Citation Nr: 18158613 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 17-03 031 DATE: December 18, 2018 ORDER Entitlement to service connection for a left knee disability is denied. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for an acquired psychiatric disability, claimed as anxiety and depression, is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT The most competent, credible, and probative evidence weighs against a finding that the Veteran’s current left knee osteoarthritis was incurred during or as a result of service; nor does the evidence reflect that arthritis was manifested during service or within a year of service discharge. CONCLUSION OF LAW The criteria for service connection for left knee osteoarthritis have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1967 to October 1990, which included service in Vietnam from September 1967 to September 1968 and from February to November 1971. 1. Entitlement to service connection for a left knee disability The Veteran is seeking to establish service connection for a left knee disability, which has been diagnosed as left knee osteoarthritis. He asserts that his disability is related to a left knee injury that occurred during service; however, the preponderance of the evidence is against the grant of service connection in this case. At the outset, the Board notes that arthritis (a degenerative disease) is considered a chronic disease for VA purposes. Therefore, service connection based on the presumption in favor of chronic diseases and continuity of symptomatology is applicable in this case. Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). However, the evidence does not show nor does the Veteran allege that he was diagnosed with or manifested arthritis either in service or within the first post-service year. Therefore, service connection is not warranted on a presumptive basis or based upon continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.307, 3.309 Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Turning to the question of direct service connection, the service treatment records (STRs) show that, in April 1972, the Veteran was diagnosed with a medial collateral ligament (MCL) strain after a skiing accident. He was placed in a cylinder cast and told to return in three weeks, after which he was given a home program to strengthen his left quadricep. See STRs dated April and May 1972. The subsequent STRs do not document any further complaint or treatment for a left knee problem during service and, notably, there is no objective evidence of treatment for left knee problems for several years after service. Indeed, the first evidence of a left knee problem after service is a July 2000 private treatment record, which notes the Veteran reported having an ongoing problem with left knee pain for two weeks without an apparent injury. X-rays revealed medical joint space narrowing in the left knee. Notably, the Veteran reported a history of cartilage problems as a child but he did not attribute his left knee problems to the in-service injury or indicate having ongoing left knee problems since service. In fact, the Veteran has not asserted that his left knee problems continued after service. The Veteran was afforded a VA examination in July 2012 to determine the likely etiology of his current left knee disability. After reviewing the record and interviewing and examining the Veteran, the VA examiner opined that the current disability is less likely than not the result of the in-service skiing injury, noting that the separation examination was silent for left knee pain, there is no objective evidence of chronicity of left knee strain after service, and that the current diagnosis was rendered 21 years after service. The July 2012 VA opinion is supported by a complete, well-reasoned rationale that is based upon consideration of the medical evidence of record. The Board finds particularly probative that there is no opposing medical evidence or opinion of record that establishes or indicates that the Veteran’s current left knee disability is related to his in-service injury. The only evidence of record that suggests the current left knee disability is related to the Veteran’s in-service injury are the Veteran’s lay assertions; however, his assertions regarding the etiology of his left knee disability are outweighed by the preponderance of the other evidence of record, including the post-service medical evidence, which does not contain any indication of a relationship between the in-service injury and the current disability, and the July 2012 VA opinion which explicitly states and explain that the current disability is not related to the in-service injury. As such, the Veteran’s purported nexus statements are not considered competent or probative evidence favorable to his claim. Instead, the July 2012 VA opinion is considered the most competent, credible, and probative evidence of record regarding the likely etiology of the Veteran’s current left knee disability. As the most competent, credible, and probative evidence weights against a finding that the Veteran’s left knee disability is related to his military service, his claim must be denied and the benefit-of-the-doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disability is remanded. In July 2012, a VA examiner opined that the Veteran’s current cervical spine disability is less likely as not related to the cervical strain he experienced in November 1981. See July 2012 VA Neck examination. However, given the rationale provided in support thereof, the July 2012 opinion is inadequate because the examiner did not consider the competent lay evidence of continued symptoms throughout and after service, as well as the fact that the Veteran attributed his history of neck pain to the in-service injury during his first post-service treatment in 2007. See January 2017 VA Form 9; March 2007 private medical records. Therefore, an addendum opinion is needed. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. In July 2012, a VA examiner determined the Veteran’s symptoms did not meet the criteria for a diagnosis of PTSD under the DSM-IV. The examiner based the opinion at least partially on the fact that the Veteran’s exposure to combat during service was not adequate to support a PTSD diagnosis because the Veteran denied reacting in extreme fear or with feelings of helplessness or terror. The examiner also noted the Veteran continued a successful military career for 20 years after his Vietnam service. See July 2012 VA PTSD examination. The July 2012 VA opinion is deemed inadequate because the Veteran has reported that his combat experiences were terrifying and horrific and the examiner did not consider or address the evidence showing the Veteran went AWOL for 6 months after his service in Vietnam. In this regard, the Veteran has reported that he went AWOL because, when he returned from Vietnam, he was assigned to work with the dead bodies and he could not take it. See March 2012 Vet Center record; see also June 2013 VA treatment record. The VA examiner also failed to address the evidence showing the Veteran reported having nervous trouble at his separation examination in July 1990. See July 1990 Report of Medical History. Therefore, an addendum opinion is needed. 3. Entitlement to service connection for an acquired psychiatric disability, claimed as anxiety and depression is remanded. While the July 2012 VA examiner diagnosed the Veteran with anxiety disorder, he stated that it was mere speculation to opine whether the Veteran’s anxiety is related to his military combat experience. However, the VA examiner failed to explain why an opinion could not be provided. Therefore, this statement is inadequate and an addendum opinion is needed. The matters are REMANDED for the following action: 1. Return the claims file to the July 2012 VA examiner for an addendum opinion regarding the likely etiology of the Veteran’s current cervical spine disability. If the July 2012 VA examiner is unavailable, the opinion should be rendered by another appropriate medical professional. After reviewing the record, the examiner should provide an opinion regarding each of the following: Is it at least as likely as not (a probability of 50 percent or more) that the Veteran’s cervical spine disability was incurred during service or is otherwise related thereto? In answering the foregoing, the examiner should consider the Veteran’s competent lay statements regarding the continuity of symptoms during and after service, as well as the fact that he attributed his history of neck pain to the in-service neck injury when he initially sought treatment after service. A clear rationale for the opinion must be provided. If an opinion cannot be provided without resorting to speculation, the examiner should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 2. Return the claims file to the July 2012 VA examiner for an addendum opinion regarding the likely etiology of the Veteran’s current acquired psychiatric disability. If the July 2012 VA examiner is unavailable, the opinion should be rendered by another appropriate medical professional. After reviewing the record, the examiner should provide an opinion regarding each of the following: (a) Is the Veteran’s combat service in Vietnam sufficient to support a diagnosis of PTSD under the DSM-IV? In answering the foregoing, the examiner should consider the Veteran’s report of feeling terrified and horrific due to his combat experiences in March 2012. The examiner should also address the significance of the Veteran going AWOL after his Vietnam service and his explanation for such. See March 2012 Veteran Center record. (b) If the answer to (a) is yes, the examiner should address whether the Veteran’s symptoms meet the diagnostic criteria for PTSD under the DSM-IV. (c) Is it at least as likely as not (a probability of 50 percent or more) that the Veteran’s anxiety disorder was incurred during service or is otherwise related thereto? In answering the foregoing, the examiner should consider the Veteran’s report of having nervous trouble at his July 1990 separation examination. (d) In addressing the above, the examiner must consider and discuss all relevant medical evidence and lay assertions. A clear rationale for the opinions must be provided. If the examiner cannot provide any of the opinions without resorting to speculation, the examiner should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). M. Donohue Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel