteran could not provide information himself at the examination, the examiner still could have considered the evidence already of record, and that such evidence would have been sufficient for the purposes of forming an opinion. Thus, the VVA maintained that a remand was necessary so that the VA could obtain an opinion on the pertinent questions related to the Veteran's claim for service connection for a bilateral leg disability. The Board disagrees. VA has the discretion to decide when additional development is necessary. See Shoffner, supra. In this case, the Board had determined that a VA examination was warranted in order to determine whether the Veteran had a current bilateral leg disability and, if so, whether it was related to his period of active service. Although the Veteran had been diagnosed with peripheral neuropathy and arthritis of the left knee, no specific bilateral leg disability had been diagnosed, and the examination was needed in order to clarify the Veteran's current diagnoses. Therefore, although the VVA maintained that a VA examination was not needed and that the evidence of record was sufficient for review and obtaining an opinion regarding any current bilateral leg disability and the etiology of such, it is clear that the evidence of record had not been sufficiently developed and that a VA examination was needed. The Veteran is expected to cooperate in the efforts to adjudicate a claim, and his failure to do so subjects him to the risk of an adverse adjudication based on an incomplete and underdeveloped record. See Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005). See also Wood, 1 Vet. App. at 190, 193. Thus, at this juncture, because the Veteran essentially failed to report to the scheduled VA examination, VA has no further duty to provide an examination or obtain a medical opinion with respect to his claim for service connection for a bilateral leg disability, and the Board will evaluate his claim based on the evidence of record. Based on the foregoing, it is the Board's determination that the VA fulfilled its VCAA duties to notify and to assist the Veteran, and thus, no additional assistance or notification was required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard, supra. II. Pertinent Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2011). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2011). 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 disability was incurred in service. 38 C.F.R. § 3.303(d) (2011). In order to prevail on the issue of service connection, there must be competent and credible evidence of three things: (1) a current disability; (2) evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Moreover, where a veteran who served continuously for ninety (90) days or more during a period of war develops certain chronic conditions, such as arthritis and organic diseases of the nervous system (including peripheral neuropathy), to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). Under the benefit-of-the-doubt rule embodied in 38 U.S.C.A. § 5107(b), in order for a claimant to prevail, there need not be a preponderance of the evidence in the veteran's favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1994). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009)(noting that a layperson may comment on lay-observable symptoms). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). III. Bilateral Leg Disability A. Factual Background The Veteran's service treatment records are negative for any complaints or findings of a bilateral leg disability, left knee arthritis, or peripheral neuropathy. The records show that in September 1971, the Veteran underwent an enlistment examination. At that time, in response to the question as to whether the Veteran had ever had or if he currently had cramps in his legs, the Veteran responded "yes." The examiner noted that the Veteran had leg cramps with exercise. The Veteran's lower extremities were clinically evaluated as "normal." In November 1974, the Veteran underwent a separation examination. At that time, he denied any cramps in his legs. The Veteran's lower extremities were clinically evaluated as "normal." He was clinically evaluated as "normal" for neurologic purposes. VA Medical Center (VAMC) inpatient treatment records show that the Veteran was hospitalized from June to August 2001 for alcohol dependence. Upon his discharge, it was noted that he had leg edema, recent onset, that was improving. VAMC outpatient treatment records show that in February 2002, the Veteran sought treatment for complaints of terrible leg pain. According to the Veteran, the pain started in his feet and traveled up his leg. The assessment was probable neuropathy. VAMC outpatient treatment records show that in May 2003, the Veteran had x-rays taken of his left tibia and fibula. At that time, he stated that he had pain in his lower leg. He denied any injury. The x-rays were reported to be normal. In December 2003, the Veteran had x-rays taken of his left knee. At that time, he had complaints of a recent onset of pain in his left knee. The x-rays were interpreted as showing minor osteoarthritis. Also in December 2003, the Veteran was treated for complaints of numbness in both legs and pain in his left knee, "weakness for many years since he left service." Upon physical examination, there was numbness on "both whole legs." The impression was peripheral neuropathy. In January 2004, the Veteran filed a claim for service connection for a bilateral leg disability. At that time, he stated that he initially started experiencing problems with his legs during service. The Veteran indicated that he had numbness and pain in his legs and that he sought treatment on numerous occasions, but no disability was ever diagnosed. According to the Veteran, after his discharge, he continued to experience numbness and pain in his legs. VAMC inpatient treatment records show that the Veteran was hospitalized from January to February 2004 for alcohol and opiate dependency. Upon his discharge, it was noted that he had peripheral neuropathy. In January 2005, the Veteran underwent a VA examination that was pertinent to his claim for nonservice-connected pension benefits. At that time, he stated that he had pain in his left knee and leg. According to the Veteran, he had originally injured his left knee while he was in the military. The Veteran indicated that after his left knee injury, he developed chronic pain in his left knee. Following the physical examination, the pertinent diagnosis was pain in the left knee. The Veteran subsequently had x-rays taken of his left knee which were reported to show chondromalacia of the left knee. In January 2012, the Veteran appeared for a VA examination. However, as previously stated, he was intoxicated and the examination could not be completed. Nevertheless, he did have x-rays taken of his left knee. The x-rays were reported to show minor osteoarthritis. The examiner diagnosed the Veteran had degenerative joint disease of the left knee. B. Analysis Based on a thorough review of the record, the Board finds that there is a preponderance of evidence against the Veteran's claim for service connection for a bilateral leg disability. At the outset, the Board recognizes that in the Veteran's September 1971 enlistment examination, he stated that he had cramps in his legs with exercise. In this regard, the Board observes that every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2011). See also Wagner v. Principi, 370 F.3d 1089, 1096 (2004). Although the Veteran stated that he had cramps in his legs with exercise, no specific leg disability was diagnosed; in fact, the Veteran's lower extremities were clinically evaluated as "normal." Thus, there was a presumption of soundness. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner, supra. The Veteran's service treatment records are negative for any complaints or findings of a bilateral leg disability. Nevertheless, as noted in the September 2010 remand, the Board finds that the Veteran is competent to report that he injured his left knee during service and had experienced pain and numbness in his legs since service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires fact perceived through the use of the five senses). It is not necessary to address the credibility of his assertions, since service connection still requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the instant case, there is no competent evidence showing a current diagnosis of a bilateral leg disability. The Board recognizes that the evidence of record does show current diagnoses of left knee arthritis and peripheral neuropathy, and these disorders will be discussed below. However, these disorders do not represent a current bilateral leg disability. Evidence expected from the examination scheduled in January 2012 which might have been material to the outcome of this original compensation claim cannot be considered. Indeed, because the Veteran essentially did not report for the examination, a medical opinion addressing whether the Veteran had a current bilateral leg disability and, if so, whether it was related to his period of active service, was not able to be obtained. The only evidence of record supporting the Veteran's claim for service connection for a bilateral leg disability is his own lay opinion that he currently has a bilateral leg disability that is related to his military service. The Veteran is certainly competent to testify as to symptoms such as pain and numbness in his legs. However, a symptom, such as pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). In this case, no underlying bilateral leg disability has been diagnosed. As stated above, although the evidence of record shows diagnoses of left knee arthritis and peripheral neuropathy, these disorders do not represent a current bilateral leg disability. While the Veteran is competent to give evidence about observable symptoms such as experiencing pain and numbness in his legs, he is not competent to give an opinion as to whether he has a bilateral leg disability as this issue involves a highly complex medical question. Determining the etiology of complex medical conditions requires medical training and would not be subject to lay observation, as contrasted with the situations contemplated by Jandreau and Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the Veteran's lay opinion that he has a bilateral leg disability is not competent evidence and lacks probative value. Although the evidence of record shows that the Veteran does not have a current diagnosis of a bilateral leg disability, the evidence does show that he has current diagnoses of degenerative joint disease of the left knee and peripheral neuropathy. However, there is no competent evidence of record of a nexus between the Veteran's currently diagnosed left knee arthritis and peripheral neuropathy, and any incident of service, to include his in-service left knee injury. In this regard, the Veteran's service treatment records are negative for any complaints or findings of degenerative joint disease of the left knee and peripheral neuropathy. In addition, in the Veteran's November 1974 separation examination, the Veteran's lower extremities were clinically evaluated as "normal." Moreover, he was also clinically evaluated as "normal" for neurologic purposes. The first evidence of left knee arthritis, including x-ray evidence actually documenting arthritis in the Veteran's left knee, is in December 2003, approximately 29 years after the Veteran's discharge. In December 2003, the Veteran had x-rays taken of his left knee which were reported to show minor osteoarthritis. In addition, the first evidence of an actual diagnosis of peripheral neuropathy is also in December 2003. The Board notes that the evidence of record does not include any medical tests confirming the diagnosis of peripheral neuropathy; however for the purposes of this decision, the Board will accept that the Veteran has peripheral neuropathy. With respect to negative evidence, the Court held that the fact that there was no record of any complaint, let alone treatment, involving the veteran's condition for many years could be decisive. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000), [it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints]. The Board further observes that, as there is no medical evidence confirming diagnoses of arthritis of the left knee and peripheral neuropathy within one year subsequent to service discharge, the presumptive provisions for these diseases found in 38 C.F.R. §§ 3.307 and 3.309 are not applicable. The only evidence of record supporting the Veteran's claim is his own lay opinion that his currently diagnosed left knee arthritis and peripheral neuropathy are related to his period of service, specifically to his in-service left knee injury and his complaints of leg pain and numbness. In this regard, the Board acknowledges that the Veteran can provide competent evidence about what he experienced; for example, his statements are competent evidence as to his in- service injury and subsequent pain in his left knee. See e.g., Layno, 6 Vet. App. at 465; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (i.e., where the condition is simple, for example, a broken leg), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, while the Veteran may be sincere in his belief that his left knee arthritis and peripheral neuropathy are related to his service, his expressions of such belief have little, if any probative value. The determination of whether a current disability is related to a remote injury in service is a complex medical question not capable of resolution by mere lay observation; it requires medical expertise. In addition, the Board does not find that peripheral neuropathy is subject to lay diagnosis, as medical tests are required to establish such an assessment. The Veteran is a layperson with no medical training; he does not cite to any medical texts or treatises to support his self-diagnoses and/or theory of causation; and he does not offer any explanation of rationale for his opinions. See Jandreau, 492 F.3d at 1377. In addition, with respect to the Veteran's degenerative joint disease of the left knee, such is diagnosed on the basis of clinical and x-ray examinations. Specialized education and/or training are required for a determination as to such diagnosis or to determine the etiology of arthritis. The Veteran is not competent to provide an opinion on any earlier diagnosis or the causation of his degenerative joint disease of the left knee. In regard to the Veteran's peripheral neuropathy, there is no competent evidence of record which addresses the underlying reason for the peripheral neuropathy. However, as noted further in the decision below, in a January 2005 VA examination, the Veteran was diagnosed with alcoholic peripheral neuropathy which suggests that it is due to his diagnosed alcohol dependence. With respect to alcohol dependence, the Board notes that payment of compensation for a disability that is a result of a veteran's own alcohol or drug abuse is prohibited by law. 38 U.S.C.A. § 105(a) (West 2002); 38 C.F.R. §§ 3.1(m), 3.301(d) (2011) To the extent that the Veteran had leg edema in August 2001, the Board notes that there is no evidence of record showing that the Veteran currently has a disability manifested by leg edema that is related to his period of active service. More importantly, the Veteran has not maintained that he has a leg disability manifested by leg edema that is related to his period of active service. In view of the foregoing, the Board concludes that there is a preponderance of evidence against the Veteran's claim for service connection for a bilateral leg disability. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, since there is a preponderance of evidence against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. An Acquired Psychiatric Disorder to Include PTSD A. Factual Background The Veteran's DD Form 214, Report of Separation From Active Duty, shows that he served in the United States Army from September 1971 to December 1974, with 1 year, 2 months, and 10 days overseas. The country of the Veteran's last overseas service was Germany. The Veteran's Military Occupational Specialty (MOS) was as a cook. The Veteran's service treatment records are negative for any findings of a psychiatric disorder, to include PTSD. The records reflect that in June 1972, the Veteran underwent a follow-up evaluation after receiving treatment for a headache. The examiner noted that the Veteran appeared slightly depressed and tense, with a distant flattening of affect. The diagnosis was cephalgia. In November 1974, he underwent a separation examination. At that time, in response to the question of whether he ever had or if he currently had depression or excessive worry, or nervous trouble of any sort, he responded "no." The Veteran was clinically evaluated as "normal" for psychiatric purposes. VAMC outpatient treatment records show that in July 1979, the Veteran sought treatment for his "nerves." At that time, he stated that he was working in a mine. Also in July 1979, the Veteran had complaints of feeling depressed. The examiner urged the Veteran to stop using marijuana. According to the examiner, the Veteran would not be completely free of his hopelessness and depression until he discontinued using marijuana. VAMC outpatient treatment records reflect that in November 2001, the Veteran was treated for vague suicidal ideations. At that time, he stated that he had recently been released from jail for a DUI (driving under the influence) and was feeling depressed. The Veteran was homeless and unemployed. The diagnosis was the following: (Axis I) alcoholism, in remission; depression NOS, (Axis IV) homeless, unemployed, and (Axis V) Global Assessment of Functioning (GAF) score of 60. VAMC inpatient treatment records show that the Veteran was hospitalized from November to December 2002. Upon his discharge, he was diagnosed with chemical dependence to alcohol, continuous; adjustment disorder with mixed mood; and dysthymic disorder. VAMC inpatient treatment records reflect that the Veteran was hospitalized from December 2002 to June 2003. He underwent a voluntary admission because he "did not want to drink anymore," and because he wanted to "stop being depressed." The Veteran stated that he had one prior admission at a substance abuse rehabilitation clinic. Upon his discharge, the pertinent diagnoses were alcohol dependence, continuous, and major depressive disorder. VAMC treatment records also show that in December 2003, the Veteran sought treatment for nightmares and flashbacks of a civilian non-military accident in which a truck was blown up in an oil field. The Veteran also stated that he had experienced an acute "stress incident" while he was in the military and serving in Germany. According to the Veteran, he was stationed in Munich during the 1972 Olympics and was providing cooking services for the athletes when there was an Arab terrorist attack. Also in December 2003, the Veteran was admitted after a suicide attempt. At that time, he stated that he felt hopeless and noted that he had recently been laid off and had broken up with his girlfriend. The examiner reported that the Veteran had many somatic complaints, including numbness in his legs. The Veteran indicated that he was upset because the medical community had been unable to find an explanation for his leg problems. The Veteran also complained of a recent onset of "PTSD" and stated that he was noticing symptoms of nightmares, flashbacks, nightsweats, and "memories of those wars." He vaguely discussed an incident in Germany during the 1972 Olympics when he was "almost snatched by a bunch of Arabs" while in the Army. According to the Veteran, his psychiatric problems and alcohol dependence had been ongoing since his discharge from the military. Upon his discharge, the diagnosis was the following: (Axis I) alcohol dependence, continuous; adjustment disorder with mixed emotional features, (Axis IV) economic and occupational problems, and (Axis V) GAF score of 35; past year score of 50. In January 2004, the Veteran filed a claim for service connection for an anxiety disorder. The Veteran stated that he initially experienced anxiety and depression while he was in the military. He indicated that his anxiety was exacerbated by a major in his command who was "vindictive" and was always harassing him. VAMC inpatient treatment records show that the Veteran was hospitalized from January 2004 to February 2004. Upon his discharge, he was diagnosed with substance induced mood disorder, and alcohol and opiate dependency, continuous. In January 2005, the Veteran underwent a VA psychiatric examination that was pertinent to his claim for nonservice-connected pension benefits. The examiner noted that he had reviewed the Veteran's claims file. The Veteran did not have any combat exposure. He was present in Germany at the time when the Palestinian terrorists murdered the Israeli athletes, but he did not directly participate in that. According to the Veteran, he started drinking while he was stationed in Germany and he continued to do so after his discharge. The examiner indicated that the Veteran had a history of numerous inpatient detoxifications and rehab treatments and was currently in the VA hospital for rehab. Following the mental status evaluation, the diagnosis was the following: (Axis I) alcohol dependence, continuous; major depressive disorder, recurrent, severe; (Axis III) alcoholic peripheral neuropathy; chronic obstructive pulmonary disease; probable arthritis; history of congestive heart failure, and (Axis V) GAF score of 38. VAMC inpatient treatment records show that in January 2005, the Veteran was hospitalized for five days. Upon admission, he stated that he was depressed and was thinking of walking in front of a truck. The Veteran was homeless and unemployed. He had been drinking three to four 40 ounce beers a day for the past month. The discharge diagnoses were alcohol dependency, continuous; substance-induced mood disorder; marijuana abuse; and depressive disorder NOS. In January 2012, the Veteran underwent a VA psychiatric examination. At that time, the examiner stated that he had reviewed the claims file. The examiner indicated that according to the Veteran, his wife of 10 years died approximately two years ago of a sudden heart attack. The Veteran became homeless after his wife died. He was currently living in housing that was sponsored by Rural Center for Independent Living. The Veteran had been treated multiple times for alcohol dependence and had been in many detox programs. He had intermittently been diagnosed with depression throughout his lifetime. According to the examiner, the Veteran reported having cognitive problems since the 1980's and noted that he had his head "bashed in" numerous times in car accidents, falls, and fights. The examiner stated that upon psychiatric testing, the Veteran had a score of 47, which was below the cutoff for PTSD. In addition, the Veteran did not meet criteria A or B for PTSD. He had mild depression but he did not meet the criteria for a depressive disorder. The Veteran's current depression had developed since the death of his wife and was related to a normal grieving process. The Montreal Cognitive Assessment (MOCA) score was 18, which was indicative of cognitive impairment. Following the mental status evaluation, the examiner diagnosed the Veteran with the following: (Axis I) cognitive disorder, NOS; alcohol dependence in early partial remission, (Axis III) chronic obstructive pulmonary disease (COPD); chronic leg and back pain; cardiac problems; seizure disorder by history, (Axis IV) death of wife 18 months ago; inadequate social support; living alone; inadequate finances, and (Axis V) GAF score of 41. The examiner opined that the Veteran's cognitive disorder was less likely than not (less than 50 percent probability) incurred in or caused by the Veteran's claimed in-service injury, event, or illness. The examiner stated that the Veteran was specifically examined for PTSD stressors and symptoms. According to the examiner, the Veteran did not meet the stressor criteria for PTSD because while he was present at the 1972 Munich Olympics in the capacity of an Army cook, he did not experience fear, helplessness, or horror in response to the event. The only emotion the Veteran remembered experiencing was confusion. The examiner noted that the Veteran did not remember much about the event at all, and was surprised that he was asked about it. He stated that he had forgotten "about Munich a long time ago." The examiner indicated that given the Veteran's current cognitive disorder, it was possible that he did not remember his response to the event accurately. Still, the examiner opined that the Veteran's current symptoms were not consistent with a diagnosis of PTSD in that he did not re-experience the event, thus not meeting Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) criteria B for PTSD. In regard to the Veteran's diagnosed cognitive disorder, that developed at least a decade after the Veteran's military service and was less likely than not caused by military service, as the Veteran did not experience a head injury or traumatic brain injury (TBI) while in the military. With respect to the Veteran's diagnosed alcohol dependence, it was less likely than not that the Veteran's alcohol dependence was caused by his military service. B. Analysis In regard to the claim for service connection for PTSD, the Board notes that VA recently amended 38 C.F.R. § 3.304(f), the regulatory provision pertaining to service connection for PTSD. Under the former version of the regulation, in order for service connection to be awarded for PTSD, the record must show: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM-IV); (2) combat status or credible supporting evidence that the claimed in- service stressor actually occurred; and (3) medical evidence of a causal nexus between diagnosed PTSD and the claimed in- service stressor. 38 C.F.R. § 3.304(f) (in effect prior to July 13, 2010). However, effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. The amended 38 C.F.R. 3.304(f) adds the following: 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 posttraumatic stress disorder 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. 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. 38 C.F.R. § 3.304(f)(3), as added in 75 Fed. Reg. 39,843-852 (July 13, 2010). The amendment to the regulation is effective, in pertinent part, for all claims pending at the Board on July 13, 2010. The evidence necessary to establish that the claimed stressor actually occurred varies depending on whether it can be determined that the veteran "engaged in combat with the enemy." 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). If it is determined through military citation or other supportive evidence that a 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 regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary. 38 C.F.R. § 3.304(f). Where a determination is made that the veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. Doran v. Brown, 6 Vet. App. 283, 289 (1994); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In this case, the Veteran is not claiming, nor does the evidence show, that he was engaged in combat with the enemy while in service. Thus, the Board finds that the presumption afforded combat veterans under 38 U.S.C.A. § 1154(b) does not apply. The Veteran's primary stressor is that he was present in Munich during the 1972 Olympics when the Palestinian terrorists murdered the Israeli athletes. To the extent that the Veteran's service records confirm that he was stationed in Munich at the time of the 1972 Munich Olympics, and that he was there in the capacity of an Army cook, such stressor is verified. However, it is not necessary in the facts of this case to discuss the Veteran's alleged stressors any further. As explained further below, there is no competent evidence of record of a diagnosis of PTSD. Following a review of the evidence of record, the Board concludes that the preponderance of the evidence weighs against a finding that the Veteran currently experiences PTSD. In this regard, the Board notes that the Veteran underwent a VA psychiatric examination in January 2012, in pertinent part, to determine whether he had a current diagnosis of PTSD. Based on review of the Veteran's claims folder, as well as a thorough mental evaluation of the Veteran, to include psychiatric testing, the examiner concluded that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD. Specifically, the examiner stated that although the Veteran was present at the 1972 Munich Olympics in the capacity of an Army cook, he did not experience fear, helplessness, or horror in response to the event. Rather, the only emotion that the Veteran remembered experiencing was confusion. In addition, although it was possible that the Veteran's cognitive disorder interfered with his ability to remember his response to the event accurately, the examiner still opined that the Veteran's current symptoms were not consistent with a diagnosis of PTSD in that he did not re-experience the event, thus not meeting DSM-IV criteria B for PTSD. Therefore, although the examiner recognized the Veteran's verified stressor of being at the 1972 Munich Olympics in the capacity of an Army cook, he still opined that the stressor was not adequate to support a diagnosis of PTSD. Because he based his opinion on sufficient facts and data, including a thorough mental evaluation of the Veteran and psychiatric testing, the Board affords the VA medical opinion great probative value. Although the Veteran maintains that he has PTSD, he, as a lay person, is not competent to render a diagnosis of his claimed psychiatric disorder in this particular case. PTSD is not a simple medical condition, such as a broken leg, because the condition cannot be identified through the senses alone. Layno, 6 Vet. App. at 465, 469. For this reason, the Board determines that PTSD is not a simple medical condition that a lay person is competent to identify. Regardless, for reasons explained above, the opinion of the examiner from the January 2012 VA psychiatric examination is afforded far greater probative value than the opinion of the Veteran, which is afforded no probative value. Thus, for the foregoing reasons, the Board concludes that the Veteran is not entitled to service-connected compensation benefits for PTSD because he does not currently suffer from the disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau, 2 Vet. App. at 141. Therefore, because the preponderance of the evidence is against his claim, service connection for PTSD is not warranted. With respect to psychiatric disorders other than PTSD, pursuant to the Clemons case, the Board must also consider whether service connection is warranted for any current psychiatric disorders other than PTSD. In this regard, the Board recognizes that the Veteran has been diagnosed with numerous psychiatric disorders, specifically depression NOS; dysthymic disorder; major depressive disorder; adjustment disorder with mixed mood; and cognitive disorder. However, the evidence of record fails to show that any of the aforementioned psychiatric disorders is related to his service. In this case, there is no credible evidence on file linking a psychiatric disorder, to include depression NOS, dysthymic disorder, major depressive disorder, adjustment disorder with mixed mood, and/or cognitive disorder, to service or to any incident of service. The Veteran's service treatment records are negative for any findings of a psychiatric disorder, to include depression NOS, dysthymic disorder, major depressive disorder, adjustment disorder with mixed mood, and/or cognitive disorder. The Board recognizes that in June 1972, it was noted that the Veteran appeared slightly depressed with a flat affect. However, no actual psychiatric disorder was diagnosed at that time. Rather, he was diagnosed with cephalgia (headache). In addition, upon the Veteran's November 1974 separation examination, the Veteran was clinically evaluated as "normal" for psychiatric purposes. The first evidence of record of a psychiatric disorder is in November 2001, over 26 years after the Veteran's separation from the military. The Board recognizes that in July 1979, the Veteran had complaints of feeling depressed. However, no actual psychiatric diagnosis was provided at that time, nor was any link to service reported. Rather, the Veteran's feelings of depression were linked to working in a mine and using marijuana. In November 2001, VAMC outpatient treatment records show that the Veteran was treated for complaints of feeling depressed. He was diagnosed with depression NOS. With respect to negative evidence, the Court has held that the fact that there was no record of any complaint, let alone treatment, involving the veteran's condition for many years could be decisive. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As stated above, in November 2001, the Veteran was diagnosed with depression NOS. However, the Veteran's depression was not linked to his period of active service. Rather, it was linked to his lack of employment and being homeless. In addition, following a hospitalization for alcohol dependence in December 2002, the Veteran was diagnosed with an adjustment disorder with mixed mood and dysthymic disorder. However, neither disorder was linked to his period of active service. Moreover, following another hospitalization for alcohol dependence from December 2002 to June 2003, the Veteran was diagnosed with major depressive disorder. However, it was not linked to his period of active service. When he was again diagnosed with an adjustment disorder following a hospitalization for alcohol dependence in December 2003, it was linked to economic and occupational problems. In the January 2012 VA psychiatric examination, the examiner diagnosed the Veteran with a cognitive disorder. However, the examiner opined that the cognitive disorder was less likely than not (less than 50 percent probability) incurred in or caused by the Veteran's period of active service. According to the examiner, the Veteran's cognitive disorder developed at least a decade after the Veteran's military service and was less likely than not caused by military service because the Veteran did not experience a head injury or TBI while in the military. In light of the above, the Board finds that the competent and probative medical evidence of record does not attribute any of the Veteran's current psychiatric disorders to his period of active military service, to include his verified stressor of being at the 1972 Munich Olympics in the capacity of an Army cook. In regard to the Veteran's diagnosed alcohol dependence, the Board notes that payment of compensation for a disability that is a result of a veteran's own alcohol or drug abuse is prohibited by law. 38 U.S.C.A. § 105(a) (West 2002); 38 C.F.R. §§ 3.1(m), 3.301(d) (2011) (providing that an injury or disease incurred during active service will not be deemed to have been incurred in line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs). The Board has considered the Veteran's statements to the effect that he has a psychiatric disorder, to include depression NOS, dysthymic disorder, major depressive disorder, adjustment disorder with mixed mood, and cognitive disorder, which is related to his period of active military service. However, he, as a lay person, is not competent to render a medical opinion regarding the etiology of his currently diagnosed psychiatric disorders. While he is competent to report his experience of symptomatology and he appears to have alleged a continuity of symptomatology since service, the Board does not consider his account to be credible when weighed against the other evidence of record, as discussed above. Thus, although the Veteran appeared slightly depressed on one occasion in service, he denied having any depression or excessive worry at discharge. The first indication of a psychiatric disorder is not shown until after two decades after service. Moreover, the competent and probative medical evidence links the Veteran's current psychiatric disorders to other problems, not to service. For these reasons, the Board concludes that the Veteran is not entitled to service-connected compensation benefits for his currently diagnosed psychiatric disorders, to include depression NOS, dysthymic disorder, major depressive disorder, adjustment disorder with mixed mood, and cognitive disorder. Therefore, because the preponderance of the evidence is against his claim, service connection for a psychiatric disorder other than PTSD is also not warranted. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.102, a reasonable doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a bilateral leg disability is denied. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs