Citation Nr: 21064706 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 11-33 650 DATE: October 21, 2021 ORDER Entitlement to service connection for a left leg disability, to include degenerative arthritis is denied. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), major depressive disorder, anxiety, mixed bi-polar disorder, and unspecified depressive disorder is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding a left leg disability began during active service, or is otherwise related to an in-service event, injury, or disease, to include as due to service-connected low back condition. 2. The preponderance of the evidence is against finding that unspecified depressive disorder began during active service, or is otherwise related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a left leg disability, as secondary to service-connected low back condition, are not met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. 2. The criteria for service connection for unspecified depressive disorder are not met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from January 1982 to February 1987. In April 2020, the Board remanded the issues on appeal for further development, and the case has since been returned to the Board. The Board finds that the agency of original jurisdiction (AOJ) has substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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). Entitlement to service connection for a left leg disability, to include degenerative arthritis The Veteran contends that his left leg disability is the result of his active service and in the alternative, due to his service-connected low back strain. Veteran was first afforded a VA examination in November 2010. During the examination, he asserted he had arthritis in his left leg, caused by a fall he suffered in service, which resulted in back and left thigh injuries. Although the VA examiner found evidence of tenderness in the left knee upon examination, the VA examiner concluded the left femur was normal. Despite recognizing the claim was generally for arthritis of the left leg, no imaging study was obtained. The VA examiner went on to opine that it was less likely than not his current left femur complaints were caused by or otherwise related to his one-time diagnosis of musculoskeletal pain of the left thigh in service because there was insufficient evidence to support an association. However, the VA examiner did not specify a current diagnosis. Subsequently, the Veteran was examined by the VA in May 2011. At this time, he stated that his knee had been hurting since service. Upon reviewing an imaging study, the VA examiner diagnosed him with mild degenerative arthritis of the knees bilaterally. However, the VA examiner did not proffer a nexus opinion. Following this VA examination, in an October 2016 Application for Disability Compensation and Related Compensation Benefits, the Veteran argued in the alternative that his claimed left knee disability was secondary to his service-connected low back strain. Thereafter, the Veteran underwent a VA examination in November 2016. At that time, the VA examiner acknowledged that he was diagnosed with a left knee strain in 2008. Notwithstanding an abnormal physical examination, the VA examiner noted that a contemporaneous imaging study indicated no abnormalities of the left knee. As a result, the VA examiner proceeded to opine that it was less likely than not his left knee condition was caused by his service-connected low back strain. In doing so, the VA examiner neglected to address the May 2011 VA examiner's conflicting finding of mild degenerative arthritis of the knee bilaterally. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Further, the VA examiner failed to address the issue of aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). In view of the above, the Board found that neither the November 2010, May 2011, nor November 2016 VA examinations were adequate, and a remand was necessary to obtain another VA examination. Subsequently, in a March 2018 opinion ordered by the January 2018 Board remand, the VA examiner noted the Veteran's in-service motor vehicle accident but stated that the "Veteran had no report of a left leg condition...at the time of separation in 1987. Due to this objective medical evidence, [the] Veteran's left knee conditions...are less likely than not incurred in or caused by the claimed in-service injury or event." The Board found such finding inadequate, as the examiner's opinion was primarily based on the lack of documentation of treatment. See Dalton v. Nicholson, 21Vet. App.23 (2007) (lack of documented findings is not an adequate basis for a negative opinion). Additionally, with respect to whether the Veteran's claimed left knee disorder was caused or aggravated by his service-connected low back strain, the examiner found no relationship, stating in part that the Veteran's left knee arthritis was caused by trauma, and therefore was not related to his low back strain. However, the examiner did not provide a rationale for her conclusion that the Veteran's left knee arthritis was caused by trauma. Accordingly, the Board found that a more thorough explanation is required. In response, a December 2019 VA addendum opinion was received. The examiner opined that the Veteran does not have left knee arthritis based on the results of a November 2016 set of left knee x-rays. However, the examiner failed to discuss x-rays from May 2011 and May 2019, both of which diagnosed mild degenerative joint disease (arthritis) of the left knee. An April 2020 Board remand found this opinion to be inadequate because of its reliance on inaccurate factual premise and an addendum opinion was ordered. In November 2020, as required by the April 2020 Board remand, an addendum opinion was provided. The examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was: All medical records, previous C&P examinations, lay statements were reviewed. Inclusive dates of military service are 01/12/1983 to 02/06/1987. There are no left leg issues onthe 09/08/1982 initial entry physical examination. Likewise, with the exception of a medical note dated 05/06/1986 with the complaint of thigh pain of unspecified laterality: "leg pain in thigh area, front and back, sudden onset last night, no trauma, no previous history", the STR is mute for left leg complaints. Even if the leg in question in that note were the left leg, the medical records just do not support that left knee osteoarthritis incurred in service. The nexus is missing. Hence, the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Further, the examiner opined that the Veteran's condition was less likely than not proximately due to or aggravated by the Veteran's service-connected low back strain. The rationale provided was: The left knee osteoarthritis does not seem to be the result of the service connect low back strain. The veteran attributes the left leg condition to falling down the ladderway on a ship while in the Navy. All medical records, previous C&P examinations, lay statements were reviewed. Dr. David Scott, orthopedist, documented the 09/14/2016 claimant encounter as the veteran "has had pain for three years. Has swelling in knee off and on. Has level 9 pain also complains of back pain and legs buckling has been on Norco10 and has been taken off. Attributes pain to a fall on ship when in navy". Dr Scott's imaging assessment was "normal knee for age". The diagnosis was "mild DJD". Several months prior to that, the veteran presented to the emergency room on 05/19/2016. Dr. [J.M.] wrote:" Claimant complains of pain in the Left knee and hip for past 3 weeks. HPI- this is an atraumatic injury that started3 weeks ago after visiting a ballgame. Denies direct injury, denies neuro symptoms, no weakness, tingling- it just feels like it pops and feels like it is swollen Examination: Examination of the area in question reveals NO evidence of swelling, redness, heat, or any sign of infection. There is no deformity. There is no instability. " This is inconsistent with the left leg condition being proximately due to or the result of the low back strain. Additionally, the medical records do not support undue mechanical stress on the left knee sufficient enough to cause the unilateral claimed disability. He reported the constant use of either a cane or walker. There is documentation at other C&P examinations that the veteran has also used a wheelchair regularly. It is difficult to scientifically link the left knee osteoarthritis to the service connected low back strain. Thus, the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected condition. The medical records do not support undue mechanical stress on the left knee sufficient enough to aggravate the left knee osteoarthritis, unilaterally. He reported the constant use of either a can or walker. There is documentation at other C&P examinations that the veteran has also used a wheelchair regularly. It is difficult to scientifically link possible aggravation of the left knee osteoarthritis to the service connected low back strain. The remaining evidence indicates continued complaints and treatment of a left leg condition but no discussion on its etiology. Based on the foregoing evidence of record, the Board finds that service connection is not warranted. The Board finds the November 2020 VA addendum opinion of record the most probative evidence of record as to the etiology of the Veteran's left leg condition because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Further, the Board notes that the evidence of record is silent for a medical opinion stating otherwise. The Board considered the Veteran's lay assertions as to the etiology of his claimed disability. Although the Veteran is competent to attest to his experiences, he is not competent in these circumstances to opine as to the etiology of his left leg condition. The Veteran has not been shown to have specialized medical knowledge that would be necessary to provide a competent opinion regarding service connection. The Board finds the November 2020 VA addendum opinion of record to be more probative in this regard. The examiner considered the Veteran's history, and ultimately concluded that from a medical perspective, it is less likely that his claimed disability is related to service nor was it proximately due to or aggravated by his service-connected low back condition. In conclusion, the weight of the evidence is against the claim for service connection for left leg condition. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, major depressive disorder, anxiety, and mixed bi-polar disorder The Veteran contends that he has an acquired psychiatric disorder, which stems from his service. In particular, the Veteran avows that his PTSD is related to his service aboard the USS Virginia during the bombing in Beirut, Lebanon. In the alternative, he asserts his PTSD could have been caused by a motor vehicle accident in service, during which he "busted his head and chin open". The Veteran's service department records confirm he served aboard the USS Virginia. Specifically, it shows his unit was awarded the Navy Unit Commendation for exceptionally meritorious service in support of the U.S. peace initiatives in Lebanon from May to November 1983. It recognized his unit performed difficult missions during a period of life-threatening conditions, and displayed dedication in the face of hostile fire. It also acknowledged that his unit continued to fulfill their assigned mission as well as carry out rescue and evacuation efforts after suffering unprecedented personnel losses (approximately 330 killed or wounded) during the terrorist bombing of the 24th Marine Amphibious Unit Headquarters Building on October 23, 1983. However, in a December 2010 VA Memorandum, the RO made a formal finding that the Veteran's claimed PTSD stressor could not be verified. Specifically, the RO concluded there was no evidence of "fear of hostile military or terrorist activity" consistent with the circumstances of his service. Moreover, the RO determined there was insufficient information to conduct a meaningful search of appropriate records. Subsequently, in a March 2018 opinion ordered by the January 2018 Board remand, the VA examiner diagnosed the Veteran with depression, and, noting his recent drug use, stated, "as such, the examiner cannot assert [that he] necessarily suffers from PTSD or other psychiatric disorders that are as likely as not (at least 50/50 probability) caused by or a result of military service at least 30 years ago." The Board found this opinion inadequate, as it failed to address why the Veteran's depression is not related to his verified in-service stressor/event. Additionally, the examiner failed to reconcile his diagnosis of depression with the prior diagnoses of record, as directed in the remand. In response, a December 2019 VA addendum opinion was received. This opinion stated that without a new in-person examination no new or updated diagnosis could be provided. In August 2021, as required by the April 2020 Board remand, the Veteran attended a VA Initial PTSD examination. The examiner diagnosed unspecified depressive disorder and noted the Veteran did not have a diagnosis of PTSD that conformed to DSM-5 criteria. He opined that the Veteran's condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was: The veteran currently does not meet the criteria for PTSD. The veteran was not able to report any life-threatening stressor while he was in the military. He did not report any symptoms related to PTSD during the interview. The veteran does meet the criteria for unspecified depressive disorder. His depression started in 2007. He left the military in 1987. There is a significant time gap between the onset of symptoms after he left the military. Hence, his current depressive symptoms are not related to his military service. Unspecified depressive disorder. This is not related to his military service. The veteran has multiple stressors related to his current psychosocial circumstances which include divorce, taking care of 2 young children at home, a history of cocaine use, and history of legal troubles and financial issues. The remaining evidence indicates continued complaints and treatment of unspecified depressive disorder but no discussion on its etiology. Based on the foregoing evidence of record, the Board finds that service connection is not warranted. The Board finds the August 2021 VA addendum opinion of record the most probative evidence of record as to the etiology of the Veteran's unspecified depressive disorder because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Further, the Board notes that the evidence of record is silent for a medical opinion stating otherwise. The Board considered the Veteran's lay assertions as to the etiology of his claimed disability. Although the Veteran is competent to attest to his experiences, he is not competent in these circumstances to opine as to the etiology of his unspecified depressive disorder. The Veteran has not been shown to have specialized medical knowledge that would be necessary to provide a competent opinion regarding service connection. The Board finds the August 2021 VA opinion of record to be more probative in this regard. The examiner considered the Veteran's history, and ultimately concluded that from a medical perspective, it is less likely that his claimed disability is related to service. In conclusion, the weight of the evidence is against the claim for service connection for unspecified depressive disorder. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. A. Elliott II, 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.