Citation Nr: 21007754 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 10-27 749 DATE: February 10, 2021 ORDER Entitlement to service connection for a bilateral knee disability is denied. Entitlement to service connection for a disability claimed as alcohol poisoning is denied. Entitlement to service connection for traumatic brain injury (TBI) is denied. Entitlement to service connection for an acquired psychiatric disorder, including depression, including as due to alcohol poisoning, TBI, and a bilateral knee disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a bilateral knee disability began during active service, or is otherwise related to an in-service injury or disease. 2. Alcohol poisoning is not secondary to a service-connected disorder or otherwise related to service. 3. The preponderance of the evidence is against finding that a traumatic brain injury began during active service, or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that an acquired psychiatric disorder, or is otherwise related to an in-service injury, disease or service-connected disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for alcohol poisoning have not been met. 38 U.S.C. §§ 105, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for a traumatic brain injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1972 to May 1975. These matters come to the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the RO. The appeal was remanded in November 2013, April 2015, and September 2016 for additional development. That development has been completed, as is possible, and the appeal is now ready for adjudication. Service Connection The Veteran asserts that he has a bilateral knee disability, a disability claimed as alcohol poisoning, a traumatic brain injury and an acquired psychiatric disorder which are related to his service. 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). The Veteran is incarcerated. VA's ability to provide assistance to incarcerated veterans is limited by the circumstances of the Veteran's incarceration. Bolton v. Brown, 8 Vet. App. 185, 191 (1995). Nevertheless, VA adjudicators must "tailor their assistance to the peculiar circumstances of confinement. [Incarcerated veterans] are entitlement to the same care and consideration given their fellow veterans." Id. VA does not have the authority to require a correctional institution to release a Veteran so that VA can provide him or her the necessary examination at the closest VA medical facility. 38 U.S.C. § 5711. However, VA's duty to assist an incarcerated veteran includes: (1) attempting to arrange transportation of the claimant to a VA facility for examination; (2) contacting the correctional facility and having their medical personnel conduct an examination according to VA examination work sheets; or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. Bolton, 8 Vet. App. at 191. The Veterans Benefits Administration (VBA) Fast Letter 11-22 (Sept. 8, 2011) outlines how the compensation clinics must document that they have made multiple attempts and exhausted all possible avenues for obtaining access to the incarcerated Veteran for the examination. The Board finds that the duty to assist has been fulfilled. The record demonstrates, as noted in the Veteran’s September 2016 Board remand, that the Veteran was scheduled for VA examinations in February 2016. However, those examinations were not conducted because the Texas Department of Corrections did not provide wheelchair vans and none of the VA medical center providers could go to prison facilities due to the security risk. The RO is shown to have requested that the Houston VA medical center coordinate with the Texas Department of Corrections to have one of its physicians perform an examination and determined that the Texas Department of Corrections would not conduct a VA examination. In September 2016, the Board remanded the appeal again in order to determine whether a fee-based examination could be scheduled. In a December 2020 report of information, it is noted that the Texas Department of Criminal Justice stated that the facility did not allow fee-basis providers contracted by the VA to come into the facility. The Board finds, then, that all efforts have been exhausted regarding examinations for the Veteran and to continue to make further attempts would serve only to delay adjudication and that all additional development has been completed. As such, the Board may proceed. Entitlement to service connection for a bilateral knee disability The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran contends that during a sea tour of Brazil, in the Spring of 1974, there was a fire in the engine room, and he ran up a ladder and fell on a raised piece of metal on both knees which caused damage to his knees. The Veteran stated that when he was treated for this injury, his doctor said that when he reached his sixties, he would be lucky if he could still walk and that he would cause arthritis. Service treatment records include a September 1974 note which notes the Veteran’s complaints of pain in both knees when he stood for a long time and went up and down ladders. A follow up treatment note reported no history of trauma or previous problems, it was noted that the Veteran had a normal examination of the knees bilaterally. In an April 1975 report of medical history, the Veteran reported that he did not have nor had he had a bone, joint or other deformity and stated that he had not had a trick or locked knee. Post service treatment notes include bilateral knee complaints and diagnoses of knee disorders to include degenerative joint disease. The Board concludes that, while the Veteran has a diagnosis of a bilateral knee disorder the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. In so finding, the Board notes that service treatment records indicate that the Veteran complained of knee pain during service, but that his symptoms appear to have resolved as he is not shown to report such at separation, and the Veteran’s knee examination for discharge was normal. The evidence of record demonstrates a knee disorder, and knee complaints in service but no competent evidence of a nexus between the two, and continuous symptoms or a chronic knee disability within a year of service are not shown. While the Veteran may believe he has a bilateral knee disorder which is related an in-service injury, the Board reiterates that the preponderance of the evidence weighs against findings that such an injury occurred and/or that a present disorder is related to service. Entitlement to service connection for a disability claimed as alcohol poisoning. The Veteran contends that while stationed at the Naval Air Station in Norfolk, VA he was in a drinking contest with another sailor and ended up in the base hospital for approximately two days with alcohol poisoning. The Veteran stated that he believed that this affected him mentally and caused severe depression and other breakdowns. For claims filed after October 31, 1990, service connection on a direct incurrence basis cannot be granted for disabilities resulting from abuse of alcohol or drugs. See 38 U.S.C. §§ 105, 1131; 38 C.F.R. §§ 3.1 (n), 3.301. Further, in Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that compensation could not be awarded pursuant to 38 U.S.C. § 1131 and 38 C.F.R. § 105 (a) either for a primary alcohol/drug abuse disability incurred during service or for any secondary disability that resulted from primary alcohol/drug abuse during service. Id. at 1376. The Federal Circuit, however, further held that there can be service connection for compensation for an alcohol/drug abuse disability acquired as secondary to, or as a symptom of, a non-willful misconduct, service-connected disability. In further clarifying this, the Federal Circuit explained that veterans may recover only if they can adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder. Id. at 1381. In the present case, the Veteran's claim was filed after October 31, 1990, thus service connection on a direct incurrence basis cannot be granted for any disability resulting from abuse of alcohol or drugs. Additionally, entitlement to service connection for an acquired psychiatric disability is denied in the analysis below. Thus, service connection as secondary to acquired psychiatric disability cannot serve as a basis for the grant of benefits sought here. 38 C.F.R. § 3.310. Entitlement to service connection for traumatic brain injury The Veteran contends that around October or November of 1973, while stationed on the U.S.S. Robert A. Owens, he hit his forehead on a barrel of a gun mount. He stated that he fell backward and was unable to get up for thirty to forty-five minutes and was numb from the neck down. Service treatment records include a November 1973 record in which it was noted that the Veteran came aboard in an exhausted physical state and was confused. Eye reflexes were normal and there were no apparent injuries. The Veteran was sent to bed. Service treatment records are silent regarding a traumatic brain injury. The Veteran’s report of medical examination for separation notes a normal examination of the head. The Veteran reported frequent or severe headaches and dizziness or fainting spells in his report of medical history for separation, however he reported that he did not have nor had he ever had a head injury. As noted above, service connection may be established when there is an incurrence of injury or disease in service, a present disorder, and a nexus between the two. Here, while the Veteran describes an injury to the head in service, such is conflicting with his own reports at discharge, his service treatment records and his report of medical examination. Moreover, while the Veteran may have hit his head, he is not competent to report that such caused a traumatic brain injury. Further, the Veteran is not shown to have a diagnosis of traumatic brain injury, thus a current disorder is not shown. As such, the evidence is against the Veteran’s claim and the claim must be denied. Entitlement to service connection for an acquired psychiatric disability The Veteran’s service treatment records include a normal psychiatric examination on separation from service. Personnel records reflect that the Veteran had an unauthorized absence between March 8, 1975 and April 9, 1975 and that the Veteran was discharged due to unsuitability, apathy, defective attitudes and inability to expend effort effectively. The Veteran reported nervous trouble and depression or excessive worry in his report of medical history for separation in April 1975. It was noted that the Veteran felt he was in poor health mentally. The Veteran is shown to have a current diagnosis of depression, however, there is no competent medical evidence which relates the Veteran’s current depression, or any other acquired psychiatric disorder, to his service. Further, in as much as the Veteran has stated that he has an acquired psychiatric disability due to the disabilities noted above, as service connection is not established, secondary service connection is unavailable. (Continued on the next page)   The Veteran’s claim for service connection must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Slovick, 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.