Citation Nr: 1335884 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-04 297A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for a bilateral knee disorder. 2. Entitlement to service connection for an acquired psychiatric disorder, to include various anxiety, depression, and panic disorders as well as posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran served on active duty from October 1969 to December 1973. This matter initially came before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. The appeal was Remanded in September 2012. The Veteran requested a hearing before the Board by Videoconference. The requested hearing was conducted in July 2012, and the transcript of that hearing is associated with the claims file. The Veteran's spouse was present as an observer; although sworn in, she did not testify. FINDINGS OF FACT 1. The preponderance of the probative evidence establishes that the Veteran's bilateral degenerative knee disorder was not proximately due to or the result of the Veteran's service-connected right and left ankle disabilities, and was not aggravated by the service-connected ankle disabilities. 2. The Veteran's statements and testimony linking his current PTSD to a sudden roll of his ship during a hurricane near the Aleutian Islands in the Bering Sea in 1972 is contradicted by the ship's history, which shows that the ship remained in the Atlantic Ocean and on the eastern seaboard of the United States for the entirety of 1972, and was moored or dry-docked during hurricane season in 1972. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral knee disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303 (2013). 2. Criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.104, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Following the January 2008 submission of a claim for service connection for a bilateral knee disorder, the Veteran was notified via letter dated in February 2008 of the criteria for service connection and for service connection on a secondary basis for bilateral knee disorders, claimed as secondary to service-connected ankle disability. In October 2008, the Veteran was notified of the criteria for establishing service connection for an acquired psychiatric disorder. The January 2008 and October 2008 letters advised the Veteran of the criteria VA uses to determine disability ratings and effective dates if service connection is awarded. These letters accordingly addressed all notice elements required, and predated the initial adjudication. After the initial adjudication, the Veteran was sent additional letters in August 2009 and November 2009. Those letters requested specific information about the stressor the Veteran alleged was the cause of PTSD. The Veteran did not respond. Neither the Veteran nor his representative has alleged prejudice with respect to notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Nothing more was required. Indeed, VA's duty to notify has been more than satisfied. VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate a 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). The Board observes that the Veteran's service treatment records were apparently initially associated with his claims file. However, the Veteran's claims file and service treatment records could not be located when he submitted his 2008 claim, and a formal finding of unavailability was made. The Veteran was notified that his service treatment records could not be located. Personnel records were obtained. The personnel records reflect that the Veteran was assigned to the USS Allagash from September 1970 to March 1971 and to the USS Aeolus from March 1971 to March 1973. The ship history for the USS Aeolus for 1972 and the deck logs for the relevant periods have been obtained. The Virtual VA electronic information database has also been reviewed. There are more than 800 pages of VA clinical records in the claims files and the electronic database. The Veteran was indicated that he has not received private treatment during the pendency of this appeal. The Veteran testified in his own behalf at a Videoconference hearing before the Board. The Veteran was afforded VA examinations, one psychiatric examination and one examination of the knees, during the pendency of this appeal. Additionally, information was requested from U.S. Army & Joint Services Records Research Center (JSRRC), and the requested information was obtained. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The report of each VA examination is adequate upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history and lay description of his symptoms from the Veteran. The Veteran has not identified any additional relevant records. Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of the claims decided herein, and thus no additional assistance or notification is required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of this appeal. Claims for service connection Service connection may be granted for a disability due to a disease or injury which was incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. In addition, secondary service connection may also be established by any increase in severity (i.e., aggravation) of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease. 38 C.F.R. § 3.310(b), effective October 10, 2006. See 71 Fed. Reg. 52,744-52,747 (September 7, 2006); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection may be awarded for a "chronic" condition when a disease defined by statute or regulation as a chronic disease manifests itself and is identified as such in service (or within the presumption period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition. There is a presumption applicable for arthritis and for hypertension. In order for a claim to be granted, there must be competent evidence of current disability (established by medical diagnosis); of incurrence or aggravation of a disease or injury in service (established by lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (established by medical evidence). See generally Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 18 S. Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). A Veteran is competent to testify as to a condition within his knowledge and personal observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998) (Veteran competent to describe dry, itchy, scaling skin); but see Layno v. Brown, 6 Vet. App. 465 (1994) (lay testimony that Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competent testimony "can be rejected only if found to be mistaken or otherwise deemed not credible"). In each case, the Board must determine whether the claimed disorder is the type of injury or disease for which lay evidence is competent evidence. If so, the Board must weigh that evidence against the other evidence of record, including evidence such as any in-service record documenting the injury or disease. 1. Claim for service connection for bilateral knee disorder In his January 2008 claim, the Veteran stated that he was seeking service connection for a bilateral knee condition secondary to or aggravated by his service-connected right ankle disability. Historically, VA outpatient clinical records reflect that the Veteran requested a rheumatology consultation in 2006 to determine whether degenerative changes in the knees were related to the Veteran's service-connected psoriasis. The providers concluded that the Veteran's degenerative knee processes were not psoriatic arthritis. The Veteran requested evaluation to determine if his service-connected right ankle disability was related to the knee disorders. Providers noted and treated pes planus. Providers described the Veteran's gait as a slightly limp to the right and normal weight bearing with pain. See VA outpatient treatment records dated March 13, 2007 (Primary Care); April 2, 2007 (podiatry); November 16, 2007. On Rheumatology examination conducted in December 2007, the provider suspected that the Veteran's knee disorders were exacerbating ankle pain. The Veteran was afforded VA examination of the ankles in February 2009. No discussion of knee disorders was reported. The Veteran's gait was antalgic. In August 2009, the provider noted that the Veteran had "significant bilateral knee OA (osteoarthritis) possibly associated with altered gait due to past ankle trauma." The note does not reflect whether the notation "possibly associated with altered gait" was based on the Veteran's report or was the provider's own assessment of possible etiology. The Veteran underwent bilateral total knee replacement in January 2011. In August 2011, the Veteran was awarded service connection for a left ankle disability, so service connection was in effect for bilateral ankle disability. In April 2013, following the September 2012 Board Remand, the Veteran underwent VA examination. The examiner opined that the Veteran's arthritis of both knees was less likely than not incurred in service, caused by in-service injury, or aggravated by service-connected ankle disability. The examiner explained that "the issue of knee problems being related to ankle problems is speculative and not consistent with evidence based medicine." The examiner stated further that "aggravation is similarly speculative and lacks proper evidence." The only opinion directly addressing the question of etiology or aggravation of bilateral knee disability during the pendency of the appeal is unfavorable to the claim, since the examiner concluded that the relationship alleged by the Veteran, a bilateral knee disorder due to alteration in gait secondary to service-connected ankle disability, was less than 50 percent likely. The provider comments in 2009 that such a relationship was a possibility is less probative than the unfavorable April 2013 VA examination report. The VA examiner did not opine that the Veteran's allegation was not possible, but, rather, stated, that such a relationship was "less than likely," that is, less than 50 percent likely. This opinion does not conflict with the provider's 2009 comment, since the provider did not quantify the probability. The Veteran himself does not contend that right or left knee injury was incurred in service. Rather, he contends that gait impairment due to ankle disability caused bilateral knee arthritis. The Veteran is competent to state that he observed gait impairment, and he is competent to state that he had knee pain. However, the basis for development of degenerative arthritis of a knee, as compared to traumatic arthritis, is not observable by a lay individual. The Board finds that the Veteran is not competent to provide probative evidence that establishes an etiologic link, or nexus, between a gait alterative due to ankle disability and the later development of degenerative arthritis of the knee. The Board has reviewed the provider notes indicating that knee osteoarthritis "possibly" is associated with gait alteration. That treatment note is couched in speculative language, which indicates such a relationship might or might not be present. Therefore, that notation is competent medical evidence which is neither favorable nor unfavorable to the claim, but is not probative evidence to substantiate the claim. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (holding that evidence favorable to a veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence, which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship). The only medical opinion which directly addresses the Veteran's claim is unfavorable to the claim that gait impairment resulted in a knee disorder. The Veteran is also entitled to compensation for his bilateral knee disorder if his ankle disability permanently aggravated the symptoms of the knee disorder, or accelerated the knee disorder beyond its natural progression, or aggravated the knee disorder in some other way. However, the Veteran is not competent to offer probative evidence to support his claim on this basis. The provider suggestion in 2009 that bilateral knee osteoarthritis was "possibly associated with altered gait" is not probative evidence of aggravation of the knee disorder by service-connected ankle disability. The VA examiner concluded that aggravation of the knee disorder by the service-connected ankle disability was less than likely, so the evidence is unfavorable to compensation on that basis. There is no reasonable doubt. 38 U.S.C.A. § 5107(b). The claim must be denied. 2. Claim for service connection for an acquired psychiatric disorder In his January 2008 claim, the Veteran stated he was seeking service connection for a psychiatric condition under 38 C.F.R. §§ 3.303 and 3.304. Those provisions govern claims for service connection for chronic acquired psychiatric disorders and PTSD. During outpatient therapy, the Veteran reported that he had nightmares about an incident in which a rogue wave hit the ship he was on while the ship was in the Bering Sea or Bering Straits. The Veteran reported that the ship was damaged and water filled the compartment in which he was sleeping. See September 2008 and November 2008 VA outpatient treatment notes. For purposes of information, the Board notes that the Bering Sea is the body of water bound by the Chukchi Peninsula, Russia, the easternmost point of the Asian continent, on one side, and Cape Prince of Wales, Alaska, USA, the westernmost point of the North American continent, on the other side. The Aleutian Islands are north of the Bering Strait in an arc from the Alaskan Peninsula. At his Videoconference hearing, the Veteran testified that when his ship was just south of the Aleutian (misspelled "Illusion" in the hearing transcript) Island, the ship took a 38 degree roll and "almost sank." Transcript (Tr.) at page 10. He Veteran testified that he was in a forward compartment and water came into the compartment. At a VA psychiatric examination conducted in April 2013, the Veteran reported that in "summer of 1972" aboard the USS Aeolus, on the way to Alaska, the ship was caught in a hurricane with 60' swells. One swell caused the ship to take a 38 degree role. The Veteran and his bunkmate were thrown out of their bunks. When they opened the hatch to try to get on deck, water poured in and knocked them down. He thought the ship was sinking and that he was going to die. The examiner concluded that this stressor was adequate to support a diagnosis of PTSD, and concluded that the Veteran met all diagnostic criteria for PTSD. The examiner concluded that no other acquired psychiatric disorder was present, although other diagnoses had been assigned in the past. The ship history for the USS Aeolus discloses that the ship was moored at the Portsmouth Naval Shipyards, Kittery, Maine, and in New Hampshire in January 1972. In February 1972, the ship experienced rough weather while underway from Portsmouth, New Hampshire, to the everglades, but there was no report of damage to the ship, and no flooding or casualties were reported. The ship operated in the area of the Everglades, Florida, and then returned to Portsmouth, New Hampshire. During the return to Portsmouth, the ship again encountered rough weather but there was no report of damage to the ship, and no flooding or casualties were reported. The ship was moored or dry-docked in March 1972 and April 1972. The ship was moored at the Boston Naval Shipyards in May 1972 to June 1972, and remained at either the Boston or the Portsmouth Naval Shipyard through the end of December 1972. The 1972 Annual Hurricane/Tropical story report for 1972 shows three hurricanes, beginning in June 1972 and four tropical storms in 1972, the first hurricane being in June 1972 and the last tropical storm being in November 1972. However, none of these occurred during a period when the USS Aeolus was not moored or dry-docked. The Veteran has alleged a stressor which did not occur in combat. As such, that stressor must be verified. The objective evidence available establishes that the Veteran's ship was not sent to a location near Alaska in 1972, was never located in the vicinity of a hurricane or tropical storm, and did not report damage, flooding, or casualties during 1972. As the objective evidence contradicts the report of the stressor provided by the Veteran, the diagnosis of PTSD assigned based on that stressor is not probative evidence that the Veteran's currently-diagnosed PTSD was incurred in service or as a result of his service or any incident therein. The claim for service connection for an acquired psychiatric disorder, to include PTSD, is denied. ORDER The appeal for service connection for a bilateral knee disorder is denied. The appeal for service connection for an acquired psychiatric disorder, to include various anxiety, depression, and panic disorders as well as PTSD, is denied . ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs