Citation Nr: 18148855 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 12-00 796 DATE: November 8, 2018 ORDER Service connection for a left knee disorder, to include as secondary to a right knee disability, is denied. Service connection for right testicle disability is granted. REMANDED Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder, is remanded. Service connection for residuals from a traumatic brain injury (TBI) is remanded. Service connection for a chronic headache disorder, to include as secondary to a TBI, is remanded. FINDINGS OF FACT 1. A chronic left knee disability was not shown in service, left knee arthritis was not diagnosed within one year of service discharge, a left knee disability has not been shown to have otherwise been caused by his military service, and the weight of the evidence fails to establish that the Veteran’s current left knee disability was caused or aggravated by his service-connected right knee disability. 2. Resolving all doubt in favor of the Veteran, his right testicle disability is the result of his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C.A § 1110; 38 C.F.R. §§ 3.303, 3.310. 2. A right testicle disability was incurred in active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from April 2002 to February 2007, to include service in Southwest Asia. In connection with this appeal, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) in July 2012. A July 2018 letter informed the Veteran that the VLJ who conducted the July 2012 hearing was no longer at the Board. In a response dated August 13, 2018, the Veteran indicated that he did not wish to appear at another Board hearing. In March 2017, the RO granted service connection for a left clavicle disability. This represents a complete grant of his appeal in regard to this claim. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). This issue is no longer before the Board. 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; 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). Left Knee Disorder The Veteran filed his service connection claim for a left knee disorder in April 2010, which was denied by a July 2010 rating decision. The Veteran asserts that his left knee disorder is due to his active service or alternatively due to his right knee disability. The Veteran’s STRs show that he experienced and treated for his right knee disability during service; however, his STRs do not show symptoms, complaints, or diagnoses for a left knee disorder. The first objective medical evidence documenting a left knee disorder (patellofemoral syndrome) appear in April 2008, more than three years after he separated from service, when he was treated for left knee pain and x-rays showed minimal degenerative changes. In January 2017, the Veteran was afforded a VA examination. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner opined that the Veteran’s left knee disorder was less likely than not due to or the result of his right knee disability. The examiner reported that the Veteran had a normal gait with bilateral leg musculature that was extremely well developed. The examiner reported that there was no evidence of any muscle atrophy that would cause a gait disturbance sufficient to support the assertion that the Veteran’s right knee disability caused or aggravated a left knee disorder. The Veteran has not submitted any medical evidence supporting his contention that his left knee disorder was due to or the result of his active service or caused or aggravated by his right knee disability. VA obtained a medical opinion in an effort to support the Veteran in establishing his claim. The January 2017 VA examiner opined that the Veteran’s left knee disorder was less likely than not caused or aggravated by his service connected right knee disability. Therefore, after weighing all the evidence, the Board finds great probative value in the January 2017 VA examiner’s opinion. Thus, the evidence fails to establish service connection for the Veteran’s left knee disorder. Consideration has been given to the assertions of the Veteran that his right knee disability resulted in his left knee disorder. He is clearly competent to report symptoms of pain as well as injury. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, while the Veteran may describe knee pain, he lacks the medical training or qualification to diagnose a knee disability, or establish its etiology. Id. His opinion therefore cannot provide the requisite nexus and does not refute the medical opinion of record. The record does not contain evidence of a diagnosis of an ongoing chronic left knee disability related to his active service, as the first evidence of any left knee problems do not appear until at least 2008, more than three years after his separation from service. In addition, at an October 2010 reserve examination, he had a normal examination of his lower extremities and did not report any left knee symptoms. Furthermore, his STRs do not document any chronic left knee diagnoses. As such, the Board does not find that the evidence of record shows continuous left knee symptomatology. The Board also notes that the Veteran is not entitled to presumptive service connection for a left knee disorder. The record contains no objective medical evidence of a chronic left knee disorder until 2008. In addition, the record does not contain evidence of a diagnosis of left knee arthritis within one year of separation from the service. Therefore, the presumption of service connection has not been triggered. Consideration has also been given to the Veteran’s assertion that his left knee disorder is the result of his active service or due to his right knee disability. He again is noted to be competent to report his own symptoms or matters within his personal knowledge. However, the Veteran’s reserve examination after his separation from active service found his lower extremities were normal, which serves to sever any continuity from service. Accordingly, the criteria for service connection have not been met for a chronic left knee disorder. That is, the evidence does not show that a chronic left knee disorder was diagnosed in service or within a year of service, the weight of the evidence is against a finding that a chronic left knee disorder has existed continuously since service, and the weight of the evidence is against a finding that a left knee disorder was caused or aggravated by the Veteran’s service connected right knee disability. Therefore, the claim is denied. Right Testicle Disability The Veteran’s STRs show that he was diagnosed with a right testicle mass in November 2004. In February 2005, he was diagnosed with chronic right epididymitis and right hydrocele and underwent surgery. In April 2010, the Veteran reported that he has continued to have right testicle pain since his active service. As such, the criteria for service connection have been met for the Veteran’s right testicle disability (namely an in-service injury, and continuing symptomatology), and his claim is granted. REASONS FOR REMAND Regarding the Veteran’s service connection claim for PTSD, in January 2017, the Veteran reported an event that occurred during his service in Southwest Asia. He described incidents where fellow soldiers were killed. In addition, the Veteran’s STRs show he was underwent multiple psychiatric interviews during his active service. The Veteran also provided lay statements from his father regarding the etiology of his acquired psychiatric disorder. A remand is necessary to attempt to verify the Veteran’s reported in-service stressors and provide a new examination regarding the etiology of any currently diagnosed acquired psychiatric disorder. Regarding the Veteran’s service connection claim for a TBI, since his last VA examination in January 2017, additional medical evidence has been received. The new evidence shows treatment and diagnosis for a TBI. The Veteran vividly described the motor vehicle accident that resulted in a TBI, which is consistent with his STRs showing treatment after a motor vehicle accident. Regarding the Veteran’s service connection claim for a headache disorder, he asserts that his headaches are secondary to his TBI. A remand is necessary to provide the Veteran a new VA examination, if possible as he is currently incarcerated. Otherwise, to obtain a medical opinion regarding etiology. The matters are REMANDED for the following action: 1. Seek to corroborate the Veteran’s reported stressors from his service in Southwest Asia, that included an attack on a convoy in March 2004 that resulted in the death of multiple soldiers. 2. Then, schedule the Veteran for a VA psychiatric examination, with a psychiatrist or psychologist or with a VA contracted psychologist or psychiatrist. If an examination cannot be provided because the Veteran is currently incarcerated, then a VA psychiatrist or psychologist should review the Veteran’s claims file. The examiner should diagnose any current Axis-I psychiatric disability. The examiner should provide an opinion as to whether is it at least as likely as not (50 percent or greater) that any current acquired psychiatric disorder, to include PTSD and/or depression, either began during or was otherwise caused by the Veteran’s active service. Why or why not? If PTSD is diagnosed, the examiner should identify the stressor event or events supporting the diagnosis, or should explain why the diagnosis is the result of fear of hostile military or terrorist activity 3. Then, schedule the Veteran for a VA TBI examination. If an examination cannot be provided because the Veteran is currently incarcerated, then a VA examiner should review the Veteran’s claims file. The examiner should determine whether the Veteran has any residual symptomatology from a TBI, including a headache disorder. If so, the examiner should answer the following questions: (Continued on the next page)   Is it at least as likely as not (50 percent or greater) that any current residuals from a TBI and/or headache disorder either began during or was otherwise caused by the Veteran’s active service. Why or why not? In so doing, the examiner should discuss the Veteran’s motor vehicle accidents in service and any resulting residuals. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berryman, Counsel