Citation Nr: A21020372 Decision Date: 12/22/21 Archive Date: 12/21/21 DOCKET NO. 200526-87540 DATE: December 22, 2021 ORDER Service connection for a left knee disability, claimed as left knee recurrent patellar dislocation status post repair and/or left leg arthritis, is denied. Service connection for a right knee disability is denied. Service connection for an acquired psychiatric disorder, to include depression and anxiety, is denied. FINDINGS OF FACT 1. The Veteran's left knee condition clearly and unmistakably preexisted service, and was clearly and unmistakably not permanently aggravated as a result of her active duty service. 2. The weight of the probative medical and other evidence of record does not establish that the Veteran's diagnosed right knee disability onset in service or is otherwise related to a disease or injury during military service. 3. A right knee disability was not manifest to a compensable degree within one year of separation from active-duty service and is not otherwise related to service. 4. The weight of the probative medical and other evidence of record is against a finding that the Veteran has a diagnosis of an acquired psychiatric disorder, to include depression and anxiety, that had its onset in service or is otherwise related to a disease or injury during his military service. 5. An acquired psychiatric disorder, to include depression and anxiety, was not manifest to a compensable degree within one year of his discharge from active service. CONCLUSIONS OF LAW 1. The criteria for a left knee disability, claimed as left knee recurrent patellar dislocation status post repair and/or left leg arthritis, have not been met. 38 U.S.C. §§ 101, 106, 1110, 1111, 1131, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.322. 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 101, 106, 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.322. 3. The criteria for service connection for an acquired psychiatric disorder, to include depression and anxiety, have not been met. 38 U.S.C. §§ 101, 106, 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303(a), 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1985 to January 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In her May 2020 Notice of Disagreement, the Veteran elected the Direct Review docket. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran identified treatment from two providers from whom VA was unable to obtain records. Specifically, Delta Medical, identified by the Veteran in her December 2019 VA Form 21-4142a, was "unable to locate the patient in their system" after searching "by the Veteran's name, DOB, and SSN." As a result, the medical records retrieval request was closed out in December. Points a Life, identified by the Veteran in her December 2019 VA Form 21-4142a, was contacted on December 19, 2019, by telephone and by mail, and again on December 27, 2019, by telephone and by mail. Attempts to contact the medical provider were unsuccessful. The medical records retrieval request was closed out in January 2020. Ultimately, after review of the record, the Board finds that VA's duties to notify and to assist have been satisfied. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. §§ 3.103, 21.1032(a). A Veteran is entitled to compensation for a disability resulting from personal injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection, evidence must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called 'nexus requirement.'" Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167) (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. See generally 38 C.F.R. § § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Presumptive service connection can satisfy the requirements of an in-service event and a nexus to military service. Chronic diseases listed under 38 C.F.R. § 3.309(a)-(f) that manifest either during active service or subject to the requirements of 38 C.F.R. § 3.307 after discharge or release from military service are sufficient to establish in-service incurrence or aggravation. If a chronic disease enumerated in 38 C.F.R. § 3.309 does not manifest in-service or within the applicable time limits, the second and third elements of service connection may be granted based on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The United States Court of Appeals for the Federal Circuit (Fed Circuit) clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to those "chronic" diseases listed under 38 C.F.R. § 3.309(a). See id. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also 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"). The Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Although the Veteran is competent to provide a diagnosis of an observable condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of renal pathology. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Although the credibility of lay evidence may not be refuted solely by the absence of corroborating medical evidence, it is a factor. See Buchanan, supra at 1336 (lay evidence concerning continuity of symptoms after service, if credible, may be competent, regardless of the lack of contemporaneous medical evidence). Other factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a). A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the Veteran). When the evidence supports the claim or is in relative equipoise, the claim will be granted; otherwise, it will be denied. See Gilbert v. Derwinski,1 Vet. App. 49, 57 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Service connection for left knee recurrent patellar dislocation, status post repair (also claimed as left leg arthritis). In her supplemental claim, request for higher level review, and notice of disagreement, the Veteran asserted that she injured her left knee in-service and that her left knee disability is related to her military service. Specifically, in her May 2020 request for higher level review, she stated: "About my knee in which happen there. I came 1985. I did gas chamber, knee slipped. I did fire in the hole, hurt my knee, then walk, hurt it worser." Although the Veteran's August 1985 pre-service physical examination found no left knee disability, and the August 1985 report of medical history noted that she denied a current or past bone/joint deformity or trick/locked knee, other records suggest that a left knee condition preexisted service. A Veteran who served after December 31, 1946, is presumed to be in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious and manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in the examination reports are to be considered as noted. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The presumption of soundness attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The provisions of 38 C.F.R. § 3.304(b) clarify that the term "noted" denotes "[o]nly such conditions as are recorded in the examination reports" and that "[h]istory of pre-service existence of conditions recorded at the time of examinations does not constitute a notation of such conditions." See Crowe v. Brown, 7 Vet. App. 238, 245 (1994); see also Cotant v. Principi, 17 Vet. App. 116 (2003). When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness; VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 C.F.R. § 3.304(b); VAOPGCPREC 3-03, 69 Fed. Reg. 25,178 (2004); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability is due to the natural progress of the preexisting condition. 38 U.S.C. § 1153. Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an onerous evidentiary standard, requiring that the no-aggravation result be undebatable. See Cotant v. Principi, 17 Vet. App. 116 (2003). In considering whether there is clear and unmistakable evidence that a left knee condition preexisted service, the Board considered the Veteran's service treatment records. In the January 1986 DA Form 4707, Entrance Physical Standards Board Proceedings, it was noted that the Veteran stated "that she had noticed before she came into the Army that her left knee was weaker, and it used to give her some pain when she went for longer walks. She also noticed a mass, or bump, on the outside of her left knee, which she was concerned about." The medical evaluation panel concluded that the Veteran's left knee conditions were "Not Service Aggravated;" on the related form, the Veteran indicated, "I concur with these proceedings and request to be discharged from the US Army without delay." Further, the April 2020 VA examiner concluded: "She does state that she noticed it before she came into the Army that her left knee was weaker, and it used to give her some pain when she went for longer walks... The claimed condition [] clearly and unmistakably existed prior to service[.] On this basis of the Veteran's own report of ongoing knee symptomatology prior to service entry and the VA examiner's opinion, the Board finds that the Veteran's left knee disability clearly and unmistakably preexisted her military service. The Veteran provided lay evidence through VA treatment and VA examinations throughout the course of her appeal with respect to the presence of knee-related symptoms. Although she has alleged an inservice left knee injury, such that her currently diagnosed left knee disability is related to her military service, the evidence does not establish this. The evidence, which includes her own statements as captured in her service treatment records, instead shows that a condition both clearly and unmistakably preexisted service, and, notwithstanding her assertions as to an inservice injury, was clearly and unmistakably not aggravated by service. Other evidence of record, including post-service private treatment records, do not indicate an increase in left knee symptoms due to service. Moreover, the VA examiner found that the Veteran's preexisting left knee condition was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In the April 2020 VA Knee and Lower Leg Conditions examination report, the examiner noted that the Veteran had been in the military for one week when she noticed left knee pain and had a decrease in her activity. She was placed on physical (limited activity) "profile on January 14, 1986 and discharged from the military as NOT SERVICE AGGRAVATED [sic]. It is unlikely that this contributed to her existing knee condition. A nexus isn't established." The Board acknowledges the Veteran's lay assertions that she believes her left knee condition is due to service, and the Board is sympathetic to the Veteran's claim. However, the Veteran is not shown to have medical education or experience. She is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., pain and swelling; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). However, she is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition, as these are medically complex issues. Conclusory, generalized lay statements that military service caused or worsened her left knee condition are insufficient to prove service connection. Accordingly, as the probative evidence of record establishes that the Veteran's left knee condition clearly and unmistakably preexisted service, and was clearly and unmistakably not permanently aggravated as a result of her active duty service, service connection 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, supra. 2. Service connection for right knee arthritis. In her May 2020 supplemental claim and her May 2020 VA Form 10182, the Veteran contended that she injured her right knee in service. Specifically, without specifying which knee she injured, the Veteran asserts: "I hurt my knee there" and "knee...happen[ed] there" and "I...hurt my knee there." See May 2020 VA Form 20-0995, Supplemental Claim, VA Form 20-0996, Higher-Level Review, and VA Form 10182, Notice of Disagreement. Review of the Veteran's service treatment records does not reveal that she reported a right knee injury, was treated for right knee symptoms, or had a diagnosed right knee disability during service. The Veteran never complained of a right knee injury during her brief period of service. See January 1986 DA Form 5181-R, Screening Note of Acute Medical Care, Standard Form 513, Medical Record Consultation Sheet, Left Knee CT, and DA Form 4707, Entrance Physical Standards Board Proceedings. The Board may draw a negative inference against a Veteran from a lack of documentation in service treatment records, if the "condition was of such severity that it would have been reasonable to expect the [Veteran] to seek treatment." See Horn, supra; see also Fountain v. McDonald, 27 Vet. App. 258, 272 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Other records address her left knee, which is discussed elsewhere in this decision, but not her right knee. Specifically, the Veteran sought treatment for her left knee "hurting and 'popping out of place' when running." See January 1986 DA Form 5181-R, Screening Note of Acute Medical Care. In addition, the Veteran sought treatment for left knee "painful swelling." See January 1986 Standard Form 513 Medical Record Consultation Sheet. The Veteran had X-rays and a CT taken of her left knee, which showed "Subluxation left patella; lipoma left knee area." Finally, the Veteran was recommended for, and agreed to, separation from service, "without delay," due to a left knee condition. See January 1986 DA Form 4707, Entrance Physical Standards Board Proceedings. After service, private treatment records dated in August 2015, March 2018, April 2018, May 2018, and July 2018 reflect diagnoses of "localized osteoarthritis of the right knee." Other private medical records for the Veteran indicate that she injured her right knee and "had surgery to her right knee in 2016 after her boyfriend repeatedly [s]lammed a car door on her leg and knee over and over until it was broken." See December 2019 Coast to Coast Medical Assessment Narrative. The Board notes that the 2016 documented injury more closely corresponds to the private family practice's records' reported history of "knee joint pain for 4 years," such as written in a July 2018 treatment record. The Veteran was provided with a VA examination in February 2020. The examiner reviewed the claims file and evidence of record in preparation for her report. The Veteran was examined in person, and her statements were considered, including the medical history that she injured her knee "running." The February 2020 examiner concluded that the Veteran's right knee injury was less likely incurred in or caused by the claimed in-service injury, event, or illness. The examiner highlighted the Veteran's preexisting injury and separation due to her left knee in formulating her opinion. The opinion was based on an extensive review of all of the evidence, including lay statements from the Veteran, was supported by a detailed rationale, provided data to support any conclusions, and it provided a clear and reasoned analysis, the source of the most probative value in a medical opinion. See Nieves-Rodriguez, supra. The February 2020 VA examiner's opinion is consistent with the evidence of record, including private treatment records that indicate the Veteran injured her right knee in 2016 and has complained of pain for 4 years. Monzingo v. Shinseki, 26 Vet. App, 97, 105-106 (2012). The examiner provided an opinion regarding direct service connection, and the Board finds the February 2020 VA examination to be adequate. While arthritis is a chronic condition listed under 38 C.F.R. § 3.309(a), the first recorded reference to "osteoarthritis" in the available record is an August 2015 private treatment note, nearly 30 years after service. A December 2018 private treatment records also reflect "knee joint pain for 4 years." Therefore, service connection for a right knee disability on a presumptive basis is also not warranted, either by diagnosis in-service, within the prescribed time limits after service, or through continuity of symptomatology. Determining the origins of osteoarthritis is complex, so supporting medical evidence is required, not just mere lay opinion. When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana, supra. See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). The Board acknowledges that the Veteran may sincerely believe her current diagnosis of osteoarthritis warrants service connection. However, without the appropriate medical training and expertise, which she has not demonstrated, she is not competent to provide an opinion regarding the etiology of her knee condition. See Jandreau, supra; see also Jones v. West, 12 Vet. App. 383, 385 (1999) (holding that where the determinative issue is one of medical causation or diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). The VA examiner's opinion provides compelling evidence against the Veteran's claim. The Veteran contends that her claimed disability exists and is related to her active service; unfortunately, the Veteran's statements must be given less probative value because they are inconsistent with the evidence of record, including contemporaneous medical evidence, and the Veteran lacks the medical training required to provide an opinion as to nexus for a diagnosis such as osteoarthritis. Jandreau; Jones. As there is no competent, credible evidence to refute the February 2020 VA examiner's opinion, the weight of the probative evidence of record is against a finding that the Veteran has a diagnosis of right knee osteoarthritis that is causally or etiologically related to any disease, injury, or incident, in-service. Consequently, service connection is not warranted. As the preponderance of the evidence is against the claim for service connection for right knee osteoarthritis, this claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, in the absence of any competent, credible, and probative evidence relating the Veteran's current disorder to service, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. 3. Service connection for an acquired psychiatric disability, to include depression and anxiety. In her May 2020 supplemental claim and her May 2020 VA Form 10182, the Veteran contended that her depression and anxiety are the result of military service. Review of the record does not reflect that the Veteran reported, or was treated for, any psychiatric symptoms during service, or that a psychiatric disability was diagnosed. Review of the post-service record reflects that posttraumatic stress disorder (PTSD), major depressive disorder, and obsessive compulsive disorder have been diagnosed during the appeal period. See June 2012 Mid-South Health Systems, Inc. Diagnostic Assessment, "Diagnosis...Axis I Primary: Major Depressive Disorder" and January 2014 Mid-South Health Systems, Inc. Discharge Summary, "Current Diagnoses in record: Axis I: Post-traumatic stress disorder, Obsessive Compulsive Disorders, Major Depressive Disorder." However, the evidence does not establish that the Veteran's diagnosed acquired psychiatric disabilities are related to her military service. A preponderance of the competent evidence is against a finding that the Veteran's acquired psychiatric disability is the result of her period of active service. The contemporaneous medical evidence of record, including a June 2012 private treatment record, reveals that the Veteran began going to mental health treatment due to "a lot of mental and physical abuse." An August 2012 private treatment record also suggests that the Veteran's symptoms began several years after service: "receiving psychiatric outpatient services... since 1990s... complains of chronic PTSD symptoms in the form of flashbacks, nightmares of past trauma, which involves being physically beaten by her stepfather and her ex-husband; she was also sexually abused. She sustained third degree burns from her ex-husband's girlfriend assaulting her in 2004. She also lost one eye when her ex-husband punched her... The patient reports having [a] history of significant abuse in her life." The Veteran was scheduled for a VA mental disorders examination in March 2020 and failed to appear without good cause shown. See March 2020 VA Form 21-0820, Report of General Information, and VA Subsequent Development Letter. When entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, an original claim for compensation is to be decided based on the evidence of record. 38 C.F.R. § 3.655(b). Thus, evidence that would have addressed the third element of service connection a nexus between a currently diagnosed condition and a claimant's military service could not be obtained. To the extent that the Veteran has asserted that her currently diagnosed acquired psychiatric disabilities are related to her military service, the Board finds that her lay statements are not probative to establishing the required nexus. The Veteran's opinion is not considered competent to provide the requisite etiology of her acquired psychiatric disability, because such a determination requires medical expertise and training which she has not been shown to possess. 38 C.F.R. § 3.159(a)(1); Jandreau, supra; see also Jones. Therefore, the Veteran's assertion that her mental health condition is related to her service is not considered to be competent medical evidence. Moreover, the Veteran's lay statements are not corroborated by medical evidence, including the medical history provided by her during her ongoing treatment for acquired psychiatric symptoms by private providers. The Board acknowledges that the Veteran may sincerely believe her current mental health diagnoses warrant service connection. Although the Veteran contends that she has an acquired psychiatric condition related to her active service, she has not submitted any competent medical evidence or opinion to substantiate her theory of entitlement. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Notwithstanding the deficiencies in the Veteran's lay evidence regarding an in-service event and a nexus to service, more weight is given to the contemporaneous medical evidence, including service medical records and the records of the Veteran's private treatment providers. In summary, considering the evidence of record and the applicable laws and regulations, the Board concludes that the criteria to substantiate the claim for entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety, have not been met. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric condition, to include depression and anxiety, and the claim is denied. In reaching the conclusions stated above, the Board has considered the applicability of the benefit of the doubt doctrine. The rule does not apply when the Board finds that a preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, supra. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Small, Attorney Advisor 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.