Citation Nr: 1334268 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 12-06 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for right shoulder disability. 3. Entitlement to service connection for right knee disability. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran had periods of active Army and Navy service totaling over 20 years ending with his retirement in November 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision from a regional office (RO) of the Department of Veterans Affairs (VA). A hearing before a decision review officer was held in May 2012. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The positive evidence is in a state of equipoise with the negative evidence on the question of whether the Veteran has a medical diagnosis of PTSD which is related to inservice stressors. 2. A right shoulder disability was not manifested during service, and a current chronic right shoulder disability is not otherwise causally related to service, to include any injury during service. 3. A right knee disability was not manifested during service, and a current chronic right shoulder disability is not otherwise causally related to service, to include any injury during service. CONCLUSIONS OF LAW 1. The Veteran's PTSD was incurred in his active duty service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). 2. Right shoulder disability was not incurred in nor aggravated by active military service, nor may it be presumed to have been incurred or aggravated by such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R.§§ 3.303, 3.307, 3.309 (2013). 3. Right knee disability was not incurred in nor aggravated by active military service, nor may it be presumed to have been incurred or aggravated by such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The record shows that in a July 2009 VCAA letter, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefits sought on appeal. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the Veteran in July 2009, which was prior to the December 2009 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Further, the notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection. The January July 2009 letter also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disabilities on appeal. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. Service treatment records (STRs) and VA and private medical records are associated with the file. Additionally, the Veteran was afforded VA examinations in August 2009, September 2009, November 2009, and April 2013. Under the circumstances, the Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board's analysis will focus specifically on the evidence pertinent to the claim, and what it shows, or fails to show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Additionally, for Veterans who have served 90 days or more of active service during a war period on or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). PTSD Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 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). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). A review of the Veteran's service personnel records shows he was awarded the Combat Infantry Badge for participation in combat in Vietnam. On this basis, the Veteran's exposure to combat is conceded, thus satisfying the in-service stressor requirement to support a claim for service connection for PTSD. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f). What remains to be established for service connection is whether the stressor is related to a current diagnosis of PTSD. The record contains conflicting evidence in this regard. Against the claim are the opinions from two VA examiners. On September 2009 VA examination, the examiner noted that the objective testing does not support a full diagnosis of PTSD. The examiner provided an addendum opinion in October 2009, explaining that while the Veteran "had clear exposure to traumatic stressors as a ranger in Vietnam," he does not meet the criteria for PTSD and instead meets the criteria for an anxiety disorder. On April 2013 VA examination, the examiner stated that although the Veteran's claims file notes he was diagnosed with nervousness in 1963 and suffers from some symptoms of avoidance, he does not meet the full criteria for the diagnosis of PTSD. Instead, this examiner opined that the Veteran's current symptoms meet the diagnostic criteria for the diagnosis of Anxiety Disorder not otherwise specified. Supporting the Veteran's claim are various treatment records, including records by VA. On October 1985 VA treatment record, the chief of inpatient psychiatry noted that the Veteran's "recent manifestation represented surfacing of a post-traumatic stress disorder related to Viet Nam experiences." An Axis I diagnosis of PTSD, delayed was provided. On July 1986 and October 1987 VA treatment records, the assessment was PTSD. A January 1990 VA record notes PTSD symptoms and a directive to continue providing supportive therapy. In March 1993, the Veteran had an initial visit at a PTSD clinic. It was noted that he has had PTSD symptoms two times in the past. May 1993 VA treatment records show that the Veteran and his wife participated in a PTSD Partners support group. An August 1993 VA treatment record notes a history of PTSD. A November 2006 private treatment record notes the Veteran is presently being treated for PTSD. In December 2006, a private physician, Dr. Hamilton, submitted a letter noting that the Veteran has a long history of PTSD. May 2009 VA treatment records note that Veteran was diagnosed with PTSD in 1985 and "has had two bouts with PTSD since 1985." May and July 2009 VA treatment records note treatment for and a current diagnosis of PTSD. A June 2010 VA treatment record notes that the Veteran presented for nightmares and insomnia and requested to see a physician for "PTSD from Vietnam." It was noted that he was in two tours of Vietnam. The diagnosis was PTSD. A July 2010 VA treatment record notes that the Veteran is being treated for PTSD. On mental status evaluation, it was noted that the Veteran "saw combat in Korea and Vietnam" and has a diagnosis of PTSD. At this point the Board takes administrative notice of the fact that certain medical literature describes PTSD as a type of anxiety disorder. As noted and discussed at the RO hearing, service connection is already in effect of an anxiety disorder. The manner of assigning a rating for PTSD in light of the current rating for anxiety disorder was briefly alluded to at the hearing. At any rate, the Veteran is pursuing his claim for PTSD and rating considerations are downstream matters which need not be discussed in this decision. The current evidence includes conflicting medical opinions as to whether the Veteran currently suffers from PTSD. Although the VA examination opinions appear complete and are supported by a detailed rationale, the Board cannot ignore the numerous VA and private treatment records indicating the Veteran seeking treatment for PTSD and showing diagnoses of PTSD since 1985. Further, the Board notes that the diagnoses of PTSD have been linked to the Veteran's participation in combat while in service. Accordingly, while the evidence in favor of a finding of PTSD is not necessarily compelling, the Board is also unable to find that the preponderance of the evidence is against a finding that the Veteran has PTSD. The medical evidence appears to be at least in a state of equipoise. In such a case, the Board is required by law to afford the benefit of the doubt to the Veteran. Accordingly, service connection is warranted. See 38 U.S.C.A. § 5107(b). Right Shoulder The Veteran contends that while in Ranger training, he was rock climbing and suffered a fall, resulting in his current right shoulder disability. He testified that he was treated with pain medication at the time and has had ongoing problems with this shoulder since discharge from service. See May 2012 hearing transcript; see also August 2009 and January 2010 statements. STRs show that on July 1973 report of medical history, the Veteran reported swollen or painful joints. On examination, the upper extremities were clinically evaluated as normal. The Veteran filed an original claim for service connection, to include for swollen and painful joints, at separation from service. On February 1974 examination, it was noted that the Veteran had a history of swollen and painful joints, including both shoulders from November 1971, but that "no swollen or painful joints [were] present during this clinical evaluation." Service connection was granted for early degenerative arthritis of the left shoulder only based on x-ray evidence of an irregularity. No irregularities of the right shoulder were detected. Private treatment records from Gulfport Orthopedic Clinic show that in November 1997, right shoulder impingement syndrome was diagnosed. It was noted that the Veteran had a history of right shoulder pain for several years and "had an injury in June 1994 after sudden onset of pain after a throwing motion and has had occasional reinjury in the right shoulder since that time with recurrent pain." This record further noted that the Veteran fell "about 6 to 8 weeks ago, landing on his right forearm with heavy weight load onto his right shoulder and has had increased pain with overhead activity ever since that time." Right shoulder x-rays showed "slight elevation of the clavicle with well maintained AC joint space and minimal inferior osteophyte formation and minimal glenohumeral degenerative disease." In August 1998, the impression was a rotator cuff tear, which the physician noted was "probably...quite old because of the atrophy he has of the infraspinatous and supraspinatous muscle." Anti-inflammatory medications were prescribed. An August 1998 MRI of the right shoulder revealed significant impingement upon the supraspinatus tendon with superior subluxation of the humeral head and abnormal signal within the tendon. Changes are probably due to a full thickness tear..." In December 2006, the Veteran submitted a letter from Dr. Hamilton, a private physician. Dr. Hamilton noted that the Veteran suffered from "degenerative joint problems including shoulder pain and difficulties related to his work in Special Forces and in the Army from when he was in the Military where these originally occurred and then progressively got worse over time." In January 2007, a fellow soldier, J.S., submitted a statement indicating that he recalled a repelling accident during Ranger training; however, he stated "I can't honestly say I have a lot of recollection about your injury. I know you said you tried to hold on but couldn't." A February 2007 private orthopedic note indicated the Veteran has been treated for shoulder arthritis since he was first seen in May 2003. On November 2009 VA examination, right shoulder internal derangement and impingement was diagnosed. The examiner opined that this was less likely than not caused by or related to service, but was more likely than not caused by or related to a postservice injury in 1994. A June 2010 VA treatment record indicated the Veteran complained of shoulder pain since Vietnam; DJD was the assessment. In October 2010, the Veteran received another MRI of the right shoulder. The findings were advanced AC joint DJD (degenerative joint disease) and chronic full thickness tears of the supraspinatus, infraspinatus and subscapularis tendons. A June 2011 VA treatment record noted that the Veteran's shoulders were painful, with the right shoulder being worse. An MRI scan showed a massive rotator cuff tear and significant osteoarthritis of the glenohumeral joint. On August 2012 VA examination pertaining to the left shoulder, diagnostic imaging studies confirmed degenerative arthritis in both shoulders. The record reflects that the Veteran has a current diagnosis of degenerative arthritis (DJD) of the right shoulder. Accordingly, what is left for determination is whether the Veteran's arthritis is related to service. In this regard, the Board notes that the Veteran's upper extremities were clinically evaluated as normal on July 1973 service separation examination. This demonstrated that military medical personnel after examining the Veteran were of the opinion that no right shoulder disability (to include residuals from an in-service injury) was present at that time. Additionally, there is no evidence of right shoulder disability in the year immediately following separation. Thus, the presumptions related to chronic disabilities are not for application. Notably, the Board notes that the Veteran applied for service connection for swollen and painful joints immediately upon discharge and was found service-connected for his left shoulder; the right shoulder was not service-connected. The Board acknowledges the Veteran's assertions that he injured his right shoulder in service and has suffered residuals, to include pain, since. The Veteran is competent to report the types of symptoms he has experienced and continuity of symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). However, to the extent that he contends that he continued to suffer right shoulder symptoms since service are inconsistent to the other evidence of record. Significantly, no right shoulder abnormality was reported on VA examination in 1974. Moreover, there is no evidence of complaints or treatment for the right shoulder for a number of years after service. When treated for right shoulder problems in August 1998, it was noted that the Veteran had injured his shoulder in a boat fall. The Board believes it significant that the Veteran told the examiner that he had had problems with the right shoulder for 10 years. This would date the onset to approximately 1988, still a number of years after service. The Veteran did not mention anything to the examiner regarding any inservice injury. On the other hand, a VA medical examiner, with full knowledge of the Veteran's reports of an injury in service and residuals since, was nevertheless of the opinion that the Veteran's current right shoulder disability is not causally related to service. The examiner specifically noted that the Veteran's disability is more likely related to a postservice injury in 1994. Against this opinion is a statement from a private physician indicating the Veteran's shoulder pain was related to service. The Board finds this statement less probative than the opinion by the VA examiner, as it did not include a rationale to support this conclusory statement. Further, it does not appear that this physician had the opportunity to examine the Veteran, in contrast to the VA examiner who provided his opinion after a review of the claims file and a physical examination. Accordingly, the Board finds the opinion of the VA examiner more probative and persuasive. After a thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the Veteran's claim for service connection for right shoulder disability. Therefore, the appeal in this matter must be denied. Right Knee The Veteran testified that during airborne training, he hurt his right knee while going through a swamp combat patrol. He stated that he was given pain medication and sent back to duty. See May 2012 hearing transcript. He also stated that his right knee problem was caused by an injury on a night combat training exercise during basic infantry officer training. See August 2009 and January 2010 statements. A January 1958 record noted complains of pain in both knees since beginning airborne training. On July 1973 separation report of medical history, the Veteran reported swollen or painful joints; however, on clinical evaluation, the Veteran's lower extremities were evaluated as normal. On February 1974 VA examination, it was noted that there were no swollen or painful joints present on evaluation. A June 2003 ultrasound of the right knee revealed no abnormalities. A July 2004 radiology report noted severe DJD of the right knee. A December 2006 private statement from Dr. Hamilton noted the Veteran "has an ongoing knee problem." A January 2007 lay statement submitted by fellow soldier J.S. indicated he recalled hand to hand training in which soldiers were kicked. He stated he remembered "starting out with [the Veteran] as a partner and in my minds eye I can see you [the Veteran] on the ground being kicked for demonstration purposes." A February 2007 private orthopedic note indicated the Veteran has been treated for right knee arthritis since May 2003. A May 2009 VA treatment record noted osteoarthrosis involving the knee. On August 2009 VA examination, the diagnosis was moderate DJD of the right knee. The examiner opined that that the Veteran's right knee complaint in service is less likely than not the cause of his current arthritic changes. The examiner stated that it is also less likely than not that the right knee degenerative changes were aggravated by service, as degenerative changes are a process of natural aging, genetic factors, and cumulative life activities. On November 2009 VA examination, right knee moderate DJD was diagnosed. The examiner opined that this was less likely than not caused by or related to service. She stated that moderate DJD/osteoarthritis is expected in [the Veteran's] age group, consistent with natural aging and exposures. A June 2010 VA treatment record indicated the Veteran complained of knee pain since Vietnam; the assessment was DJD. A June 2011 VA treatment record noted the Veteran had osteoarthritis of the right knee and was being treated with injections in this knee. Here, the record reflects that the Veteran has a current diagnosis of DJD of the right knee. What is left for determination is whether the Veteran's DJD is related to service. The Board notes that on July 1973 separation examination, the Veteran's lower extremities were evaluated as normal. Further, no swollen or painful joints were found on February 1974 postservice VA examination. This demonstrates that military medical personnel and a VA examiner after examining the Veteran were of the opinion that no right knee disability was present at the time of discharge or in the year following discharge. Accordingly, the Board finds that a preponderance of the evidence supports a finding that right knee disability did not manifest during service or in the year immediately following separation. The Board acknowledges the Veteran's assertions that he injured his right knee in service and has suffered residuals since. The Veteran is competent to report the types of symptoms he has experienced and continuity of symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). However, two VA examiners, with full knowledge of the Veteran's reported history and claims file, including postservice treatment records, were nevertheless of the opinion that the Veteran's current right knee DJD is not causally related to service. Instead, both examiners attributed the Veteran's degenerative changes to the aging process, genetics, and life exposures. No medical evidence contradicts the August 2009 and November 2009 examiners' analysis addressing the nature and etiology of the Veteran's current right knee disability, or otherwise relates this disability to service. In the event it is suggested that the December 2006 letter from Dr. Hamilton could be interpreted as relating the Veteran's knee disability to service, the Board notes that this statement merely indicates that the Veteran "has an ongoing knee problem." There is no rationale to support this statement or any citation to the factual record. Further, it is even unclear to which knee Dr. Hamilton is referring. For these reasons, the Board finds this statement unpersuasive. Accordingly, after a thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the Veteran's claim for service connection for right knee disability. Therefore, the appeal in this matter must be denied. Conclusion In closing, the Board stresses to the Veteran that it does not question his statements and testimony regarding right shoulder and right knee pain/injury during service. The Board's denial of these claims is not based on any finding that the claimed inservice incidents did not take place. Rather, the evidence persuasively shows that the Veteran's current right shoulder and right knee disorders were not caused by the inservice incidents. Medical personnel have indicated that post-service injuries and/or the normal aging process are responsible for his current right shoulder and right knee disorders. It is not enough that an individual have an injury during service. There must be current disability related to that injury. In this case the preponderance of the evidence is against a finding that the current right shoulder and right knee disabilities are the residuals of the inservice incidents. ORDER Service connection for PTSD is warranted. To this extent, the appeal is granted. Service connection for right shoulder disability is not warranted. Service connection for right knee disability is not warranted. To this extent, the appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs