Citation Nr: 1605602 Decision Date: 02/12/16 Archive Date: 02/18/16 DOCKET NO. 13-20 089 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disability status post total knee replacement. 2. Entitlement to service connection for a left knee disability status post total knee replacement. 3. Entitlement to service connection for a skin disability to include actinic keratosis. 4. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 5. Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus type 2. 6. Entitlement to an effective date prior to July 11, 2013 for the grant of service connection for PTSD. 7. Entitlement to an effective date prior to July 11, 2013 for the grant of service connection for diabetes mellitus, type 2. REPRESENTATION Veteran represented by: J. Michael Woods, Attorney at Law ATTORNEY FOR THE BOARD Andrew Hinton, Counsel INTRODUCTION The Veteran had active service from February 1966 to February 1968 including service in Vietnam during the Vietnam Era. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In his July 2013 VA Form 9 the Veteran requested to have a hearing before the Board; however, he later withdrew that request. In a January 2014 rating decision the RO granted service connection for PTSD and assigned a 30 percent disability rating, effective July 11, 2013; and granted service connection for diabetes mellitus and assigned a 20 percent disability rating, effective July 11, 2013. In December 2014 the Veteran submitted a notice of disagreement from that rating decision as to the initial disability ratings and effective dates assigned for each disability. The four corresponding issues have been added to the appeal. See Manlincon v. West, 12 Vet. App. 238 (1999). The issues of entitlement to (1) an initial disability rating in excess of 30 percent for PTSD, (2) an initial disability rating in excess of 20 percent for diabetes mellitus type 2, (3) an effective date prior to July 11, 2013 for service connection for PTSD, and (4) an effective date prior to July 11, 2013 for service connection for diabetes mellitus, type 2, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a May 1968 rating decision, the RO denied a claim of entitlement to service connection for a right knee disability identified as injury of the right knee. The Veteran did not perfect an appeal of that rating decision nor was new and material evidence received within the appeal period. 2. Evidence received since the May 1968 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for a right knee disability, and it raises a reasonable possibility of substantiating the underlying claim. 3. A right knee disability has not been shown to have onset in service or to be otherwise related to service; and arthritis has not been shown to be manifested to a compensable degree within one year from separation. 4. A left knee disability has not been shown to have onset in service or to be otherwise related to service; and arthritis has not been shown to be manifested to a compensable degree within one year from separation. 5. A skin disability to include actinic keratosis has not been shown to have onset in service or to be otherwise related to service. CONCLUSIONS OF LAW 1. The May 1968 rating decision, which denied the Veteran's claim of service connection for a right knee disability, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2015). 2. New and material evidence sufficient to reopen the previously denied claim of service connection for a right knee disability has been received. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The criteria for service connection for a right knee disability status post total knee replacement have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2015). 4. The criteria for service connection for a left knee disability status post total knee replacement have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2015). 5. The criteria for service connection for a skin disability to include actinic keratosis have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015). Because the Board is reopening the right knee service connection claim that action is considered a full grant of the benefits sought and no discussion of VA's duties to notify and assist is necessary with respect to reopening the claim. Standard letters sent to the Veteran in May and June 2011, and November 2012 satisfied the duty to notify provisions regarding the service connection claims decided here including the reopened claim for service connection for a right knee disability. Thereafter the claims were readjudicated in a June 2013 statement of the case. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c). The Veteran's service treatment records and personnel records have been obtained. Post-service VA and private treatment records have also been obtained. The Veteran was provided VA medical examinations for his claimed left and right knee disorders and skin disorder in May 2013. The examinations are sufficient evidence for deciding the claims. The reports are adequate as they are consistent with and based upon consideration of the Veteran's prior medical history, describe the claimed symptomatologies in sufficient detail so that the Board's evaluations are fully informed, and the examination reports contain reasoned explanations. Thus, VA's duty to assist has been met. II. Petition to Reopen Claims of Entitlement to Service Connection The Veteran initially filed a claim of entitlement to service connection for a right knee disability in February 1968, when he claimed service connection for right knee injury occurring in November 1966. The RO denied that claim in a May 1968 rating decision on the basis that service treatment records showed that the Veteran was seen in November 1966 for complaints of a swollen knee, cause undetermined; and no further entries were shown in the service treatment records; and the discharge examination showed normal extremities and no complaints of any knee disability. The Veteran did not file a notice of disagreement or submit new and material evidence within one year of the May 1968 rating decision, and that decision is now final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for Veterans Claims (Court) has clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The evidence of record material to the claim at the time of the May 1968 rating decision consisted of the Veteran's service treatment records and DD Form 214. In April 2011 the Veteran submitted a claim for service connection for a number of conditions including for a right knee disability, in essence requesting to reopen the claim. In the current claim to reopen, in a February 2012 rating decision the RO determined that the evidence submitted since the May 1968 rating decision was not new and material so as to reopen the claim of service connection for the right knee disability. The RO specifically determined that the claim was denied in May 1968 because there was no record of injury in service and the separation examination showed that the extremities were normal. The RO determined that the evidence received since May 1968 did not relate to an unestablished fact necessary to substantiate the claim as it does not show that the current diagnosis of osteoarthritis, right knee, began in or was caused by service. On that basis the RO declined to reopen the claim in the rating decision, but then subsequently reopened the claim and adjudicated the underlying service connection claim on the merits in the June 2013 statement of the case. Since the May 1968 rating decision, evidence has been added to the claims file. The additional evidence of record includes statements from the Veteran including as to a right knee injury in service, private medical records including of treatment for a right knee condition, and the report of a VA examination of the knees. A statement from the Veteran dated in April 2011 described the Veteran's report of an incident in service in November 1966 when the Veteran was injured while on a helicopter assault mission. The Veteran stated that when he jumped from the helicopter, he fell about 15 feet, injuring both knees. He was treated after that and hospitalized for two weeks. After he was released back to his unit, he still experienced left knee pain, and has continued to have pain in both knees. Private treatment records show treatment of the right knee culminating in a right knee replacement in April 2011. The additional evidence received since the May 1968 rating decision also includes the report of a May 2013 VA examination for knee and lower leg conditions, which includes findings and diagnosis of a right knee disability. The additional records provide additional evidence not previously on file that substantiates the presence of a chronic right knee disability. The additional records contain evidence supportive of the Veteran's claim with respect to whether any right knee disability is present, and if so, whether it is likely due to service. Also, the additional VA treatment records provide evidence as to the nature of present right knee symptomatology. The records received since May 1968 contain evidence of a diagnosis of a right knee disability, which when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim of service connection for a right knee disability. The additional records provide evidence of a right knee diagnosis not previously on file that is probative to the Veteran's claim that he has a right knee disability related to service. The additional evidence received since the May 1968 rating decision includes medical evidence that was not previously on file, is not cumulative or redundant of the prior evidence on file, relates to an unestablished fact necessary to substantiate the claim, and ultimately raises a reasonable possibility of substantiating the claim. In light of the newly submitted records and contentions, when considered with previous evidence of record, the claim of service connection for a right knee disability is reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Board may proceed to decide the merits of the claim if the Board first secures a waiver from the Veteran, or the Board determines that the Veteran would not be prejudiced by proceeding to a decision on the merits. Bernard v. Brown, 4 Vet. App. 384, 390 (1993); see Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). In this case, the RO already conducted a merits analysis and considered the merits of the right knee service connection claim in the June 2013 Statement of the Case, and in the August 2014 Supplemental Statement of the Case, and all duty to notify and assist provisions that would be afforded a claim on the merits have been undertaken. Accordingly, the Veteran is not prejudiced by the Board's consideration of the claim for service connection for a right knee disability on the merits below. See Hickson v. Shinseki, 23 Vet. App. 394, 403-405 (2010); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). III. Entitlement to Service Connection Applicable Law Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). "To establish a right to compensation for a present disability, 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)). Some chronic diseases, including arthritis, are presumed by law and regulation to have been incurred in service even though there is no evidence of such disease during the period of service, if they become manifest to a degree of ten percent or more within a corresponding applicable presumptive period, and if following a period of service of 90 days or more of continuous active service. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). 38 C.F.R. §§ 3.307(a)(6)(ii) and 3.309(e) provides that if a veteran served in the Republic of Vietnam between January 9, 1962 and May 7, 1975, he or she shall be presumed to have been exposed to an herbicide agent as defined in 38 C.F.R. § 3.307(a)(6). The Veteran served in Vietnam and is presumed to have been exposed to herbicides. If a veteran is exposed to an herbicide agent during service, some chronic diseases are presumed to be service connected if other conditions are met. If so exposed, and if chloracne or other acneform disease consistent with chloracne, or porphyria cutanea tarda, becomes manifest to a 10 percent degree or more within a year after the last date on which the Veteran was exposed to an herbicide agent during service, then such chronic condition shall be service-connected even though there is no record of such disease during service, unless there is affirmative evidence that the Veteran was not exposed to during service. 38 C.F.R. §§ 3.307(a) (6) (ii) and 3.309(e). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303(b) is only available for the specific chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). Without proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Competent medical evidence is 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 include statements conveying sound medical principles found in medical treatises and statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a) (1) (2015). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters which can be observed and described by a lay person. 38 C.F.R. § 3.159(a) (2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, 492 F.3d at 1377. In making all determinations, the Board must fully consider the lay assertions of record. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Evidence The Veteran's DD Form 214 shows that the Veteran received the Vietnam Service Medal, Vietnam Campaign Medal, and Combat Infantry Badge, and indicates that he served almost 12 months in Vietnam. Service treatment records show that the Veteran was seen in November 1966 for complaints that the left knee was swollen. On examination the treatment provider noted findings of mild swelling, moderate erythema, and tenderness with increased heat. The note contains an impression of synovitis of the left knee, etiology unknown. The Veteran was seen in November 1967 for complaints of sores of the elbow and legs, which on evaluation the provider assessed as icthymosis (ichthyosis?) of the left hip. The report of a December 1967 REFRAD (release from active duty) examination shows that the evaluation was normal for lower extremities and for skin. Private treatment records show that the Veteran was seen in January 2009 for complaints of bilateral knee pain; and that the Veteran underwent left knee replacement in June 2009. Private treatment records show that the Veteran was seen in June 2010 with complaints of having two lesions, located on the forehead and left hand, which would not go away. The assessment was actinic keratosis, left forehead and hand. The provider performed cryotherapy on the two lesions. Private treatment records show that the Veteran was seen in August 2010 for complaints of right knee pain and actinic keratosis. The Veteran reported right knee pain with onset months before the visit. The examiner noted a new skin lesion on the right temple area. A December 2010 private treatment report noted a history of years of progressive activity-aggravated right knee pain, increasingly interfering with ability to perform daily activities. At that time the provider recommended a right total knee replacement arthroplasty. Private treatment records show that the Veteran underwent right knee replacement in April 2011. An August 13, 2012 VA primary care note includes a review of systems indicating that the Veteran reported that his skin was manifested with chronic "sores" on his forehead. The Veteran stated that he is treated periodically with liquid nitrogen. The provider found that there was no rash or suspicious lesions. On examination the provider noted that skin was pink, warm, smooth, and with no generalized edema, rashes, lesions, or ulcers. During a May 2013 VA examination for skin diseases, the examiner reviewed the claims file and examined the Veteran. The examination report contains a diagnosis of actinic keratosis, diagnosed in 2009. The Veteran reported a history of skin issues for over twenty years. He reported that he had had raised skin lesions that itch, and when he scratches them they scab over. He reported having had numerous lesions over his forehead and scalp, which he had treated with some kind of soap. The examination report recorded that the Veteran did not have a history of scarring or disfigurement, or malignant melanoma, or systemic manifestations of any skin diseases. On examination, the Veteran did not have any visible skin conditions; or any neoplasm or metastases; or other physical findings, complications, conditions, signs or symptoms related to actinic keratosis. After examination, the examiner opined that the claimed skin condition was less likely than not (less than 50 percent probability) incurred in or caused by any inservice injury, event or illness. As rationale for the opinion, the examiner noted his review of the Veteran's service treatment records, and VA and private treatment records. The examiner noted that a November 1967 service treatment record identified ichthymosis of the left thigh; and that no further skin disorder complaints were shown in service. The examiner noted that the actinic keratosis noted after service in private treatment records is not a condition related to the skin condition noted in service; and that neither condition is related to Agent Orange. The examiner concluded that the Veteran's current actinic keratosis is less likely than not incurred in or caused by the claimed in-service events. During a May 2013 VA examination for knee and lower leg conditions, the examiner reviewed the claims file and examined the Veteran. The examination report contains diagnoses of bilateral total knee replacements, with surgery in 2009 on the left and 2011 on the right knee; and of acute and resolved synovitis of the left knee diagnosed in 1966. The Veteran reported a history that in October 1966 during service he injured his left knee while jumping out of a helicopter. He reported that his left knee was swollen and stiff and that he was then air evacuated out in November 1966. He reported that he continued to have extreme pain and was admitted to the hospital for surgery but the knee was resolving. He reported that after service the left knee continued to have pain and occasional swelling and he could not bend or place weight on the left knee. He had increased pain and stiffness about ten years prior to his total knee replacement in 2009. The Veteran reported that the right knee was hurting approximately five years before the left knee. He reported that after the left knee surgery he depended on the right knee, and currently he has constant pain in both knees with limited range of motion in each. Diagnostic imaging studies documented degenerative or traumatic arthritis of both knees. After examination and review of the claims file, the examiner opined that the claimed left knee condition was less likely than not incurred in or caused by the claimed inservice injury, event, or illness. As rationale for the opinion, the examiner noted the following. The left knee synovitis was noted in service in November 1966, when the etiology at the time was recorded as unknown. There were no additional follow-up medical notes to identify this as a chronic condition. The Veteran's December 1967 medical examination did not identify any knee issues. No additional notes related to the left knee were shown after service until the Veteran was considering total knee replacement on the left and was receiving knee injections for the osteoarthritis. The examiner further noted that the service treatment records were without documentation that identified the synovitis as a chronic disorder; that the Veteran's exit examination was silent for knee issues; and that generally synovitis does not lead to osteoarthritis. On these bases, the examiner concluded with the opinion that the Veteran's left knee osteoarthritis leading to his left total knee replacement is less likely than not incurred in or caused by the claimed in-service injury or event. The examiner opined that the Veteran's right knee disorder was less likely than not incurred in or caused by the claimed inservice injury, event, or illness. As rationale for the opinion, the examiner noted the following. The right knee was not mentioned in the Veteran's service treatment records and the Veteran's December 1967 examination did not identify any knee issues. Further, no additional notes related to the knee were noted until December 2010 when the Veteran was status post left total knee replacement, with a mild antalgic gait to the right. The Veteran's service treatment records are without documentation that identified the right knee as being injured in service and his exit examination was silent for knee issues. Thus the Veteran's right knee osteoarthritis leading to his left total knee replacement is less likely than not incurred in or caused by the claimed in-service injury or event. The examiner also opined as to the likelihood of a relationship between the right and left knee disabilities, but as the left knee is not service-connected, this aspect of the examiner's opinion need not be addressed in the instant decision. In a report titled Summary of Care Document dated in June 2013, John Matthew Brown, M.D., one of the Veteran's private treating physicians, noted that the Veteran was being seen for evaluation of multiple symptoms he believed were related to his military service. Dr. Brown noted a history of bilateral knee replacements in 2009 and 2011 for degenerative joint disease. The Veteran reported a history of serving in the infantry in Vietnam, and that he injured his left knee while jumping from a helicopter with soreness over the next three weeks. He reported that eventually he was not able to walk and then passed out due to pain in the left knee. He alleged that he was considered for surgery of the knee but the swelling resolved although the knee pain continued. He reported that after discharge in 1968 he claimed service connection for the left knee but this was denied. He stated that the left knee hurt most of his life, and he eventually had bilateral knee replacements (2009 left and 2011 right). The Veteran also reported that he gets sores on the head off and on. After examination, Dr. Brown opined that the history sounded suspicious for an internal derangement of the knee back in 1966 with chronic progressive worsening until eventually the Veteran required total knee replacements bilaterally. Dr. Brown stated that he had no films prior to 2004. He further noted that over use, injury (although the Veteran could not remember any other knee injury later in life after war), and wear and tear arthritis can occur thereby requiring joint replacement surgery. Dr. Brown opined that he could not rule out the probability that the Veteran's injury when jumping from the helicopter did have an effect on his joints that later progressed with daily use. Analysis As reflected in his September 2012 notice of disagreement, the Veteran claims service connection for a left knee disability status post total knee replacement, as due to an injury in service while jumping out of a helicopter. He claims service connection for a right knee disability as caused by the left knee disability. He claims service connection for actinic keratosis as due to exposure to herbicides (Agent Orange) while serving in Vietnam. VA has granted service connection for the following disabilities as related to service or to a service-connected disability: posttraumatic stress disorder; diabetes mellitus type 2; tinnitus; and malaria (inactive). Left and Right Knee Disabilities During the pendency of the appeal, the Veteran has diagnoses of left and right total knee replacements, with surgery in 2009 on the left and 2011 on the right knee; and of acute and resolved synovitis of the left knee diagnosed in 1966. He was diagnosed with left and right knee disabilities in about the late 2000s. Other than evidence of synovitis of the left knee shown on one treatment visit in service, there is no evidence of any left or right knee disorder or symptomatic problems during service. There is also no evidence showing any arthritis manifest to a degree of ten percent or more within one year after discharge. See 38 C.F.R. §§ 3.307, 3.309. Although the Veteran served in Vietnam during the applicable period, the orthopedic bilateral knee disorders are not diseases for which service connection may be presumed due to exposure to herbicide agents under applicable regulatory provisions. See 38 C.F.R. § 3.307(a) (6); and 3.309 (e), including Note 2 (2015). The Veteran is competent to attest to symptoms of his right and left knee disorders; however, as a layperson, the Veteran is not competent to address such complex medical issues as the etiology of his knee disabilities. The opinion of the VA examiner was that the Veteran's current diagnoses of left and right knee disorders are not likely caused by or a result of his active duty service. The examiner explained that the left knee synovitis shown in service had an unknown etiology at the time and there was no follow-up treatment to indicate this was a chronic condition. Further, no left or right knee condition was observed on examination at the end of the Veteran's period of service (nor did the Veteran report chronic knee issues). The examiner further noted in general that synovitis does not lead to osteoarthritis. The examiner noted that there was no indication in service of any right knee injury or complaint, or finding of any problems on examination at the December 1967 examination. These opinions are probative as they are consistent with the medical history recorded on file. The June 2013 opinion of Dr. Brown in support of the Veteran's bilateral knee disability claims is, however, not of probative value as it is based on rationale that is not consistent with the documented record. Dr. Brown based his opinion on the Veteran's report of a specific injury in service with rather extensive symptoms and treatment at the time, which is simply not shown in the service treatment records. Those records show only one visit for complaints assessed as synovitis of the left knee of unknown etiology, and no subsequent record of treatment or indication of further problems. Moreover, Dr. Brown's opinion that he "could not rule out the probability" is expressed in terms too speculative to be a probative medical opinion. The Court has held that the use of equivocal language such as "could" or "may have" makes a statement by an examiner speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not: language by a physician is too speculative). On review of the evidence overall, the Board determines that while the Veteran believes that he has left and right knee disabilities with an etiology related to his military service or to a service-connected disability, he is not shown to be other than a lay person. As noted above, as a lay person, he has no competence to provide a medical opinion on this medically complex matter concerning the diagnosis and etiology of such knee conditions. The preponderance of the evidence is against the claims for service connection for a left knee disability status post total knee replacement and for a right knee disability status post total knee replacement; there is no doubt to be resolved; and service connection is not warranted for either. 38 U.S.C.A. § 5107(b). Skin Disability to Include Actinic Keratosis of the Right Temple During the pendency of the appeal, the Veteran has a diagnosis of actinic keratosis. He was diagnosed with actinic keratosis in 2009. Other than one visit for treatment of sores on the elbow and leg assessed at the time as icthymosis on left thigh, there is no evidence of any skin disorder or symptomatic problems during service. Although the Veteran served in Vietnam during the applicable period, actinic keratosis is not one of the diseases for which service connection may be presumed due to exposure to herbicide agents under applicable regulatory provisions. See 38 C.F.R. § 3.307(a) (6); and 3.309 (e), including Note 2 (2015). The Veteran is competent to attest to symptoms of his actinic keratosis. However, as a layperson, he is not competent to address complex medical issues such as the etiology of actinic keratosis. The clinical record shows no continuity of symptoms after service associated with a present actinic keratosis; or any temporal correlation between actinic keratosis and any service-connected disability symptoms supportive of the Veteran's claim. The first clinical evidence of any actinic keratosis is not shown until many years after service, and there is no competent evidence linking that skin condition with any symptoms shown in service. The opinion of the VA examiner was that the Veteran's current diagnosis of actinic keratosis is not likely caused by or a result of his active duty service, for reasons as discussed above. Those reasons included that while a November 1967 service treatment record identified ichthymosis of the left thigh, there were no further skin disorder complaints shown in service, and the present condition of actinic keratosis is not a condition related to the ichthymosis shown in service; and that neither condition is related to Agent Orange. This opinion is probative as it is consistent with the medical history recorded on file; and there are no countervailing opinions on this matter supportive of the Veteran's claim. On review of the evidence overall, the Board determines that while the Veteran believes that he has a skin disability with an etiology related to his military service to include exposure to Agent Orange, he is not shown to be other than a lay person. As noted above, as a lay person, he has no competence to provide a medical opinion on this medically complex matter concerning the diagnosis and etiology of such condition. The preponderance of the evidence is against the claim for service connection for a skin disability to include actinic keratosis; there is no doubt to be resolved; and service connection is not warranted. 38 U.S.C.A. § 5107(b). ORDER New and material evidence having been submitted, the petition to reopen the claim for service connection for a right knee disability is granted. Service connection for a left knee disability is denied. Service connection for a right knee disability is denied. Service connection for a skin disability to include actinic keratosis is denied. REMAND In a January 2014 rating decision the RO granted service connection for PTSD and assigned a 30 percent disability rating, effective July 11, 2013; and granted service connection for diabetes mellitus and assigned a 20 percent disability rating, effective July 11, 2013. In December 2014 the Veteran submitted a notice of disagreement from that rating decision as to the initial disability ratings and effective dates assigned for each disability. Because the RO has not yet issued a statement of the case on this claim, remand is required. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Issue the Veteran a statement of the case on his claims of entitlement to (1) an initial disability rating in excess of 30 percent for PTSD, (2) an initial disability rating in excess of 20 percent for diabetes mellitus type 2, (3) an effective date prior to July 11, 2013 for service connection for PTSD, and (4) an effective date prior to July 11, 2013 for service connection for diabetes mellitus, type 2; so that the Veteran may have the opportunity to complete an appeal on these issues by filing a timely substantive appeal. An issue should only be returned to the Board if a timely substantive appeal is filed. The Veteran has the right to submit additional evidence and argument on the matter or matters 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 2014). ______________________________________________ M. N. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs