Citation Nr: 1739331 Decision Date: 09/14/17 Archive Date: 09/29/17 DOCKET NO. 16-06 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for residuals of a cerebral embolism with cerebral infarction (stroke), to include as due to ear infections. 2. Entitlement to service connection for right knee disability, to include idiopathic peripheral neuropathy of the right knee. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2016). 38 U.S.C.A. § 7107 (a)(2) (West 2014). The Veteran had active service from February 1946 to February 1949. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran appeared before the undersigned Veterans Law Judge (VLJ) in a July 2016 video conference hearing. A transcript of that hearing is of record. This matter was previously before the Board in September 2016, at which time it was remanded for additional development. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA (VVA) electronic claims processing systems. Any future consideration of this claim should take into consideration the existence of the electronic record. FINDINGS OF FACT 1. A stroke was not manifest in active service and is not attributable to service, to include exposure to contaminated water at Camp Lejeune or in-service ear infections. 2. The Veteran's right knee disorder is not etiologically related to his period of service or any incident thereof. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for residuals of a cerebral embolism with cerebral infarction (stroke) have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2016). 2. The criteria for a grant of service connection for a right knee disorder, to include idiopathic peripheral neuropathy of the right knee have not been met. 38 U.S.C.A. §§ 1101, 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been provided notice letters throughout the appeal that address all notice elements required. There has been no allegation of notice error in this case. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 2016). Service treatment records are associated with claims file. All post-service treatment records identified by the Veteran have also been obtained. VA's duty to further assist the Veteran in locating additional records has been satisfied as to this issue. The Veteran has been afforded VA examinations in conjunction with his appeal. See 38 U.S.C.A. § 5103A (d); see also 38 C.F.R. § 3.159 (c)(4) (2016); Wells v. Principi, 327 F.3d 1339, 1341 (Fed. Cir. 2002). The Board finds the examinations are adequate for the purpose of determining service connection, as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provides an adequate basis for the diagnosis and opinions rendered. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, the requisite legal duties in the conduct of the hearing were complied with. During the July 2016 Board hearing, the Veterans Law Judge took necessary measures to identify the issue presented on appeal and posed direct questions to the Veteran designed to elicit information relevant to the disposition of his claim. 38 C.F.R. § 3.103 (c)(2) (2016). The instant appeal has been previously remanded in September 2016 for additional development. There has been substantial compliance with the Board's remand directives, and adjudication of the appeal on this issue may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Service connection claims The Veteran contends that he suffered from a stroke due to exposure to contaminated water at Camp LeJeune or due to ear infections during service. The Veteran also contends that he presently has a right knee disorder as a result of an in-service injury. For the reasons set forth below, service connection is not warranted for the Veteran's claims. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). In order to prevail on the issue of service connection there must be medical evidence of a disability; medical evidence or, in certain circumstances, lay evidence of the in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the disability. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In adjudicating a claim for VA benefits, 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). VA is to resolve any reasonable doubt in the Veteran's favor. 38 C.F.R. § 3.102 Service treatment records show the Veteran was hospitalized for three days in March 1946 for treatment for an ear infection. In May 1947, the Veteran was treated for internal derangement of the right knee. A subsequent treatment note showed the Veteran's condition improved after two days of rest. There are no additional symptoms, treatment, or diagnoses of a stroke or knee disorder in service. In a January 2011 claim, the Veteran contended that service connection was warranted for a stroke due to contaminated water at Camp LeJeune. In an April 2011 application, the Veteran claimed entitlement to service connection for a cerebral embolism with cerebral infarction and idiopathic peripheral neuropathy beginning in January 2011. The Veteran appeared at a Board hearing via videoconference in July 2016. He testified that there were three incidents in service that may have caused his disabilities, specifically a stroke, an ear infection, and an injury to his right leg. Post-service, he experienced a stroke in January 1983. As a result of that stroke, he stated that he has a disability of the right foot and neurological symptoms on the right side of his body. The Veteran also stated that after service, he was rejected for an insurance policy due to an abnormal cardiogram. He also stated that he has pain in his right leg and knee since service. In an October 2016 statement, the Veteran alleged that he has a cartilage problem in his right knee. Specifically, 35 years prior, he asked a private orthopedist to examine his right knee and was told that even surgery would not repair the cartilage. The Veteran further stated that he was hospitalized during service after injuring his right knee jumping over a ditch, "evidently tearing the cartilage badly." The Veteran was afforded a VA examination of his central nervous system in April 2017. The examiner noted that the Veteran had a cerebellar stroke in January 2011 and was diagnosed with a transient ischemic attack (TIA) in May 2016. The examiner opined that the Veteran's stroke was not incurred in or caused by service. As a rationale, he stated that "STR is silent regarding stroke while in service. The Veteran reports his last ear canal infection was 60+ years ago and therefore too remote to be an etiology for recent stroke. 2-17-2011 Dr. B. notated "Right cerebellar and pontine infarct cardioembolic in nature". The cardioembolic condition is paroxysmal atrial fibrillation. Therefore the etiology of the stroke is paroxysmal atrial fibrillation." The Veteran was also afforded a VA examination of his right knee in April 2017. The Veteran reported that he injured his knee during service and was hospitalized. Post-service, the Veteran acknowledged that he did not seek medical care for the right knee until 30 years later. The examiner diagnosed degenerative arthritis of the right knee and opined that it was less likely than not incurred in or caused by service. As a rationale, the examiner stated: "A review of the available electronic medical records was performed to include Veteran's 02/09/2015 appeal statement. STR has only one entry which was for 3 sick days for ear infection. The current mild to moderate DJD of the right knee is no worse than anticipated based on age alone. DJD of the weight bearing knees is the result of chronic weight bearing on the knees over time." The Veteran was also afforded a VA peripheral nerves examination. The examiner found that the examiner did not have a diagnosis of idiopathic peripheral neuropathy. Specifically, he stated that "There is no objective evidence found at the time of exam to warrant a diagnosis. Therefore, an opinion regarding a service connection for the claimed condition is not warranted. It appears Dr. B's notation of idiopathic peripheral neuropathy is based on decreased vibratory and temperature sensation on exam. These are normal on today's exam." Upon review of the record, the Board finds that the preponderance of the evidence is against the claims for service connection. In this regard, the Board accords great probative weight to the April 2017 VA examiner's opinions as they reflect consideration of all relevant facts and the examiner provided sufficient rationale for the conclusions reached. In this regard, the examiner explained why he found that the Veteran's stroke and right knee disorders were not incurred in or caused by any incident of his service. There is no contrary medical opinion of record. Moreover, although the Veteran injured his knee in service, he stated that he did not seek treatment for a right knee disorder until 30 years after his discharge and he did not suffer from a stroke until at least 1983, the earliest date reported by the Veteran. The Board notes that the passage of time between the Veteran's discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran's claim and his reports of continuous symptoms since service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Additionally, regarding his claim that his stroke was caused by exposure to contaminated water at Camp LeJeune, VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune from August 1953 through December 1987 were potentially exposed to drinking contaminated water with volatile organic compounds (VOCs). See Veterans Benefits Administration (VBA) Fast Letter 11-03 (January 11, 2011). However, as the Veteran was not stationed at Camp LeJeune during the relevant time period and his stroke is not a disorder that is presumptively linked to exposure to the contaminated water, service connection is not warranted on a presumptive basis. Furthermore, as the Veteran has presented no affirmative evidence of exposure to contaminated water during his period of service or an etiology between exposure to contaminated water and his stroke many years later, service connection on a direct basis is also not warranted. To the extent the Veteran believes that his disorders are related to his service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of his right knee disorder and stroke are matters not capable of lay observation and requires medical expertise to determine. Specifically, the question of causation of such disorders, to include whether it is related to an in-service right knee injury or ear infections involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran's opinion as to the etiology of his right knee disorder and stroke is not competent evidence and, consequently, is afforded no probative weight. Therefore, the Board finds that a right elbow disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service. Consequently, the Veteran's claim must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for a stroke and a right knee disorder. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for right knee disability, to include idiopathic peripheral neuropathy of the right knee is denied. Service connection for residuals of a cerebral embolism with cerebral infarction (stroke) is denied. ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs