Citation Nr: 21040787 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-22 344 DATE: July 7, 2021 ORDER Entitlement to service connection for acquired psychiatric disorder is denied. Entitlement to service connection for left hand disability is denied. Entitlement to service connection for left knee disability is denied. Entitlement to service connection for lumbar spine disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's unspecified depressive disorder began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence of record is against finding that the Veteran has had a left-hand disability that results in impairment to earning capacity at any time during or approximate to the pendency of the claim. 3. The Veteran's left knee degenerative arthritis was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 4. The Veteran's degenerative arthritis of the lumbar spine was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for left hand disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for left knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1979 to January 1982. The Veteran testified before the undersigned Veterans Law Judge during a January 2020 Travel Board hearing; a transcript is of record. The Board previously remanded the issue for further development in February 2020. The case has now been returned to the Board for appellate review. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a veteran must show: "(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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In addition, for veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In its determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when 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 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Acquired psychiatric disorder The Veteran contends that he has an acquired psychiatric disorder as a result of several stressor events he experienced in service, to include being locked in ammunition lockers during attack exercises, hazing ceremonies, and witnessing death of three people a man who committed suicide by jumping of the ledge, a man who died from hepatitis, and a man who was crushed by a cart that tipped over on him. A review of the evidence indicates that the Agency of Original Jurisdiction (AOJ) attempted to verify the reported in-service stressors. However, the deck report pertinent to the Veteran's service period does not corroborate his claims. Nevertheless, the Veteran is competent to report what he personally experienced, and thus, the in-service element for the claim has been met. Additionally, the Veteran is currently diagnosed with unspecified depressive disorder with anxiety and sleep impairment under the DSM-5 criteria, as reflected in an April 2020 VA examination. Therefore, the issue before the Board is whether the Veteran's unspecified depressive disorder is related to service, to include the reported stressor events. The weight of the evidence is against the claim. The April 2020 VA examiner evaluated the reported stressors and determined that they do not meet any of the criteria required for a diagnosis of posttraumatic stress disorder (PTSD). Moreover, the examiner stated that the Veteran's unspecified depressive disorder was less likely than not incurred in or caused by his military service. The examiner noted that the Veteran reported during the examination that his mental health issue had begun "the day [he] was kicked out of corpsman A school" due to sense of failure and his struggle with relationships with his original family members might have left him with depression. The Veteran further reported that he had been in treatment since early 2003 to the present for his mental health issues. However, the examiner stated that the nature of the reported in-service stressor events do not seem to meet the Criterion A for a DSM-5 diagnosis of PTSD and there is no evidence to support that he was experiencing depression while in service. The Board notes that the Veteran has submitted a private psychiatric treatment summary, dated August 2016, completed by a private counselor. In the summary, the counselor provided a diagnosis of PTSD, without dissociative symptoms. However, the Board assigns less probative weight on this summary, for the opinion is conclusory without a rationale or analysis for arriving at the diagnosis of PTSD in accordance with DSM-V, especially in light of the April 2020 opinion which provided the required analysis for diagnosis. Similarly, VA treatment records note a diagnosis of PTSD, but an explanation or analysis of such diagnosis has not been provided by any of the treating clinicians. Thus, the weight of the evidence is against finding that the Veteran has PTSD due to reported in-service stressor events. Lastly, the weight of the evidence is against finding that the Veteran's unspecified depressive disorder was incurred in or caused by his military service. The Veteran's service treatment records do not indicate that the Veteran complained about mental health issues or sought treatment for them. He testified during a January 2020 hearing that he was able to "move up" in the ranks and change his job to become a lithographer where he did well, after the stressor events took place. The evidence of record indicates that he had substance abuse problems in the early 80's as reported by the Veteran at his clinical visit to VA. At one time, he reported that this was due to his sister's death. Based on the evidence of record, the Veteran started to seek mental health treatment since around 2003, but not before. Moreover, the April 2020 examiner did not find that the Veteran's unspecified depressive disorder was incurred in or caused by his military service. The rationale provided is consistent with the facts found in the claims file. There is no medical opinion in the records in support of his claim. The Board acknowledges the competent and credible lay statements from the Veteran regarding symptomatology. Nevertheless, to the extent that the Veteran attributes his disability to service, he is not competent to opine on the etiology of a psychiatric disorder, and his statements are therefore afforded no weight. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claims, the doctrine is not for application. 38 U.S.C. § 5107. 2. Left hand disability The Veteran contends that he has a left-hand disability as a result of an injury he incurred when he fell from a ladder while in service. A June 1979 service treatment record indicates that he sought treatment for pain in the left index finger as a result of being kicked on the ladder. He was assessed with bruise of the left index finger and he had full range of motion at the visit. No followup visits were noted in the service treatment records. A January 1982 separation examination was negative for a left hand disability. Post-service medical evidence reflects the Veteran's emergency visit with complaint of numbness and tingling to three fingers on the left hand for 5 days. Subsequently, he was treated for left lateral epicondylitis. Most recently, the Veteran underwent a VA examination in April 2020. The examiner did not find any disability of the left hand. At the examination, the Veteran reported symptom of pain and stiffness in the hand, but the examination did not show any impairment of the left hand. The x ray of the left hand taken at the examination was normal. The preponderance of the evidence reflects that the Veteran does not have and has not had at any time during the pendency of the claim or approximate thereto, chronic left hand disability or symptoms that cause impairment in earning capacity. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018) (pain need not be diagnosed as connected to a current underlying condition to function as an impairment and pain alone can be considered a disability under 38 U.S.C. § 1131 ). Therefore, the claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claims, the doctrine is not for application. 38 U.S.C. § 5107. 3. Left knee disability The Veteran contends that his current left knee disability resulted from an injury he incurred during the ladder accident while in service. A June 1979 service treatment record reflects a complaint of left knee pain. The knee had full range of motion with slight swelling. A January 1982 separation examination was negative for a left knee disability. A January 2013 x ray of the bilateral knees showed changes of mild degenerative arthritis. Further, a June 2019 MRI of the left knee showed tri-compartment osteoarthritis with complex tearing of medial meniscus and tear through horn of lateral meniscus. At an April 2020 VA examination, the Veteran reported that the left knee pain began in 1979 as a result of physical training. Current symptoms were knee pain and stiffness. He was diagnosed with degenerative arthritis of the left knee. The evidence preponderates against finding that the Veteran had left knee arthritis while in service or within one year since separation. Neither his service treatment record nor a July 1984 post-service active duty for training (ACDUTRA) triannual examination reflects such diagnosis or any complaint of left knee pain. Moreover, the weight of the evidence is against finding that his current left knee arthritis is related to his service, to include the ladder fall accident. The service treatment record, contemporaneous with the fall accident, does not reflect that the left knee pain he incurred due to the fall became chronic or that he incurred any significant structural injury. Although the post-service medical treatment records show that the Veteran sought treatment for left knee arthritis and associated pain regularly at least since 2012, the passage of several or more years between discharge from active service and the medical documentation of the claimed disability is a factor that tends to weigh against a claim for service connection, especially in light of documentation for other disabilities such as psychiatric disability and lumbar spine disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue). Moreover, there is no medical opinion linking the Veteran's current left knee disability to his military service. The Veteran's statement concerning the etiology of left knee disability affords no weight, for he is not competent to provide an opinion requiring medical knowledge such as arthritis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claims, the doctrine is not for application. 38 U.S.C. § 5107. 4. Lumbar spine disability The Veteran contends that his current lumbar spine disability resulted from the in-service fall accident as the other disabilities above. His service treatment records, to include his separation examination, do not reflect any complaint or treatment for low back disability. The July 1984 post-service ACDUTRA triannual examination reflects no such diagnosis or any complaint of low back pain. A May 2006 VA treatment records reflects the Veteran's report that he injured his back in 2001. A May 2015 VA treatment record notes a finding of degenerative disc disease and severe central canal stenosis on MRI of the lumbar spine. An April 2020 VA examination reflects a diagnosis of degenerative arthritis of the lumbar spine. During the examination, the Veteran reported that the back pain had begun in 1979 as a result of physical training. The examiner opined that the back disorder was less likely than not a result of service. It was noted service treatment records did not show any back injury while in service. In rendering this opinion, the examiner noted clinical records on file first showing complaints of back pain many years after service. The weight of the evidence is against the claim. Although the Veteran has a current diagnosis of lumbar spine disability, the evidence preponderates against finding that the Veteran hurt his back during the ladder fall accident, for he did not report any pain associated with it when he sought treatment for pain in the other areas immediately after the accident. He did not have a complaint of back pain or seek treatment for back during the rest of his service or even within one year since the separation. Therefore, the evidence does not establish an in-service incurrence nor chronicity of the disability. Moreover, there is no medical evidence in support of nexus between his current lumbar spine disability and his service. The Veteran's statement concerning the etiology of lumbar spine disability affords no weight, for he is not competent to provide an opinion requiring medical knowledge such as arthritis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claims, the doctrine is not for application. 38 U.S.C. § 5107. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Taylor 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.