Citation Nr: 18152577 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 16-11 120A DATE: November 27, 2018 ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a psychiatric disability, other than alcohol dependency, is denied. Entitlement to service connection for alcohol dependency, to include as secondary to a service-connected disability, is denied. FINDINGS OF FACT 1. The Veteran’s left knee disabilities, specifically a patellar tendon rupture and arthritis, did not manifest to a compensable degree within one year of service; continuity of symptomatology since discharge is not established, and the disabilities were not otherwise etiologically related to an in-service injury, event, or disease. 2. The Veteran’s right knee disabilities, specifically a patellar tendon rupture and arthritis, did not manifest to a compensable degree within one year of service; continuity of symptomatology since discharge is not established, and the disabilities were not otherwise etiologically related to an in-service injury, event, or disease. 3. The Veteran did not have a diagnosed psychiatric disability, other than alcohol dependency, during the pendency of the appeal. 4. The Veteran’s alcohol dependency was neither proximately due to nor aggravated beyond its natural progression by service-connected bilateral pes planus and migraine headaches. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 2. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 3. The criteria for service connection for a psychiatric disability are not met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 4. The criteria for service connection for alcohol dependency are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.301(a), 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to April 1974. The Veteran died in January 2017. The appellant is the surviving spouse, who has been substituted for the deceased Veteran for the claims on appeal. Service Connection To establish service connection for a current disability, a Veteran must show the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Direct service connection may be granted only when a disability was incurred or aggravated in line of duty, and not the result of a Veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). Service connection cannot be awarded either for a primary alcohol abuse disability incurred during service or for any secondary disability that resulted from primary alcohol abuse during service. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Service connection for alcohol dependency is allowed when alcohol abuse results secondarily from a service-connected disability, but compensation should only result where there is clear medical evidence establishing that the drug or alcohol abuse disability is indeed caused by the Veteran's primary service-connected disability. Allen v. Principi, 237 F. 3d 1371 (Fed. Cir. 2001). Certain chronic diseases, such as arthritis and psychoses, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within one year following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1110, 1112; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Additionally, service connection may be established, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the nonservice-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the nonservice-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a non-service-connected disability by a service-connected disability, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322. 1. Entitlement to service connection for a left knee disability 2. Entitlement to service connection for a right knee disability The Veteran contends that the knee disabilities he experienced during the pendency of the appeal, lasting from April 2014 until his death, were caused by incidents during service. The service medical records contain notations indicating treatment for knee pain symptomatology during service. In a June 1973 service medical record, the Veteran reported experiencing bilateral knee pain. A service examiner diagnosed questionable Osgood Schlatter disease of the left knee. In a subsequent June 1973 bilateral knee X-ray report, a service examiner noted finding no significant abnormality in either knee. In a January 1974 physical profile, a service examiner reported that the Veteran experienced left knee pain of unknown etiology. The examiner indicated that, due to use of crutches, the Veteran's activities were limited to those he could accomplish. The examiner indicated that the profile was temporary and would expire in 10 days. In a subsequent February 1974 service separation examination report, the Veteran reported experiencing swelling of the bilateral knees, due to overexercising during the previous one to three days. Upon examination, the service examiner noted that the Veteran's knees were normal. In an April 1974 service medical record, the Veteran reported experiencing pain in the left knee, after he fell on it the previous day while playing basketball. The examiner indicated that an examination was negative. In an April 1974 report of medical history at separation, the Veteran reported having had a “trick” or locked knee. In explaining that, a service examiner indicated that the Veteran reported experiencing a strained right knee in 1974 that healed without complications or sequelae. Reviewing the post-service treatment records, in an April 20, 2005, private emergency room record, the Veteran reported playing basketball for several hours that day. The Veteran indicated that he had not played the game for a long time and, while playing, had consumed 12 beers. The Veteran stated that, while playing, his knees began to progressively hurt until they gave out, causing him to bump the back of his head. The private examiner diagnosed arthralgia. In a subsequent May 2005 VA emergency department record, the Veteran stated that he had bilateral knee pain. When asked about any inciting incident, the Veteran stated that he had fallen while dunking a basketball three weeks ago. The Veteran indicated that his knees folded under him as he came down from the dunk and that he heard many “popping” noises at the time. In a May 2005 VA orthopedic surgery consultation, written six days later, the Veteran stated that both of his knees hyperflexed when he landed in a difficult position while playing basketball in April 2005. He told the surgeon that he worked as a roofer, and had no past medical or surgical history. Upon examination, the examiner diagnosed bilateral patellar tendon ruptures. Subsequent treatment records indicate that the Veteran underwent a May 2005 knee surgical procedure. However, despite the surgery, the Veteran underwent further treatment for knee disabilities, to specifically include bilateral patellar tendon ruptures and arthritis. In a July 2005 Social Security Administration (SSA) claim, the Veteran indicated that he had to stop working due to bilateral knee disabilities, which he claimed to have incurred on April 20, 2005. In a January 2014 VA medical examination report, the Veteran stated that he injured both of his knees during service in 1972. The Veteran indicated that, while he was working “in supply,” he climbed on a shelf, only to have the shelf give way from the wall, causing him to fall and hurt his knees. The Veteran stated that he was given aspirin, assigned dual knee braces, and given limited duty for six months. The Veteran said that he had problems with stiffness and weakness after service. The Veteran reported being treated for those symptoms with pain medication and a topical analgesic balm. After service, the Veteran stated that, in 1986, he sprained his right knee after falling down steps. The Veteran also reported that, in 2005, he was injured while playing basketball when “the goal fell down on him.” He stated that he sought treatment at a private hospital which diagnosed strains/sprains and provided him with pain medication. After the symptoms worsened to the point at which he could not walk, he sought treatment at a VA emergency room. At that time, he was diagnosed with bilateral tendon ruptures and, subsequently, underwent surgery. After conducting the interview, providing an examination, and reviewing the clams file, the January 1974 VA examiner diagnosed bilateral patellar tendon ruptures and arthritis. The examiner opined that the Veteran's disability was less likely than not related to service or any incident of service. The examiner noted that the Veteran was treated for knee pain symptomatology during service. However, the examiner found that the Veteran’s knee disabilities were caused directly by the traumatic knee injuries the Veteran incurred in April 2005 while playing basketball. The examiner found that the currently knee disabilities were less likely than not related to the claimed in-service event, injury, or illness. In a February 2016 statement, the Veteran's brother wrote that the Veteran had an ongoing problem with knee disabilities incurred in service after discharge. The brother wrote, “[f]or example: the claimant worked for several years in a factory or an assembly line.” The Veteran's brother also noted that the Veteran worked from 1900 to 1995 as a roofer. The Veteran's brother stated that, in his opinion, the “job as a roofer accelerated his pre-existing knee conditions.” The Board finds that the preponderance of the evidence weighs against the Veteran's claim for service connection for right and left knee disabilities. Initially, the Board finds that the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s knee disabilities and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). In the January 2014 VA medical examination report, the VA examiner noted reviewing the entirety of the evidence prior to writing the opinion. Having done so, the examiner opined that the Veteran's disability was less likely than not related to service or any incident of service. The examiner noted that the Veteran was treated for incidents of knee pain symptomatology during service. However, the examiner found that the Veteran’s knee disabilities, specifically bilateral patellar tendon ruptures and arthritis, were caused directly by the traumatic knee injuries the Veteran incurred in April 2005 while playing basketball, and were less likely than not related to service. The Board finds that the January 2014 VA examiner’s opinion has great probative value in this matter. Prejean v. West, 13 Vet. 444 (2000). Service connection for a knee can also be established if the Veteran had a chronic disease, such as arthritis, that manifested to a compensable degree in service or within the applicable presumptive period, specifically one year after service, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran had arthritis, which is a chronic disease under 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a), it was not chronic in service or manifest to a compensable degree in service or within one year of service, and continuity of symptomatology is not established. VA treatment records show the Veteran was not diagnosed with arthritis until after the April 2005 incident in which he ruptured his tendons, decades after separation from service and decades outside of the applicable presumptive period. The Board notes that the service medical records contain notations indicating treatment for isolated incidents of knee pain during service. In a June 1973 X-ray report, a service examiner found no significant abnormality of the knees, to include arthritis. In a January 1974 physical profile, a service examiner reported that the Veteran experienced left knee pain of unknown etiology and ordered him to limited duty for 10 days. In additional sporadic service medical records, dating through April 1974, the Veteran reported experiencing knee pain of unknown etiology which, the examiners noted had resolved by the date of the Veteran's separation. The Board notes that the service medical records, indicating treatment for short-lived incidents of knee pain, do not indicate chronic knee disability symptomatology during service. Moreover, the post-service treatment records do not indicate treatment for knee disabilities until many decades after service. The Veteran made very few statements regarding knee pain both during and soon after service. In the January 2014 VA medical examination report, the Veteran reported injuring his knees in a falling accident caused by a shelf giving way in 1972. The Veteran stated that he was provided with knee braces and assigned to limited duty for six months following the incident. The Board notes that the Veteran experienced an in-service falling accident, resulting in the Veteran's service-connected migraine headaches. However, the record contains no suggestion, other than the Veteran's statement decades later, that the Veteran experienced knee symptomatology related to that fall. Moreover, the record contains no suggestion that the Veteran was assigned limited duty for any period over 10 days in service due to knee pain. Therefore, the Board finds that the Veteran's statements regarding in-service knee pain symptoms are inconsistent with the other evidence of record and lack credibility. Caluza v. Brown, 7 Vet. App. 498 (1995). At the January 2014 VA medical examination report, the Veteran stated that he had problems with knee stiffness and weakness after he was discharged. The Veteran reported being treated for those symptoms with pain medication and a topical analgesic balm. The Board notes that, in a May 2005 VA orthopedic surgery consultation, when talking to a surgeon, the Veteran specifically denied having any medical history, to include knee disability symptomatology, prior to the April 2005 incident that required subsequent knee surgery. Moreover, when applying for SSA benefits in July 2005, the Veteran indicated that he had to stop working due to his knee disabilities, which he claimed to have incurred on April 20, 2005. Therefore, the Veteran's statements to the January 2014 VA examiner were inconsistent with those made to both medical professionals and SSA, and, therefore, lack credibility. Caluza v. Brown, 7 Vet. App. 498 (1995). However, even if the Veteran's accounts of knee pain following service were accurate, the probative medical evidence, specifically the January 2004 VA examiner’s opinions, indicates that the Veteran incurred the knee disabilities for which he seeks service connection, specifically bilateral patellar tendon tears and arthritis, after a falling incident in April 2005. The Veteran was not competent to provide a diagnosis or determine that the symptoms he felt after service were manifestations of the knee disabilities diagnosed decades after separation from service. The issue is medically complex, as it requires knowledge of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In a February 2016 statement, the Veteran's brother wrote that the Veteran had an ongoing problem with knee disabilities incurred in service after discharge. As purported proof of that, the Veteran's brother indicated that the Veteran worked for several years after service in a factory or an assembly line. The Board notes that the Veteran's ability to work at those jobs does not establish that any knee disability was related to service. The Veteran's brother also noted that the Veteran worked from 1900 to 1995 as a roofer. The Veteran's brother stated that, in his opinion, the “job as a roofer accelerated his pre-existing knee conditions.” The probative medical evidence indicates that the Veteran incurred knee disabilities in an April 2005 incident, many decades after service. The Board finds that the preponderance of the evidence is against the claims for service connection for right and left knee disabilities, and service connection must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for a psychiatric disability, other than alcohol dependency. 4. Entitlement to service connection for alcohol dependency, to include as due to a service-connected disability. VA cannot grant service connection for alcohol dependency that resulted from primary alcohol abuse during service. 38 U.S.C. § 1110; Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). The Veteran contended that he had a psychiatric disability, other an alcohol dependency, related to service. In his April 2014 claim for benefits, the Veteran reported having anxiety and depression that began during service. The question for the Board is whether the Veteran had a psychiatric disability, other than alcohol dependency, during the pendency of the appeal that either began during service or was at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran did not have a diagnosed psychiatric disability, other than alcohol dependency, during the pendency of the appeal. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran filed a claim for service connection for a psychiatric disability in April 2014. Treatment records for the period from April 2014 until the Veteran's death contain no report of treatment or diagnosis for a psychiatric disability, other than alcohol dependency. In a May 2014 VA psychiatric examination report, a VA examiner evaluated the Veteran. During an interview, the Veteran reported consuming 10 beers each day even though he “had a bad liver.” The Veteran stated that he was separated from his wife and had six children. When asked about his overall mood, the Veteran reported being happy, stating “I enjoy everything.” The Veteran accepted responsibility for his divorces due to his infidelity, saying that he had been selfish. The Veteran specifically denied having any previous mental health treatment or any past mental health problems, summarizing his mental state with the words “I enjoy life.” The Veteran indicated that he isolated himself and enjoyed alcohol consumption. The examiner warned him of the risks of such consumption and he seemed to understand. Having reviewed the evidence, the examiner diagnosed alcohol dependency that was not related to service. The examiner did not diagnose any mental disorders except moderate alcohol dependency. While the Veteran stated in his April 2014 claim that he had depression and anxiety, he was not competent to provide a diagnosis in this case. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the record of evidence during the pendency of the appeal contains no notation indicating treatment or diagnosis for any psychiatric disability symptomatology, other than alcohol dependency, during the pendency of the appeal. The Board notes that, in the May 2014 VA psychiatric examination report, when asked to describe his mood, the Veteran told the examiner that he was happy and enjoyed life. Taken at face value, such statements are not indicative of anxiety or depressive symptoms. Consequently, the Board gives more probative weight to the competent medical evidence than the Veteran's single April 2014 report of depression and anxiety. As the Veteran did not have a diagnosed psychiatric disability, other than alcohol dependence, during the pendency of the appeal, service connection for a psychiatric disability must be denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Regarding the Veteran's claim for alcohol dependency, VA cannot grant service connection for alcohol dependency that resulted from primary alcohol abuse during service. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Service connection for alcohol dependency is allowed when alcohol abuse results secondarily from a service-connected disability, but compensation should only result "where there is clear medical evidence establishing that the drug or alcohol abuse disability is indeed caused by the Veteran's primary service-connected disability." Allen v. Principi, 237 F. 3d 1371 (Fed. Cir. 2001). In a February 2016 statement, the Veteran's brother stated that the Veteran's service-connected migraines and bilateral pes planus symptoms caused the Veteran to self-medicate with alcohol. However, the record does not contain any notation from a medical professional suggesting that the Veteran's alcohol abuse was either caused or permanently aggravated beyond its normal progression by the Veteran's service-connected disabilities. The Veteran did not make any statements to medical personnel indicating that his alcohol dependency was related to his service-connected disabilities. Therefore, the record does not contain clear medical evidence indicating that the Veteran's alcohol dependency was related to his service-connected disabilities. The Board finds that the preponderance of the evidence is against the claims for a psychiatric disability and alcohol dependence, and service connection must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.M. Gillett, Counsel