Citation Nr: 1647993	
Decision Date: 12/27/16    Archive Date: 01/06/17

DOCKET NO.  13-12 775	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder, claimed as depression.

2.  Entitlement to a rating in excess of 30 percent for left knee lateral instability, status post ACL (anterior cruciate ligament) reconstruction.  

3.  Entitlement to a rating in excess of 10 percent for left knee traumatic arthritis.  

4.  Entitlement to a rating in excess of 10 percent prior to July 24, 2015 and 20 percent from that date for right knee instability.

5.  Entitlement to a rating in excess of 10 percent for right knee degenerative arthritis.  

REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Hughes, Counsel


INTRODUCTION

The Veteran served on active duty from June 1981 to June 1984.

These matters are before the Board of Veterans' Appeals (Board) on appeal from February 2010 (denied increased ratings for arthritis and instability of each knee) and September 2012 (denied service connection for depression) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  An interim December 2015 rating decision assigned an increased 20 percent rating for right knee instability from July 24, 2015.  

In May 2016, the Veteran was scheduled to appear at a videoconference Board hearing before a Veterans Law Judge; however, he cancelled the hearing and has not requested that it be rescheduled.

The matters of increased ratings for bilateral knee arthritis and instability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDING OF FACT

An acquired psychiatric disability was not manifested in service; a psychosis was not manifested within one year following the Veteran's separation from service; and no diagnosed psychiatric disability is shown to be related to his service.


CONCLUSION OF LAW

Service connection for a psychiatric disability, claimed as depression, is not warranted.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Notice and Assistance

With respect to the matter of service connection for an acquired psychiatric disorder decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Legal Criteria, Factual Background, and Analysis

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the matter of service connection for an acquired psychiatric disorder, claimed as depression.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304.  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.  To substantiate a claim of service connection there must be evidence of: (1) a present disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

Certain chronic disabilities (such as psychosis), may be presumed to have been incurred in service if manifested to a compensable degree within a specified period of time post service (one year for psychosis).  38 U.S.C.A. § 1101; 38 C.F.R. §§ 3.307, 3.309.  Alternatively, a nexus to service may be established by showing continuity of symptomatology since service.  Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013).

Lay evidence may be competent evidence to establish incurrence.  See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009).  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, (e.g., a broken leg), (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.  However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.

In his September 2012 VA Form 21-526, Veteran's Application for Compensation and/or Pension, the Veteran claimed that his depression is the result of drinking polluted water during his period of basic training in June 1981 at Fort McClellan Alabama.  He reports that the water affected his mind and resulted in his inability to remember what he was studying and to become what he planned to be.  He further reported that his depression is the result of exposure to Agent Orange during his service in the USA.  

The Veteran's service treatment records (STRs) are silent for complaints, findings, treatment or diagnosis of a psychiatric disability.  On June 1984 service separation examination, psychiatric clinical evaluation was normal.

The initial post service mental health treatment was in June 1993, when the Veteran was referred by the Florida Bureau of Driver Improvement to the substance abuse program (he had received a DUI in May 1993).  These records note that the Veteran reported consuming 5-15 beers per day since 1981.  He denied depression and suicidal/homicidal ideation.  The September 1994 discharge summary from the alcohol substance abuse program notes that the Veteran reported no previous psychiatric rehabilitation or treatment.  The assessment was alcohol dependence.  

Records from the Social Security Administration (SSA) show that SSA benefits were granted in July 2007 based on a primary diagnosis of cervical strain and a secondary diagnosis of substance addiction disorder-alcohol.  

March 2009 VA treatment records show that the Veteran reported symptoms of depression and tested positive for depression screen in March 2010.  VA treatment records show diagnosis of MDD (major depressive disorder) in March 2010, depression NOS (not otherwise specified) included on his problem list in June 2010 and depressive disorder NOS included in his psychiatric assessment in July 2010.  These records show medication prescribed for depression and anxiety.  The records also note the Veteran's ongoing substance abuse problems.  

As the record shows that a chronic acquired psychiatric disorder was not noted in service or clinically noted post-service prior to 2009, service connection for a psychiatric disability on the basis that such disability became manifest in service and persisted is not warranted.  As a psychosis is not shown to have been manifested in the first post service year, the chronic disease presumptive provisions of 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 do not apply. 

As to the findings of alcohol dependence and substance abuse disorder, the United States Court of Appeals for the Federal Circuit has held that service connection is warranted for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a veteran's service-connected disability.  See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001).  A claimant may be compensated for a substance abuse disability only "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing."  In the present case, the evidence does not suggest that the Veteran's alcohol dependence and substance abuse can somehow otherwise be service-connected on a secondary basis.  Consequently, service connection for alcohol dependence and substance abuse is not warranted.

Regarding the Veteran's assertion that his depression is the result of water contamination and Agent Orange exposure at Fort McClellan; the Board notes that there are no VA regulations that provide a presumption of water contamination or Agent Orange exposure for Veteran's that served at Fort McClellan.  Even assuming that there were hazardous materials at Fort McClellan, the Veteran has not established exposure and he has not presented any evidence that the claimed disabilities are due to any possible exposure.  

There is no competent or credible evidence that shows that the water consumed by the Veteran at Fort McClellan was contaminated and led to a psychiatric disability or that the Veteran was exposed to Agent Orange at Fort McClellan which caused the development of a psychiatric disability.  Regarding the Veteran's own opinion linking his depression to exposure to water contamination or Agent Orange by way of Fort McClellan, he is a layperson and has not demonstrated or alleged expertise in establishing, or determining the etiology of, a psychiatric diagnosis.  Those are medical questions beyond the realm of common knowledge or resolution by lay observation.  He has not provided any supporting medical opinion or medical treatise evidence; does not cite to any supporting factual data; and does not offer any explanation of rationale for his opinion.  Therefore, his opinion in this matter has no probative value.  While a layperson may provide testimony bearing on etiological factors for a disability, what has caused a specific diagnosis is a question beyond the scope of common knowledge or lay observation.  It requires medical training/expertise.  See Jandreau, Davidson; supra.  

In light of the foregoing, the Board concludes that the preponderance of the evidence is against the claim of service connection for an acquired psychiatric disability, claimed as depression.  Accordingly, the appeal in the matter must be denied.


ORDER

The appeal seeking service connection for an acquired psychiatric disability, claimed as depression, is denied.


REMAND

The Board finds that further development of the record is necessary to comply with VA's duty to assist in the development of facts pertinent to his bilateral knee increased rating claims.  38 C.F.R. § 3.159.

Although the Veteran underwent VA knee and lower leg conditions examination most recently in November 2015, as the examination report does not include findings as to the Veteran's functional impairment due to pain on active and passive motion and during weightbearing and non-weightbearing, it is inadequate for rating purposes.  Correia v. McDonald, 28 Vet. App. 158 (2016).  Further, the examination report shows that the Veteran was not examined immediately after repetitive use over time and that functional limitation with repeated use over time due to pain, weakness, fatigability or incoordination in terms of range of motion could not be provided due to pain and inability to test.  Accordingly, as additional information regarding the Veteran's functional impairment would assist in adjudicating his claims, remand for a VA examination to ascertain the current severity of his bilateral knee disabilities is necessary.

Accordingly, the case is REMANDED for the following actions:

1.  Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include updated VA treatment records.

2.  Thereafter, arrange for the Veteran to be afforded an examination to determine the nature and severity of his service-connected bilateral knee disabilities.  The entire record (to include this remand) must be reviewed by the examiner in conjunction with the examination.  Any tests or studies deemed necessary for proper evaluation must be completed.  In particular, the examiner is requested to address the following: 

a.  Please conduct range of motion testing of each knee, specifically noting the motion in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so; and

b.  Please identify the nature and severity of any locking, swelling, and/or effusion in the knees, given the Veteran's history of knee surgeries.

The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate.  If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.

3.  Thereafter, review the expanded record and readjudicate the issues on appeal.  If any benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond.  The case should be returned to the Board for appellate review.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




___________________________________________________
M. C. Graham
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs