Citation Nr: 1317837 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 08-06 745A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as a result of exposure to Agent Orange. 2. Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected diabetes mellitus, type 2. 3. Entitlement to service connection for a low back disability, to include as secondary to service-connected diabetes mellitus, type 2. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran had active service form January 1968 to December 1969. His decorations include the Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, and issued by the RO in Montgomery, Alabama. In February 2012, the Board remanded this case for further development. The case has returned to the Board for appellate review. In March 2013, the Veteran submitted additional evidence with a waiver of Agency of Original Jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider such newly received evidence. The issue of entitlement to service connection for bilateral hearing loss was remanded in February 2012 along with the claim currently on appeal. Following development conducted pursuant to the Board's February 2012 remand, the AOJ granted service connection for that disorder in a February 2013 rating decision. As such is a complete grant of the benefits sought on appeal, that issue is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The issue of entitlement to service connection for sleep apnea, to include as a result of exposure to Agent Orange, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The most probative evidence fails to link the Veteran's current bilateral knee disability to active service, or to his service-connected diabetes mellitus type 2. 2. The most probative evidence fails to link the Veteran's current low back disability to active service, or to his service-connected diabetes mellitus type 2. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral knee disorder, including as secondary to service-connected diabetes mellitus type 2, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). 2. The criteria for service connection for low back disorder, including as secondary to service-connected diabetes mellitus type 2, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's notice requirements were satisfied by January 2006 and September 2006 letters which advised the Veteran of the criteria for establishing service connection, and which was sent prior to the initial adjudication of the Veteran's claim in December 2006. Although the Veteran was not provided with notifications as to service connection as secondary to a service-connected disorder as to these issues, he was not prejudiced thereby because he has actual knowledge thereof from the January 2006 notice letter, which discussed the criteria for service connection on a secondary basis for additional claims not currently on appeal. Next, VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of pertinent medical records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained and associated with the claims file the Veteran's service treatment records and records of his post-service VA and private treatment. The Veteran was afforded VA compensation and pension examinations germane to his claims for service connection for bilateral knee and low back disorders on appeal in March 2012. These examination reports are adequate because the examiner, a physician, based her opinions upon consideration of the Veteran's prior medical history, described the disabilities in sufficient detail so that the Board's evaluations of the claimed disabilities would be fully informed, and supported all conclusions with analyses that the Board could consider and weigh against contrary opinions. Additionally, the VA examiner fully described the functional effects caused by the Veteran's claimed bilateral knee and low back disorders. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The record reflects substantial compliance with the Board's prior remand instructions. In February 2012, the Board requested that the RO provide the Veteran with examination for his claimed disorders. In response, the RO provided him with those VA examinations in March 2012. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions, and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). For the foregoing reasons, the Board concludes that VA made all reasonable efforts to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the Veteran with the development of evidence is required. Service Connection In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein. Establishing direct service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. However, this presumption is inapplicable in this case because the Veteran was not diagnosed with arthritis of the back or either knee to a degree of 10 percent within one year from the date of termination of service. Service connection may also be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2012). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran contends in his February 2006 letter that his current back and bilateral knee pain resulted from his many jumps with full packs from helicopters, as well as running and falling in rice paddies, during his combat service in Vietnam. The Veteran reported that his back and knee pain has gotten worse over the years. The Veteran's service treatment records include no complaints, diagnosis, or treatment of any knee disorders in service, and some reports of a low back disorder which had resolved by the time of separation from service. Specifically, in July 1969, the Veteran sought treatment for low back pain which he had experienced for 1.5 months since engaging in heavy lifting. An in-service clinician found no deformity or spasm, and no tenderness. The clinician found good range of motion (ROM), with some pain on full flexion. The clinician diagnosed the Veteran with a chronic mild low back strain. In his December 1969 Report of Medical History at separation from service, the Veteran reported that he did not have, and had never had, recurrent back pain or a "trick" or locked knee. Similarly, in a December 1969 Report of Medical Examination, the clinician found that the Veteran's lower extremities, spine, and other musculoskeletal were normal on clinical evaluation. After service, the Veteran first sought treatment for bilateral knee problems in November 2003, from VA. He first sought treatment for his low back pain after service in November 2004, also from VA. A June 2005 private MRI study of the lumbar spine revealed minimal disc bulging at L4-5 and bilateral facet hypertrophy at L4-5 and L5-S1. In October 2006, a VA clinician noted that the Veteran reported having leg pain "for years," and gave a "4-5 month" history of back pain. In April 2007, a VA clinician noted that x-ray studies revealed arthritic changes in the Veteran's right knee. In March 2012, VA provided the Veteran with examinations of his back and knees. The examiner, a physician, reviewed the claims file. The examiner diagnosed the Veteran with mild lumbar spondylosis due to aging, and opined that it was less likely than not incurred in or caused by the Veteran's in-service injury. The examiner explained that although the Veteran was treated in service in July 1969 as described above, his range of motion at that time was good. The examiner further explained that the Veteran's current low back disorder is "a consequence of aging and of his activities after his discharge from the military, including his work as a truck driver." (Capitalization omitted.) With respect to the bilateral knee disorder, the March 2012 VA examiner diagnosed the Veteran with bilateral osteoarthritis of the knees. The examiner opined that it was less likely than not incurred in or caused by the Veteran's in-service injury. The examiner reasoned that there is no documentation in the Veteran's service treatment records of a persistent abnormality in either knee. The examiner further explained that the Veteran had developed bilateral knee osteoarthritis as a consequence of aging. In March 2013, the Veteran's private physician, Willie E. White, M.D., diagnosed the Veteran with chronic low back pain, and opined that it "can be [a complication] associated with his diagnosis of Diabetes Mellitus Type 2." Dr. White provided no rationale for his etiological opinion. The Veteran is competent to assert that he has experienced back and bilateral knee pain since his jumps from helicopters and other associated actions during his combat service in Vietnam. See 38 C.F.R. § 3.159(a)(2); see also Clyburn v. West, 12 Vet. App. 296, 301 (1999) (a layperson is competent to observe painful knees). Moreover, because the Veteran incurred back and bilateral knee injuries during combat, not only are the combat injuries presumed, but so are the in-service disabilities that resulted during service from the in-service combat injuries. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, there must be the evidence of a current disability and a causal relationship between the current disability and the in-service combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). While the Board finds that the Veteran may be presumed to have incurred back and bilateral knee injuries in service, his description of events is so general and imprecise, they do not appear to be injuries at all, but more in the nature of the circumstances in which he used his joints. Regardless, the most probative contemporaneous evidence shows that they resolved prior to separation from service, and are unrelated to his current back and bilateral knee disabilities. Specifically, as referenced above, in a December 1969 Report of Medical Examination at separation from service, a clinician found that the Veteran's lower extremities, spine, and other musculoskeletal were normal on clinical evaluation. Likewise, in his December 1969 Report of Medical History at separation from service, the Veteran reported that he did not have, and had never had, recurrent back pain or a "trick" or locked knee. The Board finds that the contemporaneous evidence from both the in-service examiner and the Veteran showing that he did not have a back or knee disability at separation from service is entitled to greater probative weight than the Veteran's statements to the contrary during the pendency of his claim. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than subsequently reported history). Furthermore, the Board finds that the March 2012 VA examining physician's opinions are entitled to greater probative weight than Dr. White's opinion to the contrary. Where, as here, conflicting competent opinions are of record, the Board can ascribe greater probative weight to one opinion over another, provided that a rational basis is given. Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999). First, the VA examining physician's opinion is most probative because she considered the Veteran's medical records and discussed his medical history, provided an unequivocal and conclusive opinion, and offered clear reasoning demonstrating that the Veteran's back and bilateral knee disorders were less likely than not incurred in or caused by service because they are the result of the osteoarthritic process due to aging, and, in the case of the Veteran's back disorder, to his work as a truck driver. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Second, the VA examining physician's opinion is most probative because Dr. White's contrary opinion is inadequate since it includes no rationale. See, e.g., Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.") Moreover, Dr. White's opinion is speculative, as indicated by his use of the phrase "can...be associated." A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Morris v. West, 13 Vet. App. 94, 97 (1999) (a diagnosis that the appellant was "possibly" suffering from schizophrenia was deemed speculative); Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993), (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (a generic statement about the possibility of a link is too general and inconclusive); Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). Similarly, the Board finds that the Veteran's own lay statements linking his back and bilateral knee disorders to his service or his service-connected diabetes mellitus are not entitled to any probative weight because under the circumstances of this particular case he is not competent to opine on the relationships between such complex medical disorders. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (lay evidence is not always competent evidence of a diagnosis or nexus-particularly where complex medical questions or the interpretation of objective medical tests are involved); Kahana v. Shinseki, 24 Vet. App. 428 (2011). In this case, the Veteran is competent to report that he has back and bilateral knee pain. However, because back and knee disorders and any possible interactions with diabetes mellitus involve complex medical questions and the interpretation of medical literature and objective medical tests, the Veteran is not competent to render a nexus opinion on those matters. Woehlaert, 21 Vet. App. at 462. Consequently, the Veteran's lay statements asserting a nexus do not constitute a competent medical nexus opinion. Moreover, even if the Veteran's lay nexus opinion were held competent in this case, the Board finds that its probative value is outweighed by the March 2012 VA physician's opinion based on her greater medical expertise and ability to interpret medical records. In sum, the Board finds that the most probative evidence fails to link the Veteran's back and bilateral knee disorders to service, or to his service-connected diabetes mellitus type 2. Accordingly, reasonable doubt does not apply, and the Veteran's appeal of the issues is denied. ORDER Service connection for a bilateral knee disability is denied. Service connection for a low back disability is denied. REMAND The Board finds that a new medical opinion is required to address the question of entitlement to service connection for sleep apnea because the March 2012 opinion is inadequate. In that document, the VA examiner rejected the possibility of a nexus between the Veteran's sleep apnea and his service merely because there was no documentation in his claims file until many years after service. This opinion does not account for the statements submitted by the Veteran, his wife, and his mother describing snoring and episodes of stopped breathing during sleep, which they report have been occurring since service. A new VA medical opinion should address this. Accordingly, the case is REMANDED for the following action: 1. Return the file to the examiner who conducted the March 2012 sleep apnea examination of the Veteran, if available, for a supplemental opinion that addresses whether it is at least as likely as not (50 percent or better probability) that the Veteran's obstructive sleep apnea resulted from his military service, and which opinion specifically accounts for the pertinent medical history reported by the Veteran, his wife, and his mother concerning snoring, and interrupted breathing since service. If the examiner is unavailable, the requested opinion should be sought from another qualified person. In offering any opinion, the examiner should consider the full record, including the February 2006 letters from the Veteran, his mother, and his wife attesting to the fact that he has had symptoms of sleep apnea, including stopped breathing and snoring, since his return from service in Vietnam; whether other records reflect signs or symptoms of long standing sleep apnea; and whether any other facts would illuminate the likely cause or time of onset of the condition. If it is not possible to provide the requested opinion without resort to speculation, the reasons for that should be explained. A medical opinion without examination will be sufficient in this case unless a new examination is deemed necessary by the VA medical professional authoring the opinion. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs