Citation Nr: 21042529 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-54 658 DATE: July 13, 2021 ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for a psychiatric disability other than PTSD is denied. Entitlement to service connection for a neurological disability is denied. FINDINGS OF FACT 1. A current right knee disability did not have its onset in service, has not been chronic or continuous since service separation, did not manifested to a compensable degree within a year of service separation, and is not etiologically related to an in-service disease or injury. 2. A current left knee disability did not have its onset in service, has not been chronic or continuous since service separation, did not manifested to a compensable degree within a year of service separation, and is not etiologically related to an in-service disease or injury. 3. The Veteran does not have a current diagnosis of PTSD that is based upon a verified or otherwise qualifying in-service stressor. 4. A current psychiatric disability did not have its onset in service, has not been chronic or continuous since service separation, did not manifested to a compensable degree within a year of service separation, and is not etiologically related to an in-service disease or injury. 5. A current neurological disability did not have its onset in service, has not been chronic or continuous since service separation, did not manifested to a compensable degree within a year of service separation, and is not etiologically related to an in-service disease, injury, or other incident of service, to include exposure to contaminated water at Camp LeJeune. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right 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. 2. The criteria for entitlement to service connection for a 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. 3. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for entitlement to service connection for a psychiatric disability other than PTSD have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 5. The criteria for entitlement to service connection for a neurological 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 July 1970 to June 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). These issues were initially presented to the Board in December 2018, at which time the Board found new and material evidence had been received to reopen a service connection claim for a psychiatric disability. These issues were then remanded for additional development. They have now been returned to the Board. During the course of this appeal, the Veteran's prior attorney representative withdrew his representation of the Veteran. The Veteran then appointed a new representative, as reflected on the first page of this decision. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Additionally, service connection may be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune, even though there is no record of such disease during service, if the qualifying disease manifests to a compensable degree at any time after service in a veteran, former reservist, or a member of the National Guard, who has no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune in North Carolina, during the period from August 1, 1953, to December 31, 1987. 38 C.F.R. § 3.307 (a)(7). The following diseases are deemed associated with exposure to contaminated water at Camp Lejeune: kidney cancer, liver cancer, non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. 38 C.F.R. § 3.309(f). For disabilities not presumed by regulation to be due to exposure to contaminated water at Camp Lejeune, a claimant may still establish service connection by showing that any such disability is directly and causally linked to exposure to contaminated water at Camp Lejeune, or any other incident or injury in service. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Finally, service connection may be awarded for any disability which is proximately due to or the result of, or is otherwise aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. 1. Entitlement to service connection for a right knee disability 2. Entitlement to service connection for a left knee disability The Veteran seeks service connection for bilateral knee disabilities. He asserts he initially injured his knees during service, and service connection for such a disability is warranted. Considering first the service treatment records, these are negative for any diagnosis of or treatment for a disease, injury, or other incident involving either knee. A June 1973 service separation examination was negative for any abnormality of either knee. Post-service, the Veteran first reported pain of the left knee in February 2012. Osteoarthritis of the bilateral knees was diagnosed by a VA examiner in March 2013. Thus, a current disability of either knee was not diagnosed until more than 35 years after service separation. This lengthy period without complaint or treatment is one piece of evidence that there has not been ongoing symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); see, e.g., Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the Board may consider a lack of notation of a medical condition or symptoms where such notation would normally be expected). Based on this evidence, the Board must conclude that a current disability of either knee did not have its onset in service, has not been chronic or continuous since service separation, and did not manifest to a compensable degree within a year of service. The evidence of record is also against a finding that a disability of either knee is due to or the result of an in-service disease, injury, or other incident of service. The Veteran was afforded a VA medical examination in October 2020, and his claims file was reviewed in conjunction with the examination. On objective examination, osteoarthritis of the bilateral knees was diagnosed. The VA examiner, however, determined that this disability was likely age-related, and was less likely than not due to any in-service disease or injury. The examiner noted that the Veteran did not report disabilities of either knee at service separation or for many years thereafter. In the absence of any competent evidence to the contrary, the Board must conclude the preponderance of the evidence is against a finding of a nexus between any incident of service and the current disabilities of the Veteran's bilateral knees. The Veteran himself contends his current bilateral knees disabilities are due to his in-service knee injuries. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, orthopedic disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. In conclusion, the preponderance of the evidence is against the award of service connection for a disability of either knee, as no current knee disability had its onset in service, has been chronic or continuous since service separation, manifested to a compensable degree within a year of service separation, or is etiologically related to an in-service disease or injury. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 3. Entitlement to service connection for PTSD The Veteran seeks service connection for PTSD. He asserts he experienced various traumatic stressors in service, and service connection for PTSD is therefore warranted. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of a veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C. § 5107. In the present case, the Veteran has not asserted he participated in combat, and his service personnel records are negative for any decorations or other evidence of combat participation. Service personnel records confirm he served aboard a naval vessel which was off the shore of Vietnam, but he has denied ever going ashore in Vietnam or otherwise being exposed to combat activities or hostile enemy action. In order to grant service connection for PTSD to a non-combat veteran, there must be credible evidence to support the veteran's assertion that the stressful event occurred. A stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). 38 C.F.R. § 4.125 requires a PTSD diagnoses to conform to the Diagnostic and Statistical Manual of Mental Disorders-V (DSM-V) as the governing criteria for diagnosing PTSD. Considering first the service treatment records, these are negative for any diagnosis of or treatment for PTSD or any other psychiatric disability. On examination for service separation in June 1973, he was without any noted psychiatric abnormality. Additionally, the Veteran did not report or seek treatment for any psychiatric symptoms until approximately October 2000, when he was diagnosed with generalized anxiety disorder with major depression, single episode. As such, the Board finds that PTSD was not incurred during service, and did not manifest within a year of service separation. The Veteran has asserted various stressor events during active duty. He asserts racial tensions were extremely high during his service period, and he was assaulted on at least two occasions by soldiers of another race. He also reported being fearful of being sent to Vietnam, and meeting other service members who had served in Vietnam and shared with him their traumatic experiences. Finally, he claims to have witnessed the attempted suicide of another service member. To date, none of these stressors have been verified for the record. The Veteran was afforded a VA examination in October 2020. This examination was conducted by a VA psychologist. The Veteran's claims file was reviewed in conjunction with the examination. After review of the claims file and examination of the Veteran, the examiner determined diagnoses of major depressive disorder, moderate, recurrent, and alcohol use disorder were warranted. The examiner determined a diagnosis of PTSD was not warranted. Specifically, the examiner determined that none of the Veteran's claimed stressors are the result of fear of hostile military or terrorist activity. Additionally, of his reported stressors, none of these met Criterion A for a PTSD diagnosis. According to the VA examiner, the Veteran does not meet DSM-V criteria for PTSD, and it is less likely than not that any of the Veteran's claimed stressors were the result of fear of hostile military or terrorist activity. The examiner further stated it is less likely than not that any of the Veteran's claimed stressors are sufficient for a PTSD diagnosis. Finally, the examiner determined the preponderance of the evidence was against a nexus between any diagnosis of PTSD or any other psychiatric disability and exposure to contaminated water at Camp LeJeune. Based on this competent medical opinion, rendered by a VA psychologist after personal evaluation of the Veteran and review of the entire record, the Board must conclude that the preponderance of the evidence is against a current diagnosis of PTSD, and the appeal must therefore be denied. Review of VA outpatient treatment records from approximately 2006 to the present reflect various diagnoses of PTSD. However, these treatment notes do not constitute competent medical evidence of such a diagnosis, as they are merely a restatement of medical history provided by the Veteran rather than medical conclusions. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Additionally, none of these examiners have rendered a PTSD diagnosis under the DSM-V criteria. Overall, the Board finds the preponderance of the evidence to be against the conclusion that a current diagnosis of PTSD has been established at any time during the pendency of the appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran himself asserts he has a current diagnosis of PTSD due to various in-service stressors. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, psychiatric disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. In conclusion, the preponderance of the evidence is against the award of service connection for PTSD, as no such disability had its onset in service, has been chronic or continuous since service separation, manifested to a compensable degree within a year of service separation, or is etiologically related to an in-service stressor event. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 4. Entitlement to service connection for a psychiatric disability other than PTSD The Veteran seeks service connection for a psychiatric disability, other than PTSD. He asserts he has various psychiatric disabilities which began or are otherwise related to service, and service connection is therefore warranted. Considering first the service treatment records, these are negative for any diagnosis of or treatment for any other psychiatric disability. On examination for service separation in June 1973, he was without any noted psychiatric abnormality. Additionally, the Veteran did not report or seek treatment for any psychiatric symptoms until approximately October 2000, when he was diagnosed with generalized anxiety disorder with major depression, single episode. As such, the Board finds that a psychiatric disability was not incurred during service, and did not manifest within a year of service separation. The Board also finds a current psychiatric disability has not been chronic or continuous since service separation. The Veteran was first diagnosed with a psychiatric disability in approximately 2000, more than 25 years after service separation. The Veteran has alleged he was first diagnosed with depression in 1980, although no medical records of this diagnosis have been presented. He did submit a July 2002 letter from P.E.B., M.D., who stated he first began treating the Veteran in 1990. Dr. B. wrote that the Veteran "had a tendency to anxiety and dysthymia with mild depression." Assuming this statement equates to a diagnosis of one or more psychiatric disabilities, that would establish onset no earlier than 1990. Nevertheless, even assuming a diagnosis dating back to 1980 would mean onset more than 5 years after service separation. This lengthy period without complaint or treatment is one piece of evidence that there has not been ongoing symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); see, e.g., Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the Board may consider a lack of notation of a medical condition or symptoms where such notation would normally be expected). In the absence of any competent evidence to the contrary, the Board finds a psychiatric disability has not been chronic or continuous since service. The Veteran has also not presented competent evidence linking a current psychiatric to an in-service disease, injury, or other incident of service. The Veteran was afforded a VA examination in October 2020 conducted by a VA psychologist. The Veteran's claims file was reviewed in conjunction with the examination. After review of the claims file and examination of the Veteran, the examiner determined diagnoses of major depressive disorder, moderate, recurrent, and alcohol use disorder were warranted. The examiner opined, however, that the preponderance of the evidence was against a finding of a nexus between any psychiatric disability and exposure to contaminated water at Camp LeJeune. In the absence of any competent evidence to the contrary, service connection for a psychiatric disability must be denied. The Veteran himself asserts his current psychiatric disabilities had their onset in service, or are otherwise related to service. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, psychiatric disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. In conclusion, the preponderance of the evidence is against the award of service connection for a psychiatric disability, as no such disability had its onset in service, has been chronic or continuous since service separation, manifested to a compensable degree within a year of service separation, or is etiologically related to an in-service disease or injury. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 5. Entitlement to service connection for a neurological disability The Veteran seeks service connection for a neurological disability. He asserts such a disability was incurred during service, and service connection is therefore warranted. He also asserts a current neurological disability is due to exposure to contaminated water while stationed at Camp LeJeune, and service connection is therefore warranted on that basis. Considering first the service treatment records, these are negative for any diagnosis of or treatment for a neurological disability of the central or peripheral nervous systems. A June 1973 service separation examination was also negative for any noted abnormalities of the neurological system. Subsequent to service, the Veteran was not diagnosed with and did not seek treatment for a neurological disability for many years. Thus, based on this evidence, the Board must conclude that a current neurological disability was not diagnosed in service, has not been chronic or continuous since service separation, and did not manifest to a compensable degree within a year of service. An October 2020 VA medical examination and opinion was afforded the Veteran. His claims file was reviewed in conjunction with the examination. In rendering a medical opinion, the examiner also cited to various treatises and medical studies regarding the effects of exposure to contaminated water at Camp LeJeune. According to the examination report, the Veteran was claiming a neurobehavioral disability due to his contaminated water exposure at Camp LeJeune, and denied any impairment of the central nervous system. On examination of the Veteran, the VA examiner found normal strength, sensation, and reflexes of the upper and lower extremities. The Veteran's gait was noted to be abnormal, but this was attributed to his bilateral osteoarthritis of the knees, which required use of a walker. His central nervous system was likewise within normal limits, and no neurological disability of any kind was diagnosed by the examiner. After examining the Veteran and reviewing the claims file, the examiner concluded it was less likely than not the Veteran had a current neurological or neurobehavioral disability which was due to or resulted from his exposure to contaminated water at Camp LeJeune. Specifically, the examiner found no evidence of a neurological condition manifesting in neurobehavioral effects that was separate and distinct from the Veteran's established psychiatric diagnoses, based on the Veteran's known or suspected risk factors for mental illness, and the lack of support in the currently available literature for a causative association between low level volatile organic compound exposure and neurobehavioral effects. Based on this competent medical evidence, the Board finds that the preponderance of the evidence is against a finding of a nexus between exposure to contaminated water in service and a current neurological or neurobehavioral disability. In support of his claim, the Veteran submitted a treatise excerpt which discussed the 2009 National Research Council report on contaminated drinking water at Camp LeJeune. This report found there was "limited/suggestive evidence" of a possible association between such exposure and neurobehavioral effects. The Court has held, however, that "[g]enerally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise 'is too general and inconclusive'." Mattern v. West, 12 Vet. App. 222, 228 (1999) (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)). Medical treatise evidence may indicate enough of a basis of a generic relationship to establish "a plausible causality based on objective facts." Mattern, 12 Vet. App. at 228 (citing Wallin v. West, 11 Vet. App. 509, 514 (1998)). In the present case, the offered treatise evidence merely discusses such a nexus in broad, general terms, without finding a conclusive cause-effect connection. As such, the Board finds this evidence too broad, generic, and speculative to serve as the basis for the award of service connection, especially in light of the October 2020 VA examination report and medical opinion. As already noted, the VA medical opinion both cited to medical literature regarding contaminated water exposure and included a discussion of the Veteran's own medical history. Thus, this VA opinion is granted greater probative weight by the Board. The Veteran himself asserts he has a current neurobehavioral disability which is due to contaminated water exposure in service. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, neurological disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. In conclusion, the Board finds the preponderance of the evidence is against the award of service connection for a neurological or neurobehavioral disability on any basis. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thomas D. Jones, 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.