Citation Nr: 21012004 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-33 335 DATE: March 3, 2021 ORDER Entitlement to service connection for degenerative joint disease (DJD) of the left knee is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s left knee DJD began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence of record is against finding that the Veteran has had PTSD at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for DJD of the left knee have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2004 to April 2005. This matter is before the Board of Veteran’s Appeals (Board) on appeal from a September 2013 rating decision issued by a Department of Veteran’s Affairs (VA) Regional Office (RO). By way of background, in July 2012, the Veteran filed an application for compensation requesting service connection for a left knee disability, a right knee disability, and posttraumatic stress disorder (PTSD). A September 2013 rating decision denied service connection for all three. The Veteran filed a notice of disagreement in October 2013, and the RO issued a statement of the case in August 2014, still denying service connection for all three. The Veteran filed a substantive appeal in September 2014. The appeal was certified to the Board in November 2014. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2016. A transcript of the hearing is associated with the electronic claims file. The Board issued a prior remand on these claims in May 2018. Service Connection Generally, to establish service connection a Veteran 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection cannot be granted “[i]n the absence of proof of a present disability.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement is satisfied when the claimant has a disability at the time the claim is filed or during the pendency of the appeal even though the disability may resolve prior to adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Active military, naval, or air service includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21-24); 38 C.F.R. § 3.6. Thus, when a claim for service connection is based on a period of active duty for training, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of active duty for training; or for inactive duty training, there must be some evidence that the appellant became disabled as a result of an injury (not disease) incurred or aggravated in the line of duty during the period of inactive duty training. 38 U.S.C. §§ 101, 106, 1110, 1131. The advantages of certain evidentiary presumptions that assist claimants in establishing service connection for a disability do not extend to those who claim service connection based only on a period of active duty for training or inactive duty training. Paulson v. Brown, 7 Vet. App. at 470-71; see also Smith v. Shinseki, 24 Vet. App. 40, 48 note 7. Therefore, the presumptions of sound condition at entrance (38 U.S.C. §§ 1111, 1132), of aggravation where evidence shows an increase in severity of a pre-existing disease (38 C.F.R. § 3.306), and service incurrence for certain chronic diseases that manifest themselves to a degree of 10 percent or more disabling within a year from the date of separation from service (38 C.F.R. §§ 3.307, 3.309) are not available with respect to periods of active duty for training or inactive duty training. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). 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). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must determine whether the weight of the evidence supports each claim or is in relative equipoise, with the appellant prevailing in either event. However, if the weight of the evidence is against the appellant’s claim, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for DJD of the left knee. The Veteran has a current disability of DJD of the left knee. Thus, a present disability has been established. The Veteran contends that he aggravated his left knee on a drill weekend in March 2004. Service treatment records show complaints of left knee pain in April 2004, following a noted March 2004 PT incident. However, the record contains no line of duty report regarding said incident. Nevertheless, even if the Veteran were to show a valid in-service event for his left knee DJD, the preponderance of the evidence is against the finding of a medical nexus between the Veteran’s current DJD of the left knee and his alleged in-service incident. In September 2013 the RO issued a rating decision denying service connection for a left knee condition noting “While the copies of the service treatment records you submitted show evidence of injury to the left knee prior to active duty service, there is no evidence showing this condition was aggravated during active duty service.” The Veteran appealed this issue up to the Board. In May 2018, the Board issued a remand instructing the RO to further develop the record regarding the Veteran’s active and inactive duty for training periods, and to schedule the Veteran for a VA examination for his left knee. The RO documented attempts to update the record and in January 2019 uploaded additional military personnel records into the Veteran’s electronic file. In February 2019, the Veteran submitted another statement in support of his claim again contending that he aggravated his left knee in early 2004 during unit PT. The Veteran further reported “LOD was denied to my knowledge.” The Veteran was given a VA examination for his left knee in October 2019. Here, the examiner diagnosed degenerative arthritis of the left knee. However, the examiner opined that the condition was less likely than not related to the Veteran’s claimed in-service injury. As rationale for her opinion, the examiner provided “The Veteran’s degenerative joint disease of the left knee did not begin nor it is related to his military service in March 2004. C-file silent for evaluation and/or treatment of left knee diagnosis during military service. C-file silent for documentation of line of duty injury during reservist training. Diagnosis of mild degenerative joint disease of the left knee was rendered nine years after separation from military service. This finding is not related to military service, but rather an age related incidental finding. A nexus has not been established.” The Board finds this opinion to be well reasoned and supported by the record, entitling it to probative weight. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on these matters possess a level of expertise that a layperson simply does not possess. The record does not contain any positive medical opinion linking the Veteran’s current left knee DJD to his claimed in-service incident. There is no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed disorder manifested to a compensable degree within a year of his separation from service or had its onset in service and continued ever since service. The Veteran’s theory of entitlement has been rendered unfounded by the medical expert. Therefore, service connection based on presumptive service connection for a chronic disease or based on a theory of continuity of symptomatology is not warranted. The preponderance of the evidence is against the claim. Accordingly, entitlement to service connection for DJD of the left knee is denied. 2. Entitlement to service connection for PTSD. The Veteran filed an application for service connection for PTSD in July 2012. He was given a VA examination for such in August 2012. Here, the examiner opined that he did not meet the diagnostic criteria for a diagnosis of PTSD, but instead suffered from anxiety disorder, panic disorder, and depressive disorder. A separate VA opinion was requested regarding the Veteran’s anxiety and panic disorders and in June 2013 it was opined that both conditions were at least as likely as not related to his active service. In July 2013, a VA examiner also opined that the Veteran’s depressive disorder was at least as likely as not related to his claimed in-service stressor. Accordingly, the RO issued a September 2013 rating decision granting service connection for anxiety disorder with panic and depressive disorder and denying service connection for PTSD, as the Veteran did not have a current diagnosis of such. The Veteran appealed this issue up to the Board. At his August 2016 Board hearing, the Veteran testified that he had been diagnosed with PTSD in 2010. A review of the Veteran’s treatment records shows that in November 2010 he was diagnosed with “panic disorder, PTSD traits.” The Veteran also submitted a January 2016 statement in support of claim, wherein he reported that he had started attending a group meeting for his PTSD through the VA. In August 2016, the Veteran requested an increased rating of his anxiety disorder with panic and depressive disorder conditions. He was given another VA examination for such in August 2016, here the examiner again only diagnosed these three conditions, although the Board notes that PTSD was not at issue during this examination. In May 2018, the Board remanded that claim, instructing the RO to update the record and provide the Veteran with another VA examination to determine whether he met the criteria for a diagnosis of PTSD under the DSM-5. The RO updated the record and VA treatment records from August 2015 show that the Veteran was attending a stress and anger management group. The Veteran was given another VA examination for his psychiatric conditions in October 2019. Here, the examiner again diagnosed panic disorder, unspecified anxiety disorder, and unspecified depressive disorder. She found no diagnosis of PTSD under the DSM-5. Service connection cannot be granted “[i]n the absence of proof of a present disability.” Brammer, 3 Vet. App. 223, 225 (1992). During the pendency of this claim, the Veteran has not been diagnosed with PTSD. Although he has attended a stress and anger management group and been noted to have “PTSD traits” in conjunction with his service-connected panic disorder, a current diagnosis of PTSD is not established. Accordingly, entitlement to service connection for PTSD is denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, 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.