Citation Nr: 23016455 Decision Date: 03/17/23 Archive Date: 03/17/23 DOCKET NO. 15-01 113 DATE: March 17, 2023 ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a psychiatric disability is denied. FINDINGS OF FACT 1. The evidence of record weighs against finding that the Appellant has had a left knee disability at any time during or approximate to the pendency of the claim. 2. The evidence of record weighs against finding that the Appellant has a psychiatric disability that began during, or was otherwise related to, a qualifying period of active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for a psychiatric disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Appellant served in the Army Reserves from February 1984 through February 1990; he had a period of active duty for training (ACDUTRA) from July 1984 to October 1984. In January 2020, the Board remanded this matter for further development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Under the law, active military service includes (1) active duty, but also (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or an injury incurred or aggravated in the line of duty, and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury, but not disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C. § 101 (24) (B); 38 C.F.R. § 3.6 (a). As a threshold matter, "veteran" status must be established as a condition of eligibility for service connection benefits. Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013). To establish status as a veteran based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. §§ 3.1 (a), (d); Harris v. West, 13 Vet. App. 509 (2000). The Board notes that the Appellant has no service-connected disabilities. Therefore, at present, he is not a "Veteran" for purposes of VA disability benefits. The record shows that the Board remanded this matter in January 2020 to attempt to obtain any outstanding relevant VA treatment records, assist the Appellant with procuring relevant private treatment records, and to schedule the Appellant for a VA examination to determine the nature and etiology of any current left knee disorder. Review of the record shows that the Agency of Original Jurisdiction (AOJ) made multiple attempts, including in July 2021, November 2021, and July 2022, to contact the Appellant and to schedule him for the necessary VA examinations. Although several of the letters sent by the AOJ to the Appellant were returned due to an incorrect address, the AOJ obtained additional addresses for the Appellant and sent letters to each of those addresses. Additionally, letters regarding scheduled VA examinations were delivered to the Appellant by courier in February 2021, March 2021, April 2021, May 2021, and August 2021. In October 2022, the Appellant submitted a VA Form 572 (Request for Change of Address) notifying VA of his new address and telephone number. In November 2022, the AOJ sent a letter to the Appellant at the new address, but to date, no response has been received from the Appellant. Additionally, in November 2022, multiple attempts were made to call the Appellant to try to schedule VA examinations, but the AOJ was unable to contact him. The evidence of record also establishes that the Appellant's duly appointed representative, the American Legion, was courtesy copied on the relevant correspondence on this issue. The Board notes that the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). In light of the foregoing, the Board finds that VA has satisfied its duty to notify and assist the Appellant in this matter. 1. Entitlement to service connection for a left knee disorder. The Appellant essentially contends he has a left knee disorder that had an onset during service. In the May 2013 formal claim for service connection (VA Form 21-526EZ), the Appellant stated that his left knee condition was occurred due to "injury/aggravation of left knee June 1984." In a May 2013 statement, he stated that during basic training, he hurt his left knee and had problems with it to this day. The question for the Board is whether the Appellant has a current left knee disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that during the period on appeal, the Appellant does not have a current left knee disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service treatment records (STRs) include the February 1984 enlistment examination which revealed normal clinical evaluation of the Appellant's lower extremities. A September 1984 Chronological Record of Medical Care noted the Appellant returned for re-examination of his knee. Examination of the knee was negative, and the assessment was "well patient" and there was no indication for an x-ray and no signs of a fracture or ligament damage. The September 1984 separation examination noted a post-operative left knee scar, but the physical examination of the lower extremities was otherwise normal. Post-service treatment records show no report or finding of a left knee condition. Rather, past knee surgeries were noted in various records as part of the Appellant's medical history and at least one of the knee surgeries was prior to the Appellant's ADCUTRA service. In that regard, a July 1987 record from Hennepin County Medical Center noted that the Appellant had knee surgery 6 years prior. A January 1990 record from Willmar Regional Treatment Center noted that the Appellant had knee surgery at 16 years old, apparently after a motorcycle injury. A July 2002 record from Memorial Medical Center noted that the Appellant had prior "knee surgeries." An October 2003 private psychological report noted that the Appellant had his kneecap surgically repaired following a motorcycle accident. The Board is not persuaded that the evidence supports the Appellant's claim. A current disability is the cornerstone of a claim for VA disability compensation and in the absence of proof of a present disability, there can be no valid claim. See Degmetich v. Brown, 104 F. 3d 1328 (1997). While the Appellant may believe he has a current left knee disability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Without evidence of a current diagnosis of a left knee disability or evidence of symptoms that result in functional impairment of earning capacity, service connection is not warranted, and the claim must be denied. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). 2. Entitlement to service connection for a psychiatric disorder. The Appellant contends he has a psychiatric disorder that had an onset during his active service. As the Appellant did not have any period of active service and has not established any service-connected disability, neither the presumption of soundness nor presumption of aggravation applies, and the issue will be considered on a direct service connection basis only. The question for the Board is whether the Appellant has a current psychiatric disability that began during service or is at least as likely as not related to a disease or injury incurred during active duty or ACDUTRA service Initially, the Board notes that the Appellant does have a current psychiatric disability, diagnosed as bipolar disorder in an April 2013 letter from Dr. Rugowski. As to an in-service incurrence, despite the Appellant's contentions to the contrary, the STRs reflect no complaints, findings, or diagnosis of a psychiatric disorder or any psychiatric symptoms. The September 1984 separation examination report noted a normal clinical psychiatric evaluation and no relevant complaints or findings. In the April 2013 letter, Dr. Rugowski addressed a potential relationship between the Appellant's service and his bipolar disorder, stating that because of the Appellant's "former drug and alcohol use, which also occurred when he was in the military, it is impossible to state whether his mental health condition related to his military service." Dr. Rugowski commented that the Appellant "started to express symptoms which are consistent with bipolar mood disorder while he was in the service and it is quite probable that, while he was in the service, his condition began to acerbate, or show itself, and that being in the military service, as well as using drugs, might have been contributing factors to his mental illness manifesting itself." Dr. Rugowski stated that he could "with certainty, say that these symptoms started to demonstrate during that time and that his mental illness exacerbation is, at the very least, temporally related to his military service." The Board finds several problems with the opinion by Dr. Rugowski. First, the opinion is not definitive, but rather is equivocal, as Dr. Rugowski commented that it was impossible to state whether the Appellant's mental health condition was related to service because of his drug and alcohol use therein service. Further, Dr. Rugowski expresses a degree of certainty only with regard to the Appellant's mental health symptoms starting during service and with regard to his mental health condition beginning to show itself in service. Additionally, Dr. Rugowski used the term "military service," but in rendering the opinion, did not distinguish between the Appellant's 3-month period of ACDUTRA and his 6-year period of Army Reserve service. Finally, Dr. Rugowski did not discuss or acknowledge the Appellant's extensive post-service history of mental health treatment. Accordingly, the Board accords minimal probative value to Dr. Rugowski's opinion. While the Appellant asserts that his current psychiatric disability had an onset during active service, he is not competent to provide an opinion in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board also notes that in a May 2013 statement, the Appellant stated that he became mentally disabled during his active duty service and that he was institutionalized for a year while on active duty. Review of STRs, however, do not show treatment or hospitalization for a mental health condition. Additionally, in the May 2013 formal claim for service connection (VA Form 21-526EZ), the Appellant stated that his mental health condition "occurred during reserve service period 1989-1990" rather than the period of ACDUTRA in 1984. As the competent evidence of record is not in approximate balance, or nearly equal, the benefit-of-the-doubt rule is inapplicable, and the claim for service connection for a psychiatric disability must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Leetra J. Harris Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Casula 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.