Citation Nr: 18139983 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-42 539 DATE: October 2, 2018 ORDER Entitlement to service connection for a right eye blindness is denied. Entitlement to service connection for a right-hand scar is denied. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety is denied. Entitlement to service connection for bilateral knee osteoarthritis is denied. Entitlement to service connection for bilateral hand osteoarthritis is denied. Entitlement to service connection for a low back disability is denied. Entitlement to service connection for neuropathy is denied. FINDINGS OF FACT 1. The evidence of record shows that, although the Veteran sustained a right eye injury leading to blindness as a result of a motor vehicle accident during his military service, this accident was the result of his willful misconduct; therefore, the injury was not incurred in the line of duty. 2. The Veteran’s right-hand scar preexisted his active duty service and was not aggravated during active military service. 3. The Veteran’s acquired psychiatric disorders are not casually or etiologically related to his active military service. 4. Symptoms of bilateral hand and knee osteoarthritis were not chronic during service; did not manifest to a compensable degree within one year of service separation; were not continuous since service; and, are not casually or etiologically related to service. 5. The Veteran is not shown to be currently diagnosed with a low back disability and his current back pain is not shown to result in any functional impairment of earning capacity. 6. The Veteran is not shown to have a current diagnosis of neuropathy. CONCLUSIONS OF LAW 1. Right eye blindness was not incurred in the line of duty and the criteria for service connection are not met. 38 U.S.C. §§ 105, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.1 (m)-(n), 3.102, 3.301, 3.303 (2017). 2. The criteria to establish service connection for a right-hand scar are not met. 38 U.S.C. §§ 1110, 1111, 1153, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). 3. The criteria to establish service connection for an acquired psychiatric disorder, to include depression and anxiety, are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017) 4. The criteria to establish service connection for bilateral knee osteoarthritis disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 5. The criteria for service connection for bilateral hand osteoarthritis disability are not met. 38 U.S.C. § 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.309 (2017). 6. The criteria to establish service connection for a back disability are not met. 38 U.S.C. § 1110, 1131, 5107 (2012); 38 C.F.R. §3.303 (2017). 7. The criteria to establish service connection for neuropathy are not met. 38 U.S.C. § 1110, 1131, 5107 (2012); 38 C.F.R. §3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran’s DD-214 shows that he had active duty from July 1963 to August 1967; however, a review of the record shows that he had been medically discharged in October 1966. For efficiency purposes, the Board recharacterized the Veteran’s right and left hand and right and left knee osteoarthritis as bilateral hand and bilateral knee osteoarthritis. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 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 service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 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). In order for a veteran to be entitled to disability compensation, the injury or disease from which the veteran’s disability results must have been incurred in or aggravated by active military, naval, or air service “in line of duty.” 38 U.S.C. §§ 101(16), 105(a), 310, 331; see also 38 C.F.R. §§ 3.1(k), 3.1(m), 3.301(a). The term “in line of duty” means “an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran’s own willful misconduct.” 38 C.F.R. § 3.1(m); see also 38 U.S.C. § 105(a); 38 C.F.R. § 3.301(a). The term “willful misconduct” means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Willful misconduct will not be determinative unless is the proximate cause of injury, disease, or death. A service department finding that injury, disease or death was not due to misconduct will be binding on VA unless it is patently inconsistent with the facts and laws administered by VA. 38 C.F.R. § 3.1(n). A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2017). Where there is “clear and unmistakable” evidence that the injury or disease claimed pre-existed service, and was not aggravated during service, the presumption of soundness does not attach. Id. A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). The record shows that the Veteran has a history of osteoarthritis, and such arthritis is a type of degenerative joint disease, which is a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. 38 C.F.R. § 3.303(b). Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. Id. The presumptive service connection provisions based on “chronic” in-service symptoms and “continuity of symptomatology” after service under 38 C.F.R. § 3.303(b) have 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) (holding that the “chronic” in service and “continuous” post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to “chronic” diseases at 3.309(a)). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107 (b)). Right Eye Blindness The Veteran asserts that his right eye blindness resulted from a motor vehicle accident he sustained during service. The evidence shows that the Veteran’s right eye blindness resulted from a motor vehicle accident, and indisputably incurred while he was still on active duty. A careful review of the Veteran’s record shows that he was relieved from guard duty at approximately 8 AM on June 13, 1966. He went to Mrs. J.A.’s home to borrow her car, went to the bank and then to Miss L.P.’s home. He returned to Mrs. J.A.’s home at approximately 2 PM for the purpose of repairing her car battery, and at approximately 5 PM, he went with another friend to purchase a pint of Bourbon. After the Veteran and the friend consumed some of the alcohol, they went out to start Mrs. J.A.’s car, and drove it around a residential area. Prior to reaching an intersection, the Veteran did not stop at a stop sign, and sustained injuries from hitting another car and his head hitting the windshield. The Veteran specifically admitted that he was speeding at about 45mph-50mph (speed limited was noted to be 30mph). He reported that he attempted to press the brakes, but they pulled to the right and did not work. When asked whether he knew that the brakes were faulty, he stated that when he went downtown earlier that day, he did notice that the brakes were pulling to the right. An August 1967 Report of Investigation concluded that the June 1966 motor vehicle accident was due to the Veteran’s own willful misconduct and not incurred in the line of duty. 38 C.F.R. § 3.1(m); see also 38 U.S.C. § 105(a); 38 C.F.R. § 3.301(a). Here, the service department’s findings were consistent with the evidence of record, which demonstrated that the Veteran admitted that he was aware the car had brake problems and that he was speeding in a residential area. In addition, he admitted that he drank approximately a quarter of the pint of alcohol about 10-minutes prior to driving the car, although, no blood tests to determine whether he was in fact intoxicated were administered on the scene of the accident or close enough to the time of accident. In an October 2015 Administrative Decision, VA determined that the June 1966 motor vehicle accident and the injuries sustained in the accident were due to the Veteran’s own willful misconduct, and therefore not in the line of duty. Specifically, it was noted that the case was previously reviewed three times, by the Chief of Personnel Active Duty, Chief of Law Branch, and by the Associate General Counsel in Washington D.C., and all found that the accident was caused by misconduct and not in the line of duty. Subsequently, the Veteran noted that he thought the brakes were replaced; however, this is contradictory to his report following the accident, at which time he specifically admitted to noticing the faulty brakes earlier the same day. In this matter, the evidence of record demonstrates that, to the extent the Veteran is asserting that he sustained a right eye blindness due to the June 1966 motor vehicle accident, he may not be awarded VA compensation due to this injury because it was not incurred in the line of duty and was due to his own willful misconduct. 38 C.F.R. § 3.1(m); see also 38 U.S.C. § 105(a); 38 C.F.R. § 3.301(a). Thus, as the Veteran’s June 1966 in-service motor vehicle accident was the result of his own willful misconduct and determined not to have been incurred in the line of duty, the Veteran cannot sustain a theory of entitlement to service connection for a right eye blindness on this basis. The preponderance of the evidence is against the Veteran’s claim, and the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Right-Hand Scar The Veteran asserts that his right-hand scar is related to service; however, he provided no information as to why he believed it was related to service. Notably, some of the Veteran’s service treatment records are not available for review, which includes his entrance examination. Efforts to obtain them have been unsuccessful and further attempts would be futile. Nevertheless, a Report of Personal History for enlistment purposes, notes under “scars, physical defects, distinguishing marks” that the Veteran had a scar on the right-hand. His separation examination shows that he had a right-hand burn mark. The Board reviewed the lay and medical evidence on record and found no evidence to support the conclusion that the right-hand scar either incurred in-service or was aggravated during service. Post service treatment records dated in May 2017 show that the Veteran continuously denied having any significant scars. Based on the foregoing, the Board finds that there is no lay or medical evidence on record to support the Veteran’s assertion that his right-hand scar is related to his active duty service. Thus, the preponderance of the evidence is against the Veteran’s claim, and the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Psychiatric Disorders, to Include Depression and Anxiety Initially, the Veteran is currently diagnosed with unspecified depressive disorder and unspecified anxiety disorder. See e.g., January 2017 VA mental health note. The Veteran asserts that his psychiatric disorders are related to service; however, he provided no information as to why he believed any diagnosed psychiatric disorder was related to service The Board finds that the weight of the competent lay and medical evidence of record demonstrates that the current psychiatric disorders were not incurred in service and are not otherwise etiologically related to service. The Veteran’s service treatment records are silent to any complaints, treatment, or diagnosis of any psychiatric disorder. His separation examination in August 1966 shows normal psychiatric system. Post-service treatment notes beginning in 1986 show that the Veteran received treatment for alcohol dependency. VA treatment notes beginning in October 2016 show that the Veteran complained of depressed mood, mild anhedonia, and difficulty sleeping. He further reported having generalized anxiety about a variety of topics, to include paying bills, his prosthetic eye, and people noticing it. He reported that he was deployed to Korea for thirteen months but stated that he did not experience any combat. He also denied experiencing any military sexual trauma. Thereafter, VA treatment records beginning November 2016 show diagnoses of unspecified depressive disorder and unspecified anxiety disorder. In his August 2017 notice of disagreement, the Veteran stated, “I have been [a]ffected by these conditions and I feel like I serviced my country during the worse times, but now I am not being compensated. I suffer to this day from these military related issues.” Based on the foregoing, the Board finds that there is no competent lay or medical evidence of record to support the Veteran’s assertion that his psychiatric disorders are related to service. Rather, his psychiatric symptoms were attributed to paying bills and his nonservice-connected right eye disability. Furthermore, as noted above, the Veteran specifically denied any combat experience or suffering military sexual trauma. Lastly, the Board recognizes that the Veteran has not been provided with a VA mental health examination. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. Although the record contains a current diagnosis of a psychiatric disorder, a VA examination is not required because there is no competent evidence even suggesting that the currently diagnosed unspecified anxiety disorder or unspecified depressive disorder may be associated with service. See McClendon, supra. Although the Veteran is competent to report observable psychiatric symptoms, he, as a layperson, is not competent to render an opinion as to the etiology of his current psychiatric disorder. Thus, the preponderance of the evidence is against the Veteran’s claim, and the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Bilateral Hand and Knee Osteoarthritis The Veteran asserts that his bilateral hand and knee osteoarthritis is related to service; however, he provided no information as to why he believed either disability was related to service. Although the bilateral hand and bilateral knee osteoarthritis are separate issues on appeal, the Board discusses them concurrently as they share the same factual background. Initially, the Board notes that it is not clear whether the Veteran is in fact diagnosed with osteoarthritis in either his right or left hand. VA treatment records dated in December 2016 indicate that a few months earlier, the Veteran started to complain of swelling, especially in the proximal interphalangeal joint of the index finger in both the right and left hands. At the same time, he complained of swelling in the right and left knees along with morning stiffness. The medical professional noted that there was no immediate history of rheumatoid arthritis, but it was concerning that on inspection there was evidence of swelling noted on the PIP joints, bilaterally, and symmetrical findings noted on the right and left knees. Subsequently, VA treatment records dated in May 2017 show impression of osteoarthritis in multiple joints, especially the knees. Given this evidence, the Board resolves all doubt in the Veteran’s favor to conclude that he has a current diagnosis of osteoarthritis in both his hands and knees. The Board however finds that the weight of the competent lay and medical evidence of record demonstrates that the current bilateral hand and bilateral knee osteoarthritis disabilities were not incurred in service and are not otherwise etiologically related to service. As aforementioned, arthritis is a “chronic disease” and as such is subject to presumptive service connection. Here, the Board notes that due to the lack of medical evidence, there is no competent objective evidence to show that the Veteran’s arthritis manifested to a degree of 10 percent within one year after separation from service. Notably, arthritis was not shown by objective medical evidence, but the Veteran’s post-service VA medical treatment notes indicate the onset of osteoarthritis in 2007, approximately four decades after separation from service. An alternative way to establish service connection for a chronic disease is presumptively based on evidence of continuity of symptomatology. Here however, the Veteran had made no statements regarding continuity of symptomatology of osteoarthritis in the hands or knees. In his August 2017 notice of disagreement, he stated, “I have been [a]ffected by these conditions and I feel like I serviced my country during the worse times, but now I am not being compensated. I suffer to this day from these military related issues;” however, this statement is contradicted by the objective medical evidence, which does not reveal any complaints of pain and or other symptoms since discharge, and shows that arthritis was not diagnosed until 2007. Furthermore, the Veteran filed his claim for a right-eye blindness in August 2010, and did not include claims for any other problems. The mere absence of medical records does not contradict a Veteran’s statements about his symptom history. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the Veteran has not provided any statements regarding a history of hands or knees disabilities, or even identify an in-service hand or knee injury. His recent claim for service connection for hand and knee disabilities indicating it incurred in service is contradicted by remote records in which he appears to have reported his existing medical conditions without mentioning any problems related to knees or hands. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) In other words, he described his in-services eye injury but did not mention any problems with his hands or knees in service. It was not until decades after service that the Veteran complained of any symptoms associated with his hands or knees. This long period without problems is one factor that weighs against the claim. To the extent that the Veteran now asserts that his hands and knees disabilities developed during active service, the Board finds that the current assertions made for VA compensation purposes are not credible; they are contradicted and outweighed by the lay and medical evidence more contemporaneous to service including the Veteran’s own statements at service separation, which show normal extremities with no complaints, treatments, or diagnoses of hand or knee conditions. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994). The Board finds the lay statements made for treatment purposes during service more probative than the more recent lay statements made for compensation purposes. In addition, as discussed further below, the Veteran has failed to provide a medical nexus evidence relating his currently diagnosed arthritis to an inservice injury; this along with the lack of evidence of treatment so many years after service also bears on the credibility of the evidence of continuity. Savage v. Gober, 10 Vet. App. 488, 496-97 (1997). Again, there is no competent and credible evidence of a nexus between the currently diagnosed osteoarthritis and his active duty service. A careful review of the Veteran’s medical records provides no evidence even suggesting a relationship between the Veteran’s active duty service and his current disabilities. Again, while the Veteran is competent to describe symptoms he experiences at any given time, he is not shown under the facts of this case to possess the necessary medical knowledge and expertise to opine as to the etiology of his bilateral hand and knee osteoarthritis. Lastly, the Board recognizes that the Veteran has not been provided with VA examinations for his bilateral hand or knee osteoarthritis. Although the record contains a current diagnosis of osteoarthritis, a VA examination is not required because there is no competent evidence even suggesting that the currently diagnosed bilateral hand osteoarthritis or bilateral knee osteoarthritis disability may be associated with service. See McClendon, supra. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for bilateral hand and bilateral knee osteoarthritis, on presumptive and direct bases, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Low Back Disability The Veteran asserts that he has a back disability that is related to service; however, he has not provided any information as to why he believes any back symptoms are related to service. The Veteran’s service treatment records are silent to any complaints, treatment, or diagnosis of a back disability. His separation examination in August 1966 shows normal spine. More importantly, upon review of the current record, the Board finds that it fails to show competent evidence of a current back disability. Post-service VA treatment records continuously show that the Veteran’s spine was normal. Most recently, treatment records dated in May 2017 indicate that the Veteran reported having osteoarthritis in multiple joints especially his knees; however, on physical examination, it was noted that his spine was normal with no evidence of abnormality. He had normal lumbar lordosis; no tenderness; normal range of motion; normal heel/toe walk; and he denied having any back pain. In pursuit of this claim however, the Veteran has reported back pain and the Board recognizes that pain alone may be considered a disability if it results in functional impairment of earning capacity. See Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018). In this case however, there is no evidence showing that any of the Veteran’s low back pain has resulted in functional impairment of earning capacity. The laws authorizing Veterans’ benefits provide benefits only where there is current disability, as identified by a medical diagnosis. In the absence of proof of a current disability, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board concludes that the Veteran has failed to meet his evidentiary burden of establishing the elements of his claim. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). For the reasons and bases discussed above, the preponderance of the evidence is against the Veteran’s claim, and it therefore must be denied. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Neuropathy Upon review of the current record, the evidence fails to show a current diagnosis of neuropathy. To the contrary, VA treatment records continuously show that the Veteran has denied any neurological symptoms, and indicate that he does not have acute or subacute peripheral neuropathy or any type of neuropathy for that matter. The available medical evidence continuously shows normal neurological system. As indicated, the laws authorizing Veterans’ benefits provide benefits only where there is current disability, as identified by a medical diagnosis. In the absence of proof of a current disability, there is no valid claim of service connection. Brammer, supra. For the reasons and bases discussed above, the preponderance of the evidence is against the Veteran’s claim, and it therefore must be denied. See 38 U.S.C. § 5107(b) (2012). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel