Citation Nr: 21042490 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-45 602 DATE: July 13, 2021 ORDER Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a left knee disability is granted. Entitlement to service connection for an acquired psychiatric disability to include major depressive disorder and posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for a right shoulder disability is granted. FINDINGS OF FACT 1. The Veteran's bilateral knee disability was incurred in service. 2. The Veteran's acquired psychiatric disability was incurred in-service. 3. The Veteran's right shoulder disability was incurred in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral knee disability have been met. 38 U.S.C. §§ 1101, 5107, 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to service connection for an acquired psychiatric disability have been met. 38 U.S.C. §§ 1101, 5107, 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for entitlement to service connection for a right shoulder disability have been met. 38 U.S.C. §§ 1101, 5107, 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1988 to May 2003 and from August 2008 to January 2009. 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-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. See 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, supra; and Buchanan v. Nicholson, supra. Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (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. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. 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 bilateral knee disability At the onset, the Board notes that there is no dispute that the Veteran has a current bilateral knee disability diagnosed as degenerative joint disease of the knees as noted in a September 2016 VA examination. Additionally, there is no dispute that the Veteran's service treatment record documents complaints and treatment of a bilateral knee disability. In particular, the March 1989 and May 1991 service treatment records document left knee and right knee injuries respectively. The only remaining issue is whether the Veteran's injuries in service are related to his current degenerative joint disease of the knee. The Veteran has testified that his knee pain began in service and continued until the present diagnosis of degenerative joint disease. The Board finds that the Veteran is credible in his complaints of pain since service and that he is competent to report pain in his knees. The Board also recognizes that the Veteran's statement can be sufficient to find a nexus between service and a current disability. See Jandreau v. Nicholson, supra. The Veteran has also provided an opinion from a treating physician wherein this physician wrote that the Veteran's joint disease could have been contributed to by his military injuries. The Board finds the statement from the Veteran's physician to ambiguous; but still lends credence to the Veteran's testimony that his injuries began in service and continued to the present. Turning to the evidence against the claim, the September 2016 VA examination included a negative opinion wherein the VA examiner found that the that the Veteran's injuries appeared to be self-limiting in nature. The Board finds that this opinion to be equally ambiguous as it he presents no basis for this assumption that the Veteran's injuries are self-limiting and does not take into account the Veteran's statements concerning continued pain since separation. The Board finds that evidence that there is a nexus between his in-service injuries and current disability outweighs the evidence against. While both opinions are equally ambiguous in nature, the positive opinion is bolstered by the Veteran's credible testimony. As such, the Board finds that all elements of service connection have been met, and service connection for bilateral knee disability is warranted. 2. Entitlement to service connection for an acquired psychiatric disability to include PTSD At the onset, the Board notes that there is no dispute that the Veteran has a current diagnosis of acquired psychiatric disability most recently documented in September 2017 VA treatment record as PTSD and major depressive disorder. There is also no dispute that the Veteran had several admissions to a psychiatric hospital in service as noted in a July 2001 service treatment record. Where he was provisionally diagnosed with major depressive disorder in a July 2001 service treatment record. This diagnosis was later confirmed during service in a February 2002 intake assessment. Additionally, the Board finds that the Veteran's testimony February 2020 that he has continued to suffer from the symptoms of depression since his separation to be credible; moreover, the Board finds that the Veteran is competent to report his symptoms of depression. Given the fact there is no negative opinion of record, the Veteran's service treatment records which document both a provisional diagnosis of major depressive disorder and a confirmed diagnosis, the credible statements of the Veteran regarding the continuing symptoms since his separation from service, and the later September 2017 diagnosis of major depressive disorder, the Board finds that service connection is warranted. Jandreau v. Nicholson, supra; and Buchanan v. Nicholson, supra. 3. Entitlement to service connection for a right shoulder disability At the onset, the Board notes that there is not dispute that the Veteran had a right shoulder disability as noted in a November 2011 VA treatment which included diagnoses of right shoulder partial cuff tear, right shoulder bursitis and tendinitis. Turning to the in-service incurrence, the Board notes that the Veteran testified in February 2020 that he injured his right shoulder in loading 20 mm rounds for a training exercise and was diagnosed with a rotator cuff tear. The Board finds that the Veteran's testimony is credible as it is consistent with his duties in maintenance of helicopters which operated with this type of ammunition. Moreover, the Veteran is competent to report that he experienced pain in his shoulder. See 38 C.F.R. § 3.303(a) (service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence) Turning to the nexus, the Board find especially probative the Veteran's comments to his treating physician in a June 2011 VA treatment note, wherein he explained that he has had an injury in service to his right shoulder that his been hurting ever since. Importantly, this statement was made one year prior to his initial application for benefits. The Board finds that the Veteran's statements are highly credible in that they corroborated by the evidence of record and/or made without the potential for pecuniary gain. Given the fact there is no negative opinion of record, the close proximity of the post-service diagnosis (i.e. 2 years from separation) coupled with the Veteran's contemporaneous concerning continuity. The Board finds that service connection is warranted. See 38 C.F.R. § 3.303 (a) (service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence); see also Jandreau v. Nicholson, supra; and Buchanan v. Nicholson, supra. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Acosta, 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.