Citation Nr: 20026077 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 15-01 962 DATE: April 15, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), is denied. Entitlement to service connection for a low back condition is denied. Entitlement to service connection for a right knee condition is denied. Entitlement to service connection for a left knee condition is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has, or has had at any time during the appeal, a currently diagnosed acquired psychiatric disorder, to include PTSD. 2. The probative evidence of record shows that the Veteran does not have a low back condition that is etiologically related to his military service. 3. The probative evidence of record shows that the Veteran does not have a right knee condition that is etiologically related to his military service. 4. The probative evidence of record shows that the Veteran does not have a left knee condition that is etiologically related to his military service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for an acquired psychiatric disorder, to include PTSD, are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2019). 2. The criteria for establishing entitlement to service connection for a low back condition have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2019). 3. The criteria for establishing entitlement to service connection for a right knee condition have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2019). 4. The criteria for establishing entitlement to service connection for a left knee condition have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to August 1970, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which, in pertinent part, denied entitlement to service connection for PTSD, a low back condition, and a bilateral knee condition. The Veteran timely perfected an appeal. See July 2014 Notice of Disagreement; December 2014 Statement of the Case; January 2015 VA Form 9. In July 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In January 2019, the Board remanded this matter for additional development. Service Connection The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, to include PTSD, which he contends is related to stressors he experienced while serving in Vietnam. He also seeks entitlement to service connection for a low back condition and a bilateral knee condition, which he contends were incurred during active service. A. Legal Criteria Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally 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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § § 3.303. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § § 1113 (b); 38 C.F.R. § § 3.303 (d). 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). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, to include arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. § § 1101, 1112; 38 C.F.R. § §§ 3.307, 3.309(a). In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. See 38 U.S.C. § § 1154 (b). The Federal Circuit has held that, in the case of a combat veteran, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish entitlement to service connection, however, there still must be evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). B. Acquired Psychiatric Disorder Private treatment records are silent for a diagnosis of PTSD or any other acquired psychiatric disorder. During the July 2018 Board hearing, the Veteran testified that he was not undergoing any mental health treatment and that he had not been diagnosed with an acquired psychiatric disorder. Nonetheless, in the January 2019 remand, the Board acknowledged the Veteran’s lay statements regarding symptoms of flashbacks and anger issues and directed that he be afforded a VA examination. The Veteran was afforded a VA PTSD examination in January 2020. The Veteran reported undergoing individual counseling in 1995 related to an altercation at work. He denied any current mental health treatment. The Veteran reported problems initiating sleep due to back pain, some “fleeting flashbacks” about fighting in Vietnam, and feeling easily irritated. The VA examiner opined that the Veteran’s stressors, including being caught in an ambush and seeing his friends die, met Criterion A for a diagnosis of PTSD. However, the examiner indicated that the Veteran’s symptoms did not meet the diagnostic criteria for PTSD. The examiner also opined that there was “no evidence of significant impairment in daily functioning secondary to metal health,” and that the Veteran did not meet DSM V criteria for any mental disorder. The Board finds the opinions of the VA examiner that the Veteran does not meet the criteria for a diagnosis of PTSD, or any other psychiatric condition, to be highly probative. The opinion was based on thorough reviews of the claims file and provided detailed reports to support the conclusions. See Bloom v. West, 12 Vet. App. 185, 187 (1999). To the extent that the Veteran himself believes that he suffers from an acquired psychiatric disorder, to include PTSD, as a lay person, he has not demonstrated that he possesses the knowledge and medical expertise needed to competently assess his own psychiatric diagnosis. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing an example at footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not to diagnose a form of cancer). Here, providing a psychiatric diagnosis is a complex question that involves an assessment of symptoms and application of professional judgment outside of the realm of knowledge of a layperson using his/her senses. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the Veteran’s opinion that he has PTSD, or another psychiatric disorder, is beyond the scope of his competency and is of no probative value. The Court has consistently held that service connection cannot be awarded in the absence of current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (citing Brammer v. Derwinski, 3 Vet. App. 223 (1992), and Rabideau v. Derwinski, 2 Vet. App. 141 (1992)) aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Thus, regardless of whether an in-service stressor occurred, without evidence to show that the Veteran currently suffers from PTSD, a diagnosis of which conforms to the criteria as required by regulation, or another acquired psychiatric disorder, service connection must be denied. See Brammer, supra. Accordingly, the preponderance of the evidence is against a finding that the Veteran has a current diagnosis of an acquired psychiatric disorder to include PTSD, and, therefore, the Board concludes that a grant of service connection is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. C. Low Back and Knee Conditions The Veteran seeks entitlement to service connection for a back condition and bilateral knee conditions which he contends have the same in-service etiology. In this regard, the Veteran asserts that in the course of his duties as a combat engineer, he frequently jumped from a truck onto the ground, hitting his knees, and at times falling on his back. Additionally, he reported performing heavy lifting of up to 40 pounds daily; getting on his knees and stomach to hide when coming under fire; running under strenuous conditions; and performing mine sweeps which included walking planks in rice patties. The Veteran asserts that he has experienced nagging pain and stiffness since a few years after service, and that he has been told that he has rheumatoid arthritis and degenerative discs as the result of various injuries. See July 2018 Hearing Transcript. Service treatment records are silent for low back or knee complaints. During his June 1970 separation examination, the Veteran denied arthritis, joint deformity, back trouble of any kind, and “trick” or locked knee. On the associated examination report, the Veteran’s spine and lower extremities were evaluated as clinically normal. Post-service treatment records document that the Veteran received treatment for a left knee condition beginning in June 2008. A June 2008 private treatment record shows that the Veteran reported a 14-week history of left knee pain that had its onset during power walking. The Veteran subsequently received a left knee replacement. See August 2013 Orthopedic Note. Additionally, private treatment records document ongoing back and bilateral knee symptoms. An August 2017 record notes that the Veteran received shots to address back pain. A December 2017 record notes that it was suspected that back pain and the Veteran’s hunched over posture were due to advanced arthritis. A June 2018 treatment record documented active problems of osteoarthritis; status post total right knee replacement; status post left knee replacement; acute left knee pain; and difficulty walking. The Veteran was afforded a VA back conditions examination in January 2020. He reported that he was not being treated for his back. He indicated that he “thinks” he was diagnosed with arthritis in his spine “a long time ago but does not know for sure if and when he was diagnosed.” The Veteran denied in-service back treatment, but he reported that he had back problems when he left the military that have been getting worse since service. He also reported that he was unsure if he had any back injuries since service and that he started seeing a doctor for his back in approximately 1995. The examiner diagnosed the Veteran with scoliosis with mild to moderated lumbar spine degenerative disc disease. The examiner opined that the Veteran’s current low back condition was less likely as not related to in-service back injuries. Specifically, the examiner noted that the Veteran’s June 1970 separation examination was negative for back complaints or conditions and that the first post-service mention of a low back condition was in 2008, nearly 38 years after military discharge. The Veteran was afforded a VA knee conditions examination in January 2020. He reported right knee pain, but he denied any current issues with his left knee since his left knee surgery. The Veteran also reported that his bilateral knee pain “began in past but he cannot recall when.” He indicated that he was unsure if it was work or military related and that he was unable to recall if he had any injuries in service or when working in a factory after service. The examiner diagnosed the Veteran with left knee meniscal tear and bilateral knee degenerative arthritis. The examiner opined that the Veteran’s current low back condition was less likely as not related to in-service back injuries. Specifically, the examiner noted that the Veteran’s June 1970 separation examination was negative for knee complaints or conditions and that the first post-service mention of a knee condition was in 2008, nearly 38 years after military discharge, at which time it was noted to be due to a power walking injury. Upon review of the foregoing evidence, the Board concludes that the evidence of record is against a finding that the Veteran’s currently diagnosed low back and bilateral knee conditions are related to his military service or is of service origin. As an initial matter, the record shows that the Veteran has been diagnosed with scoliosis with degenerative disc disease, left knee meniscal tear, and bilateral knee degenerative arthritis. As such, the Board finds the current disability element is established. Shedden v. Principi, 381 F.3d 1163, 1167. Additionally, although service treatment records are silent for low back or knee complaints, the Board will apply the combat presumption and accept that he injured his back and knees during combat service in Vietnam. As such, there is evidence of an event, injury, or disease in service. That said, the provisions of 38 U.S.C. § 1154 (b) do not establish a presumption of service connection; rather, they ease the combat veteran’s burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. See Caluza v. Brown, 7 Vet. App. 498 (1995). That is, the statute provides a basis for determining whether an injury was incurred in service, but not a basis to link the injury etiologically to the current condition. Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007); Cohen v. Brown, 10 Vet. App. 128, 138. Thus, while the Board accepts the Veteran’s contentions regarding the circumstances of his service, it must still be shown by competent evidence that his current disability is related to his active service. The Board accepts that the circumstances of the Veteran’s service involved physically demanding tasks. Nevertheless, the weight of the evidence does not show that the Veteran’s current low back and bilateral knee conditions are etiologically related to these in-service events. Indeed, the Veteran’s June 1970 separation examination indicates normal findings with respect to the Veteran’s back and knees, and the Veteran did not endorse any complaints of back or knee pain. The Board finds the January 2020 VA opinions to be highly persuasive to the issue of whether the Veteran’s current low back and bilateral knee conditions are related to service. The Board places great probative weight on the VA opinions in this case, as they are consistent with the evidence of record and based upon medical knowledge and skill, as well as a review and analysis of the Veteran’s specific disability picture. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (a medical report must be read as a whole in the context of the claim and, even an opinion lacking in detail may be provided some probative value based upon the amount of information and analysis contained therein); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Specifically, the January 2020 VA examiner opined that the Veteran’s current low back and bilateral knee conditions were not related to in-service injuries because the Veteran did not report any ongoing back or knee symptoms at separation and because the first post-service mention of chronic low back and knee conditions was many years after service discharge. Although the examiner emphasized the length of time before the Veteran sought treatment after service, this does not render the opinions inadequate. A VA examiner must consider the Veteran’s lay statements regarding the incurrence of a disorder and the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). However, in the present case, as discussed in detail below, the Board finds that the Veteran’s lay statements regarding onset and continuity to be less than credible. Implicit in the examiners’ rationale was that if the Veteran’s back and knee symptoms had been significant, he would have sought additional treatment in service or post-service treatment earlier. Moreover, “there is no reasons or bases requirement imposed on examiners.” Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). Rather, an adequate medical report must rest on correct facts and reasoned medical judgment so as to inform the Board on a medical question and facilitate the Board’s consideration and weighing of the report against any contrary reports. See Nieves-Rodriguez, 22 Vet. App. at 304 (2008) (holding, in the context of weighing one medical opinion with another, that “[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion... that contributes probative value to a medical opinion”). Overall, the opinion is supported by an explanation, based on a review of the claims folder and examination of the Veteran, and supported by the Veteran’s medical records. There are no contrary medical opinions of record. The Board acknowledges the Veteran’s assertions that his current low back and bilateral knee conditions related to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the etiology of low back and knee conditions falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report his symptoms, any opinion regarding whether his diagnosed low back and bilateral knee conditions are related to his military service requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board assigns no probative weight to the Veteran’s assertions that his current low back and bilateral knee conditions are related to his in-service knee complaints. The Board also acknowledges the Veteran’s assertions that he has suffered from low back and knee symptoms since service. The Veteran is certainly competent to report symptoms such as pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In the present case, the Board finds that the Veteran’s statements regarding onset and continuity of his current back and knee symptoms, while competent, are not fully credible. In this regard, the Veteran’s contentions that he has suffered from continuous low back and knee symptoms since service are inconsistent with other evidence of record. See Gardin v. Shinseki, 613 F.3d 1374, 1379 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence). Initially, the Board notes that the Veteran testified to continuous back and knee pain during the July 2018 Board hearing; however, during the January 2020 VA examinations, the Veteran was unsure as to when his current knee and back symptoms started. Moreover, as detailed above, the Veteran denied any back, knee, or leg symptoms upon separation from service, and the Veteran’s spine and lower extremities were clinically normal at separation. Moreover, the first medical evidence of any back or knee symptoms after active service was in 2008, over 37 years after the Veteran’s discharge. The absence of post-service findings, diagnosis, or treatment for many years after service is one factor that tends to weigh against a finding of continuous knee symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). The Board also finds it probative that when the Veteran reported knee pain in 2008, he reported a recent onset and did not discuss a service origin. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment “are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care”). It is important to point out that the Board does not find that the Veteran’s lay statements lack credibility merely because they are unaccompanied by contemporaneous medical evidence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.”). Rather, the current lay statements are found to lack credibility because they are inconsistent with and directly contradicted by other lay and medical evidence of record, including the Veteran’s own statements, showing that the Veteran did not experience chronic low back or knee symptoms until many years after service. See Madden, 125 F.3d at 1481 (finding Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board’s finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). With regard to presumptive service connection, the Board finds that the Veteran’s degenerative disc disease and degenerative arthritis are properly afforded such consideration, as they are among the enumerated conditions in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1331. However, there is no probative evidence of record that the Veteran’s low back or knee arthritis manifested to a compensable degree within one year of the Veteran’s discharge from service in 1970. See 38 C.F.R. § 3.307(a), 3.309(a). Instead, the probative evidence of record shows that the Veteran was not diagnosed with arthritis until 2008, over 37 years after service. Moreover, as noted above, the Board finds that the Veteran has not provided credible testimony that symptoms of arthritis have continued since service discharge. See Buchanan, 451 F.3d at 1336-37; Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). As such, presumptive service connection as a chronic disease, to include based on continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. While the Board is sympathetic to the Veteran’s claims, taking into account all of the relevant evidence of record, the preponderance of the evidence is against a finding of an etiological relationship between the Veteran’s current low back and bilateral knee conditions and his military service. Accordingly, the Board finds that the claim of entitlement to service connection for low back and bilateral knee conditions must be denied. 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 claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.