Citation Nr: 21041140 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-20 175 DATE: July 8, 2021 ORDER Service connection for a right shoulder disability is denied. Service connection for a left shoulder disability is denied. Service connection for a right knee disability is denied. Service connection for residuals of a traumatic brain injury (TBI) is denied. Service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for a left ear hearing loss disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. The Veteran has not demonstrated evidence of a current right shoulder disability. 2. The Veteran has not demonstrated evidence of a current left shoulder disability. 3. The Veteran has not demonstrated evidence of a current right knee disability. 4. The Veteran has not demonstrated evidence of current residuals of TBI. 5. The Veteran does not have PTSD 6. The Veteran's current acquired psychiatric disorder did not onset due to disease or injury sustained during his period of service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for residuals of a TBI have not been met. 38 U.S.C. §§ 1110, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for an acquired psychiatric disorder to include PTSD have not been met. 38 U.S.C. §§ 1110, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1993 to March 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision issued by RO. In his April 2017 Substantive Appeal, the Veteran requested a Board video-conference hearing. His hearing was scheduled for February 7, 2020. He failed to appear for his scheduled hearing, offered no argument for this failure to appear and did not otherwise request to have his hearing rescheduled. Accordingly, his hearing request is withdrawn 38 C.F.R. § 20.704 (d). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for a right shoulder disability 2. Entitlement to service connection for a left shoulder disability 3. Entitlement to service connection for a right knee disability 4. Entitlement to service connection for residuals of a TBI The Veteran contends that he has right shoulder, left shoulder, right knee, and residuals of a TBI disabilities that onset due to injury sustained during his period of service. The service treatment records do not contain complaints of, treatment for or diagnosis of a right shoulder, left shoulder, right knee, or residuals of a TBI disability. The January 1997 separation examination reflects that head, face, neck and scalp; upper extremities; lower extremities; and, neurologic clinical evaluations were all normal. After service, a May 2015 VA audiology consult treatment record documents "questionable concussion in basic training." The claims of service connection for right shoulder, left shoulder, right knee, and residuals of a TBI disabilities must be denied. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. §§ 1110, 1131. Here, the Veteran has presented no evidence of, nor does probative evidence show that the Veteran has current right shoulder, left shoulder, right knee, and residuals of a TBI disabilities. Thus, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To the extent that the Veteran complains of right shoulder, left shoulder and right knee pain and residual pain from a TBI, there is no indication that any subjective complaints result in functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018). Consequently, the Board finds that the Veteran does not have current diagnoses of any right shoulder, left shoulder, right knee, and residuals of a TBI disabilities. Thus, service connection for right shoulder, left shoulder, right knee, and residuals of a TBI disabilities is not warranted. The Veteran was not afforded specific VA examinations. On the facts of this case, however, examinations are not required. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the claims do not meet these requirements for obtaining a VA medical opinion. Because the weight of the evidence demonstrates no current right shoulder, left shoulder, right knee, and residuals of a TBI disabilities, no examinations are required. The Veteran is not competent to link his claimed right shoulder, left shoulder, right knee, and residuals of a TBI disabilities to service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). The Veteran is competent to describe the circumstances and incidents of his period of service and allege factual circumstances that then occurred. However, he is a lay person and is not competent to establish that he has current right shoulder, left shoulder, right knee, and residuals of a TBI disabilities related thereto. The Veteran is not competent to diagnose or offer opinion as to etiology of any current right shoulder, left shoulder, right knee, or residuals of a TBI disability. The question of the diagnosis and etiology of such a disability is a complex medical issue that cannot to be addressed by a layperson. For these reasons, his allegations are non-specific and are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. The claims of entitlement to service connection for current right shoulder, left shoulder, right knee, and residuals of a TBI disabilities must be denied. The preponderance of the evidence is against the claims and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 5. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) There are particular requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Those requirements are: (1) a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. 38 C.F.R. § 3.304(f). Service treatment records contain no documentation of complaints of or treatment for an acquired psychiatric disorder. The January 1997 separation examination reflects that psychiatric clinical evaluation was normal. An April 2015 VA mental health treatment record documents the Veteran's complaint that he had a lot of depression sometimes. The Veteran complained that he was depressed and reported that he experienced intermittent ("off and on") depressed mood throughout most of his life, generally occurring in response to community stressors. He reported his current depressed mood onset 2 weeks earlier after the mutual breakup with his fiancée with who he had had a 15-year relationship. He continued to attend to his daily work schedule, resided in an apartment and maintained contact with his friends. He denied any other psychosocial complaints and denied feelings of hopelessness; any intent/plan to harm self and/or others; and, stated his daughter was his reason to live. He denied any history of being sexually and/or physically abused and denied any history of traumatic experiences. He served in the Army and had no combat experience. He was stationed in Germany and Saudi Arabia during his period of service. He had previously been married and was divorced in 2004 and had one biological child from the marriage. 2 weeks earlier, he broke up with his fiancée of 15 years. He had completed 2 years of college and was currently employed in the restoration profession. He currently lived in an apartment but worried that he might not be able to afford the rent in the future. On Mental Status Examination (MSE), the DSM-5 diagnosis was unspecified depressive disorder. The Veteran was educated on mental illness and treatment options, including pharmacological and non-pharmacological therapies. A May 2015 VA mental health initial evaluation note reflects that the Veteran was referred for evaluation for depressed mood. He reported occasional feelings of depression because he recently broke up with his long-time girlfriend. He reported that they were together for 15 years; she was his best friend; and, she had been the biggest support in his life since the death of his mother. He was still close with her three daughters and kept in touch with them. He expressed frustration at having to find a place to live but sought more stability in his life. He reported that he had been through a lot in his life and expressed determination to get through this time of difficulty. When he experienced depressed thoughts, he tried to distract his mind by watching a funny movie. He had friends that he spoke with occasionally. On MSE, the diagnostic impression was adjustment disorder with depressed mood. The examiner noted that all diagnoses were based on DSM-5 criteria. An additional May 2015 VA mental health note reflects the Veteran's complaint that his mood was "alright," but he experienced feeling down, "in the valley," due to the stress of having a daughter that suffered from attention deficit hyperactivity disorder (ADHD). He admitted that he remained in occasional contact with his ex-fiancée and did not become preoccupied with their mutual breakup 6 weeks earlier. His appetite was "normal", and he slept approximately 4.5 hours, on average, per night. He continued to attend his full-time job without problem and lived in stable housing. He last used marijuana one year earlier and occasionally consumed alcohol. He denied other psychosocial complaints. On MSE, DSM-5 diagnosis was unspecified depressive disorder. While non-medically trained veterans are competent to testify as to matters of subject to lay observation, the question of whether a Veteran has PTSD based on a claimed in-service stressor is the type of medical issue as to an internal, non-observable process as to which lay testimony is not competent. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("[I]t is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); 38 C.F.R. § 3.304(f) (specifically requiring medical evidence diagnosing PTSD). Consequently, the Veteran's statements as to whether he has PTSD are not competent. The April and May 2015 VA mental health treatment records documented above document DSM-5 diagnoses of adjustment disorder with depressed mood and unspecified depressive disorder. The evidence of record establishes that the Veteran does not have PTSD. Thus, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Clemons also stands for the proposition that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness. Id at 4-5. In this case, to reiterate, the April and May 2015 VA mental health treatment records reflect that the Veteran has been diagnosed with other acquired psychiatric disorders, adjustment disorder with depressed mood and unspecified depressive disorder. Though the Veteran may have an acquired psychiatric disorder, the preponderance of the evidence is against a finding of a linkage between the onset of the current acquired psychiatric disorder and a period of service. The April 2015 VA mental health treatment record reflects that the Veteran denied any history of traumatic experiences and he served in the Army, with tours in Germany and Saudi Arabia and had no combat experience. Rather, the probative evidence documented above shows that the Veteran's current acquired psychiatric disorder had no etiological relationship to a period of service, having onset due to the relationship breakup with his former fiancée and stresses of raising a daughter with ADHD. The Veteran was not afforded a specific VA PTSD or mental disorders examination. On the facts of this case, however, an examination is not required. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the claim does not meet these requirements for obtaining a VA medical opinion. Because the weight of the evidence demonstrates no current PTSD and fails to demonstrate that the current acquired psychiatric disorder onset due to disease, injury, event or incident sustained during a period of service, no examination is required. The Veteran is competent to describe the circumstances and incidents of his period of service and allege factual circumstances that then occurred. However, he is a lay person and is not competent to establish that he has a current acquired psychiatric disorder related thereto. The Veteran is not competent to diagnose or offer opinion as to etiology of any current acquired psychiatric disorder. The question regarding the diagnosis and etiology of such a disability is a complex medical issue that cannot to be addressed by a layperson. For these reasons, his allegations are non-specific and are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. The claim of entitlement to service connection for an acquired psychiatric disorder must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a left ear hearing loss disability is remanded. 2. Entitlement to service connection for tinnitus is remanded. 3. Entitlement to service connection for a left knee disability is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: The Veteran contends that he has current left ear hearing loss disability and tinnitus that onset due to noise exposure incurred during his period of service. A May 2015 VA audiology consult record reflects the Veteran's report that he was exposed to Patriot missile, generators, and howitzer noise during service. He complained of decreased hearing in his left ear and constant tinnitus with onset noted as in service. He also contends that he has a left knee disability that onset due to injury sustained during his period of service. A November 1995 service treatment record documents the Veteran's complaint of left knee pain. He reported that his left knee was hurting below the patella. He did not recall how the injury occurred but reported that he experienced increased pain with flexion of the left knee; he had decreased pain with extension of the knee. Objectively, there was no swelling, but it hurt for the Veteran to flex the knee. The assessment was patellar tendonitis. The December 1995 service treatment record reflects that the Veteran received follow-up treatment for his left knee. Physical examination showed tenderness to palpation along the medial joint line in the tibia and patellar tendons. There was no swelling or effusion, no patellar compression and ligament testing was stable. The Veteran had full range of motion with pain. The assessment was patellar tendonitis, but the Veteran was doing much better. The Veteran has not been afforded VA examination to evaluate the nature and etiology of his claimed left ear hearing loss, tinnitus and left knee disabilities. The current record is insufficient for deciding whether service connection may be granted. Remand is necessary to schedule the Veteran for VA examination to evaluate the nature and etiology of his claimed left ear hearing loss, tinnitus, and left knee disabilities. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Schedule the Veteran for a VA examination to determine the nature and likely etiology of the claimed left ear hearing loss and tinnitus. The claims file should be made available to the examiner for review prior to examination. All indicated tests and studies should be performed and the clinical findings should be reported in detail. A comprehensive clinical history should be obtained, to include a discussion of the Veteran's documented medical history and assertions. The Veteran reports in-service noise exposure from the Patriot missiles, generators and howitzers led to the onset of his left ear hearing loss and tinnitus disabilities. After reviewing the entire record, the examiner should provide opinion with supporting explanations as to the following: Does the Veteran have current left ear hearing loss and tinnitus that had onset due to noise exposure sustained during his period of service? As indicated above, the examiner must review the record in conjunction with rendering the requested opinion and must fully explain if the Veteran's account of the development/onset of his left ear hearing loss and tinnitus disabilities is consistent with the clinical findings, given the medical evidence in this case, the examiner's experience and knowledge and the state of medical science. His/her attention is drawn to the following: *The May 2015 VA audiology consult record documents the Veteran's complaint of decreased left ear hearing and essentially constant tinnitus. He reported in-service noise exposure from Patriot missiles, generators, and howitzers. A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting explanation as to why an opinion cannot be made without resorting to speculation. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. 3. Schedule the Veteran for a VA examination to determine the nature and likely etiology of the claimed left knee disability. The claims file should be made available to the examiner for review prior to examination. All indicated tests and studies should be performed and the clinical findings should be reported in detail. A comprehensive clinical history should be obtained, to include a discussion of the Veteran's documented medical history and assertions. The Veteran reports in-service left knee injury led to the onset of his left knee disability. After reviewing the entire record, the examiner should provide opinion with supporting explanations as to the following: Does the Veteran have a current left knee disability that had onset due to injury sustained during his period of service? As indicated above, the examiner must review the record in conjunction with rendering the requested opinion and must fully explain if the Veteran's account of the development/onset of his left knee disability is consistent with the clinical findings, given the medical evidence in this case, the examiner's experience and knowledge and the state of medical science. His/her attention is drawn to the following: *A November 1995 service treatment record documents the Veteran's complaint of left knee pain. He reported that his left knee was hurting below the patella. He did not recall how the injury occurred but reported that he experienced increased pain with flexion of the left knee; he had decreased pain with extension of the knee. Objectively, there was no swelling, but it hurt for the Veteran to flex the knee. The assessment was patellar tendonitis. *The December 1995 service treatment record reflects that the Veteran received follow-up treatment for his left knee. Physical examination showed tenderness to palpation along the medial joint line in the tibia and patellar tendons. There was no swelling or effusion, no patellar compression and ligament testing was stable. The Veteran had full range of motion with pain. The assessment was patellar tendonitis, but the Veteran was doing much better. (Continued on the next page) A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting explanation as to why an opinion cannot be made without resorting to speculation. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. L.M. YASUI Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Jackson 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.