Citation Nr: 1323291 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 07-28 879 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a psychiatric disorder. 2. Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from September 1966 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board in a March 2011 decision reopened the previously denied claim for service connection for a right knee disorder, and the claim is according now before the Board for a merits-based adjudication. The Board March 2011 remanded both the reopened right knee disorder claim and the appealed claim for service connection for a psychiatric disorder, for additional development. The claims now return to the Board for further review. The Board also in March 2011 reopened and remanded a claim for service connection for headaches. Following the remand, the RO in a June 2012 rating action granted service connection for migraine headaches. This RO action constitutes a complete grant of the benefit sought by the reopened headache service connection claim, and hence there remains no case in controversy for the Board's appellate consideration as to that claim. FINDINGS OF FACT 1. The currently diagnosed mood disorder was first shown in service and is shown by the medical evidence to be related to the Veteran's military service. 2. A right knee disorder is not shown by the probative evidence to be related to the Veteran's military service. 3. Arthritis of the right knee was not shown to a disabling degree within the first post-service year. CONCLUSIONS OF LAW 1. A mood disorder, not otherwise specified (NOS), was incurred in active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 2. A right knee disorder was not incurred in active military service, and may not be deemed to have been incurred in active military service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims herein, VA has met the requirements of all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Because the Board is taking action favorable to the Veteran by granting the claim of entitlement to service connection for a psychiatric disorder, the Board may adjudicate that claim without deciding whether notice and duty to assist provisions have been satisfied as to that claim. This decision poses no risk of prejudice to the Veteran with respect to the psychiatric disorder claim. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). While the Veteran has asserted that he has posttraumatic stress disorder (PTSD) and not the mood disorder diagnosed by the VA examiner in June 2011, the fact remains that the Veteran claimed entitlement to service connection for a psychiatric disorder, and a psychiatric disorder has herein been granted service connection. The characterization herein of the Veteran's service-connected psychiatric disorder as a mood disorder is based on the weight of such evidence. The Veteran, as a layperson, cannot be expected or required to differentiate one psychiatric disorder from another for purposes of his service-connected claim, because knowledge of such mental health diagnostic distinctions are more than may reasonably be required of a VA claimant. Clemons v. Shinseki, 23 Vet. App. 1 (2009). With regard to the Veteran's claim for entitlement to service connection for a right knee disorder, proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was provided the required notice letter in December 2005, prior to the appealed June 2006 rating action. This notice letter fulfilled the requirements of addressing what evidence was required both to reopen the claim for service connection for a right knee disorder and to support the claim for service connection on the merits. Kent v. Nicholson, 20 Vet. App. 1 (2006). A subsequent notice letter in May 2012 was followed by appropriate development and readjudication of the claim by the RO, with issuance of a supplemental statement of the case in June 2012. The letters informed the Veteran of the required notice and duty-to-assist provisions, and of the information and evidence necessary to substantiate the claim for service connection, as well as informing of the respective roles of the Veteran and VA in developing the claim and obtaining evidence, with the ultimate responsibility for ensuring that relevant evidence is obtained being on the Veteran. The Veteran was also then provided with general notice of the evidence required to satisfy the claim for service connection. Additionally, he was afforded notice of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that the RO appropriately assisted the Veteran in obtaining indicated VA treatment and private treatment and evaluation records. This included records of private practitioners, including those incidentally noting the presence of knee disability. Indicated treatment or evaluation records have been sought, and obtained records have been associated with the claims file. The Veteran has been informed, including by rating action, statement of the case, and supplemental statements of the case, of records obtained. The RO made appropriate efforts to develop the record as directed by the Board's remand in March 2011. This included providing the Veteran with additional notice of the evidence required to sustain his claim for service connection, affording the Veteran the opportunity to submit evidence or argument in furtherance of his claim, obtaining service personnel records, obtaining additional treatment records, and affording the Veteran an examination addressing the nature and etiology of any current right knee disorder. The request for service personnel records was ultimately to support the Veteran's psychiatric disorder claim, but this was nonetheless accomplished. The remand development was followed by review of the claim, including most recently by the supplemental statement of the case in June 2012. The Board finds substantial compliance with all development required by the Board's remand. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). The Veteran's authorized representative, by an August 2012 submission, waived RO review of any additional submitted evidence. VA's duty to assist the Veteran by providing examinations when necessary was also adequately fulfilled. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The examinations afforded the Veteran evaluated the Veteran's right knee disability in conjunction with his prior history and described it in sufficient detail so the Board's evaluation was an informed one. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Finally, there is no indication in the record that additional evidence relevant to the right knee disorder issue being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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. As such, VA has complied, to the extent required, with the duty-to-assist requirements. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)-(e). II. Claims for Service Connection The Veteran contends that he is entitled to service connection for a right knee disorder and a psychiatric disorder, based on his assertion that these disorders began in service, or based on a causal relationship between in-service incidents and the current disabilities. Specifically, he contends that he injured his right knee playing football in service, and that he a psychiatric disability as a result of a stressor incident in service. Service connection may be granted for disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. 38 C.F.R. § 3.303(a) ; Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for certain disabilities, including arthritis, may be granted on a presumptive basis if manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.303(d). The Board has an obligation to provide reasons and bases supporting this decision, but there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Psychiatric Disorder At a VA psychiatric examination in June 2011, the Veteran reported a history of difficulties present both in service and following service, including moodiness, low frustration tolerance, irritability, and intermittent brief periods of depression or very low mood, including brief episodes of possible suicidality. The Veteran also reported some intervals following service of having excessive energy, although he did not report overt delusions or hallucinations associated with these episodes. The examiner noted that the Veteran's past history, together with his history of treatment beginning in 2005 by a psychiatrist, with an initial diagnosis of bipolar disorder, were consistent with a picture of a mood disorder present in service and following service up to the present time. The June 2011 examiner noted that there was currently insufficient evidence of criteria to support a diagnosis of bipolar disorder, to include the absence of prolong periods of depression or mania. While the June 2011 examiner understood the 2005 treating psychiatrist's initial assessment of bipolar disorder, which was based in part on the Veteran's statement to her that he could help her become President based on his knowledge of demographics, the examiner did not believe that the Veteran's history and current presentation supported that diagnosis. The examiner rather concluded that a diagnosis of mood disorder, NOS, was supported by the Veteran's history of moodiness, low frustration tolerance, irritability, and intermittent brief periods of depression or very low mood, and based on the Veteran not meeting the criteria for a specific mood disorder, such as depression or bipolar disorder. The June 2011 examiner concluded, based on the service records reflecting that the Veteran once sought psychiatric help in service, on a significant weight gain shortly after service, and on the Veteran's narrative of difficulties both in service and following service, that the weight of the evidence supported an ongoing mood disorder from service, even though there was not evidence of actual treatment in service, and even though the Veteran had not sought psychiatric care for multiple decades post service. The examiner noted that a private treating psychologist agreed with the Veteran's belief that he had PTSD. However, the June 2011 examiner disagreed with the PTSD diagnosis. Rather, the examiner found that while the Veteran reported what he believed to be a traumatic evident in service of witnessing dead bodies in a morgue, the Veteran did not exhibit reactivity to that event or other criteria necessary to meet a diagnosis of PTSD. The Board finds that the weight of the treatment records, examination findings, lay statements, and other evidence of record support the findings and conclusions of the VA examiner in June 2011. The June 2011 VA examiner findings were fully elucidated and supported by the record. The June 2011 VA examiner found that the initial diagnosis of bipolar disorder in 2005, was not the proper diagnosis based on the history and current presentation, to include the absence of prolonged periods of mania or depression. Although the treating psychologist provided a letter in August 2012, asserting that the Veteran met the criteria for a diagnosis of PTSD. However, that letter failed to provide any details as to how these criteria were met. The letter also failed to state what stressor or stressors were relied upon to support the PTSD diagnosis. Accordingly, the Board assigns limited probative weight to this opinion. The Board accordingly finds that the preponderance of the evidence of record favors a grant of service connection for a mood disorder, NOS, based on the disorder manifesting in service, the continuity of symptomatology since military service, and the medical opinion linking the Veteran's currently diagnosed mood disorder to his military service. 38 C.F.R. § 3.303. Right Knee Disorder A November 5, 1969, service treatment record noted the presence of "knee problems." The Veteran then reported that since he hit his knee the previous month and was told that he had a bruised cartilage, he felt he had a sore spot. The treating clinician found a tender area, lateral and inferior to the inferior border of the left patella. A November 6, 1969, service treatment record notes x-ray findings of two 8-millimeter calcific densities in the quadriceps tendon. This record corresponds to a November 1969 x-ray examination record for the left knee presenting the same findings, with an assessment of calcific tendinitis of the quadriceps femoris tendon. A November 18, 1969, service orthopedic treatment record reflects a complaint of pain over the left tibial tubercle and popping in the knee. The clinician noted that the knee was within normal limits upon examination, except for subpatellar crepitance. An orthopedic treatment record three days later reflects whirlpool therapy. The Veteran's service separation examination report in May 1970 notes, "Painful joint refers to sprain right knee, 1969." The separation clinical examination report makes no history of a left knee disorder. The examination report found no clinical findings of a right or left knee disability. In August 1977, the Veteran stated that he injured his knee in service and was confined to bed for a period of time. The doctor at that time told him that he might develop calcific deposits lateral and have pain. In the August 1977 statement, the Veteran stated that he did not have additional difficulty with the knee until the previous year, with manifestation of intermittent stiffness and minor pain. Notably, the Veteran did not specify which knee he was claiming in his August 1977 letter, though his assertions of treatment in service and of a clinician informing him of calcific densities are consistent with the Veteran's in-service treatment for a left knee condition. Upon a VA orthopedic examination for compensation purposes in March 2003, the examiner reviewed the claims file and noted the Veteran's self-reported history of injuring his right knee while playing football in service, with swelling of the knee and pain at that time, and conservative treatment by a physician, including pain medication. The Veteran reported that he currently did not have much difficulty with the knee, with stiffness, and giving way while walking once every six to eight months, as well as occasional swelling. He also asserted that he had flare-up with cold and rainy weather, and had some arthritis in the knee, which he treated with aspirin. The Veteran denied receiving any medical care for the right knee since service, and denied using any cane, crutch, or brace. The clinical examination of the right knee was negative, except for a popping sound and pain during a squat. He could stand from the squat comfortably, without any assistance. The examiner found full range of motion and strength, and no instability in the right knee. Gait was normal. X-ray of the right knee showed minimal spurring of the patella, but was otherwise within normal limits. The Veteran submitted a private whole body bone scan in June 2005 with a finding of mild increased activity at the right patella, assessed as "likely" reflecting mild degenerative changes. In a submitted March 2012 private treatment evaluation for a complaint of knee pain, the Veteran's self-reported history of a football injury to the right knee in service, a recurrence of right knee pain six years previously, and a marked increased knee symptoms beginning two years ago. The Veteran asserted that the knee felt weak and gave out with pivoting and walking. He also reported that standing was limited to 15 minutes, and he had difficulty descending stairs. The clinician noted the June 2005 bone scan findings, and diagnosed degenerative joint disease of the right knee. He noted that the Veteran may have a meniscal tear causing the feeling of instability. The clinician provided no opinion of etiology for any right knee disability. The Veteran submitted a one sentence letter from a private physician dated in August 2012, as follows: "This is to certify that [the Veteran] had right knee injury in the armed service and this was mistaken in the medical record as a left knee injury." The letter fails to inform the source of the opinion, the records relied upon, or what rationale was used to formulate the opinion. Indeed, the statement does not reflect any medical input by the physician whatsoever. Accordingly, this letter is afforded little, if any probative weight. The Veteran was afforded a VA examination in June 2011. The examiner noted that service treatment records reflected examination and treatment for injury to the left knee in November 1969, but no examination or treatment for a right knee is shown. The Veteran asserted that he injured his right knee in November 1968 playing football; treatment included a bandage and painkillers. He reported that he had returned to duty two days later, and characterized the injury in service as having felt like a sprain. The Veteran added that two weeks following that in-service injury his knee felt fine. The Veteran reported that following his military service, he performed police work, as a patrolman and then as a police chief, without knee injury or knee pain. He added that he did not begin experiencing knee difficulty until 2003, when he began having pain in the right knee, as well as giving way. The examiner noted treatment records reflecting the Veteran's knee complaints, and recent right knee x-rays showing mild changes. Upon physical evaluation at the June 2011 examination, the Veteran had atrophy in the right thigh compared to the left as a residual of his back disorder, and slight lateral joint line tenderness over the right knee. The right knee exhibited normal tracking, without subluxation or ligamentous laxity, including no varus or valgus laxity, and negative drawer signs. The diagnosis was right knee strain. The examiner opined that the diagnosis was based upon the [v]eteran's history to me on this date. There are no records in the service medical record to indicate that the [v]eteran was treated for right knee pain. He was seen for his left knee, but not the right. The technetium bone scan findings, which are in the record from 2005 are nonspecific and relate to the patella and routine x-rays of the right knee today really show no specific abnormality of the patella that I can diagnose. Therefore, based upon my review of the record there is no relationship with the [v]eteran's right knee symptoms and the military, but only a relationship based upon the [v]eteran's history as he relates to me. The Veteran's statements are competent evidence as to a history of past injury, treatment, and symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). However, the Veteran's statements that he injured his right knee in service rather than the left knee, is inconsistent with the evidence given at the time of the treatment in service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (finding that in weighing the credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). A statement by a recent medical professional to the effect that the service records were in error in stating a left knee injury rather than a right knee injury. However, the medical professional gives no basis for this finding. Accordingly, that medical statement is of no more weight than the Veteran's own statement, as it appears to be no more than a recitation of what the Veteran told the medical professional. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (holding that a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional). There are three treatment and examination records and one x-ray report from service contemporaneous with the in-service injury, all identifying the injury and clinical findings as present in the left knee. The Board finds it implausible that all these records would have been consistently in error in listing the left knee rather than the right knee. Although the Veteran reported a right knee sprain in service on his service separation examination, no abnormality of the right knee was shown upon clinical examination. The Board finds the weight of the evidence of record to be consistent with and supportive of the November 2011 VA examiner's conclusion based on the documentary and objective record, that the Veteran's current right knee strain is not causally related to his military service. Post-service treatment or evaluation records, while supporting a right knee disability in recent years, do not ultimately support any relationship between this disability and the Veteran's military service. Accordingly, because the weight of the evidence is against a right knee disorder in service, and is against any causal link between any event or injury in service and a current right knee disorder, service connection for a right knee disorder is not warranted. 38 C.F.R. § 3.303. Moreover, in the absence of competent and credible evidence of arthritis in the right knee within the first year after his military service, service connection for right knee arthritis on a presumptive basis is also not warranted. 38 C.F.R. §§ 3.307, 3.309. In so finding, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for a right knee disorder, the doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a mood disorder, not otherwise specified, is granted. Service connection for a right knee disorder is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs