Citation Nr: 1803536 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 13-06 216A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a separate rating for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a bilateral knee disorder, to include as secondary to a service-connected lumbar spine disability. 3. Entitlement to service connection for gastroesophageal reflux disease (GERD). 4. Entitlement to a rating in excess of 40 percent prior to June 1, 2015, and in excess of 20 percent afterwards, for a service-connected lumbar spine disability. 5. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service from September 1986 to March 1987, February 1989 to September 1990, and June 2004 to January 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In connection with this appeal, the Veteran testified at a hearing before a Decision Review Officer (DRO) in November 2014. A transcript of that hearing is of record. The issues of entitlement to service connection for GERD, entitlement to an increased rating for a lumbar spine disability, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran is not shown to have PTSD. 2. A bilateral knee disorder was not shown in service, knee arthritis was not diagnosed within one year of service discharge, and the weight of the evidence is against a finding that the Veteran's bilateral knee disorder is related to service or was caused or aggravated by the Veteran's service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria have not been met for assigning a separate rating for PTSD. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 4.14 (2017). 2. The criteria for service connection for a bilateral knee disorder have not been met. 38 U.S.C.§§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claims at this time is warranted. As to VA's duty to assist, 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 (STRs), VA treatment records, Social Security Administration (SSA) records, and private treatment records have been obtained. Additionally, the Veteran was offered the opportunity to testify before the Board, but he declined. The Veteran was also provided VA examinations and neither the Veteran, nor his representative, has objected to the adequacy of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Separate Rating for PTSD The Veteran is service-connected for major depressive disorder. He asserts that he is also entitled to service connection for PTSD. "VA regulations caution against making multiple awards for the same physical impairment simply because that impairment could be labeled in different ways. . . . It is the veteran's overall disability that is relevant, not the name of the causative disorder or disorders." Amberman v. Shinseki, 570 F.3d 1377, 1380-81 (Fed. Cir. 2009). The regulation "clearly contemplates that several separately diagnosed disorders may have a singled manifestation, and it clearly prohibits the VA from rating that manifestation for each disorder." Id. at 1381 (referring to 38 C.F.R. § 4.14 ). "The critical element is that none of the symptomatology for any one of [the conditions] is duplicative of or overlapping with the symptomatology of the other [conditions]." Esteban v. Brown, 6 Vet. App. 259, 262 (1994). However, the evidence of record fails to show that the Veteran has ever been diagnosed with PTSD. A review of VA treatment records shows that the Veteran received treatment for his depressive disorder; however, he has not been diagnosed with PTSD. In May 2016, the Veteran was afforded a VA examination. After reviewing the Veteran's claims file, interviewing the Veteran, and conducting an examination, the examiner reported that the Veteran did not meet the criteria for a diagnosis of PTSD. In the absence of proof of a current disability, there can be no valid claim for service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Giplin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). The requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Accordingly, the Board finds that the evidence is against the claim and entitlement to a separate rating for PTSD is denied. Service Connection 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. Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service connected disability; and (3) medical nexus evidence establishing a connection between the service connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). The Veteran sought service connection for a bilateral knee disorder, which he contends is secondary to his service-connected lumbar spine disability and/or due to an injury in June 2004. He filed his claim in February 2009, which was denied in November 2009 and August 2010 rating decisions. There is no suggestion that the Veteran's bilateral knee disorder had its onset during his active service or was otherwise directly related to his active service. His STRs show that he denied having any knee symptoms and had normal examinations of his lower extremities in May 1986 and February 1989. In March 2006, he was noted to have excellent knee strength. His STRs do not document a knee injury in June 2004. The record does not show that the Veteran was diagnosed with knee arthritis within one year of separation from service. As such, the record contains no diagnosis of a bilateral knee disorder either in service or within one year after service, which would preclude service connection on the basis of continuity of symptomology or on any presumptive basis. The Veteran has not argued to the contrary, and in fact asserts that his bilateral knee disorder is secondary to his service-connected lumbar spine disability. There is also no medical evidence linking the Veteran's bilateral knee disorder to his active service, and the Veteran has not submitted any medical opinion that even suggests a relationship between his bilateral knee disorder and his active service. See Shedden, 381 F.3d 1163, 1167. Regarding secondary service connection, the Veteran's medical records show that he first complained of knee pain in May 2007, 16 months after his separation from active service. He reported that he fell and landed on his right knee. He underwent right knee surgery in June 2007. In September 2009, the Veteran was afforded a VA examination. The Veteran reported that he fell in June 2004 and injured his knee, which later resulted in his right knee surgery. After reviewing the Veteran's claims file, interviewing the Veteran, and conducting a physical examination, the examiner opined that the Veteran's bilateral knee disorder was less likely than not related to his service-connected lumbar spine disability. The examiner based his opinion on the findings of the examination, which included x-rays showing no evidence of arthritis or any recent or old injury. After weighing all the evidence, the Board finds great probative value in the September 2009 VA examiner's opinion. This opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). These opinions in particular provided substantial reasoning and explanation as to why the Veteran's bilateral knee disorder was not caused by the service-connected lumbar spine disability. The Veteran has not submitted any competent evidence supporting his assertion that his bilateral knee disorder was proximately due to or the result of his service-connected lumbar spine disability. Therefore, after weighing all the evidence, the Board finds great probative value in the September 2009 VA examiner's opinion. Consideration has been given to the Veteran's assertion that his bilateral knee disorder was proximately due to his service-connected lumbar spine disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the etiology of knee disorders, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Knee disorders not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding etiology, as the evidence shows that physical examinations that include objective medical tests, such as x-rays and MRIs, are needed to properly assess and diagnose the disorders. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to report perceived symptoms of his bilateral knee disorder, he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating lumbar spine and knee disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. As described, the criteria for service connection have not been met for a bilateral knee disorder. That is, the evidence does not show that a bilateral knee disorder was diagnosed in service or within a year of service, the weight of the evidence is against a finding that a chronic bilateral knee disorder has existed continuously since service, and the weight of the evidence is against a finding that a bilateral knee disorder was due to or aggravated by the Veteran's service-connected lumbar spine disability. As such, the criteria for service connection for a bilateral knee disorder have not been met, and the Veteran's claim is denied. ORDER A separate rating for PTSD is denied. Service connection for a bilateral knee disorder is denied. REMAND Regarding his service connection claim for GERD, the Veteran asserted that his GERD first manifested during his active service. At his DRO hearing, the Veteran testified that he was diagnosed with GERD in 2005 and was prescribed medications for GERD during his active service. The Veteran's medical records show that he started receiving treatment for GERD as early as March 2006, two months after his separation from service. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, a VA examination is necessary to adjudicate the service connection claim for GERD. Regarding the increased rating for the Veteran's lumbar spine disability, the Veteran was granted service connection for his lumbar spine in a February 2007 rating decision and initially rated at 40 percent. In February 2009, he filed his increased rating claim. In February 2015, the Veteran was last afforded a VA examination for his lumbar spine disability. In a March 2015 rating decision, the RO proposed to reduce his lumbar spine disability to 20 percent effective June 1, 2015, which was effectuated in a May 2015 rating decision. The Veteran asserts that his lumbar spine disability has increased in severity, and that his rating should not have been reduced. As such, a new examination is required to evaluate the current nature and severity of the Veteran's lumbar spine disability. In March 2013, the Veteran reported that he has been unable to work due to his lumbar spine disability. At the February 2015 VE examination, he reported that he had not worked since 2005 due to his lumbar spine disability and the VA examiner reported that his lumbar spine impacted his ability to work. In November 2017, the Veteran once again asserted that he was unable to work due to his lumbar spine disability. Pursuant to Rice v. Shinseki, 22 Vet.App. 447 (2009), a claim for a TDIU either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. As such, a remand is warranted in order to adjudicate the issue of a TDIU. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assist in determining the nature and etiology of his GERD. The claims file should be provided to the examiner. The examiner should offer the following opinions: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's GERD either began during or was otherwise caused by his active service? Why or why not? The examiner should address the lay statements of the Veteran (during the DRO in November 2014) concerning his symptomology and onset. b) Is it at least as likely as not (50 percent or greater) that the Veteran's GERD was either caused or aggravated (the underlying disability increased in severity beyond the natural progression of the disability) by a service connected disability or from medications prescribed to treat a service connected disability? Why or why not? If aggravation is found, the examiner should attempt to identify a baseline level of the disability prior to the aggravation occurring. Note: "At least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 2. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected lumbar spine disability. In so doing, the examiner should ensure to the extent possible, consistent with 38 C.F.R. § 4.59, that the examination report include the results of the Veteran's active and passive motion, in addition to the results following repetitive motion testing. If it is not possible to complete any of the range of motion testing described above, it should be explained why. Failure to do so will result in an examination report being found inadequate. 3. Adjudicate the issue of a TDIU. 4. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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 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). ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs