Citation Nr: 21031022 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 18-05 745 DATE: May 20, 2021 ORDER Service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is denied. Service connection for a left knee disability, to include as due to Gulf War Syndrome, is denied. Service connection for a right knee disability, to include as due to Gulf War Syndrome, is denied. FINDINGS OF FACT 1. The Veteran's acquired psychiatric disability is not related to service. 2. The Veteran's left knee disability is not related to service, did not manifest within one year of discharge, and is not related to environmental exposures in Southwest Asia. 3. The Veteran's right knee disability is not related to service, did not manifest within one year of discharge, and is not related to environmental exposures in Southwest Asia. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disability, to include PTSD, are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). 2. The criteria for service connection for a left knee disability, to include as due to Gulf War Syndrome, are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2020). 3. The criteria for service connection for a right knee disability, to include as due to Gulf War Syndrome, are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from August 1986 to November 1986 and on active duty from September 1987 to October 1995. He served in Saudi Arabia from February 1991 to May 1991. This appeal is before the Board of Veterans' Appeals (Board) from a May 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In April 2020, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. In August 2020, the Board reopened the knee claims and remanded them along with the PTSD claim with instruction to obtain current VA treatment records. The appropriate records were obtained in August 2020 and September 2020. The Board is therefore satisfied that the instructions in its August 2020 remand have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that in October 2020 the Veteran's representative submitted a supplemental claim under the modernized appeals system for service connection for his knee disabilities. His claims were not withdrawn from the legacy system, and in a November 2020 letter he was informed that the claims were rejected. The Board thus retains jurisdiction to adjudicate the claims under the legacy appeals system. Additionally, the new evidence submitted along with the October 2020 supplemental claim is duplicative of records already in the file, and remand for review by the agency of original jurisdiction is thus not warranted. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Unlike service connection on a direct basis, the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 do not require competent medical nexus of a link between the qualifying chronic disability and military service. Service connection is presumed unless there is affirmative evidence to the contrary, where the criteria are met. See 38 C.F.R. § 3.317(c); Gutierrez v. Principi, 19 Vet. App. 1 (2004). The term "Persian Gulf Veteran" means a Veteran who, during the Persian Gulf War, served on active military, naval, or air service in the Southwest Asia theater of operations. The Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). The term "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal disorders). 38 C.F.R. § 3.317(a)(2)(i). A medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. See 38 C.F.R. § 3.317(a)(2). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For the purposes of 38 C.F.R. § 3.317, disabilities that have existed for six months or more or that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for an acquired psychiatric disability, to include PTSD The Veteran claims service connection for PTSD. Service connection for PTSD requires: (1) a diagnosis of the disorder made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-5); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. §§ 3.304(f), 4.125(a). There are several avenues to document an in-service stressor, other than obtaining verification from the Joint Services Records Research Center (JSRRC) or other government records repository: an in-service PTSD diagnosis with lay testimony; combat service with lay testimony; prisoner of war status with lay testimony; lay evidence of personal assault with appropriate corroboration; and a stressor related to a veteran's fear of hostile military or terrorist activity, with appropriate medical evidence. 38 C.F.R. § 3.304(f). Lay evidence may establish an in-service stressor if the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f)(2). Service treatment records do not reflect any symptoms of or treatment for any mental health disability, and no such abnormality was noted at the Veteran's June 1995 separation examination. VA treatment records reflect that in January 2006 the Veteran was treated for situational depression. In July 2012 a depression screen was positive. He reported that he had been depressed recently due to being out of work. The Veteran underwent a VA examination in July 2013. He reported in-service trauma, specifically being in a building that was hit with rockets, killing two soldiers. His wife reported that his behavior had gotten much worse after his brother died the prior year. He was diagnosed with a psychotic disorder and depression. The examiner stated that the Veteran appeared to have suffered a psychotic break. He denied any substance abuse, but, given that his discharge from service was related to cocaine use, the examiner noted the possibility that the psychosis could be substance induced. Absent substance testing, the examiner diagnosed a psychotic disorder with unknown etiology. The examiner further stated that because the Veteran's focus was on the possibility of current terrorist attacks and general paranoia about the government, his symptoms do not appear to be PTSD-based but more psychotic. The examiner also noted that his depression issues occurred following military service and are not service-connected. In a statement received by VA in November 2015, the Veteran reported flying several missions through black smoke making it difficult to see and breathe. He reported a constant fear of crashing. He stated that in February 1991, a missile hit barracks with 19 airmen in it. He reported that he has panic attacks when he hears sirens. The Veteran underwent another VA examination in January 2016. He reported that he had to put his gas mask on during a Scud missile attack and that 12 soldiers died in another area. He reported that it was scary when his aircraft landed near the oil fires. He reported seeing bodies hanging out of tanks. The examiner noted that he described this in a monotone, non-distressed manner. He reported that after service he developed a severe cocaine problem from 2008 to 2013. He was incarcerated from December 2013 to December 2015. He was diagnosed with severe cocaine use disorder in full sustained remission, but no other current psychiatric disability. The examiner explained that he did not meet the criteria for a PTSD diagnosis under the DSM-IV or DSM-5 criteria. Specifically, he had subclinical re-experiencing symptoms, and no symptoms of avoidance, changes in mood, or changes in cognition. The examiner further explained that his diagnosed cocaine use disorder was not caused by service or a service-connected disability. In a March 2016 statement, the Veteran requested another VA examination because he felt that the January 2016 examiner was unprofessional and hostile. He stated that he believed she was prejudiced towards him because he had been incarcerated. VA treatment records reflect that in April 2016 the Veteran was evaluated by a social worker for eligibility for a Veterans court program, at which time he denied any history of mental illness. He began group counselling for his diagnosis of severe cocaine dependence. In June 2016 he had a positive PTSD screen, but there is no indication that he followed up on evaluation. In January 2019 he reported depression and anxiety. He was admitted for three days, diagnosed with a mood disorder and polysubstance abuse, and transferred for drug rehabilitation. At his April 2020 hearing, the Veteran reported that at his January 2016 VA examination the examiner was standoffish. He explained that when he pulled up a chair, the examiner told him to push it back where it was. He felt that the examiner was biased and that he did not get a fair examination. He also reported that he had been hospitalized for inpatient treatment in 2018. The Board finds that the evidence weighs against a finding that an acquired psychiatric disability is related to service. While he reports symptoms related to in-service incidents when communicating with VA for the purposes of obtaining disability benefits, in other situations he routinely provides other causes for his symptoms or denies any mental health problems whatsoever. His only mental health treatment has focused extensively on his substance abuse problems with no mention of service. Two VA examiners have diagnosed disorders psychosis and cocaine use disorder and opined that they were less likely than not related to service. There is no medical evidence in the record to contradict these opinions; and while the Veteran asserts bias in conjunction with the 2016 VA examination, this is a bare assertion and there is no objective evidence to indicate that such examination was inadequate. For these reasons, the Board finds that the evidence weighs against a finding that an acquired psychiatric disability is related to service, and service connection is therefore denied. 2. Entitlement to service connection for a left knee disability, to include as due to Gulf War Syndrome 3. Entitlement to service connection for a right knee disability, to include as due to Gulf War Syndrome The Veteran claims service connection for bilateral knee disabilities. Service treatment records reflect that the Veteran reported left knee pain for four days without trauma in August 1986 during his period of ACDUTRA. He was diagnosed with patellofemoral pain syndrome. No abnormality was noted at his August 1987 induction examination for his period of active duty. A notation indicates he was treated for minor pain in October 1987, but there is no further record of this. In December 1987 he reported a left knee injury and was diagnosed with a left knee strain. In October 1989, he reported pain after banging his right knee on a truck. There was mild swelling and he was diagnosed with a contusion. In March 1994, he reported that his left knee gave way while running. He was referred for evaluation and diagnosed with a knee sprain. No abnormality was noted at his June 1995 separation examination, but in the accompanying report of medical history he reported a three-year history of pain and locking in his left knee. VA treatment records reflect that in June 2004 the Veteran reported bilateral knee pain for about one week. He stated that his left knee was injured in service and he had had pain since, but for the past few months it was in both knees. X-rays showed evidence of early arthritis in both knees. In March 2005 he again reported knee pain, left worse than right. He was diagnosed with degenerative joint disease with chronic pain due to knee trauma. In January 2006 he was treated for osteoarthritis of the bilateral knees. In June 2007 he was treated for degenerative joint disease of the bilateral knees. He reported continued pain in July 2008. In June 2009 he was treated for left knee arthritis. In March 2010 he reported left knee pain. A left knee x-ray was stable. He reported left knee pain again in July 2012. His diagnosis remained arthritis. The Veteran underwent a VA examination for his left knee in June 2013. He reported that he injured his left knee during a physical training test around 1993 and was diagnosed with a ligament strain. He reported that he was placed on limited duty for about two months. He was diagnosed with chondromalacia patellae. The examiner noted that although the Veteran mentioned knee pain at his separation examination, there is no medical evidence to support a chronic condition. In his July 2015 claim, the Veteran attributed chronic joint pain to exposure to burning oil wells in the Gulf War. The Veteran underwent a VA examination in March 2016. He reported that he injured his left knee during physical training in 1993, after which he was treated with therapy for two to three months. He reported constant ache and pain in the left knee since the injury. He reported starting to have pain in the right knee two years after getting out of service. X-rays showed no arthritis. The examiner opined that the Veteran's knee disabilities were less likely than not related to service. This opinion was based on the rationale that the knee disabilities had a clear and specific etiology and diagnosis. There were no studies to support recurrent sprains or patellofemoral syndrome as being the result of chemical or environmental exposures. There was minimal complaint of left knee pain after separation and radiologic findings did not support the level of severity suggested by the Veteran's reports which does not support a chronic disability pattern. VA treatment records reflect that in June 2016 the Veteran reported pain in both knees. X-rays were normal. Also in June 2016, his blood tests suggested the possibility of rheumatoid arthritis. In February 2017 his rheumatologist found no evidence of inflammatory disease and referred him for polyarthralgia. Private treatment records reflect that in November 2017 the Veteran reported bilateral knee pain, greater on the right. X-rays showed mild cortical articular surface irregularities along both medial femoral condyles with mild associated joint space loss, as well as superior patellar enthesopathy. He was diagnosed with acute pain of both knees and a sprain of the medial collateral ligament of the right knee. A December 2017 MRI of the right knee showed a ganglion or parameniscal cyst, tricompartmental degenerative joint disease that was severe in the medial and patellofemoral compartments, and quadriceps fat pad scarring. He underwent further treatment that did not reference his service. He was diagnosed with chondromalacia of the left knee and in March 2018 he underwent a diagnostic left knee arthroscopy and chondroplasty with microfracture. VA treatment records reflect that in March 2019 the Veteran reported bilateral knee pain, worse on the right. He reported right knee popping. He was referred to physical therapy for issuance of a knee brace. An April 2019 MRI showed right knee patellar undersurface and medial joint space high-grade partial to full thickness articular cartilage disease with associated reactive bone marrow edema changes. Private treatment records reflect that in June 2019 the Veteran underwent right knee unicompartmental arthroplasty to treat his right knee medial compartment arthritis. At his April 2020 hearing, the Veteran reported that his knee disabilities were related to the left knee symptoms he experienced in service. His representative noted that he had had two recent knee surgeries. The Board finds that the evidence weighs against a finding that the Veteran's knee disabilities are related to service, manifested within one year of discharge, or are related to environmental exposures in Southwest Asia. While the Veteran exhibited knee symptoms in service, there was no diagnosis of arthritis until many years after separation. The June 2013 VA examiner noted that the there was no medical evidence that the symptoms in service were chronic or related to his current symptoms. Similarly, the March 2016 VA examiner gave an opinion as to why the Veteran's knee disability was not a qualifying chronic disability or otherwise related to environmental exposures in Southwest Asia, and that radiologic finding did not support the level of severity suggested by the Veteran's report, which in turn did not support a chronic disability pattern. There is no competent medical evidence in the record to contradict these opinions. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran's knee disabilities are related to service, manifested within one year of discharge, or are related to environmental exposures in Southwest Asia. Service connection is therefore denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Gallagher, 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.