Citation Nr: 21032323 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-40 966 DATE: May 26, 2021 ORDER Entitlement to service connection for a bilateral knee disability is denied. Entitlement to service connection for a bilateral foot disability is denied. Entitlement to service connection for an acquired psychiatric disorder is denied. FINDINGS OF FACT 1. The Veteran's bilateral knee disability was not incurred in or due to his time in service. 2. There is no current diagnosis of a bilateral foot disability. 3. The Veteran does not have a psychiatric disorder that was incurred in or due to his time in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral knee disability are not met. 38 U.S.C. § § 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a bilateral foot disability are not met. 38 U.S.C. § § 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for an acquired psychiatric disability are not met. 38 U.S.C. § § 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1968 to July 1970. These matters come from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board and were remanded for further development in December 2018. The development has been accomplished and the matters are again before the Board. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b) (2016), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Bilateral Knee and Foot Claims The Veteran contends he has bilateral knee and foot disabilities that were incurred in and due to his time in service. The Veteran has been diagnosed with a bilateral knee disability. However, his record does not indicate he has been diagnosed with a disability in either foot. The Veteran's service treatment records (STRs) indicate he was seen for a right knee injury that occurred when he was playing football. (See e.g. March 1970, May 1970 STRs.). Additionally, on the Veteran's separation examination, the Veteran's right knee injury was noted, but the examiner also reported the Veteran had "no symptoms now." However, the Veteran's STRs are negative for ongoing treatment or complaint of a left knee or bilateral foot condition, though he was seen for bilateral heel pain, which was not mentioned as an ongoing problem in his separation examination. An opinion was sought as to the etiology of the Veteran's bilateral knee and foot conditions in January 2015. The examiner reviewed the Veteran's file but did not see the Veteran in person. The January 2015 opined it was less likely the Veteran's bilateral foot disability was incurred in or due to his time in service, saying that the Veteran's file was reviewed and noted the in-service foot treatment. However, the examiner opined they were likely transitory conditions as there was no objective evidence of a chronic bilateral foot problem in service. The examiner also noted the Veteran's separation examination was negative for mention of an ongoing foot problem and there was no objective evidence the Veteran had been treated for a foot condition post-service. The January 2015 examiner also opined it was less likely the Veteran's bilateral knee disability was incurred in or due to his time in service, saying there was no mention in the Veteran's STRs of a left knee problem. The examiner acknowledged the Veteran was seen for his right knee in service, but pointed out that x-rays were normal and the Veteran's separation examination stated there was no ongoing symptoms. Additionally, the examiner reported the Veteran had not been treated for a chronic bilateral knee condition post-service. The Board notes that in December 2018, these matters were remanded for another examination because the January 2015 examiner did not see the Veteran in person and did not appear to review the Veteran's post-service treatment records. These examinations were scheduled, but the Veteran refused the examinations. (See October 2019 exam request information.) The Veteran did not offer good cause for this refusal and did not ask for these examinations to be rescheduled. Therefore, the claims will be decided on the current record. Initially, the Board notes that treatment records shown in August 2019, the Veteran was seen for bilateral knee degenerative joint disease. Another August 2019 treatment record shows that the Veteran was treated for bilateral knee pain. Upon examination, the Veteran's right knee showed slight varus deformity and the left knee showed osteoarthritis. Overall, the Veteran was assessed with bilateral degenerative joint disease. Therefore, the Veteran has a bilateral knee condition. However, while the Veteran has been diagnosed with a right knee disability and was seen for such in service, it does not appear these conditions are related. The Veteran's separation examination indicated he did not have current symptoms, the record does not show the Veteran was seen for his right knee condition until decades after his separation from service, and the examination of record shows the Veteran's right knee condition was less likely than not due to his time in service. Regarding the Veteran's left knee, he was not seen for this in service and the conditions are not related for the same reasons as stated for the right knee. As for the Veteran's bilateral foot conditions, the Veteran's record does not indicate he is currently diagnosed with these disabilities and thus, service connection cannot be granted. The Board recognizes the recent decision in Saunders v. Wilkie that "pain alone can serve as a functional impairment and therefore qualify as a disability." No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018). However, the Court in Saunders cautioned that a Veteran cannot demonstrate service connection simply by asserting subjective pain. Id. Rather, the Court stated "[t]o establish the presence of a disability, the veteran will need to show that [his or] her pain reaches the level of functional impairment of earning capacity." Id. In this case, the Board acknowledges the Veteran's subjective reports of pain and discomfort. However, the Board finds these symptoms are not severe enough to reach the level of functional impairment of earning capacity. The Board bases its finding on lack of treatment records showing treatment for this condition, and there have been no findings of functional impairment on clinical evaluation. Even if the Board were to assume the Veteran was diagnosed with these claimed disabilities, the evidence does not show that he suffered from these conditions while in service or that they are due to his time in service. Therefore, the claims will be denied. Psychiatric Disorder Claim A claim for service connection for a mental disability may encompass claims for service connection of any mental disability that may reasonably be encompassed by several factors, including the veteran's description of the claim, the symptoms the veteran describes and the information the veteran submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has taken an expansive view of the claims for service connection for a mental health disability pursuant to Clemons and re-characterized them as shown on the cover page of this decision. The Veteran contends he has a psychiatric disability that was incurred in and due to his time in service. The Veteran's record does not indicate he is currently diagnosed with a mental health disability. (See e.g. October 2020 examination.) The Veteran's STRs do indicate he was seen in service for his mental health and was noted to have a character and behavior disorder. (See June 1970 STR.) The Veteran had an examination for his mental health in October 2019 in which the examiner saw the Veteran in person and reviewed his file. The examiner reported the Veteran did not have a diagnosed mental disorder. The examiner reported on relevant social and occupational history, including stressors outside of his time in service. The examiner noted the Veteran was seen for his mental health in service and was noted to have a behavioral problem. However, the examiner opined it was less likely than not the Veteran's claimed condition was incurred in or due to his time in service, explaining the Veteran did not have a mental diagnosis that met the DSM criteria. The Veteran's record, while showing he was seen for a behavior disorder in service does not show he is currently diagnosed with a mental health disability or that even if he were, it was related to his time in service. The Veteran has said that after service, he did therapy for stress-reduction, had some trouble relating to his step-children, and in 1994, had trouble with stress due to work and overtime. However, the Veteran's record does not show that he has a currently diagnosed mental health disability. Even if he did, the evidence does not show that it related to his time in service, though the Veteran did report suicidal ideations without intent while in service. (See October 2019 examination) Without a currently diagnosed disability that is shown to be at least as likely as not related to his time in service, service connection cannot be granted. Regarding all the above, the Board acknowledges the Veteran's conditions cause him pain, discomfort, and stress and that he continues to seek treatment for some of his disabilities. However, while the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the nature, and etiology of his medical conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board provides more weight to the competent medical evidence of record and has weighed it accordingly as discussed above. It is important for the Veteran to understand that the facts and medical findings provide highly probative evidence against these claims that the Board cannot, unfortunately, ignore. These facts and medical findings outweigh the Veteran's belief that these problems are the result of service, providing a highly clear basis for the opinion. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.