Citation Nr: 18149570 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 15-00 239 DATE: November 9, 2018 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for right knee disability is remanded. FINDINGS OF FACT 1. The Veteran’s low back disability was not caused by military service. 2. The Veteran does not have PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for PTSD have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1964 to September 1986, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 1. Entitlement to service connection for a low back disability The Veteran contends that his low back disability was caused by his military service. The Veteran’s service treatment records (STRs) show occasional complaints of low back pain while in service. The Veteran did not report any back or spine issues in his entrance examination, and during the Veteran’s retirement examination in August 1986, the Veteran did not report any back or spine pain. Examination of the spine was normal at that time. The Veteran submitted to an April 2011 examination and was diagnosed with severe multilevel degenerative disc and joint disease. The examiner opined that although there were a few reports of back pain in service these resolved and there was no evidence of trauma or injury in service and no nexus to service. The examiner also noted that the degenerative changes of the Veteran’s spine were common with age progression and obesity. Arthritis is not shown to have manifested in the year following the Veteran’s retirement from the military and there is no continuity of symptomatology of arthritis from retirement to the diagnosis of arthritis (degenerative joint disease) years later. Thus, in-service incurrence cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). Service connection must also be denied on a direct basis as the evidence is against a finding that the current low back disabilities are related to service. Specifically, examination of the spine was normal at the time of retirement and the April 2011 examiner offered a negative opinion with rationale that was consistent with other evidence of record. The examiner’s opinion is found to be highly probative as it was offered by a medical professional after review of the relevant evidence, including the Veteran’s lay statements, and after an examination of the Veteran. The Board has considered the Veteran’s statements, to include his assertions regarding back pain during service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., the presence of pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the negative VA opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. As there is not a nexus to the Veteran’s service, service connection for a low back disability is denied. 2. Entitlement to service connection for PTSD The Veteran contends that he has PTSD as a result of his service in Vietnam. his STRs are silent for any complaints of mental health issues during service. During the Veteran’s retirement examination, the Veteran did not report any psychological problems and psychiatric evaluation was normal. In April 2011, the Veteran submitted to a VA examination for PTSD. Although the Veteran was found to have experienced a stressor event while in combat in the Republic of Vietnam, the examiner opined that the Veteran did not meet the DSM-IV criteria for PTSD. The examiner also opined that the Veteran did not have any mental health issues or psychiatric disorders. Although the Veteran reported distressing dreams, he was unsure of the content of the dreams. The examiner opined that he could not confirm the Veteran’s sleep problems were due to the in-service stressor as the Veteran also drank heavily when at home. The Veteran did not have disturbances that caused significant distress or impairment in social or occupational areas, recurrent and intrusive distressing recollections of events, act or feel as if traumatic events were recurring, have intense psychological distress to exposure of internal or external cues that resembled a traumatic event, or have physiological reactions to events that resembled the traumatic event. The Veteran did not avoid thoughts, feelings, conversations, activities, places, or people that were associated with the trauma. The Veteran did not have diminished interest in significant activities, detachment from others, irritability, difficulty concentrating, or hypervigilance. The examiner reported that the Veteran was a high functioning responsible and sociable individual. There are no other post-service treatment records that suggest the Veteran has a currently diagnosed psychiatric disorder. As PTSD has not been diagnosed, service connection is denied. REASONS FOR REMAND Entitlement to service connection for right knee disability In April 2011, a VA examiner opined that the Veteran’s right knee disability was not related to service because there were no records of an in-service injury or trauma, the Veteran’s STRs only referenced the right knee when actually referring to his left knee injury, and there was a post-service injury. The Veteran stated in an August 2006 orthopedic consult that he felt his right knee pain was caused by his service-connected left knee disability. He explained that he bears more weight on the right knee in an effort to guard his left knee. The Veteran’s representative argues that the Veteran’s right knee disability was caused by or aggravated by the Veteran’s service-connected left knee disability. There is no medical opinion that addresses the possibility of secondary service connection due to the left knee disability. As such, a medical opinion is necessary. The matter is REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his right knee disability. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain the records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that: (a.) the current right knee disability is related to an in-service injury, event, or disease; and if not, (b.) the current right knee disability is (i) caused or (ii) aggravated (worsened beyond normal progression) by the Veteran’s service-connected left knee disability. The need for an examination is left to the discretion of the examiner. (Continued on the next page) A rationale for all opinions offered is requested as the Board is precluded from making any medical findings. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Megan Shuster, Law Clerk