Citation Nr: 1754675 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-07 192 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for right knee disorder. REPRESENTATION Veteran represented by: Bryan J. Held, Accredited Agent ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel INTRODUCTION The Veteran served on active duty from November 2007 to June 2010. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. When this matter was previously before the Board in August 2015, it was remanded for additional development. The case has since returned to the Board for the purpose of appellate disposition. FINDINGS OF FACT 1. The Veteran failed, without good cause, to report for scheduled VA examinations in conjunction with an original compensation claim. 2. A current psychiatric disorder is not shown by the record. 3. A current right knee disorder is not shown by the record. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder, to include PTSD, was not incurred in or aggravated by service and psychosis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.655 (2017). 2. A right knee disorder was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.655 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). As discussed below in greater detail, while the Veteran was afforded numerous opportunities to report for VA examination, his failure to attend the examinations has been documented in the record, and he has not provided any reason for his absence. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). There is no evidence of record indicating that the Veteran requested that the examination be rescheduled or that he provided good cause for his failure to report. See 38 C.F.R. § 3.655. The Board observes that recent communications to the Veteran, sent to his last-known address, have been returned as undeliverable. However, neither he nor his representative have provided any updated information on a mailing address. As the Court of Appeals for Veterans Claims has held, "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a [claimant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Olson v. Principi, 3 Vet. App. 480, 483 (1992). The Board finds that the RO's efforts in attempting to arrange for examination were sufficient, and it need not further attempt to secure response from the claimant. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Moreover, given the foregoing, the Board finds that VA has substantially complied with the Board's prior remand with regard to this appeal. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, 11 Vet. App. at 268 where there was substantial compliance with Board's remand instructions). II. Legal Criteria and Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 38 U.S.C.A. § 1101. With respect to the current appeal, this list includes psychoses and arthritis. See 38 C.F.R. § 3.309(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including psychoses and arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307. There are particular requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Those requirements are: (1) a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. 38 C.F.R. § 3.304(f). The Veteran's service treatment records reflect that in April 2010, he complained of shin, knee, and ankle pain due to running. An April 2010 report from a social worker at Fort Hood reflects that the Veteran had diagnosis of depressive disorder as well as adjustment disorder with anxiety. It was noted that he was screened for PTSD and did not meet the diagnostic criteria for this disorder. However, a May 2010 report from a staff psychiatrist reflects diagnosis of PTSD. Also in May 2010, the Veteran was admitted for poisoning by antidepressants (overdose). Diagnosis of adjustment disorder with mixed anxiety and depressed mood, and rule-out PTSD were also noted. Treatment records from the Darnall Medical Center at Fort Hood reflect assessment of adjustment disorder with anxiety, depression, and PTSD in May 2010. No psychiatric abnormalities or abnormalities with respect to the lower extremities were noted on examination in April 2010. The Veteran reported nervous trouble and frequent trouble sleeping, and noted that he had received counseling and had been evaluated for a mental condition on report of medical history at separation. He did not report knee trouble. Following service, the Veteran failed to report to VA examinations scheduled in 2010, 2014, and 2016. Neither he nor his representative has provided any good cause for missing these examinations. There are no other post-service treatment records or evaluations. The Veteran has not provided any lay statements or information in support of his claims. In sum, there is no evidence of post-service psychiatric or right knee disorder. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110; see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, where, as here, competent medical evidence indicates that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection for the disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As there are no disabilities, the Board does not reach the issue of whether the claimed disabilities are related to service. As a lay person, the Veteran is competent to report on that which he has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the record is devoid of any evidence showing a current right knee or psychiatric disorder, and the Veteran has not provided any lay evidence that would suggest the existence of a current disease or injury. In reaching this conclusion, the Board acknowledges in-service diagnoses of PTSD and other psychiatric disorders. However, as noted above, service connection for PTSD requires diagnosis in accordance with 38 C.F.R. § 4.125. The Veteran has not presented for examination to clarify whether he has a current psychiatric disorder, including diagnosis of PTSD in accordance this criteria. As a result, the Board cannot award service-connected for any psychiatric disorder on the basis of these in-service findings, alone. In an original claim for disability compensation such as the Veteran's claims, if a Veteran fails to appear for examination, the claim must be rated on the evidence of record. 38 C.F.R. § 3.655. To the extent that examination would have provided helpful information, such information is unavailable due to the Veteran's lack of cooperation in assisting with his claim. In the absence of current disabilities, service connection cannot be established. See Holton, 557 F.3d at 1366 (holding that entitlement to service connection requires, among other things, evidence of a current disability); see also Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (upholding VA's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes). As the preponderance of the evidence is against the Veteran's claims, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied. Entitlement to service connection for right knee disorder is denied. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs