Citation Nr: 20021765 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 10-32 825 DATE: March 26, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. REMANDED 1. Entitlement to an increased rating for right knee anterior cruciate ligament repair with instability currently rated as 10 percent prior to September 27, 2019, and 20 percent disabling thereafter, for right knee anterior cruciate ligament repair with instability is remanded. 2. Entitlement to a rating in excess of 10 percent for service-connected residuals right knee with limitation of motion is remanded. FINDING OF FACT The evidence of record does not support a finding that the Veteran has had a diagnosed acquired psychiatric disorder during the pendency of this appeal. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), have not been met. 38 U.S.C. § §§ 1110, 1131, 5107; 38 C.F.R. § §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from November 1990 to February 1997 and from April 1999 to April 2003. This appeal comes to the Board of Veterans’ Appeals (Board) from May 2008, April 2010, and June 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 1. Entitlement to service connection of an acquired psychiatric disorder The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder, claimed as PTSD. In this case, the Board determines that service connection for PTSD is not warranted, as he does not have a current diagnosis of this disorder. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § § 4.125 (a), a link established by medical evidence between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § §§ 3.304 (f). A diagnosis of PTSD must conform to the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-5). 38 C.F.R. § § 4.125 (a). Importantly, the Veteran underwent a VA examination in March 2018 where he reported several stressors. However, the VA examiner determined that the criteria for PTSD had not been met. While the examiner noted that Veteran experienced sub clinical levels of anxiety at present, he concluded that Veteran failed to meet DSM diagnostic criteria for any mental health condition at the present time. The VA examiner noted that the Veteran’s CPRS notes included negative depression screens for dates of 12/28/2011; 12/16/2014; 12/16/2015 and 5/31/2017 and negative Vets PTSD screens for 1/24/2011 and 12/16/2015. Upon examination, the Veteran’s thought process and communication skills appeared to be within normal limits, he denied having any symptoms of delusions or hallucinations and none were apparent, he was cooperative, maintained good eye contact, exhibited no inappropriate behavior, denied having any current suicidal or homicidal ideation, plan, or intent, appeared able to maintain personal hygiene and basic activities of daily living, was well-oriented to all three spheres and his short and long term memory appeared to be without gross deficits. As service connection is not for application unless the evidence indicates that a current disability exists, service connection is not warranted for PTSD. See 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board has also considered whether service connection is warranted for other psychiatric disorders, but concludes that service connection is again not warranted. As noted above, the VA examiner concluded that no mental disorder has been diagnosed and the Veteran fails to meet DSM diagnostic criteria for any mental health condition at the present time. Therefore, service connection for an acquired psychiatric disorder other than PTSD is not warranted. The Board has reviewed the available medical treatment records but finds none that would provide a solid diagnosis of any acquired psychiatric disability. At most, the Board acknowledges a single April 2013 VA treatment report with a possible diagnosis of depression, not otherwise specified, but that diagnosis was given following an abbreviated contact with the Veteran, and is accompanied by a referral for additional treatment. There is no further evidence of any psychiatric diagnosis in the record (indeed, the Veteran generally denies any psychiatric symptoms), and that diagnosis was refuted by the 2018 VA examiner. In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating his psychiatric disorder to his active service. The United States Court of Appeals for the Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, while competent to report observable symptoms, the Veteran is not competent to provide any medical diagnosis of an acquired psychiatric disorder, as is required by the statutory guidelines. See Jandreau, 492 F.3d at 1377, n.4. Because psychiatric disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. In sum, the Board concludes that the Veteran does not have a presently diagnosed psychiatric disability to which service connection may be granted. As such, the claim fails the primary criterion of service connection, and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND Inasmuch as the Board regrets further delay in the adjudication of these claims, a remand is necessary to ensure proper procedural development. 1. Entitlement to an increased rating for right knee anterior cruciate ligament repair with instability currently rated as 10 percent prior to September 27, 2019, and 20 percent disabling thereafter, for right knee anterior cruciate ligament repair with instability is remanded. 2. Entitlement to a rating in excess of 10 percent for service-connected residuals right knee with limitation of motion is remanded. The Veteran was afforded a VA examination in August 2019, and a supplemental statement of the case was issued on September 13, 2019, which continued the denial of an increased rating for the Veteran’s left knee in excess of 10 percent based on limitation of motion and 10 percent based on instability. On September 27, 2019, the Veteran filed a new claim for an increased rating of his left knee. Despite the fact that this appeal remained in pending status under the Legacy System of appeals, the RO undertook development of that claim, and obtained a new examination of the Veteran’s knee disability on October 25, 2019, over a week prior to this appeal being recertified to the Board. Although the RO issued a rating decision which granted a partial increased rating based on instability, in November 2019, as is reflected in the description of the issue above, it did not issue a supplemental statement of the case addressing that newly acquired examination results. Under 38 U.S.C. § 7105(e), for cases in which substantive appeals are received on or after February 2, 2013, if the claimant or the claimant’s representative submits evidence to the Agency of Original Jurisdiction (AOJ) or the Board for consideration in connection with the issues on appeal, the Board may consider such evidence in the first instance unless the claimant or representative requests in writing that the AOJ initially review such evidence. This automatic waiver is an exception to the general requirement of a waiver of AOJ review or an SSOC considering new pertinent evidence. See 38 C.F.R. §§ 19.31, 19.37, 20.1304. However, the automatic AOJ waiver exception and the standard waiver response form do not apply to evidence that was not submitted by the claimant or representative. Most notably, VA treatment records and VA examinations uploaded to the claims file after the last SOC or SSOC will not be covered by the automatic waiver. Should the claimant wish the Board to review such evidence in the first instance, a waiver must be submitted. In this case, the RO obtained a VA examination of the Veteran’s knees prior to the increased rating claims being certified to the Board for further appellate review, but did not issue a supplemental statement of the case which considered this evidence as is required by 38 C.F.R. § 19.31(b)(1), and 19.37. As this evidence was received prior to the transfer of the claims to the Board, and the Veteran has not waived RO consideration of this evidence, and the Board cannot consider it in the first instance and a remand is necessary to ensure proper procedural steps are followed. M. Pryce Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vample, 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.