Citation Nr: 21031400 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 15-44 281 DATE: May 21, 2021 ORDER As new and material evidence has not been received, the petition to reopen the claim of entitlement to service connection for a low back disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for major depressive disorder, as secondary to the back and knee disabilities, is denied. FINDINGS OF FACT 1. The Veteran's claim for his back disability was initially denied in a December 2009 rating decision. The evidence generated within one year of that decision was not new and material, nor did the Veteran disagree with that denial. 2. Evidence associated with the claims file since the 2009 rating decision is cumulative or redundant of the evidence previously of record and is not sufficient to raise a reasonable possibility of substantiating the claim of entitlement to service connection for the back disability. 3. The Veteran does not have a current diagnosis for a left knee disability. 4. A depressive disorder was not evident during service, or until many years thereafter, and was not otherwise related to the Veteran's military service or to any service-connected disability. CONCLUSIONS OF LAW 1. The December 2009 rating decision, which denied entitlement to service connection for the back disability, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302. 2. The criteria to reopen the claim of service connection for the back disability have not been met. 38 U.S.C. § 5103, 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for depression have not been met. 38 U.S.C. §§ 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1976 to March 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Veteran provided sworn testimony before the undersigned Veterans Law Judge (VLJ) at a Board hearing. A copy of the hearing transcript has been associated with the electronic claims file. In a June 2019 Board decision, these claims were remanded for further development. That development having been completed to the extent possible, the matters are again before the Board for appellate review. The 2019 remand directives instructed the RO to contact the Veteran regarding the private medical documents he discussed during the 2019 Board hearing, as well as any other private medical records, and to request the archived VA medical records from the 1990s from the Boston VAMC. The RO obtained VAMC medical records from Bedford and Boston, including records beginning in the early 1990s. The RO also sent the Veteran development letters in October 2019, December 2019, June 2020, July 2020, and December 2020 requesting those private records and to advise him that requests had been made but they were not provided and to retrieve them and submit them to VA. While the RO received a statement from the Veteran's attorney in July 2020 regarding the private medical records and that they would be submitting them, there has been no more correspondence or submission of records since, nor any requests for additional time to obtain the records. As discussed in Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), "[t]he duty to assist is not always a one-way street" and if the Veteran desires help with his claims, he must cooperate with VA's efforts to assist him. As such, the Board finds that VA has substantially complied with the 2019 remand directives to the extent possible. Stegall v. West, 11 Vet. App. 268, 271 (1998). Other than as immediately discussed, the Veteran has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Further, neither the Veteran nor his representative has alleged any deficiency with the conduct of the Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). 1. Whether new and material evidence has been received to reopen a claim for back disability As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen the previously denied claim for the Veteran's back disability. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. See 38 U.S.C.§ 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for the Federal Circuit (Court) has held that evidence is presumed credible for the purposes of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption is rebuttable when the evidentiary assertion is inherently incredible. King v. Brown, 5 Vet. App. 19, 21 (1993) (evidentiary assertions are presumed true except when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion). The Court has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). In deciding whether new and material evidence has been received, the Board looks to evidence submitted since the last final denial of the claim on any basis. Bostain v. West, 11 Vet. App. 124, 126-27 (1998). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When deciding as to whether received evidence meets the definition of new and material evidence, the Board should be cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. A. Finality By way of history, the Veteran's initial claim for service connection for the back disability was denied in a December 2009 rating decision. In that decision, the RO denied the claim because the evidence did not show evidence of a past or current back pain/disability that began in or was caused by the Veteran's military service. The Veteran was notified of the decision on December 15, 2009, but he did not appeal. However, as some VA medical records later associated with the file are dated within a year of that decision, the Board will consider whether it was new and material. The Federal Circuit has held that if VA receives new evidence within the appeal period of an AOJ decision, it must be considered according to 38 C.F.R. § 3.156(b). If such consideration is not performed, the underlying claim does not become final but rather it remains pending. Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014); see also Turner v. Shulkin, 29 Vet. App. 207 (2018) (VA treatment records generated within the one-year appeal period following a rating decision may satisfy the requirements of 38 C.F.R. § 3.156(b) when VA adjudicators at VBA have knowledge of the existence of those VA treatment records within the one-year appeal period); see also Lang v. Wilkie, 971 F.3d 1348 (2020) (a VA adjudicator does not need actual knowledge of VA-generated medical records created within one year following a VA decision to establish constructive receipt for the purposes of applying 38 C.F.R. § 3.156(b) because VA has constructive knowledge of these records.). Here, the Veteran had received medical treatment at a VA medical center between December 2009 and December 2010. Those records were not, however, submitted to the file until after the 2019 Board remand requesting the records, though, as noted in Lang, this is immaterial as VA has constructive knowledge of these records. Regardless, although new, the medical records are not material, as they did not suggest a link to service. Although the Veteran continued to receive treatment at a VA medical facility for back pain, and the records showed continued treatment, there was no suggestion in the medical records of a link between that condition and the Veteran's service, which was the reason the claim was denied. No other evidence was received (actually or constructively) within the one-year time period. Therefore, even considering caselaw such as Turner and Lang in every way possibly beneficial to the Veteran, the Board still finds the December 2009 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. B. New and Material Evidence In October 2013, the Veteran filed another claim, in part, for service connection for the back disability. After reviewing the evidence associated with the claims file since the last final decision, the Board finds that new and material evidence sufficient to reopen the claim has not been received. Some of the medical evidence submitted since the 2009 rating decision is considered new, as it was not of record at the time of the prior denial; however, it is not material to the Veteran's claim as it does not show a back condition that is potentially related to his military service. For example, the Board acknowledges the Veteran's 2019 Board hearing testimony, when he testified that he has been receiving VA medical care since the 1990's, that he was currently being seen for his back condition, and that he possibly had an MRI performed in 2012. As part of the remand, the Board requested the archived VA medical records as they may be sufficient to reopen the claim. However, upon review of the records received beginning in the early 1990's, there was no indication or mention of a back disability or back pain. Further, the only MRIs noted in the record were for the Veteran's headaches not his back. Further, as discussed above, the claim was remanded to provide the Veteran with the opportunity to provide the private records, and despite multiple attempts to the Veteran requesting this information, he and his attorney did not submit any new evidence. Therefore, there is no evidence supporting his assertions. Since 2009, the Veteran has not offered new and material evidence supporting that his back pain is due to military service, and there has been no competent evidence submitted suggesting he currently has any back pain or current back disability that is due to service, which was the element missing at the time of the 2009 rating decision. Thus, for the foregoing reasons, the Board finds that the record does not contain new and material evidence sufficient to reopen the claim of entitlement to service connection for the back disability, and that the petition to reopen must be denied. When the issue is the basic elements of service connection, such as a current disability and a nexus to service, the question of whether the claim is warranted on the merits largely overlaps with the issue of whether the new evidence is new and material. Jackson v. Principi, 265 F.3d 1366, 1370-71 (Fed. Cir. 2001). As the Veteran was on notice that he needed to establish nexus to service, he is not prejudiced by the fact that the Board has concluded the lack of evidence on this point leads to a refusal to reopen the claim, rather than a rejection of his reopened claim on the merits. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, certain chronic diseases may be service-connected on a presumptive basis if manifested to a compensable degree in a specific period of time post service. See 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. 2. Entitlement to service connection for a left knee disability The Veteran seeks service connection for a left knee disability. He asserts this disability had its onset during or results from service, to include from his right knee disability, and service connection is therefore warranted. Considering first the service treatment records, these are negative for any diagnosis of or treatment for a left knee disability. Although in 1978 he marked yes to trick or locked knee, his medical care records only mentioned his right knee. Further, in 1976, he reported injury to his right knee during basic training, and later reported intermittent difficulty with the right knee giving out from the basic training injury. There was no indication or mention of his left knee. Thereafter, he filed a claim in 2004 as to the right knee only. Further, during the September 2004 VA examination, he specifically reported that he feels his right knee gives way and that it has felt this way since basic training in 1976 and since then, he has had weakness on his right knee (no mention as to the left knee). Further, during physical testing, it was noted that his left knee was his sound side and it had full range of motion. During the Veteran's 2019 Board hearing, he testified as to his knee, but he never specifically stated his left knee; regardless, as he reported his "knee" pain had been an issue since basic training and that he has had ongoing treatment since, the Board remanded the claim to retrieve the records he mentioned. However, a review of the Veteran's medical records since the early 1990's to current do not reveal a left knee disability, nor do they show complaints of left knee pain. For example, in February 1992, it was specifically noted that he was in good, physical condition. An October 1994 hospital admission was for headaches and he did not report any issues with his knees. Rather, his physical examination noted he was well developed in no acute distress and his muscle strength and sensory was normal and intact. He also had normal gait. A September 2004 review of medical records show he reported right knee weakness and pain, but there was no mention of the left knee. In May 2010, he was referred to physical therapy for his right knee pain, reported the right knee pain began in service, and it was noted he had full range of motion in the left knee upon physical testing of both knees. In June 2011, his physical examination indicated that his bilateral knees had no swelling, deformities, or tenderness and they had full range of motion. A January 2013 physical examination revealed normal bilateral knees and strength. In May 2014, he reported trauma to his right knee from the military and that he now has discomfort with stairs. Thus, based on the above, the Board must conclude that an alleged left knee disability was not incurred in service, manifested within a year of service separation, or has been chronic or continuous since service separation. While right knee pain was noted in the Veteran's medical records, he is not service-connected for the right knee, therefore, that issue is moot. His testimony as to in-service injury and symptoms thereafter is not credible in light of the numerous complaints concerning his right knee over the years, with no reports as to any left knee issues. It is reasonable to assume that he would have reported left knee symptoms, as well, since he was already seeking treatment for the right knee. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Even if the Board were to accept his vague complaints of pain as sufficient evidence of a current disability, there remains no persuasive evidence of in-service injury, as his testimony on this point is not credible as discussed above, nor is there any competent evidence of a relationship between his reported pain and his military service. While the Board recognizes the Veteran's assertions that he has a left knee disability that is related to service and is competent to testify as to events that occurred in military service, the Veteran is not competent to diagnose himself with a left knee condition or to conclude that any claimed condition is connected to his service. Although lay persons are competent to provide opinions on some medical issues, the specific disabilities in this case, musculoskeletal issues, fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board finds that the Veteran's statements of record cannot be accepted as competent evidence sufficient to establish a disability or to establish service connection for his left knee disability. As the lay and medical evidence of record does not establish that the Veteran has a current diagnosis of a left knee disability, nor is there even evidence of complaints of left knee pain, his claim must be denied, and the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R.§ 3.102. 3. Entitlement to service connection for major depressive disorder The Veteran contends that he has a psychiatric disorder, to include as related to his service, and particularly that it is due to his left knee disability and back disorder. In addition to the above, service connection may be warranted for disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310. Secondary service connection requires (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The question for the Board is whether the Veteran has a mental health disorder that began during service or was at least as likely as not related to an in-service injury, event, or disease, or due to a service-connected disability. The Board has considered all of the evidence but finds that the preponderance of the probative evidence is against finding that service connection is warranted. First, the Veteran is not service connected for any disability, so his assertion that his psychiatric disorder was caused/aggravated by his back and/or knees is moot. As for direct service connection, the Board notes that the Veteran's service medical records do not indicate any psychiatric or mood disorders. At service separation in December 1978, the Veteran specifically reported that he had no history of, or current depression, excessive worry, or nervous trouble of any sort. When examined at service separation, the Veteran was found to be psychiatrically normal. After service, there are no records of treatment for any mental health issues for several decades. Significantly, there is no confirmed manifestation of a mental illness to a degree of 10 percent or more within one year of service separation. Rather, the first indication for a psychiatric disorder was not until September 1996 when he reported having insomnia and feeling nervous, anxious and wanted to discuss his mental health. Then, post-service VA treatment records include a September 2004 review of medical records, which indicated that he had a history of alcoholism, headaches and psychiatric disorder, adjustment disorder and depressed mood. In November 2007 mental health records from Bedford VAMC, he reported that prior to two years ago, he was not a problem drinker, but he now has several symptoms of depression, but no suicidal or homicidal ideation. He specifically stated that he thinks his alcohol abuse came first and caused his depressed symptoms. The diagnosis was primary insomnia with alcohol dependence in early full remission in a controlled environment; Cocaine Dependence in sustained full remission; marijuana Dependence in sustained full remission; and Nicotine Dependence. Thereafter, a September 2009 mental health assessment noted he had recent stress due to separation from his wife and being unemployed and homeless. It was noted he used THC and cocaine. But he denied nightmares, flashbacks, suicidal ideation, and it was noted he had no psychiatric illness history and had never been treated for psychiatric illnesses except for detox. His diagnosis was polysubstance and alcohol abuse with substance induced mood disorder. It was noted he had back pain and right knee pain that contributed to this diagnosis. A June 2012 mental health consultation noted his right knee injury as part of the diagnoses for alcohol dependence in sustained full remission (but again, he is not service connected for his knee disability). In June 2013 he denied depressed mood, racing thoughts, anxiety, or difficulty sleeping, and his depression screen was negative. In October 2013, his medical provider stated: "though he reports feeling depressed due to some marital discord and being unable to see his young son, he does not currently present with any symptoms suggestive of a major depressive episode." In April 2014, his medical provider diagnosed him with adjustment disorder with depressed mood, but specifically noted this was due to his wife's infidelity; and he thereafter went to rehabilitation for his alcohol and cocaine abuse. Subsequent VA medical records indicate treatment for his polysubstance disorder and that he takes medication for depression, but do not relate any of the Veteran's psychiatric disorders to his service. Additionally, private medical records dated from June 2002 and August 2012 consistently noted that he was alert and oriented and not in acute distress. Further, in August 2012, past medical history included history of alcoholism, but he reported being sober since 2009 and no other mental health issues stated. He also reported he did not have anxiety or fatigue, and he denied depression, depressed mood, anhedonia, memory loss, or insomnia. During the 2019 Board hearing, he testified that he takes trazodone for depression. He stated that he used to do group therapy but does not go anymore and testified that the pain from his back and knee affects depression and affects sleep. However, as noted above, he is not service connected for his back and knee pain/disabilities. Although the evidence of record includes diagnoses of adjustment disorder with depressed mood, marijuana use disorder, and substance use disorder, none of the Veteran's psychiatric disorders have been related to his service. In addition, with regard to the diagnosed substance abuse disorders, the Board notes that a substance abuse disorder cannot be service-connected as a direct result of service, and while it may be on a secondary basis, service connection for any physical or mental disorder that may have caused or aggravated the substance abuse is denied herein. Therefore, service connection for any substance abuse disorder is not warranted. See 38 U.S.C. §§ 105, 1131; 38 C.F.R. § 3.301(a) (service connection may not be granted for alcohol abuse on the basis of service incurrence or aggravation); see also Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001) (determining that alcohol abuse may be service connected if the alcohol abuse disability was acquired as secondary to, or as a symptom of, a service-connected disability). The Board finds that there is no competent medical evidence to show that the Veteran has any psychiatric disorder, including a mood disorder or depression, that is related to his service. In this case, the earliest post-service medical evidence of the Veteran reporting any mental health issues such as feeling anxious and having insomnia was in 1996 which is over 17 years since service. Further, the earliest evidence of a psychiatric disorder diagnosis was November 2007 when his depression screen was positive for depression, and he was diagnosed with primary insomnia with alcohol dependence in early full remission in a controlled environment; Cocaine Dependence in sustained full remission; marijuana Dependence in sustained full remission; and Nicotine Dependence which is almost 30 years after service. Moreover, the Board finds that the Veteran's statements relating his psychiatric disorder to his service are not credible and are afforded no probative value. His contentions conflict with the absence of a history of psychiatric symptoms during or since service during his treatment sessions/hospitalizations prior to filing his claim with VA. Importantly, the Veteran has consistently reported that his psychiatric disorders are not due specifically to service, but are secondary to his back and knee pain which as noted above, are not service connected. Additionally, the Veteran himself has consistently reported that his alcohol abuse came first, and this is what caused his depressed symptoms, and a substance abuse disorder cannot be directly service connected. Medical providers have specifically determined that his adjustment mood disorder is due to his marital situation, with no suggestion the Veteran has any psychiatric disorder that is related to his service. The Board has taken the contention that the Veteran has a psychiatric disorder that was caused by service seriously. The Board has also closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that may serve as a medical nexus between the Veteran's service and his claimed psychiatric disorder. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of his psychiatric disorder, falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As such, the Board concludes that the preponderance of the evidence is against the claim for service connection for a psychiatric disorder, including an adjustment disorder with depressed mood disorder and polysubstance abuse disorder, and there is no doubt to be otherwise resolved. As such, this claim is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.