Citation Nr: 19136459 Decision Date: 05/10/19 Archive Date: 05/10/19 DOCKET NO. 16-35 558A DATE: May 10, 2019 ORDER Entitlement to service connection for a left-hand disorder, diagnosed as degenerative joint disease, is denied. Entitlement to service connection for a right-hand disorder, diagnosed as degenerative joint disease, is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for a duodenal ulcer is denied. Entitlement to service connection for an acquired psychiatric disorder, to include unspecified depressive disorder, alcohol use disorder and cannabis use disorder, is denied. Entitlement to an initial rating in excess of 10 percent for right knee subluxation is denied. Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral syndrome is denied. REMANDED Entitlement to service connection for dyspnea, to include as secondary to asbestos exposure is remanded. FINDINGS OF FACT 1. A left-hand disorder is not related to service, and degenerative joint disease did not manifest within one year of the Veteran’s discharge from active duty service. 2. A right-hand disorder is not related to service, and degenerative joint disease did not manifest within one year of the Veteran’s discharge from active duty service. 3. Sleep apnea is not related to service, nor has it been caused or aggravated by service-connected disability. 4. At no time during the pendency of the claim does the Veteran have a current diagnosis of a duodenal ulcer, and the record does not contain a recent diagnosis of such prior to the Veteran’s filing of a claim. 5. The preponderance of the evidence is against a finding that the Veteran’s current acquired psychiatric disorder is related to service. 6. For the entire period of the appeal, the Veteran’s right knee patellofemoral syndrome was not manifested by flexion limited to 30 degrees or less. 7. For the entire period of the appeal, the service-connected right knee subluxation was manifested by mild or slight recurrent patellar dislocation or subluxation without objective evidence of moderate or severe knee subluxation or instability. CONCLUSIONS OF LAW 1. The criteria for service connection for a left-hand disorder, diagnosed as degenerative joint disease, have not been met. 38 U.S.C. §§ 1131, 1137, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 2. The criteria for service connection for a right-hand disorder, diagnosed as degenerative joint disease, have not been met. 38 U.S.C. §§ 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 3. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 4. The criteria for service connection for a duodenal ulcer have not been met. 38 U.S.C. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2018). 5. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include unspecified depressive disorder, alcohol use disorder and cannabis use disorder, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for an initial rating in excess of 10 percent for right knee patellofemoral syndrome have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5260 (2018). 7. The criteria an initial rating in excess of 10 percent for right knee subluxation have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1978 to June 1981. This matter is on appeal from an August 2013 rating decision. In May 2018, the Board remanded the issues addressed herein for further development. At such time, the appeal included claims for service connection for bilateral foot disorders, which were granted in a February 2019 Rating Decision. The Board previously referred a dental treatment claim to the Agency of Original Jurisdiction (AOJ). It does not appear that the AOJ has acted on such claim, therefore, it is again referred. As the record reflects diagnoses of unspecified depressive disorder, as well as alcohol use disorder and cannabis use disorder, the Board has accordingly recharacterized the issue on appeal to comport with Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The requirement of a current disability is satisfied when the Veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the Veteran’s filing of a claim for benefits based on that disability, the report of the 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. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Bilateral Hand Disorder The Veteran seeks service connection for a bilateral hand disorder, diagnosed as degenerative arthritis. Here, service treatment records reflect that the Veteran reported a broken left thumb prior to entrance on his February 1978 entrance examination, at which time he had full movement of the left thumb, with no noted abnormalities. The Veteran reported on his May 1981 separation examination that he had had or was advised to have an operation on his hand but did not specify left or right. Treatment records are otherwise silent for symptoms relating to the hands. Post-service, VA treatment records show that the Veteran was initially diagnosed with degenerative joint disease of the hands in October 2015. In December 2018, the Veteran underwent a VA examination, during which his diagnoses of bilateral degenerative arthritis of the hands were noted. The Veteran reported having pain in both hands since 1981. After an examination of the Veteran and review of the record, the examiner opined that the Veteran’s bilateral degenerative arthritis of the hands was less likely than not related to service, to include his history of a broken left thumb. He noted that the left thumb was well-healed and there was no present need for surgery. He explained that “arthritis is usually a degenerative disease due to frequent use of any joint, and that there would have had to have been some type of trauma in service to cause his future arthritis, which there was not. He additionally explained that the Veteran’s arthritis was diagnosed in 2015, and it was very unlikely that he would have had arthritis since service due to his young age at the time. The Board finds the VA examiner’s opinion highly probative, as such was based on an examination of the Veteran, review of the record, and contains a fully-reasoned rationale. There are no contrary opinions of record. Bases on the above, the Board finds that service connection is not warranted for arthritis of the hands. Here, the Veteran’s arthritis was not diagnosed until over 3 decades since service separation, and the VA examiner explained that the Veteran’s age and repetitive use of his hands are the strongest factors associated with the Veteran’s arthritis of the hands. Thus, the Board finds that service connection for arthritis of the hands is not warranted on a direct or presumptive basis. Additionally, with respect to continuity of symptomatology, such is not supported by the medical evidence documenting that the Veteran’s arthritis of the hands was not diagnosed until 2015. Accordingly, the claim for service connection for a bilateral hand disorder is denied. Sleep Apnea The Veteran seeks service connection for sleep apnea, which he claims had its onset in service, or is secondary to his depressive disorder. Here, service treatment records are negative for sleep-related complaints. The Veteran was diagnosed with sleep apnea in 2013. In December 2018, the Veteran underwent a VA examination, after which the examiner opined that his sleep apnea was less likely than not related to service. He noted that the Veteran’s service treatment records were silent for symptoms of sleep apnea, at which time the Veteran weighed 137 pounds. At the time the Veteran was diagnosed with sleep apnea in 2013, he weighed 224 pounds. The examiner explained that, “the main pathophysiology in sleep apnea is functional collapse due to obstruction and narrowing of uvulo-pharyngeal and upper airway complex in sleep apnea due to obesity and narrowing of upper airways.” The Board finds the VA examiner’s opinion highly probative, as such was based on an examination of the Veteran, review of the record, and contains a fully-reasoned rationale. There are no contrary opinions of record. Accordingly, the Board finds that service connection for sleep apnea on a direct basis is not warranted. To the extent that the Veteran has claimed that his sleep apnea is secondary to his depressive disorder, such claim is moot as service connection for an acquired psychiatric disorder is denied herein. Duodenal Ulcer The Veteran seeks service connection for a duodenal ulcer, which he claims had its onset in service. Here, his service treatment records reflect several complaints of abdominal pain and burning stomach, diagnosed as hyperacidity. The record prior to, and during the appeal period does not reflect a current diagnosis of a duodenal ulcer. In particular, in December 2018, the Veteran underwent a VA examination during which current diagnoses of GERD and chronic nausea were noted. The examiner noted that the Veteran reported he was diagnosed with an ulcer of the stomach in 1981, which the examiner found might have begun in service, though there were no x-rays or endoscopies performed at the time to confirm such a diagnosis. However, he explained that the Veteran underwent an upper endoscopy of his stomach in June 2015, which did not show any ulcer in his stomach or duodenum. He therefore found that the Veteran did not currently have a duodenal ulcer. Accordingly, as the Veteran does not have a current diagnosis of a duodenal ulcer, service connection for such must be denied. However, the Board notes that in a January 2019 addendum opinion, the examiner found that the Veteran’s GERD and chronic nausea began in service, and he was subsequently awarded service connection for such in a February 2019 rating decision. Acquired Psychiatric Disorder The Veteran seeks service connection for an acquired psychiatric disorder, to include as secondary to his service-connected right knee disorders. The record reflects a current diagnosis of unspecified depressive disorder, with alcohol use disorder and cannabis use disorder. He has not identified any in-service event as the cause of his disorder. Service treatment records are silent for psychiatric complaints. Post-service, there was no evidence of psychiatric complaints until the Veteran was interviewed by a private clinician for the completion of a Disability Benefits Questionnaire in November 2014. VA treatment records indicate negative depression screens in August 2014, June 2015, October 2015 and April 2016. In support of his appeal, the Veteran submitted private opinions in November 2014 and October 2017, which link his depressive disorder to his right knee disorders, citing medical evidence showing a relationship between medical difficulties and psychiatric problems. The October 2017 examiner stated that, based on his interview with the Veteran, his depression had its onset in service and had continued through the present, and that his mental health issues and service-connected physical injuries more likely than not contributed to his substance abuse as a form of self-medication. The only discussion of service was that the Veteran began to self-medicate with alcohol and marijuana in service to cope with his mental health symptoms, though the cause of such symptoms was not identified. The Veteran was also afforded VA examinations in June 2017 and December 2018. During the June 2017 VA examination, the Vetear was diagnosed with unspecified depressive disorder and alcohol use disorder, both of which the examiner found were unrelated to his right knee disorders. The examiner explained that that the last one and half years of VA treatment records were silent for any complaint about his knee and did not list his knee as one of the ongoing problems currently the focus of attention. However, he noted that alcohol abuse was routinely noted in his VA treatment notes, with the Veteran repeatedly declining referral to mental health for substance abuse treatment or rehab. It was further noted that no anxiety, depression, or mood symptoms were listed, diagnosed, or complained about in any of those VA treatment records. The examiner stated that chronic alcohol abuse can lead to depression, anxiety, memory/learning impairment, and disinhibition of temper outbursts, all of which were seen in the Veteran’s records and described during the interview. The examiner then commented on the private November 2014 opinion, stating that such opinion disregarded multiple more likely contributing factors, mentioned elsewhere in such report, such as financial and social difficulties and drinking on occasion. In particular, the Veteran was going through a divorce, his wife had left him multiple times over the years and had had domestic disputes involving his children. The examiner pointed out that stating the Veteran drinks on occasion was a serious misrepresentation of the Veteran’s alcohol abuse, as established by VA treatment records noting over the last two years: “1 pint of liquor or 3-4 beers daily; “4-6 16 oz beers most days;” “2-3 16 oz beers or several shots of liquor most days of the week;” “3-4 mixed drinks a day;” a positive score on the alcohol abuse screening test; and, repeatedly disregarding warnings to reduce consumption and go in for substance abuse treatment. In conclusion, the examiner stated that, given the Veteran’s multiple psychosocial stressors, ongoing and severe alcohol abuse; and the absence of any complaint of either knee problems or mental health symptoms to his VA doctors, that it was less likely than not that his other unspecified depressive disorder and alcohol use disorder were caused or aggravated by his right knee disorders. During the December 2018 VA examination, the Veteran was again diagnosed with unspecified depressive disorder and alcohol use disorder, as well as cannabis use disorder. The Veteran reported to the examiner that currently over a two-week period he drinks “a gallon of Crowne, a little gin and a little Vodka...and a lot of beer.” He also stated that he smokes marijuana every other day. After a 90-minute interview and examination, the examiner concurred with the June 2017 examiner, and found that there was no relationship between the Veteran’s psychiatric disorders and service. He attributed the Veteran’s depressive disorder to his chronic substance abuse and his “catalogue of mistreatment and betrayal by everyone close to him.” The examiner stated such thoughts were prominent throughout the interview, whereas the Veteran did not associate his depressive symptoms or substance abuse with service. Based on the above, the Board finds that service connection for an acquired psychiatric disorder is not warranted. To the extent that the Veteran has diagnoses of alcohol use disorder and cannabis use disorder, the Board notes that service connection cannot be granted for any disease or injury if it is the result of a veteran’s own willful misconduct or due to abuse of alcohol or drugs. 38 U.S.C. § 105 (a); 38 C.F.R. § 3.301 (a). Alcohol abuse is defined as the use of alcoholic beverages over time, sufficient to cause disability to, or death of, the user. 38 C.F.R. § 3.301 (d). Drug abuse is defined as 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. Id. Regarding his unspecified depressive disorder, the Board finds the June 2017 and December 2018 VA opinions more probative than the November 2014 and October 2017 private opinions. In particular, though the November 2014 and October 2017 private opinions cite general relationships between physical ailments and mental disorders, they do not explain such in the context of the Veteran’s symptoms and onset of his mental disorders. Moreover, such opinions are inconsistent with the record, which show that the Veteran did not have a mental health disorder until at least November 2014, during which time he was experiencing severe familial, social and financial stressors. Additionally, such opinions did not address the Veteran’s significant history of substance abuse as a contributing factor to his depressive disorder. Conversely, the Board finds the June 2017 and December 2018 VA opinions to be more comprehensive, as such opinions cited the Veteran’s relevant medical history and provided rationales which tied his depressive disorder to his life circumstances at the time and to his substance abuse, noting that his service-connected right knee disorders were not mentioned as a current cause of concern for the Veteran throughout his VA treatment records or during his VA examinations. Accordingly, the Board finds that entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected right knee disorders, is not warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating The Veteran seeks higher initial ratings for his right knee patellofemoral syndrome and subluxation. In December 2018, the Veteran underwent a VA examination to assess the severity of his right knee disorders. He reported that his knees give out about one to two times per month, and that he has to watch his balance so as to prevent falls. He stated that he has intermittent knee pain and has flare-ups about one to two times per week during which he has to sit down and rest. He added that he is unable to stand or walk for more than 30 minutes at a time, cannot climb stairs and cannot drive for more than one hour. Upon examination, the Veteran had flexion to 90 degrees and extension to 0 degrees, with pain noted in both directions, with weight bearing and non-weight bearing and in passive motion. There was tenderness on the upper and outer aspect of the patellar border. Crepitus, atrophy and ankylosis were absent. Repeated use and flare-ups were noted to result in pain, fatigue, weakness and lack of endurance. Joint stability testing found no recurrent subluxation, no lateral instability and no recurrent effusion. There was no joint instability in any direction upon testing. Findings were negative for a semilunar cartilage condition, recurrent patellar dislocation, medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. X-rays showed evidence of arthritis. Right Knee Patellofemoral Syndrome The Veteran’s right knee patellofemoral syndrome is currently rated at 10 percent disabling for the entire period on appeal under Diagnostic Code 5260. In order for a disability evaluation in excess of 10 percent to be assigned under Diagnostic Code 5260, flexion of the knee must be limited to 30 degrees or less. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Here, the Board finds no basis for assigning a rating in excess of 10 percent under Diagnostic Code 5260. The weight of the evidence shows that the Veteran has demonstrated flexion of the right knee beyond 30 degrees on every occasion range of motion has been tested during the course of his appeal and the range of motion testing considered functional loss due to pain. Thus, on this record, a higher disability evaluation under Diagnostic Code 5260 is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Board has considered whether a higher rating may be assigned on the basis of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, lack of endurance or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds that the Veteran’s current 10 percent disability rating for the right knee disability takes into consideration and incorporates the functional loss and impairment due to pain and flare-ups. The right knee disability has not been shown to produce additional impairment of flexion due to pain or functional loss that would warrant ratings higher than 10 percent. See DeLuca; supra. As noted, the Veteran does not have limitation of flexion of the knee limited to less than 45 degrees when considering pain and functional loss. The current functional impairment of the right knee and the symptoms of pain are encompassed in the current 10 percent rating under Diagnostic Code 5260. The Veteran is already receiving the minimum compensable rating for pain, and as such, 38 C.F.R. § 4.59 is not applicable. The Board has also considered whether any other applicable rating criteria may enable a higher evaluation. As the Veteran has extension of the right knee to 0 degrees, he does not meet the criteria for a compensable rating under Diagnostic Code 5261; therefore, the Veteran would not benefit from assigning a rating under such diagnostic code. See 38 C.F.R. § 4.71a, DC 5261. Under Diagnostic Code 5003 and 5010, ratings for arthritis, a 10 percent evaluation is the highest possible evaluation for the Veteran’s right knee disability, as the right knee joint is a single major joint; moreover, there is no evidence of any incapacitating episodes as a result of the Veteran’s right knee disability. Again, the Veteran would not benefit from assigning a rating under such diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Additionally, there has been no ankylosis (DC 5256), impairment of the tibia or fibula (DC 5262), or genu recurvatum (DC 5263), or removal of the semilunar cartilage, (DC 5259) (symptomatic removal of the semilunar cartilage); therefore, such diagnostic codes are not for application. Accordingly, the Veteran’s claim for increased evaluation of right knee patellofemoral pain syndrome with limitation of flexion must be denied at this time based on the evidence of record. See 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5256-5263. Right Knee Subluxation The RO has rated the Veteran’s right knee subluxation at 10 percent based on slight recurrent lateral instability, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257. To be granted an increased rating for this disability under Diagnostic Code 5257, the evidence must establish that the Veteran’s right knee instability produces moderate or worse lateral instability or recurrent subluxation. Diagnostic Code 5257 provides that a 10 percent rating is assigned for slight lateral instability or recurrent subluxation of the knee. A 20 percent rating is assigned for moderate lateral instability or recurrent subluxation of the knee. A 30 percent rating is assigned for severe lateral instability or recurrent subluxation of the knee. 38 C.F.R. § 4.71, Diagnostic Code 5257. In applying the law to the existing facts, the Board finds that the evidence is against the assignment of a rating in excess of 10 percent for the service-connected right knee disability under Diagnostic Code 5257. In this regard, joint stability testing during the December 2018 VA examination was normal in all aspects. While the Veteran reports that his knee give way approximately one to two times per month, such symptomatology is contemplated in the 10 percent rating currently assigned. Therefore, the weight of the competent and credible evidence does not establish moderate impairment, moderate subluxation, or moderate instability of the right knee. The medical evidence for this time period shows that the service-connected right knee disability more closely approximates mild instability. In as much as the record includes no evidence of more than slight instability or recurrent subluxation of the Veteran’s right knee, the Board concludes that the criteria for a rating in excess of 10 percent for such instability under Diagnostic Code 5257 are not met. Other Considerations The Board has carefully reviewed and considered the Veteran’s statements regarding his claims for service connection and higher initial ratings. The Board also acknowledges that the Veteran, in advancing this appeal, believes in the merits of his appeal. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the claims are the most probative evidence with regard to evaluating the disabilities on appeal. In addition, the Board has considered VA treatment records which document symptomatology consistent with the findings in the VA examinations. In reaching its 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 claims, that doctrine is not helpful to the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Dyspnea The Veteran underwent a VA examination for his claimed respiratory disorder in December 2018, with an addendum issued in January 2019. The examiner stated that the Veteran’s service treatment records “are silent for any respiratory symptoms.” This is incorrect. The Board notes three instances of diagnosed upper respiratory infections in service, plus an additional note of chest congestion. Accordingly, another addendum opinion is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s dyspnea is at least as likely as not related to service, to include asbestos exposure and in-service respiratory complaints. The examiner should consider service treatment records indicating the Veteran was an asbestos worker in service, as well as documentation of upper respiratory infections and chest congestion. 2. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.Z., 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.