Citation Nr: 1807161 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 10-32 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for hepatitis A. 4. Entitlement to service connection for alcoholic liver disease (claimed as liver damage associated with service-connected posttraumatic stress disorder (PTSD) with depression). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1984 to October 1991 and January 4 to October 11, 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2010 and February 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran requested a Board hearing in his August 2010 VA Form 9 and August 2012 VA Form 9. The Veteran withdrew his hearing request in an April 2017 correspondence. The issues of entitlement to service connection for hepatitis A and bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence is not sufficient to show that the Veteran had a left knee disability during the appeal period. 2. The evidence is in relative equipoise as to whether the Veteran's alcoholic liver disease is proximately due to or aggravated by his service-connected posttraumatic stress disorder (PTSD) symptoms. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a liver disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) (2017); Allen v. Brown, 7 Vet. App. 439 (1995). Left Knee Disability The Veteran asserts that he has a current left knee injury that is related to an injury he was treated for in service. The Veteran's service treatment records show that the Veteran injured in left knee in February 1988. A partial dislocation was noted. In May 1988, his knee was noted to be progressively improving, with full range of motion and no effusion. Although the Veteran's post service treatment records show complaints of left knee pain, the record is silent for a diagnosis of a current left knee disability or injury. The Veteran was afforded a VA examination in December 2009. The Veteran reported that in the last two years or so he has had left knee pain without swelling. He reported that the pain occurs daily and lasts at least 10 minutes at a time two to three times a day. He reported that for the prior 12 months there have been 8 severe flare ups but have been almost (but not) incapacitating. He reported that he had to stop what he was doing and rest because of the pain. He reported that the pain is present or noticeable most of the time while he is standing and exacerbated when he runs. He reported that he has not had any hospitalizations, surgery, or injury since his 1988 injury in service. On physical examination the Veteran had a normal gait. He walked with a normal heel strike and toe push off. He did not use assistive devices. The left knee was normal in all maneuvers. There was normal extension, flexion, internal rotation, and external rotation. There was no pain with extension or flexion. He was able to bear full weight without evidence of swelling or palpable tenderness. There was no ligament laxity and the medial and lateral ligaments were normal. The Lachman's tests were normal with no movement and the anterior and posterior drawer signs were negative. In addition, a McMurray's test for medial and lateral meniscus injury was negative. The Veteran also had a normal neurological examination. Imaging studies of the left knee showed no evidence of fracture, dislocation, arthritis change or effusion. The examiner found that the Veteran's left knee was normal. The examiner's opinion was based on a review of the claims file and all available medical records. The examiner indicated that although the Veteran has a subjective history of pain in the left knee the Veteran does not have any symptoms of a left knee disability. The Board finds that the examiner's findings adequate and highly probative to the question at hand. The examiner possessed the necessary education, training, and expertise to provide a thorough assessment of the Veteran's left knee. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Significantly, the Veteran has not presented or identified any contrary medical opinion that supports the claim for service connection. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board finds that the most persuasive evidence of record shows that the Veteran has not had a left knee disability during the appeal period. In order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. The Court has held that this requirement "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); but see Romanowsky v. Shinseki, 26 Vet. App. 289, 293-94 (2013) (holding that "when the record contains a recent diagnosis of a disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency."). The Board has carefully considered the Veteran's lay statements regarding consistent pain in the left knee. Significantly, pain is not a disease or injury that may be considered a disability for VA compensation purposes, without underlying pathology; rather, it is merely a symptom. See 38 U.S.C. § 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2017). The presence of a mere symptom (such as pain) alone, absent evidence of a diagnosed medical pathology or other identifiable underlying malady or condition that causes the symptom, does not qualify as a disability for which service connection is available. See generally Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part and remanded on other grounds sub nom., Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Also, while the Veteran is competent to report on symptoms, he is not competent to diagnose the etiology of his symptoms. In the absence of competent evidence of a current disability manifested by pain in the left knee during the course of the appeal, service connection cannot be granted for any disorder of the left knee. Service connection for a left knee disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Liver Disability The Veteran claims entitlement to service connection for a liver disease associated with alcohol abuse as due to his service connected PTSD. The evidence shows that the Veteran has a diagnosis of alcoholic liver disease. See November 2011 VA Examination Report; VA Treatment Records. As the Veteran has a current disability, the issue that remains disputed is whether the Veteran's current liver disability is proximately due to or aggravated by his service-connected PTSD. The Board notes that service connection cannot be granted for a disability that is the result of the 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). Drug abuse is the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301. However, alcohol abuse and drug abuse that is a secondary result of an organic disease or disability is not considered willful misconduct. 38 C.F.R. §§ 3.301 (c) (2), 3.301(c)(3). The evidence is conflicting as to whether the Veteran's alcohol abuse is due to his service-connected PTSD. Evidence in support of the Veteran's claim includes a December 2009 VA psychological evaluation that indicated that the Veteran had a diagnosis of PTSD due to military combat stressors and major depressive disorder secondary to his PTSD. The examiner further indicated that the Veteran's alcohol abuse is more than likely secondary to efforts to manage anxiety and depressive symptoms. The examiner notes that the Veteran did not have any history of alcohol abuse prior to entering military service. In addition, an August 2014 VA psychological evaluation indicates that the Veteran reported that he drinks alcohol to cope with his PTSD symptoms. Specifically, the Veteran reported that drinking to excess helps him sleep. The examiner then specifically concluded that the Veteran's uses alcohol to self-medicate PTSD symptoms. Other evidence supporting a relationship between the Veteran's alcohol abuse and PTSD include his statements. The Veteran is competent to testify to symptoms capable of observation by a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). The Veteran reported that he was a casual drinker before his service in Iraq and that upon his return he drank excessively to cope with negative feelings. See January 2012 Correspondence. He reported that he did not seek treatment for his mental health symptoms until several years after separation when his mother watched a show about PTSD and its symptoms and encouraged him to seek treatment. Id. Evidence against the Veteran's claim includes a November 2011 VA examination report in which the examiner opined that the Veteran's liver disease is less likely than not proximately due to or the result of the Veteran's service-connected PTSD. The examiner reasoned that the Veteran's liver disease is from his history of alcohol abuse and not his PTSD. As this opinion was not supported by an adequate rationale, its probative value is limited. In a January 2012 VA addendum opinion, the examiner again opined that the Veteran's liver disability is less likely than not proximately due to or the result of his service connected PTSD. The examiner reasoned that a review of the Veteran's regular appointments with his psychiatrist over the prior two years indicated that by late 2010 his mood was improving, he was feeling less depressed, and was able to go to work much more regularly. The Veteran reported improved energy, less crying spells, more productivity and socializing at work. Despite this, his alcohol consumption remained exactly the same even though his mental health symptoms improved suggesting that his mental health symptoms were not driving his drinking behavior. The examiner further reported that in several of the Veteran's psychiatrist's notes, reference is made to the Veteran binge drinking on the weekends due to loneliness, not in an effort to block out PTSD symptoms such as intrusive trauma memories. There are also repeated references to the Veteran feeling depressed about his younger son's legal and drug problems and not being closer to his family. Given this information, it was the examiners opinion that the Veteran's liver condition is less likely than not proximately due to or the result of self-medicating for PTSD and symptoms thereof. The Board finds the evidence in relative equipoise. As such, the Board resolves reasonable doubt in the Veteran's favor. The claim of entitlement to service connection for alcoholic liver disability is granted. ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for alcoholic liver disease secondary to service-connected PTSD is granted. REMAND Regarding the Veteran's hepatitis A claim, the evidence is conflicting as to whether the Veteran had a diagnosis of hepatitis during the appeal period. The Veteran's VA treatment records are silent for a positive diagnosis of hepatitis A, and a November 2011 VA examination report and an October 2017 VA medical opinion also indicate that the Veteran's work-up was negative for hepatitis A. However, the Veteran submitted a private medical opinion from Dr. R.R. In an April 2013 letter, Dr. R.R. indicates that the Veteran has been a patient of his since 1995 and did not have a positive test of hepatitis A prior to service. Dr. R.R. further indicates that the Veteran's lab reports after his Iraq service were positive for hepatitis A. However, the Veteran's treatment records from Dr. R.R. are not associated with the claims file. Thus, on remand, the records should be obtained and associated with the claims file. Regarding the Veteran's claim of entitlement to service connection for hearing loss, the Veteran was afforded VA audiological evaluations in December 2009 and October 2012. The December 2009 examiner found that the Veteran had a diagnosis of bilateral hearing loss but opined that the Veteran's hearing loss is less likely as not a result of noise exposure during military service. However, the examiner failed to provide a rationale and failed to discuss the puretone threshold shifts shown in the Veteran's service treatment records. The October 2012 VA audiological evaluation indicates that the Veteran does not have a current bilateral hearing disability. Thus, the Board finds the current examinations are not sufficient. Thus, on remand, the Veteran should be afforded an additional VA audiological evaluation. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he provide a release for VA to secure records of treatment he received from any private medical treatment providers, to specifically include treatment from Dr. R.R. The Veteran is to be notified of any unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After completion of the above development, afford the Veteran a VA audiological evaluation. The examiner should indicate whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current bilateral hearing loss had its onset in service or is related to service to include threshold shifts evidenced by the audiograms in his service treatment records. 3. Readjudicate the claims. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). ______________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs