Citation Nr: 1751885 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 12-35 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a left knee condition, to include knee strain. 2. Entitlement to service connection for an acquired psychiatric condition, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Borman, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1973 to May 1977, September 1977 to September 1980, and September 1986 to February 1990. This matter comes before the Board of Veteran's Appeals (Board) on appeal of an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Board has expanded the Veteran's claims on appeal to encompass all similar disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). This appeal is comprised entirely of documents contained in the Virtual VA paperless claims processing system as well as the Veterans Benefits Management System (VBMS). Accordingly, any future documents should be incorporated in the Veteran's VBMS file. The issue of service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's left knee strain is not related to military service. CONCLUSION OF LAW The criteria for service connection for a left knee condition, to include knee strain, have not been met. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veteran's Claims Assistance Act VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice in letters sent to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records, and VA examinations are associated with the claims file. The Board acknowledges that the Veteran, through his representative, has challenged the adequacy of the April 2013 VA examination and accompanying opinion. The representative asserts that the opinion is inadequate because the examiner has no expertise in orthopedic disorders as she is a family nurse practitioner. The representative also argues that the examiner failed to consider or discuss the impact of the Veteran's altered gait due to lumbar spine disorder which is known to have a biomechanical impact on other joints. A VA examiner is presumed to have properly discharged their duties as a health professional (presumption of regularity) in a review of the record, in interviewing the Veteran, and supporting their opinion with medical analysis applied to the significant facts of the case. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed Cir. 2009) (applying the presumption of regularity to VA medical examiners in the discharge of their regular duties). The presumption of regularity is rebuttable by clear evidence to the contrary. Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). A review of the VA examination demonstrates that it and its accompanying opinion were based upon a complete review of the Veteran's claims file, clinical examination of the Veteran, and with consideration of the lay statements. The only evidence that has been presented that the examiner did not conduct an appropriate examination is the representative's own contentions, which are not based upon medical education and training. Consequently, the Board concludes that clear evidence to the contrary has not been presented to overcome the presumption of regularity. Therefore, the Board finds that the April 2013 VA examination and opinion are adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). There is no indication of additional existing evidence that is necessary for a fair adjudication of the claims that are the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Service Connection The Veteran seeks entitlement to service connection for a left knee condition, which was diagnosed as knee strain in an April 2012 VA examination. In a September 2012 statement, the Veteran asserted that his bilateral knee condition was secondary to his service-connected back disability. The Board notes that only the Veteran's left knee condition is on appeal at this time. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2017). Additionally, when aggravation of a Veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id.; Allen v. Brown, 7 Vet. App. 439 (1995). VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C.A. § 5107(b). After a review of the evidence of record, the Board finds that service connection is not warranted. As an initial matter, service treatment records do not reflect complaints of, treatment for, or a diagnosis related to a left knee condition. One exception is when the Veteran complained of chronic lumbar pain radiating into his left knee in May 1987. However, there is no indication that this nerve pain that was linked to his spine disorder is related to his knee strain disability. Significantly, his separation examination was absent of any complaints of or observed symptoms related to a left knee condition. In fact, the post-service evidence does not reflect symptoms related to a left knee condition for many years after the Veteran left active duty service. During a January 2002 VA examination, he was observed to have an occasional bilateral limp that was more pronounced on the left side. Assuming this limp is related to his left knee strain, the Board emphasizes that because the Veteran left active service in 1990, it was not until approximately 12 years later that he was first noted to have symptoms that can be potentially construed as symptoms related to a left knee strain. The Board notes that the Veteran has not specifically asserted that he has suffered from a left knee condition since military service. Rather, he asserts that his left knee condition is secondary to his service-connected lumbar spine disability. Therefore, the Board finds that continuity of symptomatology is not established. Next, service connection may also be granted when the evidence establishes a medical nexus between his disorder and his military service and/or a service-connected disability. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's disorder to active duty or a service-connected disability, despite his contentions to the contrary. With regards to direct service connection, the Board has found that the earliest indication of a possible left knee condition in the claims file was 12 years after he separated from military service. The Board notes that there is no medical evidence in the record indicating any kind of relationship connecting his left knee strain with his military service. Additionally, the Veteran himself has not put forward a direct service connection argument. With regards to secondary service connection, there are no treatment records establishing that the Veteran's left knee strain is related to his service-connected back condition, nor has any physician asserted that such a relationship exists. The Board acknowledges that there are a few entries in the Veteran's medical record indicating that his back pain has caused him to move differently. For example, in October 1990, the Veteran's back pain was so severe that he had great difficulty getting out of a chair or a seat. Additionally, during a January 2002 VA examination for his back disorder, he exhibited a lack of coordination with an occasional bilateral limp. Nevertheless, there is no evidence presented that these differences in movement caused his current knee disorder. In April 2013, the Veteran underwent a VA examination for his left knee disorder, where the examiner diagnosed the Veteran with bilateral knee injury/strain. The Veteran, without providing a date, recalled the onset of his left knee condition when he twisted his knee and went sideways on it. Citing the Veteran's statement, the examiner concluded that his knee condition was less likely than not proximately due to or the result of his service-connected lumbar spine condition. The examiner concluded that there is no known medical correlation between back and knee issues. The Board recognizes that the opinion of the VA examiner could have been more thorough; however, it still assigns the opinion at least some probative value. The Board can only consider the evidence in the Veteran's claims file and, crucially, the Veteran has not produced a probative medical opinion to contradict the conclusion set forth by the examiner. Thus, the examination report stands unchallenged as competent and probative medical evidence on the crucial question concerning a medical nexus. In considering this appeal, consideration has been given to the Veteran's statements relating his claimed disability to his service-connected lumbar spine disorder. 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). Although the Veteran is competent to testify that he suffers from the symptoms of a left knee disorder, he is not competent to provide a medical opinion linking the disorder with his service-connected lumbar spine disorder. Such a medical diagnosis and nexus do not involve a simple identification that a layperson is competent to make. See Jandreau, 492 F.3d at 1377, n.4. Therefore, the Board finds that the weight of the competent evidence does not attribute the Veteran's left knee strain to military service or his service-connected lumbar spine condition, despite his contentions to the contrary. In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b) (2012). However, as the most probative evidence is against the claim, the doctrine is not applicable in this case. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a left knee condition, to include knee strain, is denied. REMAND The Board finds that the Veteran is entitled to an examination regarding his claim seeking entitlement to service connection for an acquired psychiatric condition, to include PTSD. The Veteran was scheduled for an October 2012 VA examination for his claimed psychiatric disorder. However, the Veteran's representative asserts that the Veteran advised VA that he lived 3 hours away from the Albuquerque, New Mexico VA Medical Center. The file indicates that from at least as early as August 2011, he was actively receiving treatment from the Amarillo VA Medical Center. Therefore, at minimum, VA had constructive notice that the Veteran exclusively addressed his healthcare needs at the Amarillo VAMC. As a result of the above noted deficiency and acknowledging the duty to assist the Veteran in developing his claim, a remand is therefore necessary in order to obtain a VA medical examination at a location accessible to the Veteran. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding treatment records from the VA Medical Center in Amarillo since May 2015, as well as from any VA facility or private provider from which the Veteran has received treatment. 2. Ask the Veteran to provide a stressor statement. Once he does so, take all necessary steps to verify the Veteran's asserted stressor(s). 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed acquired psychiatric disorder, to include PTSD. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. The examiner should identify all current psychiatric disorders found on examination. For PTSD, the examiner must use the diagnostic criteria specified in the DSM-V. For each diagnosed psychiatric disorder, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed psychiatric disorder is etiologically related to the Veteran's period of service. If PTSD is diagnosed, the examiner must specify the stressor(s) upon which the diagnosis was based. If the examiner cannot provide the requested opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. After the above action is completed, if the claim is not fully granted, a supplemental statement of the case should be provided on the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The claims file should then be returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter 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 or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs