Citation Nr: 19182012 Decision Date: 10/29/19 Archive Date: 10/29/19 DOCKET NO. 18-44 175 DATE: October 29, 2019 ORDER 1. Entitlement for service connection for a lumbar spine disability is denied. 2. Entitlement to service connection for a psychiatric disorder, including posttraumatic stress disorder (PTSD), depression, adjustment disorder with depression, and alcohol abuse, is denied. 3. Entitlement to service connection for a right knee disability, including degenerative joint disease, is denied. 4. Entitlement to service connection for a left knee disability, including degenerative joint disease, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a current lumbar spine disability, to include symptoms that cause functional impairment that affects earning capacity. 2. The Veteran does not have a current diagnosis of PTSD and the preponderance of the evidence is against a nexus between the diagnosis of a psychiatric disorder, to include depression and adjustment disorder with depression, and service. 3. Alcohol abuse is not a disability for which direct service connection may be granted. 4. The preponderance of the evidence is against finding that the Veteran has a right knee disability that began during active service, manifested within one year following service, or is otherwise related to an in-service injury or disease. 5. The preponderance of the evidence is against finding that the Veteran has a left knee disability that began during active service, manifested within one year following service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a psychiatric disorder, to include PTSD, depression, adjustment disorder with depression, and alcohol abuse, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.304. 3. The criteria for service connection for a right knee disability, to include degenerative joint disease, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for a left knee disability, to include degenerative joint disease, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for the United States Navy from May 1987 to May 1991. In the April 2019 Appellant’s Brief, the Veteran’s representative claimed that VA failed to obtain the Veteran’s Social Security Administration records. However, the record shows that VA received records from the Social Security Administration in January 2013. Thus, VA fulfilled its duty to assist in obtaining these records, and the allegation is not supported by the record. Service Connection, Generally Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may also be established under 38 C.F.R. § 3.303(b), if a chronic disease, such as arthritis, which is also called degenerative joint disease, is shown in service, and subsequent manifestations of the same chronic disease at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Service connection may also be established based upon a legal presumption by showing that a disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309(a). The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran’s appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.   1. Entitlement for service connection for a lumbar spine disability The Veteran contends that his lower back (lumbar spine) problems began in the Navy while he had to climb ladders. In the VA Form 21-4138, Statement in Support of Claim, received in January 2013, the Veteran wrote that it was hard for him to get up in the morning due to his lower back hurting. The Veteran’s representative claims the VA failed its duty to assist the Veteran because he was not afforded an examination for his lumbar spine disability. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a lumbar spine disability. The reasons follow. As to evidence of a current disability, the preponderance of the evidence of record is against a finding that the Veteran has a current lumbar spine disability, to include symptoms that cause functional impairment that affects earning capacity. For example, there is no competent evidence that shows the Veteran has current a lumbar spine disability or that he has been treated for lumbar spine pain. Rather, the only documentation of lumbar spine pain are the Veteran’s own statements. The Veteran has reported that his lumbar spine hurts every day, which affects bending, twisting, and going up or down stairs. However, the Veteran has not established that this pain causes functional impairment that affects earning capacity. The Board reviewed the SSA records, which show the Veteran filed a claim for disability benefits for “both knees.” He did not include a lumbar spine disability as part of his disability claim with the Social Security Administration, which supports the conclusion that the Veteran does not have a current lumbar spine disability that causes functional impairment that affects earning capacity. Furthermore, VA service treatment records do not document that the Veteran sustained a disease or injury to the lumbar spine during service. For example, in November 1990, the Veteran was asked about a medical history of a “back injury,” and the Veteran checked no. In the March 1991 Report of Medical History that the Veteran completed close to service discharge, he specifically denied a history of recurrent back pain (but reported a history of multiple other medical complaints). Additionally, clinical evaluation of his spine in March 1991 was normal. The Veteran has not been provided with a medical examination or opinion in connection with this claim; however, no VA examination or medical opinion is warranted. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability, an in-service event, injury or disease, evidence that the current disability may be associated with an event, injury, or disease in service, and there is insufficient medical evidence of record to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). As explained above, the weight of the evidence demonstrates no in-service lumbar spine injury or disease and a lack of competent evidence of a current disability or persistent and recurrent symptoms of a disability, which are requirements for entitlement to a VA examination. The Board finds that further development is not necessary, and VA has no duty to assist in providing a VA examination. In the absence of a current lumbar spine disability or evidence showing functional impairment that affects earning capacity, service connection cannot be established. As the preponderance of the evidence is against the claim for service connection for a lumbar spine disability, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement for service connection for a psychiatric disorder, including PTSD, depression, and adjustment disorder with depression. The Veteran contends that he witnessed four deaths while he was in service, and these incidents are the source of his PTSD. Specifically, the Veteran described two instances of recruits choking to death that he witnessed while in bootcamp in San Diego, California, and witnessing two deaths while on the USS Carl Vinson. Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. After a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for a psychiatric disorder, including PTSD, depression, adjustment disorder with depression, and alcohol abuse. The reasons follow. As to evidence of a current disability, the evidence does not show that the Veteran has a diagnosis of PTSD under Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), which is required for entitlement to service connection for PTSD. VA treatment records show that the Veteran had a PTSD screen in January 2013, which was negative. There is no competent evidence from a medical professional that the Veteran has PTSD. Thus, without a diagnosis of PTSD, service connection for PTSD is not warranted. There is competent evidence of diagnoses of depression and adjustment disorder with depression in 2013 VA treatment records. Thus, there is competent evidence of a current psychiatric disorder, and the Veteran meets the first element of a service-connection claim. As to evidence of a disease or injury in service, the service treatment records (STRs) do not contain evidence of complaints, treatment, or diagnosis of a psychiatric disorder, including depression or adjustment disorder. For example, in November 1990, the Veteran was asked about a medical history in mental/emotional illness, and he checked no. In the March 1991 Report of Medical Examination, psychiatric evaluation was clinically normal. Additionally, in the March 1991 Report of Medical History that the Veteran completed at that time, he specifically denied a history of frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort. Thus, the Veteran was not documenting psychiatric symptoms during service, and the preponderance of the evidence is against this element of a service-connection claim. The Board is aware that the Veteran has alleged in-service stressors related to two people choking to death while in basic training in 1987 and two people dying while on the USS Carl Vinson in 1987 and 1990. VA reviewed the command histories from the USS Carl Vinson and noted that the report in 1988 said that there had not been a mishap-related fatality in almost three years, which would cover 1987. VA also noted that the 1990 command history was a safe year, where there were no fatal injuries. There were incidents that occurred in 1988 where an aircraft caught on fire while airborne and a separate incident where a person was accidentally washed overboard, and the body was never recovered. These incidents are not consistent with what the Veteran reported in his PTSD statement. For example, the Veteran wrote that one person was essentially blown up by jet exhaustion and one person was “ripped to pieces” by running propellers. VA also searched the 1987 Naval Training Center records in San Diego and wrote that the histories did not document fatalities occurring as a result of choking to death. VA informed the Veteran of the inability to corroborate these stressors. In the statement of the case, VA informed the Veteran that in order for VA to conduct further research regarding the casualties, he would have to provide the full name of the soldiers. The Veteran has not provided the names of the soldiers. The Board finds as fact that the in-service stressors alleged by the Veteran have not been corroborated, and the in-service disease or injury element has not been met. As to evidence of a nexus between the 2013 diagnoses of depression and adjustment disorder with depression and service, the preponderance of the evidence is against this element as well. When the Veteran was diagnosed with adjustment disorder with depression, he was relaying to the VA examiner that he was adjusting since being in prison for 20 months for DWI’s. The examiner wrote, “He feels the adjustment from prison to being out is a challenge.” The Veteran was not mentioning any incident related to service, but only his adjustment to being out of jail, and this is evidence against the diagnosis of adjustment disorder with depression being related to an incident in service. When the medical professionals addressed depression, it was related to the Veteran reporting that depression ran in the family and that he was under a lot of restrictions due to his incarceration and would not be able to get a license until 2021. In other words, the Veteran was not reporting longstanding psychiatric symptoms related to service but rather symptoms that followed his incarceration. This is evidence against a finding that the psychiatric symptoms the Veteran was experiencing were related to service. The Board also reviewed the SSA records, which did not include a psychiatric disorder as part of his disability claim with the Social Security Administration, nor was a psychiatric disorder documented in the Social Security records. The Veteran has not been provided with a medical examination or opinion in connection with this claim; however, no VA examination or medical opinion is warranted. As explained above, there is no competent evidence of a current diagnosis of PTSD, and to the extent that the Veteran was diagnosed with depression and adjustment disorder with depression, it was attributed to the Veteran adjusting to life after prison and to his restrictions following his incarceration, and thus, the Board does not find that it may be due to service. Without these criteria being met, entitlement to a VA examination is not warranted. The Board acknowledges the Veteran’s assertions that he has a psychiatric disorder related to service. In this regard, the question of causation involves a medical subject concerning an internal process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. As to the notation in the VA treatment records of a history of alcohol abuse, which the Veteran alleges was caused by the in-service stressors, alcohol abuse is considered willful misconduct. 38 C.F.R. § 3.301. The law prohibits a grant of direct service connection for alcohol abuse on the basis of incurrence or aggravation in the line of duty during service. Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388-351 (1990); VAOPGCPREC 2-98 (Feb. 10, 1998), 63 Fed. Reg. 31263 (1998). Thus, service connection for alcohol abuse is denied. For all the reasons laid out above, the Board finds that the preponderance of the evidence is against the claim for service connection for a psychiatric disorder, to include PTSD, depression, adjustment disorder with depression, and alcohol abuse. As the preponderance of the evidence is against the claim for service connection, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for a right knee disability. The Veteran contends that his knee problems began in the Navy while he had to climb ladders. In his Statement in Support of Claim received in January 2013, the Veteran indicated that it was hard for him to get up in the morning due to his knees hurting. The Veteran’s representative claims the AOJ failed its duty to assist the Veteran because the August 2013 examining physician did not provide an opinion, since the military records were not available to review. However, VA, in fact, obtained an addendum medical opinion after the examiner had an opportunity to review the Veteran’s claims file. For example, there is an August 2013 addendum opinion, where the examiner specifically addressed what is documented in the service treatment records and provided an opinion as to the likelihood that a current disability had its onset in service. Thus, the duty to assist the Veteran in obtaining a medical examination with a medical opinion was fulfilled. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a right knee disability, including degenerative joint disease. The reasons follow. In December 2009, the Veteran was diagnosed with a cleavage tear of the medial meniscus in the right knee. Thus, there is evidence of a current disability and the first element of a service-connection claim is met. As to evidence of a disease or injury in service, the service treatment records show that the Veteran complained about his right knee. For example, a March 1991 Report of Medical Examination shows that while clinical evaluation of the lower extremities was normal, the Veteran documented a positive history of a “trick or locked knee.” The examiner documented that this complaint involved the Veteran’s right knee aching with cold weather. The Board concedes the evidence demonstrates that there was a complaint of aching involving the right knee during service. Thus, the second element of the service-connection claim is met. As to evidence of a nexus between the current disability and service, the Board finds the preponderance of the evidence is against a nexus. For example, during a January 2010 private medical examination with Eric Horning, PA-C and Bradley Walz, MD, the Veteran indicated that the date of the injury or accident related to his right knee occurred in October 2009. Additionally, the Veteran reported to the Social Security Administration as part of his disability claim with this agency that the alleged onset date that related to his knees was April 2009. The Veteran described his job as a Skilled Laborer between 2008 and 2010 and while performing these various jobs, he had to stoop, kneel, and crouch for between four to eight hours or more and lift between 50 to 100 pounds of materials. Thus, the Veteran attributed the onset of the right knee disability to a period of time that is more than 15 years after service and is evidence against a nexus to service. Additionally, in an August 2013 VA examination report, the examiner opined that the Veteran’s knee problem is less likely than not connected to active duty. The examiner explained that the service treatment records shows that when the Veteran complained of right knee pain in service, it involved problems with cold weather and that the Veteran’s knee was found normal at discharge. The examiner added that the Veteran denied a specific injury to the knee in service, but rather he reported he started having pain and stiffness during service. Thus, the examiner found that it was less likely than not that the current right knee disability was related to service. This is evidence against a nexus to service, and there is no competent evidence to weigh against this opinion. Additionally, without evidence of arthritis involving the right knee within one year of service discharge, service connection is not warranted based on a presumptive basis. The Board acknowledges the Veteran’s assertions that his right knee disability is related to active service. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. Hence, while the evidence shows that the Veteran has a right knee disability, the preponderance of the evidence is against a finding that his current disability is related to service. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim for service connection is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.   4. Entitlement to service connection for a left knee disability The Veteran contends that his knee problems began in the Navy while he had to climb ladders. In his Statement in Support of Claim in January 2013, the Veteran indicated that it was hard for him to get up in the morning due to his knees hurting. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a left knee disability, including degenerative joint disease. The reasons follow. As to evidence of a current disability, a June 2013 VA examination report shows that the Veteran was diagnosed with degenerative joint disease in the left knee. Therefore, the Veteran meets the first element of a service-connection claim. As to evidence of a disease or injury in service, the Board finds there is neither involving the left knee. For example, a March 1991 Report of Medical History shows that the Veteran documented a history of “trick” or locked knee; however, he told the examiner it involved his right knee. Thus, while the Veteran reported aching in his right knee during cold weather, he did not report symptoms related to his left knee. The clinical evaluation of the lower extremities was normal at that time. Therefore, the preponderance of the evidence is against a disease or injury to the left knee in service. As to evidence of a nexus between the current disability and service, the Veteran reported to the Social Security Administration that the alleged onset related to his knees was April 2009. The Veteran described his job as a Skilled Laborer between 2008 and 2010 and while performing these various jobs, he had to stoop, kneel, and crouch for between four to eight hours or more and lift between 50 to 100 pounds of materials. This shows that the Veteran’s left knee disability began more than 15 years following service. Finally, the Veteran was provided a VA examination in August 2013. During his August 2013 VA examination, the Veteran told the examiner that his claim for service connection involved the right knee, which is further evidence against the claim for service connection for a left knee disability. Additionally, without evidence of arthritis involving the left knee within one year of service discharge, service connection is not warranted based on a presumptive basis. The Board acknowledges the Veteran’s assertions that his left knee disability is related to active service. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. Hence, while the evidence shows that the Veteran has a left knee disability, the preponderance of the evidence is against a finding that his current disability is related to service. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim for service connection is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Griffin, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.