Citation Nr: 21026846 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-35 538A DATE: May 4, 2021 ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for an acquired psychiatric disorder is denied. FINDINGS OF FACT 1. A right knee disorder was not shown in service, nor was arthritis shown to have initially manifested within a year of discharge from active duty, and the weight of the competent evidence is against finding a nexus between a post-service diagnosis of any right knee disability and service. 2. An acquired psychiatric disorder was not documented during service, nor was a psychosis shown within one year of separation from service, and the weight of the competent evidence is against finding a nexus between a post-service diagnosis of any psychiatric disorder and service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. The criteria for establishing service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1972 to March 1973. In June 2019, the Board remanded the claim for additional development. The Board finds that the post-Remand development complied with the Remand because the post-remand VA examiners in December 2019 and January 2020 provided medical opinions adequate to adjudicate the Veteran's claims under all theories of entitlement and the opinions are based on the examination, the record on appeal, and supported by medical reasoning. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Board also finds that the post-Remand development complied with the Remand because while the appeal was in Remand status all identified and available VA and private treatment records were obtained and associated with the record. Id. Therefore, the Board finds that further delay by remanding the appeal to provide the Veteran with a new VA examination or obtain additional treatment records is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Service Connection Claims Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, including psychosis and arthritis, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Certain evidentiary presumptions - such as the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service - are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C. §§ 101, 1112; 38 C.F.R. § 3.304 (b), 3.306, 3.307, 3.309. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a right knee disability The Veteran seeks entitlement to service connection for a right knee disability. The Veteran has been diagnosed with a right knee disability status post-total right knee replacement. Thus, the remaining question before the Board is whether such disability is related to service. The Veteran's service treatment reports fail to document a right knee disorder. After service, treatment records since 2012 reflect complaints of right knee problems. In August 2012, the Veteran reported injuring his right knee in 1984 when he squatted down on some scaffolding and his right knee popped. After the 1984 injury, he required six arthroscopic procedures on the right knee culminating in a total knee replacement in December 2010. Thus, the Veteran was not shown to have arthritis of the right knee in service or within one year following discharge from service, as such, service connection cannot be established for arthritis on a presumptive basis. 38 U.S.C. § 1112 ; 38 C.F.R. §§ 3.307, 3.309. Here, there is no evidence of a right knee disorder in service or for many years after discharge therefrom. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many, many, years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.). To the extent the Veteran is asserting continuity of symptomatology from service, the Board finds such statements inconsistent with the overall record. He has not credibly shown that his present right knee disability was incurred in service and continued since service as this is inconsistent with the service treatment records and post-service medical evidence. On the question of a nexus between the claimed right knee disability and service, the evidence weighs against the claim. On VA examination in January 2020, the Veteran did not report a specific injury in service, rather he stated that walking on concrete during service was hard on his knees. The Veteran reported, and the evidence showed, a right knee injury in 1984, which was followed by multiple surgical procedures and total right knee replacement in 2010. He described residual knee pain. The examiner noted that the service treatment records for the Veteran's brief period of service contained no complaints, history, or findings consistent with right knee problems. Following a review of the claims file and an examination of the Veteran, the examiner opined that the Veteran's right knee disability was less likely incurred in service. The examiner considered the complete record and the Veteran's contentions and provided an explanation as to why the evidence does not support a finding that his right knee disability was due to service. Finally, the VA examiner's opinion was internally consistent and consistent with other evidence of record and is of significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). In this regard, the Board must find that the service and post-service treatment records provide particular negative evidence against this claim. Significantly, there is no competent medical opinion linking a right knee disorder to any aspect of the Veteran's service. The Veteran is certainly competent to report as to the observable symptoms she experiences and their history, but he cannot self-diagnose because of the medically complex nature of such a diagnosis. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d at 1376-77. The ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship. Id. While the Veteran asserts that his right knee disability is due to service, the Board notes that the diagnosis of a chronic knee disability requires clinical testing and medical expertise, and cannot simply be diagnosed by lay observation alone. The Board notes that the Veteran has not provided a medical opinion nor supported his contentions with any examination reports or findings that he has a right knee disability that was due to service. Here, the VA examiner reviewed the claims file, examined the Veteran, reviewed medical literature, and provided an etiological opinion with rationale. The Veteran has only provided bare assertions which are outweighed by the medical examination of record. The Board finds that the objective medical evidence is more probative than the lay statements of record. See Owens, supra. As such, the Board finds that service connection for a right knee disability is not warranted, and the claim is denied. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In reaching the above conclusions the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. 2. Entitlement to service connection for an acquired psychiatric disorder The Veteran seeks service connection for an acquired psychiatric disorder. In this case, the medical evidence shows that the Veteran has been diagnosed with an acquired psychiatric disorder. The Veteran's service treatment records for his limited period of service are entirely negative for complaints, treatment, or diagnosis of a psychiatric disorder. After service, VA treatment records since 2012, document treatment for a metal health disorder. A diagnosis of recurrent severe major depressive disorder was noted in May 2012. He reported onset of depression following an infection of his left knee earlier that year. Subsequent treatment records associated his mental health symptoms with chronic health problems. Based on the evidence noted above, the Board finds that an acquired psychiatric disorder was not shown in service, and psychosis was not shown in service or within one year following discharge from service. Accordingly, competent evidence linking the current disability to service is needed to substantiate the claim. In a July 2016 medical statement, a VA clinician stated that the Veteran's traumatic experience in the miliary, along with his severe medical issues, made him struggle with severe depression. This medical statement provided no rationale for the simple, broad, and conclusory statement. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a mere conclusory opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to the opinion against contrary opinions.); see also Leshore v. Brown, 8 Vet. App. 409 (1995) (holding that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record). Additionally, the clinician's opinion is contradicted by the evidence of record, to include the service treatment records, which contain no complaints, history or findings consistent with a psychiatric disorder, and the post service treatment records that initially noted treatment for a mental health disorder for approximately 40 years after service, associated nonservice-related stressors, including a knee infection. Accordingly, the opinion is afforded little probative value. See Owens, supra. The Veteran underwent a VA examination in December 2019. The Veteran reported that his mental health difficulties began after military service following a "rare infection". The examiner noted that the Veteran's service treatment records were silent for complaints, markers, treatment, or diagnosis for any psychiatric disorder which might serve as a link between his current distress and an in-service injury, event, or illness. The examiner diagnosed adjustment disorder and opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Board finds the December 2019 VA examiner's opinion to be highly probative. The opinions were based on a thorough review of the claims file, including the service treatment records and examination of the Veteran, and the opinion is internally consistent and consistent with other evidence of record. Moreover, the examiner provided adequate rationale for the opinion. Accordingly, the VA examiner's opinion is entitled to great probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."); Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the veteran's position). While the Veteran is competent to report as to the observable symptoms he experiences and their history, the ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Layno, supra; Buchanan, supra; Jandreau, supra. The Board finds that the specific, reasoned opinion of the VA examiner of greater probative weight than the more general lay assertions in this regard. The examiner has training, knowledge, and expertise on which he relied to form the opinion, and the examiner provided adequate rationale for the conclusions reached. While it is clear that the Veteran has problems, the key issue is what has caused those problems. More importantly, the service and post-service medical records clearly provide evidence against the claim that the Board cannot ignore, indicating a problem that is not related to the Veteran's limited period of service more than 48 years ago. See Mense, supra; Maxson, supra. Simply stated, both the best medical evidence in this case, and the facts of this case, provide highly probative evidence against the claim. In sum, a psychiatric disorder was not shown in service or for many years thereafter, and the most probative evidence is against a finding that the Veteran has a diagnosed psychiatric disorder that is causally related to service. Accordingly, the preponderance of the evidence is against the claim, and it is denied. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Owens, supra. In reaching the above conclusions the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.