Citation Nr: 1757760	
Decision Date: 12/13/17    Archive Date: 12/28/17

DOCKET NO.  10-35 364	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Honolulu, Hawaii


THE ISSUES

1.  Entitlement to an increased rating in excess of 10 percent for service-connected patellofemoral syndrome of the right knee. 

2.  Entitlement to an increased rating in excess of 10 percent for service-connected patellofemoral syndrome of the left knee.

3.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

4.  Entitlement to service connection for an acquired psychiatric disorder other than PTSD.


REPRESENTATION

Appellant represented by:	Hawaii Office of Veterans Services



WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. R. Fletcher


INTRODUCTION

The Veteran served on active duty from November 1990 to October 2000.

This matter is before the Board of Veterans' Appeals (Board) on appeal from October 2009 and May 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. 

The Veteran testified before the undersigned Veterans Law Judge in September 2014.  A transcript of this hearing is of record.

This case was before the Board in June 2015 when it was remanded for additional development.

This appeal was processed using the Veterans Benefit Management System (VBMS) and Virtual VA paperless, electronic claims processing systems. 

The issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action on his part is required.



FINDINGS OF FACT

1.  Throughout the period on appeal, the Veteran's patellofemoral syndrome of the right and left knees has been manifested by limitation of flexion in excess of 30 degrees, even when considering additional functional loss; but not instability, recurrent subluxation, limited extension, or a meniscal condition, ankyloses, impairment of the tibia or fibula, genu recurvatum, or incapacitating exacerbations.

2.  It is not shown that the Veteran has a diagnosis of PTSD in accordance with VA regulations.


CONCLUSIONS OF LAW

1.  The criteria for rating in excess of 10 percent for patellofemoral syndrome of the right knee have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2017). 

2.  The criteria for rating in excess of 10 percent for patellofemoral syndrome of the left knee have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2017).

3.  The criteria for service connection for PTSD have not been met.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304(f) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

With regard to the claims for increased ratings for the right and left knee disabilities, VA's duty to notify was satisfied by a July 2009 letter, sent prior to the issuance of the rating decision on appeal.  With regard to the claim for service connection for PTSD, VA's duty to notify was satisfied by a September 2010 letter, sent prior to the issuance of the rating decision on appeal.  See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

Relevant to the duty to assist, the Veteran's service treatment records, service personnel records, and post-service VA and private treatment have been obtained and considered.  The Veteran has not identified any additional, outstanding records that have not been requested or obtained.

The Veteran has undergone the appropriate examinations for the issues decided herein.  Regarding the knee issues, the Board has considered the holding of the Court in Correia v. McDonald, 28 Vet. App. 158 (2016), addressing the proper interpretation of the final sentence of 38 C.F.R. § 4.59, which states "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint."  In this regard, the Court concluded that VA examinations should include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  The 2017 VA examination report notes that active and passive range of motion testing in both weight-bearing and nonweight-bearing was conducted, but no differences in range of motion were noted.  The Board also notes that the Veteran is service-connected for both knees; as such, it would be impossible to test against the "undamaged" joint.  As a result, a remand to evaluate the Veteran's bilateral knee symptoms under Correia would result in an undue delay of the adjudication of his claims.

Additionally, in September 2014, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge.  The undersigned Veterans Law Judge enumerated the issues on appeal.  Information was solicited regarding the type and onset of symptoms, the severity of such symptoms and the functional impairments related to such symptoms.  Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  Furthermore, additional development was undertaken subsequent to the hearing in order to ensure that all necessary evidence was of record, which included obtaining updated treatment records and VA examinations to determine the nature and severity of the left and right knee disabilities.  As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. 

Moreover, based on the foregoing, the Board determines that the AOJ has substantially complied with the June 2015 remand directives by obtaining private and VA treatment records, conducting stressor development, and obtaining VA knee and psychiatric examinations.  As such, no further action on these issues is necessary.  The Board finds that there has been substantial compliance with its remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).

In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied for the issues decided herein.  Thus, appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

II.  Knee Disabilities

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10. 

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999). 

It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2.  It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence.  38 C.F.R. § 4.3.

When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse.  The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 

Although pain may cause functional loss, pain itself does not constitute functional loss.  Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40).  The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint.  Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint.  38 C.F.R. § 4.59.  Moreover, the application of 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  When Section 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability.  Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011).

The Veteran is currently assigned 10 percent evaluations under Diagnostic Code 5260, which contemplates flexion limited to 45 degrees.  Flexion limited to 30 degrees warrants a 20 percent rating and flexion limited to 15 degrees warrants a 30 percent rating.  38 C.F.R. § 4.71a, Diagnostic Code 5260.  

Diagnostic Code 5261 provides for a zero percent rating where extension of the leg is limited to five degrees.  A 10 percent rating requires extension limited to 10 degrees.  A 20 percent rating is warranted where extension is limited to 15 degrees.  A 30 percent rating may be assigned where the evidence shows extension limited to 20 degrees.  For a 40 percent rating, extension must be limited to 30 degrees.  Finally, where extension is limited to 45 degrees, a 50 percent rating may be assigned.

Normal range of knee motion is 140 degrees of flexion and zero degrees of extension.  38 C.F.R. § 4.71, Plate II.

VA's General Counsel has also stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint.  VAOPGCPREC 9-04 (September 17, 2004).

In addition to the ratings based on limitation of motion, a separate rating may be assigned for instability of the knee.  See VAOPGCPREC 23-97 (July 1, 1997).  Under Diagnostic Code 5257, other knee impairment with slight recurrent subluxation or lateral instability warrants a 10 percent rating.  A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a, Diagnostic Code 5257.

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 claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102 ; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. 

Historically, an October 2003 rating decision awarded the Veteran service connection for patellofemoral syndrome of the right and left knees.  The Veteran's left and right knee disabilities are currently assigned 10 percent disability ratings for each knee pursuant to 38 C.F.R. § 4.71a , Diagnostic Code 5260 (limitation of flexion).

In June 2009, the Veteran filed a claim for increased rating, stating that his knees had gotten worse.  

A July 2009 VA examination report notes the Veteran's complaints of pain under the knee caps bilaterally.  On examination, gait was normal with no evidence of edema, effusion, redness, heat, abnormal movement, guarding, deformity, malalignment, drainage, or weakness.  There was some tenderness under the patellar tendons.  Range of motion showed extension to 0 degrees and flexion to 90 degrees (active) and 110 degrees (passive) bilaterally, with pain under the patellar tendons from 90-110 degrees.  There was no increased loss of motion or pain with repetitive range of motion.  Stability was normal bilaterally and McMurray's test was negative bilaterally.  There was no evidence of subluxation.  X-ray studies showed no arthritic changes.  Diagnosis was patellofemoral pain syndrome of the knees, bilaterally.

A March 2010 VA orthopedic consult report notes the Veteran's complaints that his knees gave out when walking up stairs and popped when arising from the floor.  The Veteran denied wearing any assistive devices; he took Motrin for his pain.  On examination, range of motion was normal (0 to 140 degrees) in both knees.  There was tenderness over the patellar tendon bilaterally with no warmth or swelling.

VA and private treatment records dated from 2010 note that the Veteran was seen with ongoing complaints of bilateral knee pain, swelling, buckling, catching, and stiffness.  He denied instability.  Private MRI reports dated in 2010 and 2011 note findings of Osgood Schlatter's disease bilaterally and a stable tear of the left lateral meniscus.

In a statement dated in April 2011, the Veteran's boss reported that he noticed the Veteran stumble and almost fall at times.  When questioned, the Veteran would say that his knees gave out on him.  The Veteran's boss indicated that during the last year of employment, this happened about twice a week, but he was able to keep working.  

An October 2011 VA examination report notes the Veteran's complaints of increased knee pain over time as well as flare-ups several times a week.  On examination, range of motion of the right knee was flexion to 110 degrees with pain at 100 degrees and extension to zero degrees with no evidence of pain.  Range of motion of your left knee was flexion to 100 degrees with pain at 90 degrees and extension to zero degrees with no evidence of pain.  Following repetitive use testing, there was no change to the range of motion values for either knee.  Muscle strength was normal bilaterally.  There was no recurrent subluxation or lateral instability of either knee.  The examiner opined that knee pain and stiffness might interfere with the Veteran's job as a mechanic. 

In an April 2012 letter, Dr. C stated that the Veteran had been seeing him for bilateral knee problems.  Dr. C stated, "There's evidence of recurrent subluxation or lateral instability of the knee which is moderate: the semilunar cartilage is dislocated with frequent episodes of "locking," pain, and effusion into the joint; leg flexion which is limited to 30 degrees; leg extension is limited to 15 degrees; or there is malunion of the tibia and fibula with moderate knee or ankle disability."  Treatment records from Dr. C dated from October 2010 to April 2012, however, do not support these findings.  Specifically, Dr. C noted that on examination in October 2010, range of motion was flexion to 135 degrees and extension to zero degrees bilaterally.  There was mild effusion with moderate crepitus.  No instability was found in either knee on testing.  He noted that these objective findings were unchanged on examination in November 2010, March 2011, April 2011 and April 2012.   

During the September 2014 Travel Board hearing, the Veteran testified that he began experiencing popping six months ago. He also testified that 2 to 3 years prior that he was advised that he needed knee surgery and he was prescribed a brace.

In a June 2016 letter, the Veteran's private physician stated that the Veteran "has been able to hold on to his diesel mechanic job despite chronic pain on his knees. However, the pain in his knees has been worsening . . . ."

A June 2017 VA Knee and Lower Leg DBQ report notes the Veteran's history of patellofemoral syndrome in both knees and current complaints of swelling and tenderness early in the day.  The Veteran reported flare-ups of pain with kneeling and squatting; he further stated that he was unable to knee, squat, crawl, or stoop.  He did not use any assistive devices to ambulate.  Examination showed right knee flexion at 95 degrees and extension at 0 degrees, and left knee flexion at 100 degrees and extension at 0 degrees.  No additional loss of motion was seen in either knee after three repetitions of testing.  The examiner noted that the Veteran was not being examined during a flare-up and that he was unable to state whether pain, weakness, fatigability, or incoordination would significantly limit functional ability with repeated use over a period of time without resorting to speculation.  There was pain on flexion and palpation bilaterally.  There was pain in the right knee on weight bearing.  Swelling was noted above the right patella and crepitus was observed bilaterally.  There was no muscle atrophy, ankylosis, subluxation, or instability in either knee.  The examiner stated, "There is objective evidence of pain on passive range of motion testing of the right knee.  There is objective evidence of pain on non-weight bearing testing of the right knee.  There is objective evidence of pain on passive range of motion testing of the left knee.  There is objective evidence of pain on non-weight bearing testing of the left knee."  Diagnosis rendered was patellofemoral pain syndrome.  The examiner noted that the Veteran was unable to walk over a mile, stand for 30 minutes, and climb over a flight of stairs without pain.  Squatting, stooping and kneeling also caused him pain.  He no longer ran.

Based on a review of the evidence of record, the Board concludes that the Veteran is not entitled to an increased rating for either knee at any time during the appeal period.  A close review of the record reveals no distinct period during which the criteria for the next higher (20 percent) rating were met for either knee. 

Specifically, for the period at issue, the Board finds that both the left and right knee disabilities have been manifested by complaints of pain and flexion limited to no less than 90 degrees.  Although the Veteran reported pain and other functional loss, the evidence of record does not indicate such additional functional loss as to approximate flexion limited to 30 degrees.  The three VA examiners found no additional functional loss, other than pain, which is already considered within the 10 percent evaluations.  

Increased evaluations under other potentially applicable diagnostic codes has been considered.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  However, after reviewing the medical evidence, the Board finds that these codes do not apply in this case.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5256, 5258, 5259, 5261, 5262, 5263

The Board has also considered whether separate compensable evaluations are warranted based on limitation of extension and subluxation/instability.  But as noted above, there is no evidence of limited extension, subluxation, or instability of either knee.  In this regard, the Veteran and his boss have reported instability and feelings of buckling in both knees.  They are competent to report such symptoms.  See Layno v. Brown, 6 Vet. App. 465 (1994).  These statements, however, are outweighed by the specific instability testing conducted by the private and VA examiners.  As this testing was negative, the Board finds that there is no recurrent subluxation or lateral instability.  Therefore, separate ratings for limitation of extension and subluxation/instability are not warranted.  See VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9-98, (August, 1998); VAOGCPREC 9-2004 (September, 2004).

As the evidence does not support a higher schedular rating for either knee, the Board finds that entitlement to initial ratings in excess of 10 percent for right and left patellofemoral syndrome is not warranted at any point in the appeal period. 

III.  PTSD

In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131.  "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 C.F.R. § 3.303.

To establish service connection for PTSD the evidence must satisfy three basic elements.  There must be 1) medical evidence diagnosing PTSD; 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f). 

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.  38 C.F.R. § 3.304 (f).  In addition, 38 C.F.R. § 3.304 (f) eliminates the requirement that a stressor be corroborated when the claimed noncombat in-service stressor is related to a Veteran's fear of hostile military or terrorist activity.  See 38 C.F.R. § 3.304 (f)(3).  

In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability."  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).

Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact.  The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim; the appellant prevails in either event.  However, if the weight of the evidence is against the appellant's claim, the claim must be denied.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. Ap. 49 (1990).

The Veteran believes that he has PTSD as a result of his military service.  Specifically, he stated that during a March 1994 training mission in Somalia, Africa, he jumped out of a helicopter about 10 to 15 feet high and landed on his right side.  He also stated that, in addition to his fall from the helicopter, he took mortar fire two to three times a week when he was in Somalia in the first half of 1994, including while aboard Black Hawk helicopters.  The Veteran also stated that he was a communication specialist at the Mogadishu Airport which came under mortar attacks.  He stated that he had to walk around with Kevlar and Flak vest, and had to spend time in bunkers until it was all clear. The Veteran testified that he had anxiety and feared for his life due to these incidents of service.  See January 2011 Veteran's statement and September 2014 Travel Board hearing transcript.

Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below.  See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence).

Here, available STRs fail to show any psychiatric symptoms including PTSD.  

Following service, a December 2009 VA primary care outpatient report notes that a PTSD screening was positive.  No stressors or any of other details were provided.

A November 2010 VA PTSD examination report notes the Veteran's history of falling 10 to 15 feet from a helicopter in service.  His current complaints included having "weird dreams and stuff" ever since returning from his five month tour in Somalia.  Some of these dreams were about falling.  He described problems sleeping.  He also reported feeling nervous when climbing on top of trucks in his current job.  Psychiatric examination (in part) revealed no psychotic processes, suicidal or homicidal ideation, memory loss, or inappropriate behavior.  After examining the Veteran and reviewing the claims file, the examiner stated that the Veteran did not have PTSD.

VA and private treatment records dated from 2010 to 2017 are negative for a diagnosis of PTSD.  Of note, a March 2015 VA outpatient treatment record notes that PTSD a screening was negative.  A March 2017 VA mental health consult report notes that, at first, the Veteran stated that he was being treated by a private provider for PTSD.  However, he later said that the provider actually said that he did not have PTSD.

The threshold question in any claim seeking service connection is whether the Veteran, in fact, has the disability for which service connection is sought or has had the disability during the appeal period.  That is the critical question here, i.e., does the Veteran have, or has he had PTSD during the appeal period?  See 38 C.F.R. § 3.304 (f); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (current disability requirement is satisfied if a disability exists at the time of filing or during the pendency of the claim).  In the absence of proof of a present disability there can be no valid claim for service connection.  Brammer, supra. 

The record includes no medical treatment/evaluation report that shows a diagnosis of PTSD other than the December 2009 VA outpatient report.  While the December 2009 PTSD screening was positive, the Board concludes that this diagnosis is not supported by the cursory examination findings of record at that time nor is it linked to any inservice stressor.  The Board finds the November 2010 VA examination report to be more probative given that it contains a thorough rationale and considers all the relevant evidence.  Moreover, as noted, the record includes no other medical treatment/evaluation report that shows a definite diagnosis of PTSD.  Several treatment records rule out PTSD, in fact, as noted above.  The credibility and weight to be attached to medical opinions are within the province of the Board as adjudicators.  Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  Greater weight may be placed on one physician's opinion over another depending on factors such clinical data or other rationale employed by the physician and the extent to which they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).  The probative value of a medical opinion is generally based on the scope of the examination or review, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion.  See Sklar v. Brown, 5 Vet. App. 140 (1993). 

As the competent (medical) and most probative evidence of record does not include a diagnosis of PTSD based on identified supporting symptoms and related to a stressor event in service during the pendency of the appeal, the preponderance of the evidence is against a finding that the Veteran has such disability.  See Brammer, supra. 

With respect to whether the Veteran's own statements can establish a current disability here, in Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); the Federal Circuit determined that 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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.  The relevance of lay evidence is not limited to the third situation, but extends to the first two as well.  Whether lay evidence is competent and sufficient in a particular case is a fact issue.

In this case, the criteria under Jandreau have not been met.  For the claimed PTSD, the Veteran is competent to report his symptoms, but not to report that his symptoms are sufficient to constitute PTSD.  Thus, the Board finds that his statements in support of this claim are only competent evidence that to the extent that he is reporting psychiatric symptoms.  (The Board does not question the Veteran's experiences or his honorable service.  Whether these had any effect on his present condition is a separate matter.)  While he might sincerely believe that he has PTSD due to service stressors, as a lay person, he is not competent to render a medical diagnosis as this requires clinical training and application of symptoms to clinical evaluative scales and tests.  As discussed above, the probative medical evidence shows that he does not have PTSD.  Thus, a current disability has not been established either through the clinical record or the Veteran's own statements.  As such, the claim must fail.

In sum, the record does not show the Veteran has had diagnosed PTSD in conformance with VA regulations at any time during the period under review.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  As the Veteran has not shown a current disability for which service connection can be granted, the claim must be denied.

In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine does not apply.  See 38 U.S.C. § 5107 (b).


ORDER

An increased rating in excess of 10 percent for service-connected patellofemoral syndrome of the right knee is denied. 

An increased rating in excess of 10 percent for service-connected patellofemoral syndrome of the left knee is denied.

Service connection for PTSD is denied.


REMAND

While the Board truly regrets any further delay in this matter, remand is necessary to fulfill the duty to assist and to ensure that there is a complete record upon which to decide the Veteran's claim of service connection for a psychiatric disorder other than PTSD so that he is afforded every possible consideration.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

The Veteran claims that he has a psychiatric disability other than PTSD.  Although the Veteran was provided with a VA examination in November 2010, the examiner did not provide an opinion as to the etiology of a psychiatric disorder other than PTSD; this was presumably because such disability was not found on examination. 

However, the Board notes that subsequent VA and private medical records show the Veteran has recently received therapy and been prescribed medication for adjustment disorder with anxiety and depression versus major depressive disorder.  See June 2016 letter from Dr. A.G. and VA outpatient treatment records dated in 2017.  In this regard, Dr. A.G. suggested that the Veteran's psychiatric disorder has been present since service and has worsened as his service-connected knee disabilities have worsened.  In light of this new evidence, the Board finds that another attempt must be made to determine whether or not any psychiatric disorder other than PTSD was incurred in service or was caused by or aggravated by service or service-connected disability.

Accordingly, the case is REMANDED for the following action:

1.  Undertake appropriate development to obtain any outstanding records pertaining to treatment or evaluation of any psychiatric disorder.

2.  After any additional records are associated with the claims file, obtain a VA examination to evaluate the etiology of any psychiatric disorder other than PTSD.  The entire claims file must be made available to and be reviewed by the examiner.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  An explanation for all opinions expressed must be provided. 

The examiner should provide the following opinions. Is it at least as likely as not (50 percent probability or more) any current or recent psychiatric disorder, to include the adjustment disorder with anxiety and depression noted in 2016 and 2017 private and VA medical records: 

1) had its onset in active service; 

2) is otherwise related to active service; 

3) is caused by service-connected right knee disability and/or left knee disability; and 

4) is aggravated by service-connected right knee disability and/or left knee disability?

The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion.  Likewise, the June 2016 statement from Dr. A.G. should be acknowledged and considered.

3.  Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2017).  In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.

4.  After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's service connection claim should be readjudicated based on the entirety of the evidence.  If any claim is not granted to the Veteran's satisfaction, the Veteran and his representative should be issued a supplemental statement of the case, and an appropriate period of time should be allowed for response.  The case should then be returned to the Board, if in order, for further review.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  See 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (West 2012).



_________________________________________________
K. OSBORNE
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2017).



Department of Veterans Affairs