Citation Nr: 21025517 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-24 848A DATE: April 28, 2021 ORDER Service connection for back disability is denied. Service connection for left knee disability is denied. Service connection for right knee disability is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The weight of the evidence of record fails to show that it is at least as likely as not that any of the Veteran’s claimed disabilities were incurred in, due to, or otherwise are etiologically related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for back disability have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for left knee disability have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 3. The criteria for service connection for right knee disability have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 4. The criteria for service connection for bilateral hearing have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 5. The criteria for service connection for tinnitus have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 6. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 26 to October 29, 1975. In a December 2015 rating decision, the Regional Office (RO) denied service connection for back disability, bilateral knee disability, bilateral hearing loss, tinnitus, and an acquired psychiatric disorder, to include PTSD. The Veteran appealed. In November 2018, the Board remanded the claim for further development, to include assisting the Veteran with obtaining any outstanding medical treatment records potentially relevant to his claims, obtaining Social Security Administration (SSA) medical records, attempting to verify the claimed in-service stressors, and obtaining a medical opinion as to the nature and etiology of psychiatric disorders. In August 2020, upon substantially complying with the Board’s instructions, to include obtaining medical records from Hickory and Salisbury VAMCs, and SSA, contacting DPRIS (Defense Personnel Records Information Retrieval System) to verify the alleged stressors, and providing a mental health examination, the RO issued a supplemental statement of the case affirming its prior decisions and returned the appeal to the Board. Service connection generally may be granted for a disability incurred in or due to service. See 38 C.F.R. § 3.303(a). “Service connection” is a complex legal term connoting many factors, but essentially means that a particular disease or injury, shown to had been incurred in or coincident to service, has caused a post-service disability. Id. To that end, establishing an entitlement to service connection, among the fundamental legal criteria, requires the evidence to show: (1) the existence of the claimed disability; (2) a relevant traumatic event in service, and (3) a causal link between the two. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In this case, apart from establishing the existence of the claimed disabilities, the evidence of record fails to show any disease, injury, or other trauma sustained in service, and further fails to show that the Veteran’s current disabilities at least as likely as not (meaning probability of 50 percent or greater) are etiologically related to his service. Specifically, upon considering the Veteran’s claims for bilateral knee and back disabilities, the Board found no evidence even suggesting, let alone showing with the requisite probability of at least 50 percent, that these disabilities are related to his service. The Veteran’s service treatment records (STRs) and his post-service VA as well as private treatment records are devoid of any signs, symptoms, complaints, treatments, or diagnoses that may be associated with his current musculoskeletal disabilities for more than 20 years after his discharge. For example, the August 2000 and March 2003 VA progress notes reflect the Veteran’s complaints of “some knee” and back problems, while specifically noting that he “is currently working light duty (worker’s comp/knee problems since 1998),” as his line of work requires a lot of heavy lifting. These reports further note medical history, to include PIH (Peptic Ulcer Disease) and RIH (Right Inguinal Hernia) in 1980; septoplasty in the 1970s; hypertension, and erectile dysfunction, but are silent as to knee or back problems at any time prior to 1998. No less significantly, in May 2008, the Veteran was involved in severe motorcycle accident on Highway 181 in Morganton, North Carolina, from where he was flown to East Tennessee for treatment. In the accident, he sustained 2-3 rib fractures, multiple spine fractures, left knee torn meniscus, 3 broken bones in the left knee, fractured skull in 3 places, and multiple fractures of facial bones. As a result of the accident, the Veteran had also sustained a traumatic brain injury and retinal detachment resulting in a loss of sight in his right eye. Subsequently, the Veteran was diagnosed with multiple disabilities, to include chronic back and bilateral knee pain, degenerative joint disease, bilateral hearing loss, tinnitus, and psychiatric disability. However, none of the relevant diagnoses and associated treatments predate 1998. Likewise, the Veteran’s SSA records are devoid of any evidence that may link his current disabilities to military service. Rather, the Veteran’s October 2008 SSA disability claim reflects his own statement attributing his disabilities to the injuries sustained in the May 2008 motorcycle accident. Ultimately, the evidence of record shows that the first complaints associated with the Veteran’s musculoskeletal disabilities are attenuated from service by many years. In the intervening years, the Veteran’s work required a lot of heavy lifting and he had sustained multiple injuries in a severe motorcycle accident. As such, the Board finds that the Veteran’s bilateral knee and back disabilities with onset many years after service more likely than not are etiologically related to his occupations and motorcycle accident. Absent any affirmative evidence to the contrary, the Board further finds that the Veteran’s bilateral knee and back disabilities are less likely as not etiologically related to his service. Upon further considering the Veteran’s claims for service connection for bilateral hearing loss and tinnitus, the Board also notes that none of the evidence of record suggests that the Veteran’s current hearing impairment first documented more than three decades after his discharge may be related to his service. That is, apart from the Veteran’s generalized claim for service connection for bilateral hearing loss and tinnitus and his generalized notice of disagreement, which at most implies his belief that his current hearing impairment may be related to his service. However, such belief is unsupported by any lay or medical evidence of record. Rather, the evidence of record strongly suggests that the Veteran’s bilateral hearing loss and tinnitus are likely related to his significant post-service exposure to noises in occupational and recreational settings, to include operating machinery and riding a motorcycle. This conclusion is further strengthened by an October 2009 audiology consultation noting the Veteran’s report of having difficulty hearing from a distance as well as tinnitus, particularly on the right, while he also notes a history of motor vehicle accident involving trauma to the right. Ultimately, nothing in the record, to include the Veteran’s own statements, shows that he may have had sustained any acoustic trauma in service or that his current hearing impairment was incurred in, caused by, or otherwise is etiologically related to his service. As such, the rating criteria for service connection for bilateral hearing loss and tinnitus have not been met. Likewise, upon considering the Veteran’s claim for psychiatric disorder, the Board has found that the legal criteria for service connection also have not been met. Establishing an entitlement to service connection for posttraumatic stress disorder requires (1) the medical evidence diagnosing the condition in accordance with Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), American Psychiatric Association (2013); (2) a causal link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor had actually occurred. See 38 C.F.R. § 3.304(f). Of particular note, unless the evidence establishes a diagnosis of PTSD during service, or that the Veteran engaged in combat with the enemy, or a stressor is related to the Veteran’s fear of hostile military or terrorist activity, or the Veteran was a prisoner-of-war, or the claim is based on a personal assault during service, the claimed in-service stressor may not be established by the Veteran’s statements alone and must be corroborated by the credible evidence showing that the claimed in-service stressor had actually occurred. Of further note, both a clinical diagnosis of PTSD, or another psychiatric disorder, and the requisite causal link between the current psychiatric symptomatology and the claimed in-service stressor must be established by medical evidence. See 38 C.F.R. § 4.125. Here, a February 2020 VA mental health evaluation report reflects an unequivocal medical opinion that the Veteran does not meet the DSM-5 criteria for diagnosis of PTSD. The examiner explains that the Veteran’s VA treatment records do reflect several references to positive PTSD screenings, which are tools used as basis for further evaluations, but are discrete from the actual diagnostic clinical evaluations and do not establish clinical diagnosis. The examiner observed that the Veteran has utilized mental health services (including psychiatric medication management and psychotherapy) extensively since 2016, but the adequate psychodiagnostics measures were not administered and thus any basis for rendering PTSD diagnosis is unclear. In July 2018, the diagnoses by his long-time treating psychologist were panic disorder with agoraphobia; mild neurocognitive disorder, unspecified; and unspecified personality disorder. The examining psychologist concludes that the Veteran meets the diagnostic criteria for panic disorder with agoraphobia which is less likely than not to be related to his very brief military service. In reaching this conclusion, the psychologist has carefully considered the Veteran’s lay statements as to the in-service stressor, claiming participating in firefights in Vietnam and seeing “friends in Vietnam get blown away.” The examiner observes that the claims file is devoid of any corroborated service in Vietnam. The psychologist further observes that in today’s examination, the Veteran did not report the alleged incidents of witnessing a fellow soldier killed in a live fire accident and receiving instructions in making bombs out of regular household items, as alleged in his July 2015 Statement in Support of Claim for PTSD. This opinion is consistent with the medical evidence of record viewed as a whole. For example, an October 2008 VA mental health note does reflect a reference to a PTSD diagnosis based on recent short-term disability and looming unemployment issues. A November 2008 VA mental health note reflects that the Veteran has multiple physical complaints and is depressed about not being able to work and having financial difficulty. The Veteran’s VA mental health notes reflect multiple diagnoses, to include PTSD, depressive disorder, panic disorder with agoraphobia, neurocognitive disorder, and personality disorder. Of particular note is a May 2010 mental health report reflecting the following medical opinion: [The Veteran] presents with a very lengthy, convoluted history that is not consistent with PTSD related to military experience. Records show patient served less than a month in the Army. Note that he did suffer a head injury at motorcycle wreck. He reports that he was in the Army for only 29 days. Records show 9/26/75-10/9/75. He denies combat experience or deployment overseas. He believes that the Army intentionally exposed him to some type of gas during his training. He believes his gas mask had a hole. He also believes that for 8 years after his release from the Army he was picked up by 6 men in a dark SUV for secret missions. These occurred every 3-4 months and would last for one week. When he would return, he would have no recall of events. His employer would tell him that he had been at work the entire week but was working in another part of the plant. He states that only his mother, who is now deceased, could verify his story. An August 2010 mental health evaluation reflects that the diagnosis was amended to psychotic disorder, NOS (not otherwise specified), as evidenced by paranoia, delusions regarding prior military experience. This is further supported by the February 2020 VA mental health evaluation report reflecting: Veteran entered service at the age of 20. Active duty service in the Army was completed during five weeks in 1975 (per VA Form 2507). His MOS was trainee. Today Veteran said he served “maybe” 26 months and that his MOS was “mechanized artillery.” He disputed that his service was as short as documented on his DD-214. He claimed that he served in Saigon and in Phnom Penh, Cambodia. [The Veteran] said his rank at discharge was staff sergeant (“Is what I remember.”) Veteran said he tried to re-enlist soon after returning stateside from Southeast Asia in 1977 or 1978 and was told that he was ineligible for unspecified reason(s). No foreign service is credited on his DD-214. Only one DD-214 was found in his e-folder. His rank at discharge was private. In considering the Veteran’s statements, the psychologist reiterates that in the examination the Veteran did not report the previously alleged incidents when he witnessed a fellow soldier killed in a live fire accident and received instruction in making a bomb, neither of which has been corroborated. The psychologist further notes that the Minnesota Multiphasic Personality Inventory-2-RF (MMPI-2-RF) was administered to assess Veteran’s psychological functioning. The Veteran gave a larger than average number of infrequent responses, which indicates over-reporting of psychological symptoms. Other test results regarding substantive clinical issues were accordingly deemed uninterpretable. Based on the comprehensive review of the Veteran’s claims file, his medical history, and the in-person clinical evaluation, the psychologist concludes that the Veteran at least as likely as not has panic disorder with agoraphobia that was less likely as not caused by or incurred during his brief interval of military service. This diagnosis fully explains a history of anxiety complaints, while he less likely as not has PTSD. Likewise, it is less likely than not that he has any acquired psychiatric condition, to include depressive or psychotic disorder associated with the alleged incidents of witnessing a fellow soldier being killed in a live fire accident and/or receiving instruction in making a bomb, neither of which has been corroborated by his military records, to include a DPRIS (Defense Personnel Records Information Retrieval System) response received in February 2020. On examination, the Veteran reported alleged military trauma in Vietnam and Cambodia, but no documentation of such foreign service or any service beyond a brief portion of basic training is in evidence. Moreover, the clinical findings on examination do not indicate PTSD, any chronic depressive disorder, any chronic psychotic disorder, any specific neurocognitive deficit, or a specific personality disorder. Rather, the Veteran’s report of chronic frequent panic attacks is consistent with the diagnosis of panic disorder with agoraphobia, as assessed in today’s examination and aligns with the primary diagnosis rendered by his long-time treating psychologist. As discussed, service connection for a psychiatric disorder requires the medical evidence showing that the current psychiatric symptomatology is etiologically related to an in-service stressor that is corroborated by the credible evidence. The weight of the evidence of record viewed as a whole ultimately fails to meet these fundamental legal requirements. Otherwise, the weight of the evidence of record fails to show that it is at least as likely as not that any of the Veteran’s claimed disabilities, to include back, bilateral knees, bilateral hearing loss, tinnitus, and psychiatric disorder(s) were incurred in, due to, or otherwise are etiologically related to his military service. Of note, although the law provides for alternative avenues to establishing service connection for certain chronic diseases such as arthritis of the back and knees, as well as organic diseases of nervous system, to include sensorineural hearing loss and tinnitus, none of the pertinent legal provisions are applicable in cases, like this, where the Veteran did not serve for at least 90 days. See 38 C.F.R. § 3.307(a)(1). No other material issues have been expressly raised by the Veteran or reasonably raised by the evidence of record. Accordingly, the appeal is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alex Bardin, 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.