Citation Nr: 18142839 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-20 708 DATE: October 17, 2018 ORDER Entitlement to service connection for a right knee disability, to include status post arthroscopic plicae excision and synovectomy, is denied. Entitlement to shin splints is denied. Entitlement to a right ankle disability is denied. Entitlement to a left ankle disability, to include left ankle strain is denied. Entitlement to service connection for tinnitus is granted. As new and material evidence has been received to reopen the claim of service connection for an acquired psychiatric disorder (previous claimed as a personality disorder), the appeal to this extent is allowed. Entitlement to service connection for an acquired psychiatric disorder diagnosed as adjustment disorder with mixed anxiety and depressed mood is granted. Entitlement to service connection for tension headaches is granted. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability, to include right shoulder strain is remanded. Entitlement to service connection for a cervical spine disability, to include C4-5 and C5-6 disc bulges without impingement, is remanded. Entitlement to service connection for a thoracolumbar spine disability, to include T6-7 and T7-8 disc bulges without impingement, is remanded. Entitlement to service connection for a bilateral hip disability is remanded. Entitlement to service connection for a sleep disorder is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has a right knee disability, to include status post arthroscopic plicae excision and synovectomy, due to a disease or injury in service. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of shin splints. 3. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a right ankle disability. 4. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a left ankle disability, to include left ankle strain. 5. The evidence is in relative equipoise as to whether the Veteran’s tinnitus is related to his service. 6. In an unappealed rating decision in June 2011, the regional office (RO) denied entitlement to service connection for a personality disorder. 7. Evidence received since the June 2011 rating decision is new and material because the evidence had not previously been submitted, is not cumulative or redundant of the evidence of record at the time of the prior rating decision, and raises a reasonable possibility of substantiating the claim. 8. The evidence is at least in equipoise as to whether an acquired psychiatric disorder, diagnosed as adjustment disorder with mixed anxiety and depressed mood is related to service. 9. The evidence is at least in equipoise as to whether the Veteran’s tension headaches are causally or etiologically related to his service or secondary to his service-connected adjustment disorder with mixed anxiety and depressed mood. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability, to include status post arthroscopic plicae excision and synovectomy, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for service connection for shin splints are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for service connection for a right ankle disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. The criteria for service connection for a left ankle disability, to include left ankle strain, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. 5. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 6. The June 2011 rating decision that denied entitlement to service connection for a personality disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 7. New and material evidence has been submitted since the last previous denial in June 2011 and, the claim of service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 8. The criteria for an acquired psychiatric disorder, diagnosed as adjustment disorder with mixed anxiety and depressed mood, have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 9. The criteria for service connection for tension headaches, to include as secondary to the service-connected adjustment disorder with mixed anxiety and depressed mood, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 2001 to May 2002. A memorandum in May 2011 regarding a formal finding on the unavailability of service treatment records from May 2001 to May 2002. The RO noted that only partial copies of service treatment records were received from the Records Management Center and a determination was made that there were no other service treatment records available for review. It was also noted that all efforts to obtain the information were exhausted and that any further attempts would be futile. In cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The analyses below with regarding to the Veteran’s claim of entitlement to service connection for the right knee, shins, and ankles are undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran continues to seek service connection for an acquired psychiatric disorder, however variously claimed and diagnosed. Thus, new and material evidence is required to reopen the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). Neither the Veteran nor his attorney has raised any issues that are not discussed herein, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Issues 1 to 4: Entitlement to service connection for a right knee disability; shin splints; right ankle disability, and left ankle disability. The Veteran contends that he has a right knee disability, shin splints, right ankle disability, and left ankle disability that are related to service. See May 2013 claim. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. As for the right knee disability, the Board concludes that, while the Veteran has a current diagnosis of status post arthroscopic plicae excision and synovectomy, and service treatment records in April 1981 show that the Veteran complained of right knee pain and had an assessment of patellar femoral syndrome (PFS), the preponderance of the evidence weighs against finding that the Veteran’s right knee disability began during service or is otherwise related to an in-service injury, event, or disease. 38 C.F.R. § 3.303. Private treatment records in March 2013 show that the Veteran in December 2012 underwent right knee arthroscopy with pilectomy and the impression was status post arthroscopic plicae excision and synovectomy of the right knee. On VA knee examination in May 2014, the examiner stated that the Veteran’s current diagnosis was status post arthroscopic plicae excision and synovectomy of the right knee, which healed without objective residuals. The examiner noted that the Veteran reported having knee pain during basic training. She opined that the Veteran’s status post arthroscopic plicae excision and synovectomy of the right knee was not incurred in nor caused by service as the condition was not shown in service nor was it caused or related to PFS during service as there is no medical nexus between the two conditions. She noted that the right knee PFS documented in the service treatment records was an acute and transient condition, did not cause a chronic condition, and resolved without residuals. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The opinion is uncontroverted by the other competent evidence of record. The Board has considered the Veteran’s lay statements and acknowledges that he is competent to give evidence about what he has experienced or observed and is competent to report his symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). He has not, however, demonstrated that he is competent to determine the nature and etiology of his right knee disability as 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 his right knee disability. King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Consequently, the Board gives more probative weight to the May 2014 VA opinion discussed above. As for the Veteran’s claims of entitlement to service connection for shin splints; right ankle disability; and left ankle disability to include left ankle strain, service treatment records show that in April 2001 the Veteran was treated for right shin contusion and shin splints. An undated service treatment record shows that the Veteran sprained his left ankle and the assessment was ligament strain. The question for the Board is whether the Veteran has current disabilities pertaining to the shin splints, and ankles that are at least as likely as not related to an in-service injury, event, or disease. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board concludes that the Veteran does not have a current diagnosis pertaining to the right ankle, left ankle, nor shin splints and has not had one at any time during the pendency of the claim or recent to the filing of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). On VA examination in May 2014, the examiner opined that the evidence is insufficient to warrant or confirm a diagnosis of a chronic bilateral leg disorder or its residuals. She noted that the exam and X-rays were normal and that the shin splints documented in service were acute and transient, did not cause a chronic condition, and resolved without residuals. She stated that no medical opinion can be rendered as no condition is diagnosed. On VA ankle examination in May 2014, the examiner stated that the Veteran does not have an ankle condition. She noted that the Veteran reported spraining his right ankle during a road march in service in 2001, which he asserts has healed. The examiner also stated that the Veteran denied having a left ankle condition. She determined that the left ankle strain noted in the service treatment records was an acute and transient condition, did not cause a chronic condition, and healed without residuals. The examiner also noted that service treatment records do not show treatment for a right ankle condition. She opined that there is insufficient evidence to warrant or confirm a diagnosis of a chronic left ankle disorder or its residuals. She stated that the Veteran had a normal ankle exam, normal ankle x-rays, and no functional limitation. The examiner reiterated that no medical opinion can be rendered as no condition is diagnosed. The above opinions are uncontroverted by the other competent evidence of record. Consideration has also been given to the Veteran’s assertion that he has a right ankle disability, left ankle disability, and shin splints as a result of active service. However, while lay persons are competent to provide opinions on some medical issues, the specific issues in this case fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disabilities at issue are not conditions that are readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Consequently, the Board gives more probative weight to the competent medical evidence, to include the May 2014 VA opinions discussed above. Issue 5: Entitlement to service connection for tinnitus. The Veteran contends that he has tinnitus due to service. See August 2014 claim. His DD 214 shows that his military occupational specialty was infantryman, which would have exposed him to acoustic trauma. The Veteran is competent to report symptoms of tinnitus. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Indeed, tinnitus may only be observed by the Veteran and cannot be objectively tested for by an examiner. See generally Charles v. Principi, 16 Vet. App. 370 (2002). The Board does not find a reason to question the credibility of the Veteran that he indeed has had tinnitus since service; and, accordingly, it is at least as likely as not that his tinnitus had its onset during his active service. As the evidence is in relative equipoise, meaning that the evidence for and against the Veteran’s claim is essentially equal, the benefit-of-the-doubt rule applies and entitlement to service connection for tinnitus is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Issue 6: Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The Court has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The RO in a June 2011 rating decision denied service connection for a personality disorder based on the determination that the condition neither occurred in nor was caused by service. The RO notified the Veteran of that decision and apprised him of his procedural and appellate rights. He did not appeal the RO’s decision and additional new and material evidence was not received within a year following this decision. See 38 C.F.R. § 3.156(b). That decision is final and binding on him based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. The evidence added to the record since the June 2011 rating decision includes a May 2016 private opinion whereby the examiner opined that the Veteran has an adjustment disorder that more likely than not began in service. The evidence received is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim of service connection for an acquired psychiatric disorder as it shows that the Veteran currently has a diagnosis of an acquired psychiatric disorder that has been related to service. The credibility of the evidence is presumed for the purposes of reopening the claim of service connection for an acquired psychiatric disorder. Issue 7: Entitlement to service connection for an acquired psychiatric disorder. The Veteran contends that his acquired psychiatric disorder began during service. See, e.g., May 2014 statement. Service treatment records in December 2001 show a recommendation that the Veteran seek treatment for questionable adjustment disorder. Effective March 19, 2015, VA adopted an interim rule as a final rule which among other changes replaced outdated references with references to the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). The rulemaking amended provisions of the Code of Federal Regulations, to include 38 C.F.R. § 4.125. It was specifically noted that the Secretary did not intend for the provisions to apply to claims that were pending before the Board (i.e., certified for appeal to the Board) on or before August 4, 2014. See 80 Fed. Reg. 14308 (March 19, 2015). As the issue was certified to the Board in June 2017, the DSM-5 criteria are applicable. Records in April 2014 show that the Veteran was receiving acupuncture treatment and Chinese herbs for stress and anxiety. On VA Disability Benefits Questionnaire (DBQ) examination for mental disorders in April 2016, the examiner provided a diagnosis of adjustment disorder with mixed anxiety and depressed mood per the DSM-5 criteria. The examiner noted that the Veteran’s family reported that he had symptoms of an adjustment disorder due to service that have been exacerbated since separation from service. The examiner opined that the Veteran has an adjustment disorder that more likely than not began in service and continued uninterrupted to the present time. The positive opinion discussed above is significantly probative regarding the etiology of the Veteran’s adjustment disorder as it was predicated on careful consideration of medical principles applied to the facts of this case. The examiner considered the history and nature of the Veteran’s acquired psychiatric disorder in rendering the opinion. To the extent that the Veteran may have diagnoses of an acquired psychiatric disorder other than the one discussed herein, VA is precluded from differentiating between the symptoms of the Veteran’s service-connected acquired psychiatric disorder and those of any other mental disorder that he may have that is not shown in the evidence of record. Mittleider v. West, 11 Vet. Ap. 181, 182 (1998). As in the instant case, it is not possible to distinguish such effects the reasonable doubt doctrine dictates that all symptoms be attributed to the acquired psychiatric disorder diagnosed as adjustment disorder with mixed anxiety and depressed mood. Issue 8: Entitlement to service connection for headaches. Service connection may also be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310(a). Secondary service connection may be found in certain instances in which a service-connected disability aggravates another condition. On VA DBQ examination for headaches in August 2015, the examiner rendered a diagnosis of tension headaches and opined that the headaches are clearly aggravated by his mental health condition. The Board finds the August 2015 VA opinion to be highly probative as it was based on medical principles and applied to the facts of the case. See Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). The examiner considered the nature of the Veteran’s headache disorder, history and relevant longitudinal complaints in proffering the opinion. The opinion is uncontroverted by the other evidence of record. Further, an undated service treatment record shows that the Veteran was treated for tension headaches. Thus, the evidence is at the very least in equipoise; and, thereby, resolving all doubt in the Veteran’s favor, service connection for tension headaches due to service or secondary to the service-connected adjustment disorder with mixed anxiety and depressed mood is granted. 38 U.S.C. § 5107(b). REASONS FOR REMAND Issues 9-16 Entitlement to service connection for: a left knee disability; left shoulder disability; right shoulder disability; cervical spine disability; thoracolumbar spine disability; bilateral hip disability; sleep disorder; and, hypertension. As discussed above, there was a formal finding on the unavailability of service treatment records from May 2001 to May 2002 with a note that only partial copies of service treatment records were received from the Records Management Center. Such triggers a heightened duty to assist the Veteran in developing his claims. See O’Hare v. Derwinski, 1 Vet. App. 365 (1991). Therefore, the Veteran should be afforded a VA examination to determine whether he currently has a left knee disability; left shoulder disability; right shoulder disability; cervical spine disability, bilateral hip disability, sleep disorder, and, hypertension related to active service. The matters are REMANDED for the following action: 1. The RO should obtain any outstanding treatment records, VA or private. All attempts associated therewith should be memorialized in the Veteran’s claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left knee disability, left shoulder disability, right shoulder disability, bilateral hip disability, cervical spine disability, and thoracolumbar spine disability. The examiner is asked to do the following: a.) Identify/diagnose any disabilities of the left knee disability, left shoulder, right shoulder, bilateral hips, cervical spine, and thoracolumbar spine that presently exists or that has existed during the appeal period. The examiner is hereby advised that any pain that results in functional impairment constitutes a disability contemplated by VA statutes. In addressing this question, the examiner is asked to discuss the Veteran’s complaints of left knee pain with climbing stairs and with prolonged walking and standing. See May 2014 VA examination. The examiner also is advised that in April 2013 a MRI of the thoracic spine shows minimal T6-7 and T7-8 disc bulges without impingement and a MRI of the cervical spine shows minimal C4-5 and C5-6 disc bulges without impingement. b.) For any identified disability of the left knee, left shoulder, right shoulder, bilateral hips, cervical spine, and/or thoracolumbar spine disability, state whether is at least as likely as not (50 percent or better probability) that it is related to an in-service injury, event, or disease. In rendering the opinions, the examiner is asked to consider the Veteran’s DD 214 that shows his military occupational specialty in service was infantryman. The examiner also is asked to comment on service treatment records that show right shoulder impingement strain in April 2001. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sleep disorder. The examiner is asked to do the following: a.) Identify/diagnose any distinct sleep disorder disability that presently exists or has existed during the appeal period. b.) For any identified sleep disorder disability, state whether the disorder is at least as likely as not (50 percent or better probability) related to an in-service injury, event, or disease. c.) For any identified sleep disorder disability, state whether the disorder is at least as likely as not (50 percent or better probability) (i) caused or (ii) aggravated by a service connected disability. 4. Schedule the Veteran for an examination by an appropriate clinician to determine whether the Veteran has hypertension that is related to service. The examiner is asked to do the following: a.) Determine whether the Veteran has or has had a diagnosis of hypertension at any time during the appeal period. b.) If the examiner determines that the Veteran has a diagnosis of hypertension, opine whether it is at least as likely as not (50 percent or better probability) related to an in-service injury, event, or disease. c.) If hypertension is diagnosed, state whether the disorder is at least as likely as not (50 percent or better probability) (i) caused or (ii) aggravated by a service connected disability. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mac, Counsel