Citation Nr: 23038726 Decision Date: 07/12/23 Archive Date: 07/12/23 DOCKET NO. 19-29 049 DATE: July 12, 2023 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for a low back disability is denied. Entitlement to service connection for alcoholism is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. The evidence of record does not suggest that the Veteran has a current diagnosis of PTSD. 2. The Veteran's low back injury in service was acute and resolved; a chronic low back disability was not manifested in service; and current complaints of back pain are not shown to be etiologically related to his service and incident of a muscle strain in service. 3. The Veteran's alcoholism is from his own willful misconduct, and the Veteran is not service connected for any psychiatric disability. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for alcoholism have not been met. 38 U.S.C. §§ 101, 105, 1110, 1131, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.301, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from October 1991 to October 1995. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision. In May 2022 the Veteran was notified of a scheduled August 2022 video conference hearing. The Veteran did not appear for this hearing and did not provide good cause for a failure to appear or request a new hearing. Service Connection Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104, F.3d 1328 (Fed. Cir. 1997). Certain chronic diseases (to include arthritis and psychoses) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period following separation from service (one year for arthritis and psychoses). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. For chronic diseases listed in 38 C.F.R. § 3.309 (a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d); See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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 layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for PTSD. The Veteran contends that he has PTSD related to service. See February 2016 21-526EZ. In a September 1995 report of medical history (for separation), the Veteran denied depression or excessive worry, frequent trouble sleeping, loss of memory, and nervous trouble of any sort. In a September 1995 report of medical examination (for separation), the Veteran's psychiatric clinical evaluation was normal. A PTSD 4Q screening was negative in April 2009, April 2010, April 2011, August 2012, March 2014, November 2015. In a March 2016 mental health consultation, the Veteran stated he did not believe he had PTSD and was at the appointment because his fiancé expressed concerns of him yelling and fighting in his sleep. It was noted that the Veteran drinks 3-4 beers per night 3 times per week, and drinks more than 6 beers 1 to 2 times per month. He reported having 4 DUIs with the last one occurring in 2006. The clinician indicated the Veteran presented with mental status within normal limits. The Veteran denied experiencing military related trauma and reported no other symptoms of PTSD. A PTSD screen was negative, an alcohol screening test was positive. Based on the evaluation, the clinician concluded that no mental health condition requiring further intervention was shown. As noted above, the existence of a current disability is the cornerstone of a claim for VA disability compensation. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The threshold matter that must be addressed here (as in any claim seeking service connection) is whether there is competent evidence that the Veteran currently has (during the pendency of the claim has had) the disability for which service connection is sought. The Board finds as a fact in this case that the evidence of record does not suggest that the Veteran has a diagnosis of PTSD. The Veteran has denied experiencing any in service-related trauma, the Veteran's service treatment records (STRs) do not suggest the presence of complaints, diagnosis, or treatment for PTSD, and multiple post-service medical treatment records contain negative PTSD 4Q test results. As the evidence of record does not suggest the existence of any diagnosis of PTSD, service connection for such disability is not warranted. Accordingly, the appeal in this matter is denied. Lastly the Board has considered whether expansion of this claim under Clemons. However, the evidence of record also does not suggest the existence of a psychiatric disability other than PTSD. Accordingly, the matter is limited to a question of PTSD. 2. Entitlement to service connection for a low back disability. The Veteran contends that he has a low back disability related to service. A June 1992 STR notes the Veteran was seen with complaints of back pain due to an injury playing basketball 2 days prior. The assessment was a left side muscle strain of the low back. He was given Robaxin and put on light duty for 2 days. On September 1995 report of medical history (separation), the Veteran did not indicate a history of recurrent back pain. On September 1995 report of medical examination (separation), the Veteran's spine was normal on clinical evaluation. An August 2014 treatment record problem list notes "backache." In a May 2016 medical opinion, the clinician opined that it was less likely than not that the Veteran's current back condition is related to service. The clinician noted the Veteran's in-service muscle strain and noted the Veteran's STRs were otherwise silent for any chronic or recurring back issues. The clinician also noted a lack of continuity of the Veteran's back pain since service. An April 2018 primary care record notes spina bifida occulta without back pain at present. The Veteran contends that his current back disability is etiologically related to his in-service low back muscle strain. The Veteran's more recent treatment records include some reports of back pain and note spina bifida occulta. STRs show that the Veteran was seen for a left sided low back muscle strain in service. However, the record shows that the Veteran's low back injury in service was acute and resolved with treatment, and that a chronic low back disability was not diagnosed. At separation from service in September 1995, the Veteran denied any recurrent back pain. Additionally, there is no diagnostic studies (such as X-Ray) demonstrating that arthritis of the low back was manifested in the first post-service year. The Board finds as a fact in this case that the record does not suggest that the Veteran has a diagnosis of low back arthritis, and continuity of a low back disability since service is not shown. Consequently, service connection for a low back disability on the basis that a chronic disability became manifest in service and persisted, on a chronic disease presumptive basis (for arthritis of the low back under 38 U.S.C. § 1112) or based on continuity (under 38 C.F.R. § 3.303 (b)) is not warranted. Under these circumstances, whether a currently diagnosed low back disability is etiologically related to injuries and complaints in remote service is a medical question, beyond the scope of common knowledge or capability of resolution based on lay observation; it requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran has not submitted any medical evidence indicating that his current back disability may be related to service and does not cite to any clinical data supporting his theory of entitlement. The May 2016 medical opinion, the clinician opined it was less likely than not that the Veteran's back disability is related to his service and is against the Veteran's claim. The provider expressed familiarity with the record and explained the rationale for the conclusion that a current back disability was not incurred in service. The examiner explained that the report of back injury in service was acute and resolved. Additionally, the Veteran himself did not indicate that he was experiencing recurrent back pain at separation from service. Under such circumstances the Board finds as a fact in this case that the weight of competent and credible evidence is against this claim. Accordingly, the appeal in this matter is denied. 3. Entitlement to service connection for alcoholism. It is not in dispute that the Veteran has a current disability as he has been diagnosed with persistent alcohol abuse. See CAPRI record received July 12, 2019, pg. 46 (April 2018 Primary Care Note). As a threshold matter, the Veteran is precluded as a matter of law from service connection on a direct basis for his chronic alcoholism because the progressive and frequent use of drugs or alcohol to the point of addiction is considered willful misconduct. See, generally, 38U.S.C. §105; 38C.F.R. §§3.1 (m), 3.301(c)(3)(d). However, an alcohol or drug abuse disability arising as a direct result of a psychiatric condition may be service connected. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). In this case, to the extent that the Veteran is not service connected for any acquired psychiatric disorder, service connection for his alcohol abuse disability cannot be established on a basis of secondary service connection (ie. service connection for chronic alcoholism secondary to or caused by a service-connected psychiatric disability). Accordingly, the evidence of record is against the Veteran's claim and the appeal in this matter is denied. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. Additional development of the record is necessary for the proper adjudication of these claims. In his September 1995 report of medical history (separation), the Veteran responded "yes" to having had or having "trick or locked knees." The Veteran's STRs show occasional complaints for right and left knee pain. The Veteran has not been afforded a medical examination for his knees. In a May 2016 medical opinion, the clinician opined that it was less likely than not that the Veteran's knee disabilities were related to service and noted that a reported history from the Veteran would not change the opinion. This opinion is inadequate for rating purposes. The Veteran's post-service treatment records note knee arthralgia. See CAPRI record receipt date May 12, 2016, pg. 67 (primary care note August 20, 2014). Whether the Veteran's post-service reports of knee pain are related to the Veteran's reports of knee pain in service is a medical question. Here, a medical examination which assesses the Veteran's disability and considers the Veteran's lay statements has not been conducted. Accordingly, remand for a medical examination and opinion (which considers the Veteran's lay statements) is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Miller v. Wilkie, No. 16-3046, 2019 U.S. App. Vet. Claims LEXIS 923). The matters are REMANDED for the following action: 1. The AOJ should make copies of all pertinent records available to the examiner to conduct an orthopedic examination and obtain a medical opinion from an appropriate clinician regarding the etiology any right and/or left knee disability(ies). Upon examination of the Veteran, and review of the record (to include this Remand), the clinician must respond to the following: (a.) Identify (by diagnosis) each right and/or left knee disability(ies) shown. If a diagnosis cannot be provided but a condition manifests in symptoms that cause functional impairment, then the examiner shall consider them a "disability" for the purpose of providing the requested opinion(s) below. (b.) Whether it is as least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any right and/or left knee disability(ies) is/are caused by service? The clinician must specifically address the in-service incidents of knee pain and the Veteran's report of a tricked or locked knee at separation from service. (c.) If a diagnosed right and/or left knee disability is determined to be unrelated to the Veteran's service, provide the etiology considered more likely and explain why that is so. 2. The clinician must provide a complete rationale for all findings and opinions. PAULA B. McCARRON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Staskowski, Nichole 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.