Citation Nr: 21041569 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-57 589 DATE: July 9, 2021 ORDER Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a heart disorder is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. A chronic right knee disorder was not manifest during a qualifying period of active service or within one year of service; and, the preponderance of the evidence fails to establish that a present right knee disability is etiologically related to service. 2. A heart disorder was not manifest during a qualifying period of active service or within one year of service; and, the preponderance of the evidence fails to establish that a present heart disability is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a heart disorder have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from September 1979 to September 1982. His discharge from a period of active duty from September 1982 to March 1986 was found to have been under dishonorable conditions. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in November 2002, which granted a joint motion for partial remand (JMPR) vacating a November 2019 Board decision and remanded the issues on appeal for additional development. The matter initially arose from a December 2014 rating decision by the New Orleans, Louisiana, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded for additional development in March 2021. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(a). VA compensation benefits are not payable unless the period of service on which the claim is based was terminated by discharge of release other than dishonorable. 38 C.F.R. § 3.12(a). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The term "disability" for VA compensation purposes refers to the functional impairment of earning capacity rather than the underlying cause of the impairment and it is noted that pain alone may be a functional impairment. See Saunders v. Wilkie, 887 F.3d 1356, 1364-68 (Fed. Cir. 2018). Certain chronic diseases, including arthritis and cardiovascular disease, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Arthritis and cardiovascular disease are qualifying chronic diseases. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether evidence submitted by a claimant is credible, VA may consider internal consistency, facial plausibility, and consistency with other evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). A medical opinion based upon an inaccurate factual premise may be discounted entirely. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a heart disorder. The Veteran contends that he has a right knee disorder and a heart disorder as a result of active service. He reported having sustained a right knee injury in 1981. In a December 2013 statement he reported having experienced cramps below his knee due to a lack of blood to the lower leg and that following surgery to repair a right knee ligament a blood flow problem led to a below the knee amputation. In an October 2015 application for VA benefits he requested service connection for the residuals of open heart surgery. No additional information was provided as to the claim. Service treatment records show an undated report noted the Veteran fell off a ramp and hit and twisted his right knee. It was noted X-ray studies were negative for fracture and that an examination revealed symptoms including swelling of the medial superior patella, effusion, and decreased range of motion. The examiner's assessment was bruise and possible ligament or cartilage damage. The treatment plan noted a soft cast was applied to the "left" knee. A February 1981 X-ray report indicated the injury involved the left knee. A May 1981 report noted he had twisted the right knee the previous day and that he had injured his left knee several months earlier. A subsequent May 1981 report noted the Veteran sustained a strain to the right medial collateral ligament. Records are negative for complaint, treatment, or diagnosis of a cardiovascular disorder. An April 1985 examination revealed a normal clinical evaluation of the heart, vascular system, and lower extremities. In his April 1985 report of medical history, the Veteran denied having or having ever had heart trouble, high or low blood pressure, arthritis, joint deformity, or a "trick" or locked knee. The examiner noted that the Veteran checked having had pain or pressure in the chest but that he denied any such matters upon further interview. A November 1985 examination revealed a normal clinical evaluation of the heart, vascular system, and lower extremities. In his November 1985 report of medical history, he reported having occasional knee pain. He denied having or having ever had heart trouble, high or low blood pressure, arthritis, joint deformity, or a "trick" or locked knee. VA examination in March 1981 included a diagnosis of age typical degenerative joint disease of the knees. An X-ray study revealed mild distention of the right knee. The examiner noted a review of the evidence of record and found the Veteran's present knee condition was not caused by or a result of a knee injury in service. As rationale, the examiner noted bilateral knee injuries in service were trivial as the Veteran had served for another five years with no problem and the present X-ray findings did not reveal significant changes that would be expected to have occurred. Private treatment reports dated in May 2010 noted the Veteran underwent procedures including left heart catheterization and coronary angiography. It was noted he had a history of an acute posterior wall myocardial infarction approximately 13 months earlier. A June 2010 report noted he had a past medical history that was significant for coronary artery disease, peripheral vascular disease, dyslipidemia, and hypertension. A July 2010 report noted he was status post coronary artery bypass grafting (CABG) and included diagnoses including hypertension, hypercholesterolemia, coronary artery disease, and type II diabetes mellitus. An August 2011 private treatment report noted the Veteran underwent an arthroscopic partial right medial meniscectomy with a postoperative diagnosis of tear of the posterior horn, right medial meniscus. It was noted he had a two-year history of right knee pain and swelling with no recent injury but that he described a remote injury 30 years earlier after jumping from the top of a helicopter. A February 2013 report noted he underwent a right below the knee amputation with a postoperative diagnosis of nonreconstructible peripheral vascular disease and dry gangrene of the right lower extremity. Social Security Administration (SSA) records include treatment reports dated in December 2004 noting a clinical impression of chest pain and acute coronary syndrome. It was noted the Veteran reported the onset of chest pain/discomfort and that he had a past history of risk factors including high cholesterol. Based upon the evidence of record, the Board finds that a chronic right knee disorder and a heart disorder were not manifest during a qualifying period of active service and that neither right knee arthritis nor a cardiovascular were manifest within one year of his separation from service in September 1982. The preponderance of the evidence also fails to establish that a present right knee disorder or heart disorder are etiologically related to a qualifying period of active service. The Veteran has provided no information as to any possible event, injury, or illness during his first period of active service associated with his present residuals of a heart disorder. Nor is any such association shown by the available evidence of record. In fact, service department examinations in April 1985 and November 1985 revealed normal clinical evaluations of the heart and vascular system. There is no evidence of any heart disorder prior to December 2004, more than 22 years after his qualifying period of active service. The Board notes that service treatment records show the Veteran sustained a right medial collateral ligament strain in May 1981; however, the overall evidence is persuasive that a chronic right disability did not develop during or as a result of an injury during his first period of active service. The May 1981 VA examiner's opinions is persuasive that the right knee disability manifest at that time was typical of an age-related degenerative joint disease of the knees and that the X-ray findings did not reveal the degree of significant changes that would be expected to have occurred with a more severe right knee injury in service. The examiner is shown to have reviewed the evidence of record and to have adequately considered the credible lay statements and reported symptom manifestation history of record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). To the extent the Veteran's claims may be construed as reports of continuing symptoms of chronic right knee or heart disorders since September 1982, the Board finds such reports to be not credible due to inconsistency with the other evidence of record. In fact, in his April 1985 and November 1985 reports of medical history indicate no more than occasional knee pain. He denied having had pain or pressure in the chest upon interview with the November 1985 examiner. There is no competent evidence of symptoms associated with a heart disorder prior to his December 2004 report of chest pain associated with a diagnosis of an acute coronary syndrome nor symptoms associated with a chronic knee disorder prior to August 2011 when he reported having a two-year history of right knee pain and swelling. The Board acknowledges that the Veteran is competent to report observable symptoms, but there is no indication that he is competent to etiologically link any such symptoms to a diagnosis. He is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating such disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. Consideration has also been given to the Veteran's personal assertions that he has a right knee disorder and a heart disorder as a result of service. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disabilities at issue are not matters that are readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In conclusion, the Board finds that service connection for a right knee disorder or a heart disorder is not warranted. When all the evidence is assembled VA is then 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. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claims. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Board notes that the Veteran contends he has an acquired psychiatric disorder as a result of stressor events involving his proximity to a bomb explosion during an Oktoberfest celebration in Germany and involving the murder of a close friend at Ft. Campbell, Kentucky. Although an April 2021 VA examiner provided a diagnosis of other specified trauma and stressor-related disorder and found it was at least as likely as noted related to the Veteran's reported stressors, there is no indication that the examiner was aware that the event associated with murder of his friend occurred during a period of service for which VA compensation benefits are not payable due to the character of his discharge from that service. Nor is there any indication that the provided diagnosis met the applicable criteria based solely upon a verified event during Oktoberfest in September 1980. The examiner also noted that the Veteran reported having initially sought mental health treatment after his mother died in 2019. The reports of that treatment are not of record. Therefore, the Board finds that further development is required to allow the Veteran an opportunity to provide additional private mental health treatment records and for a clarifying VA medical opinion. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the records of any private mental health treatment pertinent to his claim. Upon receipt of sufficient information, make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any present acquired psychiatric disorder. If the Veteran is diagnosed with posttraumatic stress disorder (PTSD) or other specified trauma and stressor-related disorder, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. The examiner must be informed that VA has determined that the reported stressor event involving the murder of the Veteran's close friend at Ft. Campbell, Kentucky, occurred during a period of service for which VA compensation benefits are not payable due to the character of his discharge from that service. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease during the Veteran's qualifying period of active service from September 1979 to September 1982. SONJA S. AN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Douglas 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.