Citation Nr: 18154522 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 15-02 416 DATE: December 4, 2018 ORDER Service connection for bilateral shoulder disability is denied. Service connection for bilateral elbow disability is denied. Service connection for bilateral wrist disability is denied. Service connection for residuals of a back injury is denied. Service connection for bilateral hip disability is denied. Service connection for left knee disability is granted. Service connection for right knee disability is granted. Service connection for bilateral ankle disability is denied. Service connection for an eye disability is denied. Service connection for bilateral hearing loss is denied. Service connection for an acquired psychiatric disability is granted. FINDINGS OF FACT 1. The Veteran has not had a disability of either shoulder at any time during the appeal period. 2. The Veteran has not had a disability of either elbow at any time during the appeal period. 3. The Veteran has not had a disability of either wrist at any time during the appeal period. 4. The Veteran has not had a back disability at any time during the appeal period. 5. The Veteran has not had a disability of either hip at any time during the appeal period. 6. Resolving all doubt in his favor, the Board finds that the Veteran has a current diagnosis of left knee arthritis which has been related to his active service. 7. Resolving all doubt in his favor, the Board finds that the Veteran has a current diagnosis of right knee arthritis which has been related to his, now service-connected, left knee disability. 8. The Veteran has not had a disability of either ankle at any time during the appeal period. 9. The weight of the evidence of record does not establish that the Veteran’s current eye disability began during, or is otherwise etiologically related to, his military service, including periods of active duty for training. 10. The Veteran does not have hearing loss in either ear considered to be a disability for VA purposes. 11. Resolving all doubt in his favor, the Board finds that the Veteran has a current diagnosis of generalized anxiety disorder which has been related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral shoulder disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral elbow disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for bilateral wrist disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for residuals of a back injury have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for bilateral hip disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for left knee disability have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for service connection for right knee disability have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 8. The criteria for service connection for bilateral ankle disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 9. The criteria for service connection for an eye disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 10. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.385. 11. The criteria for service connection for an acquired psychiatric disability have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1991 to January 1992. He had subsequent reserve duty until his discharge in July 1996. These matters come before the Board of Veteran’ Appeals on appeal from a November 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Legal Criteria Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may also be granted for certain chronic diseases when such disability is manifested to a degree of 10 percent or more within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112(a); 38 C.F.R. §§ 3.307, 3.309; see Fountain v. McDonald, 27 Vet. App. 258 (2017); 38 C.F.R. § 3.309 (a). When chronic diseases are at issue, the second and third elements for service connection may alternatively be established by showing continuity of symptomatology. See Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Analysis While service treatment records (STRs) are available for the Veteran’s period of active service, complete STRs from his Reserve period are unavailable. Where the service records are incomplete, the obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened. Cromer v. Nicholson, 455 F.3d 1346, 1351 (Fed. Cir. 2006); Kowalski v. Nicholson, 19 Vet. App. 171,179 (2005); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). But, this does not lower the threshold for an allowance of a claim, for example where the evidence almost but not quite reaches the positive-negative balance. In other words, the legal standard for proving a claim is not lowered; rather, the obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, the absence of the Veteran’s STRs does not create an adverse-presumption rule. The RO made several attempts to obtain the missing STRs from the Veteran’s period of Reserve service. In a May 2012 letter, the RO asked the Veteran to provide his STRs and/or alternate sources of his STRs. He did not respond. In June 2012, the Records Management Center determined that there was no record of the Veteran’s Reserve STRs. The RO issued a Formal Finding of Unavailability of Service Treatment Records in July 2012. The RO explained that the Reserve STRs were unavailable for review. The RO notified the Veteran in August 2012 that VA was unable to locate his STRs from his Reserve period. 1. Shoulders, elbows, wrists, hips, ankles, and back The Veteran contends that he has disabilities of the shoulders, elbow, wrists, hips, ankles, and back which are related to his military service. However, there is no indication that the Veteran has even been diagnosed with disabilities of the shoulders, elbow, wrists, hips, ankles, and/or back. Significantly, the Veteran’s available STRs as well as post-service treatment records show no complaints of or treatment for shoulders, elbows, wrists, hips, right ankle, and back. Rather, these records show treatment for bilateral eye disorders. Although, the Veteran was seen in December 1991 for a left ankle sprain, it resolved, and he was returned to full duty. On January 1992 separation examination, all systems, to include his left ankle, were normal. As noted, post-service treatment records show no complaints of or treatment for a left ankle disability. The question for the Board in this matter is whether the Veteran has or has had the disabilities in question. In the absence of proof of a current disability, there can be no valid claim. Based on the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection for shoulder, elbow, wrists, hip, ankle, and back disabilities as he does not have any of the current diagnoses of such disabilities, and has not, at any point during the appeal, had any diagnoses of such disabilities. Finally, the Board is cognizant of the recent ruling in Saunders v. Wilkie, which found that pain alone can constitute a disability. 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Board notes the Veteran’s complaints of pain in his joints during the appeal. However, the United States Court of Appeals for Veterans Claims (Court) in Saunders cautioned that a Veteran cannot demonstrate service connection simply by asserting subjective pain. Id. Rather, the Court stated “[t]o establish the presence of a disability, the veteran will need to show that [his or] her pain reaches the level of functional impairment of earning capacity.” Id. In this case, the Board acknowledges the Veteran’s subjective reports of pain, however, the pain is not severe enough to reach the level of functional impairment of earning capacity. The Board bases its finding on the fact that the Veteran has not reported that his pain causes any functional impairment. Although the Veteran reports joint pain, the most probative evidence of record does not show that the severity of the pain rises to the level of the functional impairment required to constitute a disability under VA regulations. Although pain and ache may be constant, it does not functionally impair his joints. Accordingly, service connection is not warranted for any of these disabilities. 2. Bilateral knees The Veteran seeks service connection for a bilateral knee disability. He contends in various statements that his current bilateral knee disability is due to service. As an initial matter, the Board notes that the Veteran has been diagnosed with degenerative arthritis of the knees. See October 2013 private examination report from Dr. P.J.Y. The Board observes; however, the evidence of record does not establish that this condition manifested to a compensable degree within one year of the Veteran’s separation from service in January 1992, nor does the evidence show that he has exhibited a continuity of symptomatology relating to this condition since that time. The STRs show the Veteran was seen in November 1991 for pain in the right knee. Physical examination was unremarkable. No diagnosis was provided. No further complaints of or treatment for a chronic bilateral knee disability. On the January 1992 separation examination report, clinical evaluation of the knees was normal. During the October 2013 private examination, Dr. P.J.Y. noted the Veteran’s in-service treatment for the left knee, diagnosed left knee arthritis, and opined that the left knee disability was due to the Veteran’s military service. With regard to the right knee, Dr. P.J.Y. diagnosed right knee arthritis and opined that the right knee disability is secondary to the “significant progression of the left knee dysfunction.” As rationale for this opinion, Dr. P.J.Y. wrote that the right knee disability is “directly and causally related to chronic and constant compensation and adaptation including weight shifting and altered gait generated by the left knee.” There is no contrary medical opinion of record. Upon review of the evidence, the Board finds that the evidence of record is in relative equipoise and, affording the Veteran the benefit of the doubt, service connection for bilateral knee disabilities is warranted. As above, the Veteran has current diagnoses of bilateral knee arthritis. With regard to the left knee, there is evidence of in-service treatment and a nexus relating the Veteran’s current left knee arthritis to his military service. With regard to the right knee, there is medical evidence that the Veteran’s right knee arthritis is related to the Veteran’s left knee disability. Accordingly, the Board resolves all doubt in favor of the Veteran and finds that service connection for bilateral knee disorders is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Eyes A review of the Veteran’s available STRs show no evidence of trauma to his eyes. A July 1995 private treatment record documents the Veteran had a vitrectomy with scleral buckle and gas to the left eye for a retinal detachment. He was advised not to drill for a month. Dr. K.P.M. indicated that he evaluated the Veteran in March 1995 at which time he was found to have latticed degeneration in the right eye and retinal detachment in the left eye. The physician stated that the Veteran was putting himself at risk if he continued with his military commitment. During the October 2013 private evaluation Dr. P.J.Y. stated the Veteran underwent eye surgery while he was on active duty. Dr. P.J.Y. asserted that the Veteran’s eye disability is related to the surgery he underwent while he was in service. However, the Board observes that the Veteran was not on active duty during his left eye surgery in 1995 but rather was serving in the Reserves at that time. With respect to the Veteran’s Reserve service, the applicable laws and regulations permit service connection only for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or injury incurred or aggravated while performing inactive duty for training (INACDUTRA). See 38 U.S.C. § 101(22), (24); 38 C.F.R. § 3.6. ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). INACDUTRA includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C. § 101(23) (A). The Veteran has a history of eye problems beginning in 1995, during his time in the Reserves. The fact that an eye condition was shown while he was in the Reserves is not determinative of service connection. There is no evidence showing he incurred an injury during a period of INACDUTRA or disease or injury while on ACDUTRA. Although the Veteran contends that he sustained an eye injury during the Reserves, there is no Line of Duty report to support this contention. The only evidence linking the eye disability to service is the Veteran’s contentions. To the extent that he contends that a medical relationship exists between his claimed current disability and service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In the instant case, however, the Board finds that an etiology of an eye disability is not a disability subject to lay evidence as this diagnosis requires medical training. More significantly, the Veteran does not have the medical expertise to provide an opinion regarding the eye disorder, to include its etiology. Where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Thus, the Veteran’s assertion that there is a relationship between his claimed eye disability and his service are not sufficient in this instance and are outweighed by other probative evidence of record. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Even conceding that the Veteran has a currently diagnosed eye disorder, absent a disease or injury incurred during ACDUTRA or an injury incurred during INACDUTRA, service connection cannot be granted. 4. Bilateral hearing loss The preponderance of the evidence is against the claim of service connection for bilateral hearing loss as the first element of service connection, a current hearing loss disability, has not been shown at any point during the appeal. Significantly, an October 2012 VA audiological examination report shows that the Veteran does not have hearing loss to a degree considered disabling under 38 C.F.R. § 3.385. The Board must adhere to the guidelines of 38 C.F.R. § 3.385, which do not provide for a finding of a current disability if pure tone thresholds or speech recognition scores fail to meet the required minimum thresholds. During the appeal period, the Veteran, as a lay person, is competent to report the symptoms of hearing loss; but he is not competent to say that he has bilateral hearing loss that meets the specific criteria in 3.385. In this regard, such a diagnosis requires the administration and interpretation of audiological test results. As such this is a complex medical question, and the Veteran is not competent to offer a diagnosis of bilateral hearing loss disability for VA purposes. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Absent any competent evidence of current disability, the preponderance of the evidence is against the grant of service connection for bilateral hearing loss. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the claim, reasonable doubt does not arise and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.   5. Psychiatric disability The Veteran contends that he has a current psychiatric disability that is etiologically related to his service. His STRs are silent for complaints, findings, treatment, or diagnosis of a psychiatric disability. On January 1992 service separation examination, psychiatric clinical evaluation was normal. The medical evidence of record is silent regarding psychiatric disability until October 2013, when a private examination report from Dr. W.J.A. documents that the Veteran reported that he had to hold down a fellow comrade who was pinned down by an engineering stake. He also reported an incident with live fire exercises in Panama. Anxiety and depressive disorder was diagnosed, and the examiner wrote that the Veteran’s symptoms of generalized anxiety disorder were “as likely as not, service-connected.” There is no contrary medical opinion of record. (Continued on the next page)   Upon review of the evidence, the Board finds that the evidence of record is in relative equipoise and, affording the Veteran the benefit of the doubt, service connection for an acquired psychiatric disability is warranted. As above, the Veteran has a current diagnosis of generalized anxiety disorder. Furthermore, there is a medical opinion relating the Veteran’s generalized anxiety disorder to his in-service experiences. Accordingly, the Board resolves all doubt in favor of the Veteran and finds that service connection for an acquired psychiatric disability is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303; Gilbert. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. McPhaull, Counsel