Citation Nr: 18127361 Decision Date: 08/17/18 Archive Date: 08/17/18 DOCKET NO. 13-08 810 DATE: August 17, 2018 ORDER Entitlement to service connection for right knee degenerative joint disease (DJD) is denied. Entitlement to service connection for an acquired psychiatric disability, to include anxiety disorder not otherwise specified (NOS) and posttraumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. A right knee disability, to include DJD, was not present during the Veteran’s active service; DJD was not manifest to a compensable degree within one year of separation from active duty; and the most probative evidence of record shows that the Veteran’s current right knee disability, to include DJD, is not causally related to his active service. 2. A psychiatric disability, to include anxiety disorder NOS and PTSD, was not present during the Veteran’s active service; a psychosis was not manifest to a compensable degree within one year of separation from active duty; and the most probative evidence indicates that the Veteran does not have a acquired psychiatric disability which is causally related to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right knee degenerative joint disease have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for an acquired psychiatric disability, to include PTSD and anxiety disorder, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1965 to September 1967. He was thereafter a member of the Florida Army National Guard until January 1996, including a period of inactive duty training (INACDUTRA) from June 2 to 3, 1990, during which he sustained a right knee injury. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In January 2017, the Board remanded the matter for additional evidentiary development. Following completion of that development, the VA Appeals Management Center (AMC) continued the previous denials in an July 2017 supplemental statement of the case (SSOC). The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty in the “active military, naval, or air service.” 38 U.S.C. §§ 1110, 1131. The term “active military, naval, or air service” includes: (1) active duty, (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). In addition to the criteria set forth above, there are particular requirements for establishing service connection for PTSD that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD generally requires medical evidence establishing a diagnosis of the disorder in accordance with DSM-5, credible supporting evidence that the claimed in-service stressor(s) occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor(s). 38 C.F.R. § 3.304(f). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). “It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran.” Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for a right knee degenerative joint disease (DJD) The Veteran contends that his current DJD in his right knee was caused by an injury he sustained during June 1990 inactive duty for training (INACDUTRA). After reviewing the record, the Board concludes that although the Veteran has a current right knee disability, diagnosed as right knee DJD, and the evidence confirms that he sustained a right knee injury during INACDUTRA, the preponderance of the evidence weighs against finding that the Veteran’s current right knee DJD is related to the in-service injury. Service personnel records confirm that on June 3, 1990, during a period of INACDUTRA, the Veteran struck his right knee on a wood post during training maneuvers. The record contains a Line of Duty Determination indicating that on that day, the Veteran was participating in tactical training when he jumped on the ground, rolled over, and hit his right knee on a wood post. The injury was determined to have been in the line of duty. Clinical records of treatment following that injury show that an examination revealed mild right knee pain with minimal intracapsular fluid accumulation. There was no joint instability or neurological deficits. The assessment was right knee strain. The remaining service treatment records on appeal, including treatment records corresponding to the Veteran’s period of active duty, are negative for complaints or abnormalities pertaining to the right knee. In pertinent part, the post-service record on appeal shows that the Veteran underwent an X-ray of the right knee in March 2009 after he fell two weeks prior. The study showed mild degenerative changes. In June 2009, X-ray studies of the left knee showed moderate degenerative changes. An X-ray study on the right knee was again performed in March 2010 and showed no interval changes since 2009. VA clinical records show that in June 2009, the Veteran sought treatment for bilateral knee pain. At that time, the Veteran reported that he had injured his right knee in 1990 and had had pain off and on since that time and that it had gradually gotten worse. In addition to the clinical evidence discussed above, the record contains two medical opinions regarding whether the Veteran’s current right knee DJD is related to the June 1990 knee injury he sustained while performing INACDUTRA. The record contains a June 2010 examination report from a private physician, Dr. G. At that time, the Veteran reported that he had injured his right knee in 1990 in the military and had had pain on and off since that time. On examination, the physician described the Veteran as “a very large man” who was 5’11” and weighed 329 pounds. X-ray studies showed degenerative changes in both knees. Dr G. indicated that “[w]ith regards to his right knee he had an injury many years ago in the military and does have some DJD in that knee. I do think it is likely given his history that the degenerative changes may have been caused by that injury.” Dr. G., however, did not provide a rationale for his conclusion. In March 2017, a VA physician examined the Veteran and reviewed the record on appeal. The VA examiner opined that the Veteran’s current right knee disability was not connected to his in-service injury. The examiner noted that following the June 1990 right knee injury, the Veteran was found within normal limits in November 1990 after a graded exercise test (GXT) and he was cleared for physical training. In addition, a physical examination conducted in June 1992 showed normal findings. Moreover, the Veteran completed a Report of Medical History in June 1992 on which he denied having a trick or locked knee and bone or joint deformity. The examiner also noted that in subsequent performance evaluations, the Veteran was found to be performing his duties without problems, including physical fitness. The examiner further observed that the Veteran’s civilian occupation had been as a mason building residential homes with concrete blocks and bricks. He had worked in this capacity for 31 years. The examiner noted that the Veteran had described it as hard work, although he mostly supervised during working hours. After examining the Veteran, reviewing the record, and considering his history, the examiner concluded that it was less likely than not that the current right knee disability was related to the in-service injury. The examiner explained that there was no medical literature suggesting that knee contusions such as the Veteran sustained in June 1990 as documented by the service treatment records evolved to arthritis. The examiner considered Dr. G’s opinion, but explained that he disagreed with the conclusion as Dr. G’s opinion was anecdotal and was not based on a review of the clinical evidence which documented the mechanism of the Veteran’s injury. Furthermore, the examiner explained that X-ray studies showed that the Veteran had arthritis in both knees and that the arthritis was actually more prominent in the left, uninjured knee, which was inconsistent with Dr. G’s opinion that trauma was the cause of the right knee arthritis. In that regard, the examiner noted that the post-service clinical records showed that the Veteran actually had more discomfort in the left knee and had received more treatment for the left knee, which had not been the subject of trauma. In addition, the examiner noted that the effects of the Veteran’s occupation as a mason for 30 years could not be entirely ruled out. He explained that working in construction, accompanied by the effects of the Veteran’s morbid obesity, natural deconditioning, and aging, were major risk factors for arthritis to develop or progress. Given the conflicting medical opinions, the Board has considered the guidance of the U.S. Court of Appeals for Veterans Claims (Court) in Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In that case, the Court held that the rules on expert witness testimony delineated in the Federal Rules of Evidence provide “important, guiding factors to be used by the Board in evaluating the probative value of medical opinion evidence.” Nieves-Rodriguez, 22 Vet. App. at 302. The first factor to be considered in determining probative value of a medical opinion is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Nieves-Rodriguez, 22 Vet. App. at 303-04. The second factor involves consideration of whether the medical expert provided a fully articulated opinion. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of a medical opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion … must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). After considering the conflicting medical opinions in light of the factors set forth above, the Board finds that the opinion of the VA examiner outweighs Dr. G’s opinion. Although both clinicians who provided opinions are physicians with the necessary expertise to render a medical opinion, and both considered the Veteran’s reported medical history, including his reports of pain off and on since the injury, the Board finds that the VA examiner’s opinion is more probative, as it contains a detailed rationale for his opinion, a critical Nieves-Rodriquez factor. In addition, the examiner had the benefit of reviewing the service treatment records, which documented the mechanism of the Veteran’s injury and the immediate physical findings following the injury. In reaching this decision, the Board has also considered the provisions of 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309, which provide that where a veteran served for at least 90 days and manifests certain chronic diseases enumerated in section 3.309, including arthritis, to a degree of 10 percent within one year of separation from such service, such disease shall be presumed to have been incurred in service. When a disease listed in 38 C.F.R. § 3.309 is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, although the Veteran’s degenerative joint disease (arthritis) of the right knee is a disease enumerated in 38 C.F.R. § 3.309, the advantages of this evidentiary presumption do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson v. Brown, 7 Vet. App. at 469-70, for the proposition that, if a claim relates to a period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve Veteran status for purposes of that claim ); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991); Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). Here, the Veteran has not achieved “veteran status” for his period of INACDUTRA from June 2 to 3, 1990. Moreover, as set forth above, arthritis was not shown to be manifested during this period of service. In any event, the record does not establish continuous symptoms since that period of service. Again, the Veteran described his symptoms and off and on, not continuous. Moreover, when he was examined in November 1990 and June 1992, the findings were normal and he denied knee symptoms. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder not otherwise specified (NOS) and posttraumatic stress disorder (PTSD) The Veteran contends that he is suffering from an acquired psychiatric disability, to include anxiety disorder NOS and PTSD, as a result of his in-service experiences. After reviewing the record, the Board concludes that the most probative evidence shows that the Veteran does not currently have a psychiatric disability. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; 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). Moreover, although the Veteran was previously diagnosed with anxiety disorder during the pendency of the appeal, the most probative evidence shows that it was not incurred during his active service nor is it otherwise causally related to his active service. The record on appeal includes the Veteran’s service treatment records which are negative for complaints or findings of a psychiatric disability. The post-service record on appeal includes VA clinical records which show that the Veteran denied having any symptoms suggestive of PTSD on June 2004, June 2005, July 2006, and on August 2007, resulting in negative PTSD screens with a score of 0. In a Preadmit Clinic Assessment for left cataract extraction on May 2007, the Veteran was also noted as being “calm,” and the checkbox next to “PTSD” was left unchecked. In April 2010, the Veteran submitted a claim of service connection for PTSD. In support of his claim, he submitted private clinical records, including an April 2010 initial psychiatric evaluation performed by a private practitioner. On examination, the Veteran described incidents which occurred during service, including witnessing a soldier sustain a scalding injury and another killed in an accident while working on engines. He described having recollections, a dream, and some flashbacks of these events. He also indicated that occasionally, he would sweat and his blood sugar would increase if he thought of the events. As a result, he avoided thinking about it or being around cars that were being worked on. He also indicated that he avoided movies about war. A mental status examination consisted of the following: “somewhat slow in recalling details. No formal thought disorder. Affect constricted, depressed. ‘Not here lately.’” The examiner’s diagnosis was “PTSD, from dangerous military duty.” He prescribed Clonazepam for insomnia and PTSD. In September 2010, the Veteran was afforded a VA psychiatric examination in connection with his claim. He reported that since being prescribed Clonazepam by a private clinician, he had been able to get six hours of sleep nightly which was an improvement. He reported that he had a lot of pain in his knees and back which prevented him from resting. He indicated that he had had to stop working due to back and knee disabilities as well as gout. On examination, the Veteran displayed a cooperative, friendly, and attentive attitude towards the examiner. His affect was constricted and his mood was neutral. In that regard, the examiner noted that the Veteran stated that “[t]hese aches are getting to me though.” The Veteran’s thought process and content were unremarkable. After examining the Veteran, the examiner determined that the Veteran did not meet the criteria for a diagnosis of PTSD. Rather, the examiner indicated that a diagnosis of anxiety disorder, NOS was warranted. In its January 2017 remand, the Board found that the September 2010 examination was inadequate and remanded the matter for a new examination. Pursuant to the Board’s remand instructions, the Veteran again underwent VA examination in March 2017. After examining the Veteran and reviewing the record, the VA examiner opined that the Veteran did not currently have a psychiatric disability, nor was there any evidence of any mental health disorder that began, or was otherwise caused by, the Veteran’s military service. In reviewing the Veteran’s medical history, the examiner noted that in 2010, the Veteran had been prescribed Clonazepam by a private clinician who had diagnosed him as having PTSD. The Veteran reported, however, that he had not taken the medication for very long and had stopped seeing that provider many years prior. He had had no other mental treatment. On examination, the Veteran did not exhibit symptoms attributable to a mental disorder. He indicated that he used to have problems sleeping or resting but no longer had those problems and that it had been a long time since he had. He indicated that he had been taken off some medications and been prescribed a CPAP machine and he started doing better. He denied having experienced anxiety or bothersome memories of service for many years. The examiner noted that on self-report measures, the Veteran reflected no to minimal symptoms of anxiety, depression and PTSD. All measures had been within the normal range. After examining the Veteran and reviewing the record, the examiner concluded that the Veteran did not currently have a mental health disability. The examiner acknowledged that the Veteran had had mental health treatment in 2010 by a private cilician who had diagnosed him as having PTSD. The examiner, however, indicated that he believed that the diagnosis was in error. He explained that the symptoms noted by the private practitioner were “sub-clinical PTSD-like symptoms” which “were most likely related to anxiety associated with health problems and difficulty working.” He indicated he could see no evidence that the Veteran ever met the full criteria for a diagnosis of PTSD. Moreover, he had had no mental health treatment since 2010 and reports no clinically significant symptoms of any mental health disorder. Finally, the examiner noted that the Veteran’s service treatment records, including both active duty records and National Guard records from 1977 to 1992, were negative for complaints or findings of a psychiatric disability. He concluded that there was no evidence of any mental health disorder that began during service or was otherwise caused by service. After reviewing the record in its entirety, the Board finds that the preponderance of the evidence is against the claim. As explained above, in March 2017, the Veteran underwent VA examination and the examiner determined that the Veteran did not currently have a psychiatric disability. The Board finds the examiner’s opinion highly probative, as it was based on an examination of the Veteran, a clinical interview, and a review of the record on appeal, including the service treatment records and post-service treatment records. Moreover, the examiner thoroughly explained the basis for his conclusion that the Veteran did not currently have a psychiatric disability. There is no other probative evidence of record which contradicts the examiner’s conclusion that the Veteran does not currently exhibit a psychiatric disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see also Degmetich v. Brown, 104 F.3d 1328 (1997). The United States Court of Appeals for Veterans Claims (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.” McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, although the record is clear that the Veteran does not currently have a psychiatric disability, as set forth above, the record on appeal contains evidence showing that the Veteran was diagnosed as having both PTSD and an anxiety disorder in 2010. As explained by the March 2017 VA examiner, however, the diagnosis of PTSD was likely in error. Rather, the symptoms were more likely due to anxiety disorder, the disability diagnosed by the VA examiner in 2010. Given the rationale provided by the March 2017 VA examiner, the Board assigns more probative weight to his opinion than to the diagnosis rendered by the private practitioner, particularly since that latter diagnosis did not include a description of how the diagnostic criteria had been met. In addition, the private practitioner appeared to base the diagnosis of PTSD on the Veteran’s account of his stressor. The record on appeal, however, reflects that the RO undertook efforts to obtain evidence which corroborated his stressor but was unsuccessful. According to a January 2015 Memorandum, in April 2011, and again in March 2012, the service department responded to the RO’s request for information regarding the Veteran’s reported stressor by indicating that the Veteran’s unit records and morning reports for the period in question did not contain any documentation of the reported stressor. Because the April 2010 diagnosis of PTSD was based on the Veteran’s reported stressor, which was not corroborated by the record on appeal, the diagnosis of PTSD would not meet the 3.304(f) criteria. With respect to the anxiety disorder diagnosed in 2010, the March 2017 VA examiner explained that it was more likely related to health problems and difficulty working, not the Veteran’s active service. He made clear that there was no evidence in the record that the Veteran had any mental health disorder that began during service or was otherwise caused by service. Again, for the reasons set forth above, the Board finds the examiner’s opinion highly probative. (Continued on the next page)   For these reasons and bases, the Board finds that the preponderance of the evidence is against the claim of service connection for a psychiatric disability, to include anxiety disorder and PTSD. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Yun, Associate Counsel