Citation Nr: 21072098 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-17 195A DATE: December 2, 2021 ORDER 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. 2. Entitlement to service connection for a right knee disability is denied. 3. Entitlement to service connection for a left knee disability is denied. REMANDED 4. Entitlement to service connection for other specified trauma and stressor related disorder is remanded. 5. Entitlement to service connection for hypertension is remanded. 6. Entitlement to service connection for diabetes mellitus is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against a finding that the Veteran has, or at any time during the appeal has had, a diagnosis of PTSD in accordance with DSM-V. 2. A right knee disability was noted on induction and is not shown to have increased in severity during (or as a result of) the Veteran's active duty service. 3. A left knee disability was not manifested during the Veteran's service; left knee arthritis was not manifested to a compensable degree within a year following his discharge from service; and a current left knee disability is not shown to be etiologically related to his service. CONCLUSIONS OF LAW 1. Service connection for PTSD is not warranted. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Service connection for a right knee disability is not warranted. 38 U.S.C. §§ 1110, 1112, 1153, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309. 3. Service connection for a left knee disability is not warranted. 38 U.S.C. §§ 1110, 1112, 1153, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from November 1969 to November 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal of a May 2013 Department of Veterans Affairs (VA) rating decision. In June 2019, the case was remanded for additional development. 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, 5107; 38 C.F.R. § 3.303. To substantiate a claim of service connection requires evidence of: (1) a current (claimed) disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In the absence of proof of a present disability, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for PTSD is denied. The Veteran asserts that he has a psychiatric disability that is etiologically related to his active service. To substantiate a claim of service connection for the specific psychiatric diagnosis of PTSD, there must be: (1) A current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (a) (i.e., in accordance with DSM-V); (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed stressor in-service occurred. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997). The threshold questions for the Board to address in this matter is whether the Veteran has a diagnosis of PTSD in accordance with DSM-V. He does not have a current diagnosis of PTSD in accordance with DSM-V, and has not had such diagnosis at any time during the pendency of this claim. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky, 26 Vet. App. at 294 (2013); McClain, 21 Vet. App. at 321; 38 C.F.R. § 3.303(a), (d). A December 2012 VA psychiatry consult record notes that the Veteran had an acquired psychiatric disorder and that the most appropriate diagnosis appeared to be anxiety disorder not otherwise specified (NOS) because he did not meet all of the PTSD diagnosis criteria. Subsequent VA treatment records note an impression of PTSD with anxiety and nightmares. See e.g. March 2016 VA primary care treatment record. The Veteran's private physician submitted a letter in support of the Veteran's claim indicating that he has PTSD related to an incident in service when he was thrown off a tank. See March 2019 letter from Dr. C. J. However, Dr. C. J. did not address DSM-V criteria, as is required to substantiate a claim of service connection for PTSD under 38 U.S.C. § 4.125(a). On November 2019 VA examination to determine the nature of the Veteran's acquired psychiatric disorder and its relationship, if any, to service, pursuant to the June 2019 Board remand, the provider found that the Veteran did not have PTSD (explaining that his self-reported symptomology was best explained by other specified trauma and stressor related disorder); his symptoms did not meet the diagnostic criteria for PTSD under DSM-V. The Board finds that the November 2019 VA examination opinion is the most probative evidence of record as it was definitive, based upon a complete review of the Veteran's entire claims file and on thorough examination and interview of the Veteran, and considered his self-reported symptoms and medical history. The examiner included a complete and thorough rationale for the opinion given. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although, a private examiner in March 2019 found that the Veteran has a diagnosis of PTSD, that diagnosis was in accordance with 38 U.S.C. § 4.125(a), and is inadequate for rating purposes. Therefore, the private opinion in March 2019 lacks probative weight. While the Veteran contends that he has PTSD, he is not competent to provide diagnose PTSD. The diagnosis of PTSD is a medical question and requires specialized medical training/knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 Fed. Cir. 2007. Thus, his opinion likewise lacks probative value. As competent and probative evidence in the record does not show a diagnosis of PTSD in accordance with DSM-V, service connection for PTSD is not warranted. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (the existence of a current disability is the cornerstone of a claim for VA disability compensation). As noted above, entitlement for service-connected disease or injury is specifically limited to cases where such incidents have resulted in a disability, and in absence of proof of a present disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. The preponderance of the evidence is against this specific claim. Therefore, the appeal in this matter must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. 3. Entitlement to service connection for right and left knee disabilities is denied. The determination whether service connection is warranted (the requirements for substantiating such claim are met) is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Certain chronic diseases (to include arthritis) may be presumed to be service connected if manifested to a compensable degree within a specified period following separation from service (one year for arthritis). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. For chronic diseases listed in 38 C.F.R. § 3.309 (a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d); See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). When a claimed disability is not noted upon entry into service, the Veteran is presumed to have been in sound condition with respect to such disability on entry in service. Such presumption is rebuttable only by clear and unmistakable evidence that (1) the condition preexisted service and (2) if rebutted, that it was not aggravated by such service (did not increase in severity during service, or that any increase in severity during service was due to natural progression). 38 U.S.C. §§ 1111, 1153; 38 C.F.R. § 3.306. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). On September 1969 service entrance examination, a right knee disability was noted. The diagnosis was mild residuals from old knee injury. See September 12, 1969 Ortho Clinical Record Consultation Sheet. The Veteran's service treatment records are otherwise silent as to complaints of, or treatment for, a knee disability. A December 2013VA treatment record notes the Veteran's report that since he was thrown from a tank in service, he has felt pain in his knee and legs. He has reported continuity of knee symptoms since he fell from a tank in service. An April 2019 VA treatment record notes an Emergency Department visit for a complaint of left knee pain. In May 2019, the Veteran was seen for follow-up. On VA examination in November 2019 pursuant to the June 2019 Board remand, osteoarthritis of both knees was diagnosed. The Veteran reported his right knee was a bit worse than the left knee and described the pain as aching without radiation; he indicated he had never had physical therapy for his knees. He described the manifestations of and functional impairment due to his knee disabilities. Following interview and examination of the Veteran and review of his claims file, the examiner opined the claimed knee disabilities are less likely than not incurred in or caused by a claimed injury, event or illness in service. The provider explained, The Veteran's electronic claims folder in the Veterans Benefits Management System (VBMS) and Virtual VA were reviewed. On review of the medical records, he] clearly had an injury to his right knee in high school prior to enlistment as documented in the enlistment exam in 196[9]. His evaluation by orthopedics at the time found a normal exam and the diagnosis was "mild residual from knee injury." The service treatment record is otherwise silent for knee concerns. The [V]eteran describes [an] incident of falling from a tank which he alleges caused back, neck and knee injuries. He states he went to be evaluated after this fall and was discharged back to duty. He states he had ongoing knee pain after that which worsened during deployments. He states he never went back to be evaluated for knee pain as he did not think anything would be done about his knees situation. No documentation of his infirmary visit for his fall is noted in the record. The separation exam does not document any issues. The Veteran related he his knee pain improved after separation but that in the reserves, he would periodically get knee pain and swelling after long walks, but did not seek evaluation or treatment, and indicated that his knee pain gradually worsened over the years. No medical documentation of his reported ongoing knee pain is found in the record; however, medical records for the period between his separation exam in 1971 and his first primary care note at VA in 2011 were not identified, except for one primary care note from a private physician dated 2008, which shows a diagnosis of diffuse degenerative arthritis but does not specify the joints involved, or severity of disability. The initial primary care note at the Richmond VA [Medical Center] on August 1, 2011 does note any knee issues. Later primary care notes dated in [October 2012], [June 2013], [March 2014], [January 2015], [June 2015], [October 2015], [May 2016], [July 2016], [September 2016], [January 2017], [June 2017], [August 2017], [February 2018], and [September 2018] do not mention any knee concerns. In fact, notes from [June 2015] and [October 2015] document his part- time work at a warehouse which involved heavy lifting, moving, pushing, and pulling, but do not mention knee issues. There are no physical therapy consults for knee pain prior to 2019. The first mention of knee pain in the medical record is from an ER visit of [May 2019]. Therefore[,] this is a lack of evidence on which to establish ongoing chronicity of knee issues beginning from his active duty service. As such, the claimed condition of bilateral knee disorder was less likely than not incurred in or caused by [a fall from a tank in servicer], or from [activities] in service. The examiner continued, The Veteran has a diagnosis of bilateral osteoarthritis of the knees which causes chronic pain and limitations in terms of walking, standing, sitting, walking up steps, bending down, squatting or kneeling. Osteoarthritis of the knee has a prevalence of 12.5 [percent] in the population older than age 45 and the lifetime risk has been estimated around 44 [percent] (Chappell et. al.). The strongest risk factor for osteoarthritis is age. Given the Veteran's age of 70 and lacking documentation of onset of, or continuity, of knee pain and disability over the years, and given a normal service separation exam without mention of knee pain, his current right knee disability and diagnosis of arthritis cannot be considered a manifestation of the pre-existing right knee disability which was noted upon entry into the service in 1969. As discussed above, a December 2013 VA treatment record notes the Veteran's report that since he was thrown from a tank in service, he has felt pain in his knee and legs, and that he has reported continuity of knee symptoms ever since he fell from a tank in service. He has since been diagnosed with osteoarthritis of the bilateral knees. The Board finds the Veteran competent to report his fall during training in service, and the pain he experienced at the time. The Board finds no reason to doubt the history provided by the Veteran. What remains necessary to substantiate this claim is that his current knee disability is etiologically related to his service (and a fall from a tank therein, as. The Veteran's September 1969 service entrance examination found mild residuals from old [right] knee injury. Consequently, a right knee disability was noted on enlistment, and he is not entitled to a presumption of soundness on entry in service with respect to a right knee disability. See 38 U.S.C. § 1111. However, there was no defect with respect to the left knee. Consequently, he is entitled to a presumption of soundness on service entry with respect to a left knee disability (but not with respect to the right knee). For his current right knee disability, the analysis turns to whether the pre-existing right knee disability was aggravated by service. Aggravation is established by showing an increase in disability during service. Aggravation may not be [found] where there was no increase in severity of a disability during service. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Consequently, the critical question in this matter is whether the pre-existing right knee disability is shown to have increased in severity beyond natural progression during, or as a result of, service. Whether pre-existing disability increased in severity beyond natural progression of the disease during service is a medical question. It requires medical expertise, applying medical principles to the available information. See Jandreau, 492 F.3d at 1377. Initially, it is noteworthy that while the service enlistment examination notes a right knee disability, the Veteran's right knee was deemed normal on clinical evaluation at eh time. The November 2019 VA examiner noted, "Given the Veteran's age of 70, and [without documentation of onset or progression of his knee pain and disability over the years since service, and given a normal service separation exam without mention of knee pain, his current right knee disability and diagnosis of arthritis cannot be considered a manifestation of the pre-existing right knee disability which was noted upon entry into the service in 1969." The provider is a medical professional competent to offer the opinion, and the opinion reflects familiarity with the Veteran's entire record and includes rationale with citation to supporting factual data and scientific studies. It is probative evidence, and the Board finds it persuasive. Because there is no competent (medical opinion) evidence to the contrary, it is persuasive. Aggravation of the Veteran's right knee disability during or by service is not shown. The preponderance of the evidence is against the claim os service connection for a right knee disability. Accordingly, the appeal in the matter must be denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 55. It is not in dispute that the Veteran has a left knee disability, and what remains necessary to substantiate the claim of service connection for such disability is competent evidence that it is etiologically related to his service. See Shedden, 381 F.3d at 1167. A left knee disability was not manifested in service, and a left knee injury in service is not shown. The Veteran's STRs, including his May 1971 service separation examination report, are silent for findings or diagnosis of a left knee disability. Furthermore, left knee arthritis is not shown to been manifested within a year following the Veteran's separation from service, and postservice continuity of left knee arthritis is not shown. While the Veteran may be competent to report knee pain, he is not competent to establish by his own accounts of remote perceptions of knee pain that he has had continuity of left knee arthritis since service. As was noted by the November 2019 VA examiner, "no medical documentation of his reported ongoing knee pain is found however medical records between his separation exam in 1971 and his first primary care note at the VA in 2011 were not identified, except for one primary care note from a private physician dated 2008, which documents diffuse degenerative arthritis but does not specify joints, or severity. The initial primary care note of [August 1, 2011] at the Richmond VA [Medical Center] does not document any knee issues. Subsequent primary care notes dated [October 2012], [June 2013], [March 2014], [January 2015], [June 2015], [October 2015], [May 2016], [July 2016], [September 2016], [January 2017], [June 2017], [August 2017], [February 2018], and [September 2018] do not mention any knee concerns. In fact[,] notes from [June 2015] and [October 2015] document his part time work at a warehouse which involved heavy lifting, moving, pushing, pulling and still do not mention knee issues. There are not physical therapy consults for knee pain prior to 2019. The first mention of knee pain in the medical record is from an ER visit of [May 2019]." The Board notes that VA treatment records show the ER visit was in April 2019 and the Veteran was indeed seen for follow-up in May 2019. This first-documented complaint of and treatment for knee pain is approximately 48 years after separation from service. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran's entire medical history, including a lengthy postservice period of absence of complaints). Based on the aforementioned evidence, service connection for a left knee disability on the basis that it became manifest in service and persisted, or on a presumptive basis (for arthritis of the left knee) as a chronic disease under 38 U.S.C. § 1112, or based on continuity under 38 C.F.R. § 3.303 (b)), is not warranted. Whether, without evidence of onset in service and continuity thereafter, a current left knee disability may be related to a remote in-service injury is a medical question, beyond the realm of common knowledge, and incapable of resolution by lay observation. It requires require medical expertise. See Jandreau, 492 F.3d at 1377. The preponderance of the competent (medical) evidence is against a finding that the Veteran's current left knee disability is etiologically related to his active service. The Board finds the opinion by the November 2019 VA examiner to be both probative and persuasive. The examiner expressed familiarity with the Veteran's record/medical history, and included rationale that cites to accurate factual data, including the Veteran's reports of a fall from a tank turret in service. The provider, who is a medical professional is competent to offer the opinions, acknowledged the Veteran's reports of knee pain in service, and explained that [the Veteran's diagnosed] bilateral osteoarthritis of the knees has a prevalence of 12.5 percent in the population older than age 45 and an estimated lifetime risk as around 44 percent, noting the strongest risk factor for osteoarthritis is age. The opinion reflects a familiarity with the Veteran's entire record and includes rationale that cites to supporting factual data, and identifies a likely alternate [nonservice-related] etiology. The opinion is probative evidence in the matter, and without competent (medical) evidence to the contrary, is persuasive. The preponderance of the evidence is against a finding that the Veteran's current left knee disability is etiologically related to his service. Accordingly, the appeal in this matter must be denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND 4. Entitlement to service connection for other specified trauma and stressor related disorder. The Veteran has asserted that he has a psychiatric disability related to an incident in service during which he was thrown off a tank. See March 2019 letter from Dr. C. J. He has also reported that while he was serving in Germany as Armor Crewman, an engine fell on a fellow soldier resulting in his death, which he witnessed and an additional incident when while he was serving as an Armor Crewman, there was a training accident in which a tank ran over a soldier crushing him to death, which he also witnessed. The Board notes that in the August 2020 supplemental statement of the case (SSOC), the AOJ determined that service connection was not warranted because the Veteran's claimed stressor was uncorroborated and unrelated to hostile military or terrorist activity. The Board observes that while the governing regulations require corroboration of a stressor in service to establish service connection for PTSD, they do not similarly require corroboration of a stressor to establish service connection for other psychiatric diagnoses. However, it is necessary to find the that the claimed stressor is credible and consistent with the nature and circumstances of his service (as otherwise an opinion relating a psychiatric disability to the stressor would be based on an inaccurate factual premise, and therefore lacking in probative value). See 38 U.S.C. § 1154. The AOJ has found that the Veteran's accounts of witnessing deaths of fellow servicemen due to traumatic injuries sustained in service not credible. [The Board observes that while witnessing other servicemen in armor sustain injuries in training incidents is not inconsistent with the circumstances of the Veteran's service, deaths of servicemen on active duty are eminently verifiable events, and inability to verify two such events casts some doubt on the credibility of the Veteran's accounts of what he may have witnessed. On November 2019 VA examination of the Veteran other specified trauma and stressor related disorder was diagnosed; thus, it is not in dispute that the Veteran has a VA diagnosis of an acquired psychiatric disability other than PTSD. However, the VA examiner further opined that the condition was at least as likely as not related to the Veteran's military service, based on his report of having witnessed the death of two soldiers. The examiner did not explain the basis for finding the Veteran's reports credible despite the AOJ finding that such deaths could not be confirmed. Significantly, the AOJ specifically determined that the information required to verify the reported deaths is insufficient. See May 2013 and September 2016 VA Memorandums. The May 2013 VA Memorandum noted that the Veteran provided "vague non-verifiable information" and "failed to provide a 30-day date range, specific names [to include the name of one of the reported deceased he identified as a friend], and locations for his claimed stressors." An earlier (September 2016 VA Memorandum) likewise determined a lack of information required to corroborate his reported stressors. Regardless, the November 2019 VA examiner did not provide an opinion addressing whether the Veteran's other specified trauma and stressor related disorder may be related to another stressor account (reported several times) of lesser gravity, i.e., being thrown from a tank (or tank turret), albeit with no significant injury sustained; such incident may be reasonably conceded as consistent with circumstances of service. Accordingly, remand development for an addendum opinion in this matter is necessary. 5. 6. Entitlement to service connection for hypertension and for diabetes mellitus. The Veteran asserts that he has hypertension and diabetes secondary to an acquired psychiatric disorder due to the lifestyle he adopted as a result of the acquired psychiatric disorder. See August 2016 statement. As he has claimed service connection for hypertension and diabetes mellitus as secondary to a claimed psychiatric disability (which remains unresolved), these issues are inextricably intertwined the claim of service connection for a psychiatric disability other than PTSD , and adjudication of the claims must be deferred pending resolution of the claim seeking service connection for a psychiatric disability. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following: 1. Arrange for the Veteran's claims file to be returned to the November 2019 VA psychiatric examiner (if that provider is unavailable or unable to provide an opinion sought forwarded to another appropriate psychologist or psychiatrist) for review and an addendum medical advisory opinion. [If further examination of the Veteran is deemed necessary for an opinion sought, such should be arranged.] (a) Regarding the Veteran's VA diagnosis of unspecified stressor related disorder, identify the factual data in the record supporting the apparent conclusion that the Veteran's reports of witnessing two deaths of fellow servicemen in service (why his report of witnessing such events was deemed credible, despite the AOJ determination that it was not-as such deaths could not be confirmed). (b) If a basis in the factual record for finding the Veteran's reports of personally witnessing two deaths of fellow servicemen credible cannot be identified, opine further whether it is at least as likely as not (a 50 percent or better probability) that the diagnosis may be related to the other "traumatic event" that he has reported (that may be conceded), i.e., that he was thrown off (fell) from a tank or tank turret (apparently without any injury that required treatment)? All opinions must include a complete explanation of rationale, with citation to supporting factual data and medical principles (and if medical principles are invoked, citation to medical text would be helpful). 2. Upon readjudication of the claim of service connection for a psychiatric disability other than PTSD, and following any further development that may be indicated based on the determination made, review the record and readjudicate the claims of service connection for hypertension and diabetes mellitus, to include as secondary to a psychiatric disability, considering the determination made on the service connection for a psychiatric disability other than PTSD claim. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Griffith 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.