Citation Nr: 18157370 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-60 071 DATE: December 13, 2018 ORDER New and material evidence has been received, and the service connection claim for bilateral knee disability is reopened. Service connection for bilateral knee disability is denied. Service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety disorder, and depression is denied. FINDINGS OF FACT 1. The August 2009 rating decision that denied service connection for bilateral knee disability was final. 2. The evidence received since August 2009 is not cumulative or redundant, and raises a reasonable possibility of substantiating the service connection claim for bilateral knee disability. 3. The Veteran’s right knee disability is not shown to have had its onset in service, or is otherwise related to his service. 4. The Veteran’s left knee disability is not shown to have had its onset in service, nor otherwise related to his service or secondary to a service-connected disability. 5. The probative evidence of record indicates that the Veteran does not have a diagnosis of PTSD, or other acquired psychiatric disorder. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for bilateral knee disability. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for right knee disability have not been met. 38 U.S.C. §§ 1101, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.303 (2017). 3. The criteria for service connection for left knee disability have not been met. 38 U.S.C. §§ 1101, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.303, 3.310 (2017). 4. The criteria for service connection for a psychiatric disorder, to include PTSD, anxiety disorder, and depression have not been met. 38 U.S.C. §§ 1110, 1154, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material The RO denied service connection for bilateral knee disability in an August 2009 rating decision. This decision became final in August 2010. The evidence submitted after August 2009, including VA medical records dated from March to September 2013, a January 2016 statement in support of claim, July 2016 VA medical records, and a July 2018 Appellate Brief relates to unestablished facts necessary to substantiate this service connection claim. Therefore, the Board finds that this claim should be reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.§§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a presently existing disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). Right knee disability The Veteran contends that while in service he was climbing up a hill with an 80-pound rucksack on his back and he injured his right knee—tearing his medial collateral ligament (MCL). He described undergoing arthroscopic surgery on his right knee in 1996 and reported experiencing chronic and severe pain in his right knee daily. October 1996 service treatment records indicate injury and a diagnosis of right knee strain, spasm, and sprain. July 2016 VA medical treatment records indicate complaints of and treatment for right knee pain. One record indicates no abnormality of the right knee. One record does not specify a diagnosis, but stated there was no concern regarding magnetic resonance imaging (MRI) or x-ray findings. Lastly, another record indicates a diagnosis of cartilage defect medial patellar facet. During a July 2016 VA visit, the Veteran presented with right knee pain and reported that he recently injured his knee when he stepped incorrectly on uneven ground. Upon review of the record, the Board finds that service connection for right knee disability is not warranted. There is nothing in the record other than the Veteran’s reporting, that shows he underwent surgery. There are service treatment records, all dated October 1996, that show the Veteran did report right knee pain in service and was given a diagnosis of strain/spasm/sprain. However, outside of the Veteran’s lay statements, there is no probative evidence of record to indicate a correlation between the Veteran’s in-service injury and his current diagnosis of cartilage defect medial patellar facet. As stated above, the Veteran was first diagnosed with cartilage defect medial patellar facet in July 2016, almost two decades following his November 1997 discharge from service. The medical evidence of record does not support a finding that the Veteran’s cartilage defect medial patellar facet developed in service. Although the October 1996 service treatment records note pain in the right knee and a sprain, this alone does not show a connection between pain in 1996 and a cartilage defect medial patellar facet disability that was diagnosed 20 years later. Aside from service treatment records dated October 1996, there are no service treatment records to indicate ongoing treatment for a right knee disability. Additionally, since leaving service, there are no medical treatment records of evidence to show the Veteran was treated for symptoms of a right knee disability prior to 2016. The Board notes that the Veteran is competent to report experiencing pain in his right knee in service, as that requires only personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, he is not competent to attribute this symptom as part of diagnosis of a right knee disability and he has not demonstrated that he is an expert in determining the etiology of a right knee disability and is a layperson in this regard. In addition, there is no competent evidence of record to indicate a link between his current right knee disability and his military service. Thus, the most probative evidence of record shows the Veteran’s current right knee disability did not have its onset during service, as it developed decades after service, nor is it shown to be related to an event, injury, or disease in service. Accordingly, a basis upon which to establish service connection has not been presented. A preponderance of the evidence is against a claim for service connection for a right knee disability. There is no medical opinion of record regarding his right knee disability. A medical opinion is not required because the record before the Board does not indicate that the right knee disability had a causal connection to or was associated with his active military service. There is no indication beyond conclusory generalized statements by the Veteran of an event, injury, or disease in service to which the claimed disability may be associated. See 38 C.F.R. § 3.159(c)(4); see also Colantonio v. Shinseki, 606 F.3d 1378 (Fed.Cir.2010). Left knee disability, to include as secondary to right knee disability The Veteran contends that in 2013 his right knee buckled so severely that it caused him to fall down and tear his MCL in his left knee. He described undergoing arthroscopic surgery in his left knee and reported experiencing severe pain in his left knee daily. VA medical records dated 2013 show complaints of and treatment for left knee pain. It also illustrates the Veteran had surgery on his left knee and the following diagnoses: left knee chondral defect/lesion lateral femoral condyle and anterior cruciate ligament (ACL) sprain without complete ligamentous disruption. The Board finds that the evidence of record does not support a finding that his left knee disability started in service. The Veteran’s service treatment records are silent for complaints of or treatment for a left knee disability, and for many years following service. The Veteran contends that his left knee disability was caused by his right knee disability. He has not been service connected for right knee disability. As he is not service connected for this disability, his secondary service connection claim for left knee disability must be denied as a matter of law. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310; see also Sabonis v. Brown, 6 Vet. App. 426 (1994). Additionally, the record does not show, nor has the Veteran contended, that he had any symptoms of a left knee disability while in service. To the extent that the Veteran believes he had a left knee disability in service, his belief is outweighed by the significant evidence of record showing there was no left knee disability in service, or for many years following service. This is shown by the evidence outlined above. Moreover, the Veteran has described the onset as occurring years after service, following an injury where his right knee buckled and he fell. In other words, his own statements show that the onset was not in service, but decades later. Therefore, under both the direct and secondary theories of entitlement, the Board finds that the second element has not been met. A preponderance of the evidence is against a claim for service connection for left knee disability. There is no medical opinion of record regarding his left knee disability. A medical opinion is not required because the record before the Board does not indicate that the left knee disability had a causal connection to or was associated with his active military service or any service-connected disability. There is no indication beyond conclusory generalized statements by the Veteran of a service-connected disability to which the claimed disability may be associated. See 38 C.F.R. § 3.159(c)(4); see also Waters v. Shinseki, 601 F.3d 1274 (Fed.Cir.2010). Psychiatric disorder, to include PTSD, anxiety and depression Service connection for PTSD generally requires: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (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). See also Cohen v. Brown, 10 Vet. App. 128 (1997). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). See 38 C.F.R. § 3.304(f). The Board acknowledges that VA, effective March 19, 2015, amended the portion of the Rating Schedule dealing with mental disorders so as to replace outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). See 79 Fed. Reg. 149, 45094 (August 4, 2014). VA directed that the changes be applied only to applications for benefits received by VA or pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014, but not to claims certified to, or pending before, the Board, the Court of Appeals for Veterans Claims (CAVC), or the United States Court of Appeals for the Federal Circuit. As the Veteran’s claim was certified to the Board in January 2017 (after August 4, 2014), the diagnosis of his PTSD should conform to DSM-V. VA regulations require that a medical diagnosis be competent. See 38 C.F.R. § 3.159(a). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer the medical diagnosis. The VA Clinician’s Guide provides guidance on who is qualified to diagnose PTSD. See VA Clinician’s Guide § 14.7 (Mar. 2002). Board certified psychiatrists and licensed psychologists have the requisite professional qualifications to conduct compensation and pension examinations for PTSD. Psychiatric residents and psychology interns are also qualified to perform these examinations, under close supervision of attending psychiatrists or psychologists. Id. In order to conduct an initial examination for mental disorders, the examiner must meet one of the following criteria: a board-certified or board-eligible psychiatrist; a licensed doctorate-level psychologist; a doctorate-level mental health provider under the close supervision of a board-certified or board-eligible psychiatrist or licensed doctorate-level psychologist; a psychiatry resident under close supervision of a board-certified or board-eligible psychiatrist or licensed doctorate-level psychologist; or a clinical or counseling psychologist completing a one-year internship or residency (for purposes of a doctorate-level degree) under close supervision of a board-certified or board-eligible psychiatrist or licensed doctorate-level psychologist. The Veteran contends that his current psychiatric disability warrants service connection. He described that while in basic training, in December 1994, he witnessed another solider get shot in the head with a machine gun, dying instantly. As a result, he started to suffer from nightmares, flashbacks, anxiety, depression, inability to sleep, nights sweats, and constant irritability and anger. The enlistment examination did not note any psychiatric disorder or symptoms of such disorder. The service treatment records do not illustrate complaints of or treatment for a psychiatric disorder. There is a June 2016 formal finding on a lack of information required to verify stressor(s) in connection to the Veteran’s PTSD claim. The conclusion stated was that the information required to corroborate the stressful events described by the Veteran is insufficient to send to the US Army and Joint Service Records Research Center (JSRRC) and or insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. All procedures to obtain this information from the Veteran have been properly followed. All efforts to obtain this information have been exhausted, and any further attempts would be futile. The JSRRC Coordinator determined that the specific stressors stated by the Veteran cannot be confirmed with the information received. The earliest records of evidence to mention a psychiatric disorder are dated May 2007—approximately ten years after separation. These VA medical treatment records indicate that the screenings for PTSD and depression were negative. During a July 2013 VA medical visit, the Veteran reported anxiety. A July 2016 VA medical note lists chronic PTSD and generalized anxiety disorder in the list of problems. A September 2016 VA medical note states generalized anxiety and chronic PTSD in the section of the notes labeled “Identifier.” This section had other identifiers such as “40 yo, non-combat veteran of the USMC.” For the reasons expressed below, the Board finds that the service connection for an acquired psychiatric disorder is not warranted. The Board finds that the weight of the evidence does not establish a current diagnosis or objective findings of a psychiatric disorder, to include PTSD, anxiety, or depression. The Veteran has not submitted or identified evidence of a current diagnosis of the claimed disability. The Court has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability. “In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Without competent evidence of a diagnosed disability, service connection for the disorder cannot be awarded. See Brammer; supra; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding that a grant of service connection requires that there be a showing of disability at the time of the claim, as opposed to sometime in the distant past). On this record, the competent evidence does not establish the presence of a psychiatric disorder. As stated above, for a medical diagnosis to be competent it must be provided by one who is qualified through education, training, or experience to offer the medical diagnosis; specifically, the initial examination for mental disorders must be conducted by a certified, eligible psychiatrist or psychologist. There are no medical records of evidence to indicate that the Veteran ever received a competent diagnosis of a psychiatric disorder. Accordingly, the claim of service connection for a psychiatric disorder, to include PTSD, anxiety, and depression is denied. In making this finding, the Board acknowledges the Veteran’s belief that he has a psychiatric disorder and that it is a result of his service. However, the service treatment records and the VA medical records outweigh his contentions and indicate a lack of a current disability. In the absence of any competent evidence to the contrary, the Board finds that the VA medical records of evidence support a finding that the Veteran does not have PTSD or any other clinically diagnosed acquired psychiatric disorder. The Veteran left service in November 1997. The earliest record of evidence to make mention of a psychiatric disorder is dated May 2007, nearly a decade after service. In addition, this May 2007 record indicated a lack of a diagnosis of any psychiatric disorder. The VA medical records of evidence do not show that the Veteran has ever been treated for a psychiatric disorder, and the mere mention of PTSD or anxiety disorder in these medical records does not equate to an actual diagnosis. The Board notes that the Veteran is competent to report symptoms such as feeling anxious, depressed, or stressed, as that requires only personal knowledge. However, he is not competent to attribute these symptoms as part of a psychiatric disorder, and he has not demonstrated that he is an expert in determining the etiology of psychiatric disorder and is a layperson in this regard. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); as to the specific issue in this case, an opinion as to a psychiatric diagnosis in accordance with DSM-IV or DSM-V, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In addition, there is no competent evidence of record to indicate a correlation between his claimed current psychiatric disorder and his military service. The preponderance of the evidence establishes that the Veteran does not have a current diagnosis of PTSD or any acquired psychiatric disorder. The Board notes that even if there was probative evidence to show a current diagnosis of a psychiatric disorder, service connection would still not be warranted, as there is no corroborating evidence to verify in-service stressors and there is no probative evidence of record to show a connection between an event, injury, or illness in service and the claimed psychiatric disorder. Accordingly, on this record, service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102. The appeal is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Talamantes, Associate Counsel