Citation Nr: 1800433 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 13-12 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a heart disorder, to include as due to herbicide exposure. 2. Entitlement to service connection for a right knee disorder. 3. Entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: John Dorrity, Agent WITNESSES AT HEARING ON APPEAL The Veteran and M.H. ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1969 to December 1991. His awards and decorations include the Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2011 and October 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In March 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Although the Veteran claimed entitlement to service connection for ischemic heart disease during the pendency of the appeal, the Board has recharacterized the claim more broadlyto ensure complete consideration of the claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board remanded the case for further development in June 2016. That development has been completed, and the case has since been returned to the Board for appellate review. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. Any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The issue of entitlement to service connection for a heart disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has not been shown to have a current right knee disorder that manifested in service or within one year thereafter or that is otherwise causally or etiologically related to his military service. 2. The Veteran has not been shown to have a current left knee disorder that manifested in service or within one year thereafter or that is otherwise causally or etiologically related to his military service. CONCLUSIONS OF LAW 1. A right knee disorder was not incurred in active service and may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. A left knee disorder was not incurred in active service and may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements of service connection is through a demonstration of continuity of symptomatology. However, 38 C.F.R. § 3.303(b) applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 38 U.S.C. § 1101. With respect to the current appeal, this list includes arthritis. See 38 C.F.R. § 3.309(a). For the showing of a 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); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board notes that the Veteran had active service during a period of war, and his DD-214 form reflects that he was awarded the Combat Infantryman Badge. As such, the Veteran engaged in combat, and the provisions of 38 U.S.C.A. § 1154(b) are applicable. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a right or left knee disorder. The Veteran's service treatment records show that he denied having any difficulties with his knees during an annual physical examination in April 1978. In June 1979, he reported pain in his right knee after running and falling, and the examiner noted that that he had chondromalacia. However, a June 1979 radiographic report of the right knee was negative for any findings. A February 1981 record indicates that the Veteran later had difficulties with both knee joints, with tenderness of the patella and chondromalacia, although it was unclear if these symptoms referred to one or both of the knees. During a June 1991 retirement examination, the Veteran's lower extremities were found to be normal, and he denied having a medical history of a trick or locked knee, although he reported other orthopedic conditions such as recurrent back pain and foot trouble. In April 2009, the Veteran underwent a left knee arthroscopy with extensive synovectomy, partial lateral meniscectomy, and chondroplasty of the medial, lateral, and femoral condyles and patella. He was diagnosed with a left sceptic knee and degenerative joint disease. In an October 2009 private consultation report, the Veteran reported having pain and swelling and in his right knee since August 2009. He was diagnosed with septic arthrosis of the right knee, superimposed on gouty arthrosis. An arthroscopic lavage with synovial biopsy and tissue culture of the right knee was performed. VA clinical records also showed that the Veteran was diagnosed with arthralgia of the knees in July 2010. During the March 2016 hearing, the Veteran reported that he first hurt his left knee during service when he had to repel down to hot landing zones. The Veteran indicated that he received some temporary treatment, but did not have the opportunity to seek further treatment until later in service. He stated that his right knee also started to "go out" during service, but he only received a cold pack and aspirin for treatment. He reported that he sought private treatment for his knees after leaving service in 1991. During an August 2017 VA examination, the examiner diagnosed the Veteran with joint osteoarthritis of the left and right knees. A radiology report noted that the Veteran had moderate tricompartmental osteoarthritis bilaterally and small joint effusions bilaterally, but no acute fracture or dislocation. The examiner opined that it was less likely than not that the Veteran's current diagnosis of osteoarthritis was incurred in or caused by any claimed in-service injury, event, or illness. The examiner explained that the Veteran's conditions of degenerative joint disease and septic knees occurred many years after his discharge and were not caused by service. Although he did have a diagnosis of bilateral chondromalacia in service, the examiner stated this was not the same as degenerative joint disease or sepsis and was not the cause of the Veteran's current knee problems. As noted above, after reviewing the evidence of record, the Board finds that service connection is not warranted for a right or left knee disorder. In regards to whether arthritis was shown during service or within a year of separation, the Board finds that such a diagnosis was not shown. To determine that a chronic disease was "shown in service," the disease identity must be established and the diagnosis not subject to legitimate question. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1331. There is affirmative evidence that the Veteran did not have arthritis during service, as the Veteran's lower extremities were reported to be normal on clinical examination during the June 1991 retirement examination. The Board also notes that the Veteran denied having a trick or locked knee at that time. Arthritis must be objectively confirmed by x-ray. 38 C.F.R. § 4.71a, Diagnostic Code 5003. There is no objective evidence showing that he had arthritis within the first year after his separation from service. Thus, the Veteran is not entitled to service connection for arthritis of knees on a presumptive basis, either as a chronic disease during service or within one year of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a); Walker, 708 F.3d 1335 -37. Therefore, chronicity is not established in service or within a year of separation. Moreover, following the Veteran's military service, the evidence of record does not establish continuity of symptomatology. 38 C.F.R. § 3.303(b). To the extent that the Veteran has asserted that there has been a continuity of symptomatology since service, the Board finds such assertions are not reliable or credible. As noted above, the June 1991 retirement examination found his lower extremities to be normal, and he denied having a medical history of a trick or locked knee. Thus, there was affirmative evidence showing that he did not have a knee disorder at the time of his military retirement. Moreover, there is no record of any knee complaints until the April 2009 diagnosis of left septic knee and degenerative joint disease, which was many years after service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Notably, the record was specifically held open following the March 2016 hearing to allow for the submission of post-service treatment records. Private medical records dated in October 2009 also note the Veteran's own reports that he began to experience pain and swelling in his right knee in August 2009, which was again many years after service. In addition to the lack of evidence showing that a right and left knee disorder manifested during service or within close proximity thereto, the weight of the evidence of record does not otherwise link the Veteran's knees disorders to service. The Veteran does have current bilateral knee disorders, and there is evidence that he had knee problems in service; however, the evidence does not establish a nexus between any in-service injury or symptomatology and his current knee disorders. Rather, the weight of the evidence is against a finding that the Veteran's right and left knee disorders are etiologically related to his military service. In this regard, the August 2017 VA examination is the most probative evidence on the issue of nexus because the opinion is based on an accurate review of the Veteran's medical history and is supported by rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no medical opinion otherwise relating the Veteran's current knee disorders to his military service. The Board acknowledges the Veteran's own statements that his current bilateral knee disorders are related to the injuries that he sustained in service. See e.g. March 2016 hearing transcript. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the diagnosis of a knee disorder, to include arthritis, and the etiology of such a disorder, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The specific question of the etiology of this disorder is a complex medical matter that falls outside the realm of common knowledge of a lay person, as there was a delayed onset of his current knee problems. See Jandreau, 492 F.3d at 1377. Moreover, even assuming that the Veteran is competent to opine on this medical matter, the Board finds that the specific, reasoned opinion of the VA examiner is of greater probative weight than the Veteran's more general lay assertions. The examiner reviewed and considered the evidence of record, including the Veteran's statements, provided a medical opinion with supporting rationale, and relied on his own medical training, knowledge, and expertise. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claims for service connection for right and left knee disorders. Because the preponderance of the evidence is against the Veteran's claims, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a right and left knee disorder is not warranted. ORDER Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a left knee disorder is denied. REMAND In the June 2016 remand, the Board directed the AOJ to provide the Veteran with a VA examination and obtain a medical opinion regarding the nature and etiology of any heart disorder that may be present. The examiner was asked to identify all current heart disorders and specifically indicate whether the Veteran had ischemic heart disease. For each diagnosis identified other than ischemic heart disease, the examiner was asked to state whether it was at least as likely as not that the disorder manifested in service or is causally or etiologically related to the Veteran's military service, including any symptomatology and herbicide exposure therein. The examiner was also asked to indicate whether cardiomyopathy or myocardial ischemia is a form of ischemic heart disease. In the August 2017 medical opinion obtained, the examiner found that the Veteran had diagnoses of cardiomyopathy, congestive heart failure, and transient ischemic dilation. The examiner explained why a diagnosis of cardiomyopathy is considered to be nonischemic in etiology, but did not explain whether myocardial ischemia is a form of ischemic heart disease. In addition, while the examiner did state whether it was at least as likely as not that each heart disorder was related to service, no clear rationale was provided. Instead, the examiner indicated that the Veteran's diagnoses were at least as likely as not related to non-ischemic cardiomyopathy and therefore less likely related to ischemic heart disease and also opined that they were less likely related to his military service, including any symptomatology and herbicide exposure. As the opinions obtained are not supported by a clear rationale, a remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where remand instructions are not followed, the Board errs as a matter of law when it fails to ensure compliance). Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a heart disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any pertinent and outstanding VA medical records. 2. After completing the foregoing development, the AOJ should refer the Veteran's claims file to the August 2017 examiner or, if that individual is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any heart disorder that may be present. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should identify all current heart disorders and specifically indicate if the Veteran has ischemic heart disease. In so doing, the examiner should consider the VA and private medical records and indicate whether myocardial ischemia is a form of ischemic heart disease. For each diagnosis identified other than ischemic heart disease, he or she should clearly state whether it is at least as likely as not that the disorder manifested in service or is causally or etiologically related to the Veteran's military service, including any symptomatology and herbicide exposure therein (notwithstanding the fact that such an association may not be presumed). (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]"38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The AOJ should review the medical opinion to ensure it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 4. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. Thereafter, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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. §§ 5109B, 7112 (2012). ______________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs