Citation Nr: 18148108 Decision Date: 11/07/18 Archive Date: 11/06/18 DOCKET NO. 09-27 114 DATE: November 7, 2018 ORDER Service connection for a psychiatric disability is denied. An increased rating in excess of 10 percent for a right knee disability is denied. FINDINGS OF FACT 1. The Veteran was scheduled for a VA examination for mental disabilities, and the examination was necessary to decide the issue of entitlement to service connection for a psychiatric disorder. 2. The Veteran failed to appear to a VA examination for mental disabilities, and he has not presented good cause for the failure to appear. 3. The most probative evidence does not link the Veteran’s psychiatric disorder, to include PTSD and depression, to his active military service. 4. The Veteran was scheduled for a VA orthopedic examination, and the VA examination was necessary to decide the issue of entitlement to an increased evaluation for the service-connected right knee disability. 5. The Veteran failed to appear that the VA orthopedic examination, and he has not presented good cause for the failure to appear. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disorder, to include PTSD and depression, have not been met. 38 U.S.C. §§ 1101, 1110, 1154, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.655 (2017). 2. The claim for an increased rating for the service-connected right knee disability must be denied as a matter of law. 38 C.F.R § 3.655 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the US Navy from March 1968 to December 1971. The Veteran presented sworn testimony at a hearing before the undersigned in September 2017. This case was remanded in October 2017, in order to afford the Veteran VA examinations, prior to adjudicating the claims. The Board notes that when this case was remanded it also included the issue of entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability. However, an August 2018 Supplemental statement of the case, granted a TDIU with an effective date of May 4, 2017, the day on which the Veteran met the schedular criteria for a TDIU. The Veteran has not expressed any further argument or disagreement, and his representative conferred the Veteran’s agreement with the grant in an October 2019 Informal Hearing Presentation. Thus, no further discussion of the TDIU claim is before the Board. 1. Psychiatric disorder The Veteran has asserted entitlement to PTSD. He stated that he has felt so sad for so much of his life and that everything is so hard for him. See April 2016 statement in support of claim. The Veteran also submitted a statement in December 2008 to support his claim for PTSD, stating the he has a hard time sleeping and suffers from nightmares. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts 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 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection on a direct basis requires evidence demonstrating: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the claimed in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In regards to the Veteran’s claim for entitlement to service connection for PTSD, establishing service connection for PTSD generally requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f) (2017). A review of the Veteran’s service treatment notes does not reveal any complaints or treatment for PTSD or a psychiatric disability in service. A review of the Veteran’s November 1971 Report of Medical Examination competed shortly before service discharge clinically evaluates the Veteran as normal. A review of the Veteran’s VA treatment notes indicate that both PTSD and depression show up on his problem list. An October 2015 primary care treatment note states that the Veteran was experiencing nightmares and was encouraged to seek treatment at the mental health clinic. The Veteran had a psychiatry treatment at the VA in September 2012 for depression. This treatment notes diagnosis the Veteran with dysthymia, and he was continued on sertraline. In December 2012, the Veteran was afforded a VA examination for PTSD. At that time the Veteran was not diagnosed with PTSD, but was diagnosed with a depressive disorder. At this examination it was noted that the Veteran reported nervousness in restaurants and near other people that is not linked to any military event or injury and is likely a symptom of his depression. At the end of the examination, the examiner opined that that his diagnosed depressive disorder was not related to his active military service. The examiner based this opinion on evidence showing that the onset of the Veteran’s depression and significant symptomatology appears to have had a civilian “trigger” ten years prior to the examination, and the Veteran’s reported symptoms have no clear relationship to any military event or injury. The Veteran was afforded a VA examination for his claim for service connection for mental disability in August 2016. After reviewing the Veteran’s file and examining the Veteran, he was not diagnosed with any mental disability. The Veteran reported to the examiner that was never engaged in treatment and does not want to be analyzed. The Veteran was unable to answer questions regarding hypervigilance. The examiner noted that the Veteran did not endorse enough symptoms to meet the criterion for a PTSD diagnosis. Further, the examiner stated that in reviewing the Veteran’s history, there was no indication of any functional disruption in occasional or social areas due to experiencing stressors that would be indicative of the presence of a psychiatric condition. As such, the Board finds that service connection for psychiatric disorder to include PTSD and depression is not warranted. There is no evidence of treatment for depression, PTSD or any other psychiatric condition in service. While the Veteran has indicated in statements regarding stressors for his PTSD, in an October 2009 letter from the RO noting, a formal finding of lack of information required to corroborate stressors associate with a claim for service connection for PTSD was provided. As such, there is no evidence of an incident in service. The Veteran was not diagnosed with depression or PTSD symptoms for many years after service, and none of the Veteran’s records provide a nexus between is currently diagnosed psychiatric disorder of depression to his active military service. As such, the Board finds that there is lack of probative evidence suggesting a connection between service and a psychiatric disorder, to include PTSD and depression. As such, the Board finds no basis to grant service connection. Further, as the Veteran failed to appear at his examination, in order to determine the etiology of his depression, the preponderance of the evidence is against the Veteran’s claim. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Right Knee Disability The Veteran seeks a rating in excess of 10 percent for his right knee disability. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. The present matter was previously before the Board in October 2017. The Board remanded the matter to schedule a VA examination to determine the current severity of the Veteran’s right knee disability. Upon remand, he was scheduled for a VA examination in October 2017, but the Veteran failed to report. The Veteran had a previous knee examination in August 2016; however, the Board in its October 2017 remand found this examination to be inadequate because the examiner did not include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing as required under Correia v. McDonald, 28 Vet. App. 158 (2016). It was also determined that the examination was inadequate because the examiner did not address functional loss as required under Sharp v. Shulkin, 29 Vet. App. 26 (2017). Thus, the claim was remanded for the Veteran to undergo an VA examination of the severity of his right knee disability. When entitlement to a benefit cannot be established without a current VA examination and a claimant, without good cause, fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655 (a), (b). The Board must determine “(1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the veteran lacked good cause to miss the scheduled examination.” Turk v. Peake, 21 Vet. App. 565, 569 (2008). Here, the Board in October 2017 found that a VA examination was necessary to determine the current severity of the Veteran’s right knee disability. The claims file further shows that in an October 2017 letter, the RO informed the Veteran that failure to appear at the examination without good cause may cause his claim to be denied. The Veteran failed to appear at the examination, and he has not presented good cause for the failure to appear. Accordingly, the claim must be denied. 38 C.F.R. § 3.655 STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Anderson