Citation Nr: 21003822 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 14-35 552A DATE: January 22, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, psychotic disorder and anxiety, is denied. Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a left leg scar is denied. Entitlement to service connection for type 2 diabetes mellitus is denied. Entitlement to service connection for headaches is denied. FINDINGS OF FACT 1. There is no clinically diagnosed PTSD, depressive disorder, or anxiety related to the Veteran’s active duty service; and the Veteran failed to report for a VA psychiatric examination, which was necessary to support his claim of a nexus to service. 2. The Veteran's right and left knee disorders were not manifested in service, bilateral knee degenerative arthritis was not manifested in the first post-service year, and the Veteran's current right and left knee disorders did not begin during active service or are otherwise related to an in-service injury, event, or disease. 3. The Veteran’s left leg scar was not manifested in service and did not begin during active service or is otherwise related to an in-service injury, event, or disease. 4. The Veteran’s type 2 diabetes mellitus was not manifested in service, nor was it manifested in the first post-service year, and the Veteran’s current diabetes did not begin during active service or is otherwise related to an in-service injury, event, or disease. 5. A chronic headache disorder was not shown during service, or after service separation; the Veteran’s claimed headaches may not be linked to his active service or to an in-service injury, event or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, psychotic disorder and anxiety, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.655. 2. The criteria for entitlement to service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for a left leg scar have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 5. The criteria for entitlement to service connection for type 2 diabetes mellitus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.655. 6. The criteria for entitlement to service connection for headaches have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.655. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1979 to July 1983. These matters were previously before the Board of Veterans’ Appeals (Board) and were remanded to a Department of Veterans Affairs (VA) Regional Office (RO) for additional development. Such development has been completed, and the matters are returned to the Board for further appellate consideration. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish service connection, the evidence generally must show: (1) the existence of 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 disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases (to include arthritis and diabetes mellitus) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time post-service (one year for arthritis and diabetes mellitus). 38 U.S.C. § 1137; 38 C.F.R. §§ 3.307, 3.309. Nexus of a chronic disease to service may be established by showing continuity of symptomatology following service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). 1. Entitlement to service connection for an acquired psychiatric disorder to include PTSD, depression, psychotic disorder and anxiety The Veteran essentially contends he has an acquired psychiatric disorder, to include PTSD, depression, psychotic disorder and anxiety. To establish service connection for PTSD, the record must contain the following: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). The current laws mandate that establishing service connection for PTSD requires evidence of a clinical diagnosis by a mental health professional, which must conform to the diagnostic criteria set forth in the American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders, 5th edition, (DSM-5). See 38 C.F.R. §§ 3.304(f), 4.125, 4.126. Of note, in March 2014, while the Veteran's appeal was pending, VA transitioned from DSM-IV to DSM-5 diagnostic criteria. The Veteran’s service treatment records are negative for any complaints, treatment or diagnoses of psychiatric disorders. He reported on his May 1983 separation medical history report that he did not have or had ever had depression, excessive worry, nervous trouble of any sort, loss of memory, or frequent trouble sleeping. His May 1983 separation medical examination shows no psychiatric abnormalities on clinical evaluation. In a November 2010 VA nursing intake clinic note, the Veteran had a positive screen for PTSD. He also had an impression of anxiety/PTSD. In November 2011 he presented at a VA mental health outpatient clinic and stated he wanted help with his claim. He reported he is not working but is busy in church. He discussed his wife and imminent divorce. He related that a piece of metal was removed from his leg that caused injury in service, but the records are lost. An Axis I diagnosis of depressive disorder due to problems at home was rendered. At a VA outpatient clinic visit in June 2013 the Veteran reported having ongoing depression. He was last seen at that clinic in 2011. He stated that no one was listening to his complaints of feeling depressed due to losing his wife. He stated his wife left because he was “…not right,” and “…messed up” after he returned from his time in the service. He stated that his marriage failed due to his time in the service. He endorsed nightmares but was unable to discuss what the nightmares were about. He stated he was in Germany and was on “classified.” He had Axis I diagnoses of depressive disorder, NOS [not otherwise specified], rule out psychosis NOS (per prior intake), depression NOS, anxiety disorder NOS, and history of PTSD (per Veteran’s statements). In August 2019 the Veteran was seen at a VA primary care clinic for a routine follow-up appointment. Following examination, he received assessments of anxiety, PTSD, and depressive disorder, NOS. Assessments of recurrent major depressive disorder and moderate chronic PTSD were rendered in December 2019. The Veteran’s psychiatric disorder claim was previously remanded for additional development, including the RO scheduling a VA psychiatric examination. Unfortunately, the Veteran failed to report to the examination, without a showing of good cause. In such cases, 38 C.F.R. § 3.655 provides that the claim for service connection should be rated based on the evidence of record. In this case, the medical evidence of record does not establish a link between current symptomatology and the claimed in-service stressor for PTSD or link any claimed psychiatric disorder to the Veteran’s active duty service. Without the medical nexus, there is no basis on the evidence of record to grant the claim. Moreover, service treatment records are devoid of any mention of a psychiatric disorder, and not a single mental health or other medical professional has indicated that the Veteran’s clinically diagnosed disorders are etiologically related to his active duty service. A 2011 VA provider diagnosed depressive disorder as due to problems at home. As such, the requisite causal link between the Veteran’s current disabilities and his service, which is a fundament legal requirement, has not been established and thus service connection for an acquired psychiatric disorder is not warranted in this case. Moreover, the Veteran is not shown to have the medical training necessary to link his current psychiatric disorders to his military service. Jandreau v. Nicholson, 492. F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Accordingly, service connection for an acquired psychiatric disorder, to include PTSD, depression, psychotic disorder, and anxiety, is denied. 2. Entitlement to service connection for a right knee disorder 3. Entitlement to service connection for a left knee disorder The Veteran has a current diagnosis of bilateral knee degenerative changes. (See February 2018 x-ray findings). He essentially contends his right and left knee disorders are related to his active duty service. His service treatment records are negative for any complaints, treatment or diagnoses for right and left knee disorders. On clinical evaluation at his May 1983 service separation medical examination there were no reported abnormalities of the lower extremities. Notwithstanding the Veteran’s assertion that his bilateral knee disorder had its origin in service, the evidence shows the Veteran sustained injury to his knees approximately 5 years after service. Specifically, in March 1988 while working delivering mail, the Veteran was knocked down and bitten by a dog. The dog bit and dragged him at the back of his right knee; he also sustained a tear of the medial meniscus of the left knee. In January 1989 and July 2003, he underwent arthroscopic medial meniscectomy of his left knee. Consequently, service connection for right and left knee disorders on the basis that such disorders became manifest in service and persisted, or on a presumptive basis as a chronic disease under 38 U.S.C. § 1112, is not warranted. VA treatment records show treatment of the Veteran’s knees but do not link his bilateral knee disorder to his military service. For example, in November 2010 x-rays were performed due to the Veteran’s complaints of knee pain. The impression revealed mild to moderate degenerative changes of the medial compartments of bilateral knees. The assessment was osteoarthritis in both knees; the Veteran discussed the assessment and plan with the provider. In February 2018, the Veteran was seen at a VA outpatient clinic for a scheduled visit with complaints of pain in his knees for the past 4 years. Osteoarthritis of the knee is noted under review of systems/prior medical history. February 2018 x-ray impression of bilateral knee shows mild degenerative change with narrowing of bilateral medial compartments, worse in the left. No acute bony change was noted. The Board notes that the Veteran has not been afforded a VA examination regarding his bilateral knee disorder; and finds that an examination for right and left knee disorders is not necessary to decide these claims. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran has not submitted any evidence regarding an in-service injury, illness, or disease that could have a relationship between his bilateral knee disorder and his military service. In addition, the Veteran's service treatment records do not demonstrate an in-service injury, illness, or event that shows a relationship between disorder of the knees and his military service. While the Veteran believes that his bilateral knee disorder is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). Consequently, there is no competent and credible evidence to support the Veteran's claims. As the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for right and left knee disorders, the appeal must be denied. 4. Entitlement to service connection for a left leg scar The Veteran has an S-shaped nontender 14-cm [centimeters] surgical scar on the posterior aspect of the left knee. (See October 2010 private orthopedic surgery examination report). He essentially contends he has a left leg scar related to his active duty service. Specifically, he asserts that while in service he had shrapnel stuck in his left leg after a generator he was working on exploded and he was tossed backwards. He was attended to by a medic who pulled the metal from his leg and patched it. (See February 2019 Hearing Transcript). His service treatment records are negative for any complaints, treatment, or diagnosis of left leg injury or disease resulting in residual scar. On clinical evaluation at his May 1983 service separation medical examination, there was no reported scar of the left leg. Notwithstanding the Veteran’s assertion of an in-service occurrence of his left leg scar, the evidence shows that he sustained injury to and had surgery on his left leg approximately 5 years after service. Specifically, in March 1988 the Veteran was attacked by a dog, and was bitten and dragged from the back of his right knee. He underwent closure of the dog bite wound in his right knee on the date of the injury and reclosure of the wound two months later in May 1988. He underwent arthroscopic medial meniscectomy of his left knee in January 1989 and July 2003. Examination of the knees revealed an S-shaped nontender 14 cm surgical scar on the posterior aspect of the left knee in the popliteal fossa. Consequently, service connection for a left leg scar on the basis that such disorder became manifest in service and persisted, is not warranted. The medical evidence of record does not link the claimed left leg scar to the Veteran’s military service. In an October 2010 private narrative report (second opinion orthopedic surgery examination and evaluation), the Veteran’s past history of a dog bit injury to the left posterior thigh with scarring and intermittent pain was noted. A November 2010 VA nursing intake note reveals that the Veteran was present at the clinic to establish a relationship with a primary care physician for pain in his legs. A November 2016 VA physical medicine and rehabilitation clinic note shows the Veteran was seen for injections of his knees. A bilateral knee examination revealed no scars. The Board notes that the Veteran has not been afforded a VA examination specifically regarding his left leg scar; and finds that an examination for left leg scar is not necessary to decide this claim. See McClendon, supra. In this case, at the February 2019 hearing the Veteran testified that he had shrapnel stuck in his left leg after a generator he was working on exploded, and he was tossed backwards. He was attended to by a medic who pulled the metal from his leg and patched it. While the Board does not question the Veteran's honesty, his recollection of how he sustained a left leg scar lacks credibility because it is inconsistent with the medical documentation of record. He testified at the hearing and reported to medical professionals that shrapnel became stuck in his left leg and had to be pulled out and patched. His service treatment records are devoid of any such left leg injury, but post-service medical reports document a work-related dog attack that resulted in left leg surgery with residual surgical scar on the posterior aspect of the left knee. Thus, the Veteran has not submitted credible evidence of a relationship between his left leg scar and military service to warrant a VA examination. Furthermore, the Veteran’s statements regarding his left leg scar lack probative value relative to his service treatment records and private post-service treatment records. Consequently, there is no competent and credible evidence to support the Veteran’s claim. As the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a left leg scar, the appeal must be denied. 5. Entitlement to service connection for type 2 diabetes mellitus The Veteran has a current diagnosis of type 2 diabetes mellitus, uncontrolled. (See August 2019 VA Endocrinology Note). He has claimed service connection for diabetes. At the February 2019 hearing the Veteran testified that he was told that he “was turning into a diabetic” before he separated from service. Then he was diagnosed with diabetes. Service treatment records do not show any complaints of diabetes symptoms, treatment, or a diagnosis of diabetes. Medical evidence does not note an actual diagnosis of diabetes until approximately 2010. A November 2010 VA nursing intake note reveals that the Veteran was present at the clinic to establish and get a primary care physician for diabetes. Following examination, an impression of diabetes mellitus was rendered. A December 2010 VA internal medicine note shows an assessment of diabetes mellitus. In August 2019, the Veteran was seen at a VA medical center for a diabetic retinopathy surveillance consult. In relating his history, he reported having diabetes for 6 or more years. In August 2019, the Veteran was seen at a VA primary care clinic for a routine follow-up appointment. Following examination, he received an assessment of type 2 diabetes, uncontrolled. Consequently, service connection for type 2 diabetes mellitus on the basis that such disability became manifest in service and persisted, or on a presumptive basis as a chronic disease under 38 U.S.C. § 1112, is not warranted. While VA medical treatment records provide diagnoses of diabetes, those records do not demonstrate a nexus between the Veteran’s diabetes and active service. Pursuant to the July 2019 Board remand, the RO scheduled an examination to evaluation the Veteran’s type 2 diabetes mellitus. Unfortunately, the Veteran failed to report to the examination, without a showing of good cause. In such cases, 38 C.F.R. § 3.655 provides that the claim for service connection should be rated based on the evidence of record. In this case, the medical evidence of record simply does not link the claimed type 2 diabetes mellitus to the Veteran’s active military service. Without the medical nexus there is no basis on the evidence of record to grant the claim. Moreover, the Veteran is not shown to have the medical training necessary to link his current diabetes to his military service. Jandreau, 492. F.3d at 1377 n.4. The Board finds that determining the etiology of diabetes is not within the realm of knowledge of a non-expert and concludes that the Veteran’s opinion in this regard is not competent evidence and therefore not probative of whether his diabetes is attributable to active service. As the preponderance of the evidence indicates that the Veteran's diabetes is not related to active service, the benefit-of-the-doubt rule does not apply; and accordingly, the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 6. Entitlement to service connection for headaches The Veteran contends he currently has headaches related to his active duty service. Headaches are noted twice in the Veteran’s service treatment records. On one occasion in February 1981 the Veteran was seen with complaints of having a cold and at that time he indicated he had headache. The second time was in October 1982; he was seen at an in-service clinic with complaints of dizziness, sinus cold and muscle aches, “headache” was noted in the report. His diagnosis was upper respiratory infection. On his May 1983 separation medical history report, he indicated “Don’t Know” when asked if he has or ever had frequent or severe headache. His May 1983 separation medical examination report shows no abnormalities of the head or neurologic system on clinical evaluation. The first post-service treatment the Veteran received for headaches was in 2003, 20 years after his separation from service. Specifically, in October 2003 the Veteran was seen in a private emergency department where post-emergency service instructions directed the Veteran to take Tylenol for headache and apply ice to his scalp wound. Consequently, service connection for headaches on the basis that such disability became manifest in service and persisted is not warranted. In September and October 2010 and January 2011 statements, the Veteran related that while in the service his military occupational specialty was as 63 Bravo wheel vehicles mechanic. He serviced jeeps and trucks and worked on generators for electricity power for field training. He stated that at the end of the day his head would hurt from the massive sounds coming from machinery and equipment. He was told to take aspirin for the headache. He expressed that his headaches are still constant. A May 2011 VA telephone encounter note reveals that the Veteran called with complaints of his back being “out”. During the telephone encounter the Veteran stated he was not going to take the sleeping pills anymore because he wakes up with a “major” headache. In January 2013 the Veteran was admitted to a VA medical center for neurological services to rule out stroke. He complained of headache and was given Tylenol. A May 2013 VA internal medicine notes the Veteran has headaches related to sleep apnea and sleeps all day. An August 2014 VA endocrine clinic note shows the Veteran denied having headaches. In a December 2015 VA addendum to a telephone encounter, the Veteran reported that his private doctor told him that his headaches were caused by his neck complaints from a car accident. A March 2017 VA internal medicine note shows the Veteran with a history of occasional headaches. In February 2019, the Veteran was seen as a new appointment at a VA endocrinology clinic for a follow-up appointment for testosterone levels. It is noted in the record that the Veteran denies having any headache. In a February 2020 VA endocrinology clinic note, the Veteran denied having headache. Here, the Board observes that the complaints of headache in these instances appear to be symptoms of underlying problems, as opposed to migraine headaches or a chronic headache disorder. While VA medical treatment records show complaints and treatment for headaches, those records do not demonstrate a nexus between a chronic headache disorder and active service. Pursuant to the July 2019 Board remand, the RO scheduled an examination to evaluation the Veteran’s headaches. Unfortunately, the Veteran failed to report to the examination, without a showing of good cause. In such cases, 38 C.F.R. § 3.655 provides that the claim for service connection should be rated based on the evidence of record. In this case, the medical evidence of record simply does not link the claimed headaches to the Veteran’s active military service. As to lay evidence, the Board does not consider such evidence sufficiently probative to support the claim on its own. While the Veteran has claimed that the disorder is etiologically related to service, any notion of continuous headaches cannot be reconciled with the noted May 1983 separation history and medical examination reports that do not reflect then-current headaches. The evidence, on balance, thus does not support continuous headaches since service. As to a disability otherwise related to service, the Veteran is a layperson, and has not shown that he has specialized training sufficient to render an opinion linking a post-service disability to service. See Jandreau, 492 F.3d at 1376-77. Accordingly, the preponderance of the evidence is against the claim, and service connection for headaches is denied; the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Young, 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.