Citation Nr: 21008387 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 18-14 287A DATE: February 16, 2021 ORDER Entitlement to a rating in excess of 10 percent for grand mal seizures has been withdrawn. Service connection for a left knee disability is denied. Service connection for a right knee disability is denied. Service connection for tinnitus is denied. REMANDED Service connection for posttraumatic stress disorder (PTSD) is remanded. Service connection for a psychiatric disorder other than PTSD is remanded. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, the Veteran withdrew his claim for entitlement a rating in excess of 10 percent for a seizure disorder. 2. The preponderance of the evidence weighs against a finding that the Veteran’s tinnitus began during, manifested within one year of separation of, or is etiologically related to his active duty service. 3. The preponderance of the evidence weighs against a finding that the Veteran’s left knee disability began during, manifested within one year of separation of, or is etiologically related to his active duty service 4. The preponderance of the evidence weighs against a finding that the Veteran’s right knee disability began during, manifested within one year of separation of, or is etiologically related to his active duty service CONCLUSIONS OF LAW 1. The criteria for the withdrawal of the appeal for a rating in excess of 10 percent for a seizure disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1963 to July 1967. These claims are on appeal from a February 2016 rating decision. At an April 2020 hearing before the undersigned Veterans Law Judge, the Veteran provided testimony regarding the claims on appeal. A transcript of that hearing is of record. The Veteran’s appeal has been advanced on the Board’s docket. See 38 U.S.C. § 7107(a); 38 C.F.R. § 20.900(c). Withdrawn Claim 1. Entitlement to a rating in excess of 10 percent for a seizure disorder The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. A substantive appeal may be withdrawn by a veteran or his or her authorized representative in writing or at a hearing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. At his April 2020 hearing, the Veteran and his representative withdrew the claim for a rating in excess of 10 percent for a seizure disorder. Thus, there remains no allegation of error of fact or law for the Board to address with respect to this issue, the Board does not have jurisdiction over it, and the claim is withdrawn. Service Connection Claims Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, such as tinnitus and arthritis, will generally be found to be presumptively related to active service if shown to manifest to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309. Additionally, a disability that is proximately due to, or results from, another disease or injury for which service connection has been granted, will be considered part of the original disorder. 38 C.F.R. § 3.310(a). Moreover, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (finding service connection presupposes a current diagnosis of the condition claimed). The requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary’s adjudication of the claim.” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 2. Service connection for tinnitus The Veteran is claiming service connection for tinnitus as due to acoustic trauma during service. Because tinnitus is subjective, its existence is generally determined by whether or not a veteran claims to experience it; thus, for VA purposes, tinnitus is a disorder with symptoms that can be identified through lay observation alone. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Accordingly, the Board finds that the Veteran has a current diagnosis of tinnitus. The Board concedes that during his active military service that the Veteran was exposed to some level of acoustic trauma. See 38 U.S.C. § 1154(a). Accordingly, the question before the Board is whether the Veteran’s tinnitus began during, manifested within one year of separation of, or is etiologically related to his active service. In a July 2015 statement the Veteran indicated that following his service with the Honor Guard, he “always noticed [he] had occasional ringing or sometimes hissing sounds in [his] ears that just came and then would go away rather quickly,” and that he noticed it more often in the last ten years. In April 2020, the Veteran testified that he has experienced tinnitus during and since his active service. Specifically, he indicated it occurred following his participation in the Honor Guard which involved shooting guns at funerals. He also testified it began in April 1964 after his grand mal seizure. Service treatment records are silent for any complaints of hearing loss or tinnitus. Although the Veteran has reported experiencing tinnitus during service in conjunction with his epileptic seizure, on his July 1967 separation medical history form, he checked “no” to the boxes indicating if he has or has ever had ear trouble or running ears. In his July 2015 statement regarding tinnitus, he did not mention tinnitus symptoms in conjunction with his in-service seizure. In August 2015, the Veteran sought to establish medical care at his local VA Medical Center (VAMC); a past medical history of hearing loss was noted, however, the Veteran did not report tinnitus. At a February 2016 follow-up appointment, the Veteran denied hearing loss and tinnitus. At a June 2016 audiological evaluation, the Veteran reported intermittent tinnitus in both ears for “many years” and that his tinnitus was so bothersome that it affected his concentration and ability to sleep. At a December 2016 VA appointment, the Veteran denied tinnitus. Following a review of the evidence of record, the Board finds the claim for service connection for tinnitus must be denied as the preponderance of the evidence weighs against a finding the Veteran’s tinnitus began during, manifested within one year of separation of, or is etiologically related to his active service. The Veteran’s own statements regarding whether or not he has experienced tinnitus symptoms during the appeal period have been inconsistent; therefore, the Board affords them little weight. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) (holding that in weighing credibility, VA may consider, among other things, inconsistent statements, internal inconsistency, and consistency with other evidence of record). While the absence of symptoms at separation from service is not dispositive in a denial for a claim for tinnitus, the Board finds it particularly telling that the Veteran denied symptoms on his separation medical history (especially because he reported his history of a seizure on that same form). Further, it is noteworthy the Veteran did not mention experiencing tinnitus symptoms in conjunction with his seizure in his July 2015 statement, yet at his April 2020 hearing indicated his tinnitus began after his seizure. Moreover, the Board finds it particularly noteworthy that the Veteran reported at his June 2016 audiological examination that his tinnitus was “so bothersome” it affected his ability to concentrate and sleep, yet he denied tinnitus at a December 2016 appointment and at his numerous mental health appointments. Significantly, at his mental health appointments, while he has discussed his difficulty sleeping and concentrating, there was no mention to his provider of tinnitus. Here, the Board finds that if the Veteran actually experiences tinnitus and if it is so bothersome as he has claimed, he would have mentioned it at his primary care and psychiatric appointments. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Thus, service connection for tinnitus must be denied. The Board recognizes that the Veteran has not been afforded an examination to determine the etiology of this claimed disorder and finds one is not warranted. The only evidence of a nexus between the Veteran’s tinnitus and in-service noise exposure or any service-connected disability has been his own statements. Under current case law, such bare assertions standing alone do not suffice to trigger the duty to obtain a VA examination.  See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (“Since all veterans could make such a statement, this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran’s disability case.  If Congress had intended that requirement, presumably it would have explicitly so provided.”).  Moreover, the Board has found the Veteran’s statements to be not credible; thus, to remand for an examination to consider the Veteran’s statements would service no useful purpose. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). Based on the foregoing, the Board concludes the preponderance of the evidence weighs against a finding that the Veteran’s tinnitus began during, manifested within one year of separation of, or is etiologically related to service. Consideration has been given to the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim, it is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 3. Service connection for a left knee disability 4. Service connection for a right knee disability The Veteran is claiming service connection for left and right knee disabilities, which he asserts began during his active duty service. The Veteran’s service treatment records document he injured his left knee in April 1966. On his May 1967 separation medical history form, he specifically denied a “trick” or locked knee; swollen or painful joints; and any bone, joint, or other deformity. Private records dated September 2014 and October 2014 reflect the Veteran had Level I and II quadriceps tear and outside collateral tenosynovitis of the right knee. At an August 2015 VA primary care appointment, the Veteran sought to establish medical care at his local VA Medical Center (VAMC); he stated his bilateral knees were in pain and that he could barely walk and reported a history of right knee arthroscopy. August 2015 x-rays demonstrated bilateral degenerative joint disease (a form of arthritis). At a February 2016 VA appointment, the Veteran reported primary pain in his right knee, which he indicated has been present for three years; he also reported pain in his left knee but did not indicate an onset. At a February 2016 knee examination, the Veteran reported he twisted his right knee in service and developed a trick knee which would lock; he indicated a few years prior, both knees began to hurt and were found to have arthritis. The examiner reported the inability to provide an opinion regarding the Veteran’s bilateral knees, indicating that there was a single left knee injury during service and no indication that this was more than an acute and transitory event. The examiner further noted the Veteran denied any knee symptoms on his report of medical history and that there was no objective evidence that any left or right knee disability was caused by his active service. At his April 2020 hearing, the Veteran testified that he injured his right knee, not his left knee, during service when he fell and hit his right knee on a corner of cement and had treatment at the hospital. He stated he has not had any problems with his left knee and that he has had difficulty with his right knee to this day. During service, he stated his right knee was not a major problem and that he felt his anxiety and alcohol took his concentration away from what was going on with his knee. The Veteran further indicated he did not remember anything about his left knee in service but that he understood “something happened there too.” Later in the hearing, he indicated that after the in-service knee injury he was unable to do things he once did (run, play basketball). His representative stated there was a “slight mention [the Veteran] might have been put on a profile” for his in-service left knee injury, but that “unfortunately the profile does not seem to have survived in the service records.” The representative also stated that since the Veteran had been out of active service, he had received treatment for his knees, including a total knee replacement and a partial knee replacement. Based on the foregoing, the Board finds the preponderance of the evidence weighs against a finding that service connection is warranted for the right and left knees. The Board acknowledges that the examiner was unable to provide an opinion without resorting to speculation, and finds this opinion is adequate; in this regard, the examiner found there was no objective evidence to form a conclusory opinion. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (noting that a speculative medical opinion is not per se inadequate, but the examiner must provide a basis for that determination and the phrase “without resort to speculation” should reflect the limitations of the medical community at large and not those of a particular examiner/reviewer). Here, while the Veteran’s statements regarding the onset and continuity of symptoms were not considered, the Board find this is irrelevant as it does not find the Veteran’s statements credible because they have been inconsistent. See Caluza, 7 Vet. App. at 510-11; cf. Miller v. Wilkie, 32 Vet. App. 249, 258-60 (2020). Further, to remand for an examination to consider the Veteran’s statements, which the Board has found not to be credible, would serve no useful purpose. See Sabonis, 6 Vet. App. at 430 (1994). Notably, the Veteran’s description of his in-service injury has varied. At his April 2020 hearing before the Board he stated he hit his knee on concrete, yet at his February 2016 hearing he indicated he twisted his right knee during service; the Board finds these inconsistent statements call into question the Veteran’s credibility. Further, at a February 2016 VA appointment for treatment purposes, the Veteran stated he had knee pain for the past three years and made no mention of any chronicity since his separation from active duty. Contradictorily, at his hearing before the Board, the Veteran stated he experienced right knee symptoms during and since his in-service injury. Courts have recognized how medical history recounted in the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to, in turn, receive the best or most appropriate medical care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (holding that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Here, the Board finds the Veteran’s statements at his February 2016 VA appointment for treatment purposes to be more probative than his testimony at his hearing. See id. Additionally, the Board finds the Veteran’s testimony at his April 2020 hearing that after his in-service right knee injury he was unable to do things he did before (run, play basketball) is inconsistent with other evidence of record. The Board acknowledges that the absence of documentation of symptoms during service is not dispositive of a claim and that lay statements must be considered. However, in the case at hand, if the Veteran’s knee disability was as disabling as he claims it was during service to the point he was unable to run, the Board finds he would not been able to perform physical training associated with his military duties and would have sought treatment or be put on a profile. While the Veteran’s representative suggested at the hearing that he may have been put on a profile for his knee and that those records may be missing, the Board notes that the Veteran has never claimed, to include at the hearing, that he was put on a profile for his knees during service. The record does contain a profile dated June 1966 due to a defective visual acuity but makes no mention of any knee injuries or disabilities, which may explain the representative’s confusion. Therefore, to the extent the representative believes the Veteran’s records insinuate he was put on a profile for a knee disability, the Board finds the preponderance of the evidence weighs heavily against this finding. To the extent the Veteran has submitted private treatment records demonstrating had a torn quadricep of the right knee as early as September 2014, the Board finds this evidence does not support a finding of service connection as it merely demonstrates the first clinical evidence of a right knee disability, decades following the Veteran’s release from active duty. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that the passage of many years between discharge from active service and the continuity of symptomatology or medical documentation of a claimed disability are factors that tend to weigh against a claim for service connection). In this regard, the Veteran has not provided VA with an authorization to allow them to attempt to obtain all records from this private provider, nor has he submitted any additional records himself. Unfortunately, the Veteran and his representative’s failure to provide VA with this information has resulted in the inability to consider crucial evidence which may have lent support to his claims. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that VA’s duty to assist is not a one-way street; if a veteran wishes help, he cannot passively wait for it in circumstances where his own actions are essential in obtaining putative evidence). The Board acknowledges the Veteran’s statements in his VA Form 9 that the decision failed to consider the entire record and that he felt the decision was based in part on “incomplete and faulty examination data.” However, neither he nor his representative have argued with any specificity why the prior examination is inadequate, and they have not requested a new examination. he has not argued with specificity why the prior examination is inadequate. Regardless of whether the examiner considered that the in-service injury was to the left knee, not the right as the Veteran claims, the opinion remains the same as to both knees. Because the Veteran’s statements are not credible, it is permissible for the examiner to discount them in formulating an opinion. The examiner’s opinion that speculation would be required contained a rationale. The examiner found the in-service injury was acute and transitory and noted in the examination report the first objective evidence of knee disabilities in 2014 and 2015; the Veteran separated service in 1967, and therefore, this long period of time weighs against his claim. Based on the foregoing, service connection for right and left knee disabilities must be denied. Consideration has been given to the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claims, it is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. at 56. REASONS FOR REMAND 1. Service connection for PTSD is remanded. 2. Service connection for a psychiatric disorder other than PTSD is remanded. The Veteran is claiming service connection for a psychiatric disorder, to include PTSD, on a direct basis and as secondary to his service-connected seizure disorder. At the Veteran’s April 2020 hearing, his representative pointed to September 2015 correspondence from the Veteran that details five separate incidents, which he believes have contributed to his psychiatric disorders, to include PTSD. The Veteran also described several stressful events which occurred during his active service (to include participating in funerals as part of the Honor Guard for deceased veterans coming back from Vietnam). The Veteran’s representative also raised the issue of service connection for a psychiatric disorder as secondary to the Veteran’s service-connected seizure disorder. The Veteran testified that following his in-service seizure, he began experience memory loss, difficulty concentrating, and anxiety. The representative noted that psychological testing performed in 2016 was deemed inadequate because examiners felt the Veteran was exaggerating symptoms, but that recently, in January 2020, additional psychological testing was performed which demonstrates the Veteran suffers from unspecified memory disorder and that this explained the inadequacy of the 2016 testing. The record contains a January 2020 mental health examination, which included neurocognitive testing, and the examiner provided January 2020 and March 2020 opinions. These have not been reviewed by the AOJ in the first instance and neither the Veteran nor his representative have waived AOJ consideration; accordingly, a remand is required. Significantly, the Veteran identified four stressors which he believes caused a psychiatric disorder, to include PTSD: (1) during his initial flight to boot camp, the airplane lost pressure, but the pilot was able to gain control of the plane; the Veteran hit his head, had bump that swelled, but did not seek medical attention; (2) his in-service seizure; (3) a motor vehicle accident during service; and (4) his participation in Honor Guard at over 50 funerals for veterans who had been killed in Vietnam. See September 2015 Statement. While the record contains a January 2016 opinion from the Veteran’s private psychologist in Costa Rica, which indicates he has emotional problems and PTSD stemming from his military career, there is no rationale for this conclusion; moreover, no in-service event or events for the purpose of the PTSD diagnosis were identified. The Board finds a remand is required to provide the Veteran with the appropriate examinations to determine the etiology of any psychiatric disorders found, to include, PTSD. In this regard, the Board acknowledges that the treating psychologist indicated the Veteran attended 12 psychotherapy sessions from January 2015 to April 2015 and that he had a recent session in January 2016, two days before the date of the letter. Although the Veteran has been asked to submit or identify evidence which would support his claim, see August 2015 letter, he has not returned an authorization to allow VA to attempt obtain these outstanding records nor has he submitted them himself. Moreover, while the Veteran has new representation since the August 2015 letter was sent out, as a VA accredited attorney, his new representative surely understands that there is outstanding evidence which may lend support to his claims. The Board notes that VA’s duty to assist is not a one-way street; if the Veteran wishes help, he cannot passively wait for it in circumstances where his own actions are essential in obtaining putative evidence. See Wood, 1 Vet. App. at 193. Thus, the Board reminds the Veteran and his representative that while these claims are in remand status, they may submit additional evidence and argument, and encourages them to do so, specifically with regard to the Veteran’s private psychological records. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The matters are REMANDED for the following action: Afford the Veteran the appropriate examination(s) to determine the etiology of all psychiatric disorders found, to include, if applicable, PTSD. The examiner must obtain from the Veteran and record in the examination report a complete history regarding the onset and continuity of symptoms. The examiner is informed that the Veteran has claimed the following in-service stressors: (1) an unexpected drop while in an airplane causing him to hit his head, resulting in a bump but no medical attention; (2) his in-service seizure; (3) an in-service motor vehicle accident; and (4) participation in Honor Guard at funerals for veterans who had been killed in Vietnam. The examiner should also obtain additional details from the Veteran regarding each in-service stressor and record this in the examination report. Following a review of the evidence of record, and with consideration of the Veteran’s statements, the examiner is requested to provide the following information: (a) Determine all psychiatric diagnoses (other than PTSD) found on examination and in the record. (b) With regard to each diagnosis in (a), determine whether it is at least as likely as not that the disorder began during or is etiologically related to the Veteran’s active duty service. Why or why not? (c) With regard to each diagnosis in (a), determine whether it is at least as likely as not (50 percent probability or higher) that the disorder was caused by the Veteran’s in-service grand mal seizure. Why or why not? (d) With regard to each diagnosis in (a), determine whether it is at least as likely as not (50 percent probability or higher) that the disorder was aggravated by the Veteran’s in-service grand mal seizure. Why or why not? (e) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran has a diagnosis of PTSD due to one of his identified in-service stressors. Why or why not? (CONTINUED ON NEXT PAGE) A complete and separate rationale for each conclusion reached is required. If the examiner is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. The examiner must presume the Veteran is credible for the purposes of this examination only. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O'Connell, Jessica L. 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.