Citation Nr: 21011134 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-22 851 DATE: March 1, 2021 ORDER Service connection for left knee disability is denied. REMANDED Entitlement to service connection to an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and depression is remanded. Entitlement to service connection for a skin condition is remanded. FINDING OF FACT The preponderance of the evidence of record is against a finding that the Veteran has a current diagnosis of a left knee disability. CONCLUSION OF LAW The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from February 2002 to November 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of a regional office (RO) of the Department of Veterans Affairs (VA). In September 2020, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As will be explained below, the Board notes that no VA examination was requested in relation to service connection for left knee disability. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran’s claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, there is no evidence of record to show that symptoms of a left knee disability began during active service or within one year of separation from active service. In fact, the Veteran’s service treatment records are absent of any complaints, treatment or findings related to left knee. Further, treatment records after separation fail to demonstrate persistent or recurrent symptoms of a knee disability. Lastly, there is simply no competent evidence of record demonstrating a current clinical diagnosed left knee disorder. In the absence of required elements above, the Board observes that VA has no duty to provide an examination or obtain an opinion in this case. See 38 U.S.C. § 5103A(a)(2) (VA “is not required to provide assistance to a claimant... if no reasonable possibility exists that such assistance would aid in substantiating the claim”). As such, a VA examination is not necessary. Moreover, the U.S. Court of Appeals for the Federal Circuit has recognized that there is not a duty to provide an examination in every case. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary’s obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability. McLendon, 20 Vet. App. at 81. This standard has not been met in this case, and there is sufficient competent medical evidence of record to make a decision on the Veteran’s claim herein. Entitlement to service connection for a left knee disability. Upon review of the evidence of record, the Board finds the weight of the evidence is against the finding of a present disability for which entitlement for service connection can be established. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the evidence does not indicate a diagnosis of a left knee disorder at any point during the course of this appeal. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran’s service treatment records do not show any complaints, treatment, findings or diagnosis of any left knee disability. In fact, the Veteran had normal periodic clinical evaluations with no symptoms or reports made by the Veteran of his knees or lower extremities. See Post Deployment Health Assessment of January 2006 and Physical Health Assessment dated November 2006. The Veteran also denied having any painful joint or knee problems in the corresponding medical reports at separation in 2006. See Report of Medical History and Report of Medical Examination dated November 2006. Likewise, post-service medical records do not demonstrate complaints of left knee symptoms or treatment for any recurrent symptoms of a chronic left knee disability. Meaning, there is no evidence of a persistent or chronic disability. As to the Veteran’s reports of having symptoms of left knee pain in service and since service, the Board observes that the Veteran’s subjective complaints are not supported by the evidence, as there are no medical records documenting any ongoing treatment for a chronic left knee disability. The evidence contemporaneous to the Veteran’s service and in the years immediately following his service show no physical findings, complaints, or treatment for any of the claimed condition. The Board has also considered the Veteran’s assertion of a present disability. However, the diagnosis of a disability or to attribute pain to an underlying diagnosis is a complex medical question that requires medical expertise and the ability to interpret diagnostic medical testing, including X-ray imaging. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his comments are afforded limited probative value and are outweighed by the competent medical evidence of record. Furthermore, the Veteran has not submitted any evidence to the contrary. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for left knee disability. The benefit-of-the-doubt doctrine is not for application, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection to an acquired psychiatric disorder to include PTSD and depression. The Veteran was afforded a VA contract examination in May 2015. The examiner indicated the diagnoses of unspecified depressive disorder and insomnia disorder are less likely due to service. In the rationale, the examiner stated that the “symptoms treated in service are clearly due to anxiety and hint at symptoms of panic disorder without agoraphobia, which is very different from depression and insomnia.” See Mental Disorders other than PTSD Disability Benefits Questionnaire (DBQ) dated May 2015. At his hearing, the Veteran expressed his belief that he was not properly evaluated as other medical professionals have previously indicated that he has PTSD. See Hearing Transcript at 10, 11. Indeed, the record shows a letter from J.R., PhD of Katy VA Outpatient Clinic dated June 2016, submitted November 2020, indicated that the Veteran was being treated by the examiner “for Depression, Anxiety and PTSD related to his service in Afghanistan”. The record also shows a statement from the Veteran’s spouse, D.E.C., dated April 2017, a licensed mental health provider and therapist, who indicated her observations that the Veteran “exhibits many symptoms associated with trauma” and that he “has a tendency to minimize his problems, even during the psychological evaluation”. In this regard, the Board observes that the Veteran has not been afforded a VA examination for his claimed PTSD and there is no etiological medical opinion of record taking into consideration the Veteran’s lay statements and statements from other medical professionals. Further, remand is needed to sufficiently address symptoms of anxiety and panic attacks which were treated in service. See service treatment records of August 2002 and July 2004. In order to ensure that his claim is afforded full consideration, the Board concludes that an examination is necessary. 2. Entitlement to service connection for a skin condition. The Veteran was afforded a VA contract examination in May 2015 where the examiner rendered a negative nexus opinion for dermatitis. The rationale stated that the Veteran’s “service medical records do show a rash on thighs and arms related to vomiting, HA, and congestion” but “Flow-sheet of Chronic Conditions in 1980 does not show chronic rash conditions.” See Skin Conditions DBQ. However, it is unclear whether the May 2015 examiner reviewed the Veteran’s service treatment records as the record shows that the Veteran was treated in service for “itchy rashes to both arms” after working with cleaning chemicals. He was diagnosed with “contact dermatitis” in July 16, 2004. Another service treatment record of August 23, 2005 shows treatment for complaints of “rashes” on abdomen, wrist, right arm, neck and right leg in August 23, 2005. Based on the above, the Board finds the May 2015 VA contract examination and opinion inadequate as it is based on an inaccurate factual basis. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise has no probative value). Accordingly, the Board concludes that a reexamination is necessary. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matters are REMANDED for the following action: 1. Obtain pertinent VA treatment records and associate with the record. In particular, attempt to obtain treatment records identified at the hearing from Katy VA Outpatient Clinic, and any non-VA treatment records treatment records not evidenced by the current record and associate with the claims file. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology the claimed acquired psychiatric disorder to include PTSD, depression, anxiety and panic attacks. The Veteran’s electronic claims file must be made accessible to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. Following examination of the Veteran, the examiner is to provide an opinion as to the following: Offer an opinion on whether the Veteran meets the DSM-V criteria for a diagnosis of a psychiatric disorder. If the examiner concludes that the Veteran has PTSD, the examiner must identify the stressor(s) supporting that diagnosis. For each psychiatric disorder other than PTSD identified, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the psychiatric disorder is etiologically related to the Veteran’s active duty service. In rendering the opinion, the examiner is asked to consider medical records (to include the April 2017 statement from the Veteran’s spouse, June 2016 statement from J.R. PhD of Katy VA) and lay evidence of record. A complete rationale for any opinion expressed must be provided. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology the claimed skin disability. The Veteran’s electronic claims file must be made accessible to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. Following examination of the Veteran, the examiner is to provide an opinion as to the following: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s claimed skin disability began during active service or is causally related to service? In rendering the opinion, the examiner is asked to consider symptoms manifested in service. He was treated for “itchy rashes to both arms” after working with cleaning chemicals which was assessed as “contact dermatitis” in July 16, 2004. Another service treatment record of August 23, 2005 shows treatment for complaints of “rashes” on abdomen, wrist, right arm, neck and right leg in August 23, 2005. A complete rationale for all opinions is requested. 4. Upon completion of the requested development and any additional development deemed appropriate, adjudicate the claims on appeal. If the determination remains unfavorable, the Veteran and his representative should be furnished a supplemental statement of the case which addresses all relevant evidence. The Veteran and his representative should be afforded the applicable time period in which to respond. Then, return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. An, Associate 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.