Citation Nr: 1801177 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-11 787 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty in the Marine Corps from October 1976 to September 1979. This appeal to the Board of Veterans' Appeals (Board) is from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The Veteran does not have a current left knee disability and the evidence indicates that his right knee disability is not related to his service. 2. The evidence indicates that the Veteran's current COPD is not related to his service to include exposure to contaminated water in Camp Lejeune. CONCLUSIONS OF LAW 1. The criteria are not met for service connection for a left knee disability. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria are not met for service connection for a right knee disability. 38 U.S.C. §§ 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The criteria are not met for service connection for a respiratory disorder, to include COPD. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.326(a) (2017). The duty to notify has been met via September and November 2012 notice letters. Regarding the duty to assist, all necessary development has been accomplished with respect to the Veteran's claims, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and non-VA treatment records, service treatment records, and service personnel records are associated with the claims file. Private treatment records from one source could not be obtained because the provider indicated no records existed. The RO obtained VA examinations and opinions for the claimed right knee and respiratory disabilities that are adequate to decide the claims. No opinion was needed for the claimed left knee disability since none of the service treatment records noted any complaints and post service treatment records contain no evidence of a diagnosed disability. Thus, the low threshold for obtaining an examination is not met. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances . . . it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the Veteran . . . ." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. There is no indication of additional available existing evidence that is necessary for a fair adjudication of the claims being decided herein. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d. 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Legal Criteria and Analysis Service connection may be established for a disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247 (1999). Certain chronic diseases, such as arthritis, are subject to presumptive service connection if they manifest to a compensable degree within one year from separation from 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. §§ 1112, 1113 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time of service. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Daye v. Nicholson, 20 Vet. App. 512 (2006). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107. When, after careful consideration of all the procurable and assembled data, a reasonable doubt arises regarding service origin or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Knees Service treatment records first note right knee complaints during service in 1977. March 1977 records note complaints of right knee pain. See pages 8 and 9 of STR - Medical. Although many of the records are not very legible, another 1977 record notes right knee problems and indicate the Veteran had pain at the slightest touch. A May 1977 record appears to indicate that the Veteran was kept in a cast for an extended period after an injury and that there was currently no swelling. He had pain with prolonged sitting and full range of motion. The diagnosis made a reference to the patella. See pages 9 and 10 of STR - Medical. The August 1979 separation examination was normal. See page 11 of STR - Medical. Post-service treatment records contain diagnoses of right knee mild to moderate lateral and patellofemoral compartment osteoarthritis and osteoporosis. See VA Examination received May 2013. While this evidence satisfies two of the elements needed to establish service connection, the third element, nexus evidence that links the current disability to service, is not present. On May 2013 VA examination of the right knee, the Veteran was examined and his medical history and records were reviewed. Based on all available information, the clinician opined that the Veteran's right knee disability was less likely than not incurred in or caused by service. The clinician noted that the Veteran reported a history of right knee pain during service and service treatment records documented evaluation and management of several episodes of care when the Veteran reported right knee pain. The current examination was unremarkable and radiographs did not demonstrate clinically significant right knee abnormalities more than that expected for the Veteran's age. The physician added that the injuries during active service would not be expected to result in a chronic right knee condition or residuals. See VA Examination received in May 2013. The VA examiner's rationale adequately supports the opinion and accurately portrays the evidence. Thus, it is highly probative in determining the etiology of the current disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Wray v. Brown, 7 Vet. App. 488, 493 (1995). Notably, a favorable medical opinion was not submitted or associated with the file that supports the Veteran's contentions. The Board has also considered whether service connection may be established on a presumptive basis or based on continuity of symptomatology. Certain chronic diseases, such arthritis, are subject to presumptive service connection if they manifest to a compensable degree within one year from separation from 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. §§ 1112, 1113 (2012); 38 C.F.R. §§ 3.307 (a)(3), 3.309(a) (2017). As there is no evidence of arthritis prior to 2012, this presumption does not apply. For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time of service. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b) (2017). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) (2016) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While there is evidence of right knee problems in service and after service, there is insufficient evidence that there were continuing symptoms since service. The Veteran stated on his substantive appeal form that he continued to treat his knee problems during service and into his civilian life, but whether this was present continually from 1979to 2012 is unclear. The Veteran also had a history of prior arthroscopy surgeries, but no records of these procedures were found and the dates of these surgeries are unknown. Given the vague history of the Veteran's right knee problems after service, the Board is inclined to find the unfavorable medical opinion to be more probative in light of the clinician's medical training and rationale. Thus, a preponderance of the evidence is against establishing service connection for a right knee disability. There is no reasonable doubt to resolve in the Veteran's favor. Consequently, service connection is denied. Regarding the left knee, there is no evidence of knee problems in the Veteran's service treatment records and no evidence of a current disability. Although the Veteran also suggested in his April 2014 VA Form 9, substantive appeal, that his left knee may be secondary to his right knee in that he overcompensates with his left knee because of his right knee, this theory of entitlement is moot since the Board has denied service connection for the right knee. The available post-service treatment records notes complaints of knee pain in November 2012 along with a history of bilateral arthroscopy knee surgery. See pages 9 and 13 of CAPRI records received in June 2013. A November 2013 VA treatment record notes the Veteran's complaints of left knee pain and while the examination revealed mild mid patellar pain, no clinical diagnosis was made. See page 2 of CAPRI records received in January 2014. The cornerstone for any claim for service connection is that the Veteran has a current diagnosis. Brammer v. Derwinski, 3 Vet. App. 223 (1992). This requirement is satisfied when a veteran has a disability at the time he or she files a claim for service connection or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement of a current disability is satisfied when a claimant has a disability at any time during the pendency of the claim); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (requirement of a current disability may be satisfied if there is a recent diagnosis of a disability prior to the claim). To date, there is no evidence that a medical professional has associated the Veteran's complaints of left knee pain with a diagnosis. The Board acknowledges that the Veteran is competent to report to symptoms. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). However, evaluations of his symptoms have not resulted in a diagnosis and as a lay person, the Veteran has not demonstrated that he has the medical expertise required to provide a diagnosis for the symptoms he experiences. In the absence of medical evidence of a diagnosis of the claimed disability, service connection must be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Respiratory The Veteran contends he has had breathing problems since service, which he also believes is related to exposure to contaminated water at Camp Lejeune. See VCAA Notice Acknowledgement received in October 2012. The Director of Compensation and Pension Service issued a Training Letter 10-03 in April 2010 (which has been rescinded due to its incorporation into the M21-1 as part of the "Live Manual" project) in which it was acknowledged that persons residing or working at Camp Lejeune from the 1950s to the mid-1980s were potentially exposed to drinking water contaminated with volatile organic compounds. Two of the eight water treatment facilities supplying water to the base were contaminated with either trichloroethylene (TCE) or tetrachloroethylene (perchloroethylene, or PCE) from an off-base dry cleaning facility. The Department of Health and Human Services' Agency for Toxic Substances and Disease Registry (ATSDR) estimated that TCE and PCE drinking water levels exceeded current standards from 1957 to 1987 and represented a public health hazard. In addition to TCE and PCE, ATSDR has also indicated that high concentrations of benzene, Vinyl Chloride, and trans-1, 2-dichloroethylene (1, 2-DCE) were detected in the drinking water system. The National Academy of Sciences' National Research Council (NRC) and the ATSDR have undertaken studies to assess the potential long-term health effects for individuals who served at Camp Lejeune during the period of water contamination. In the resulting report, Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects (June 2009), the NRC reviewed previous work done by the ATSDR, including computerized water flow modeling, and concluded that additional studies may not produce definitive results because of the difficulties inherent in attempting to reconstruct past events and determine the amount of exposure experienced by any given individual. To address potential long-term health effects, the NRC focused on diseases associated with TCE, PCE, and other volatile organic compounds (VOC). Notably, the following diseases shall, unless rebutted by affirmative evidence, be service-connected even though there is no record of such disease during service: (1) Kidney cancer, (2) Liver cancer, (3) Non-Hodgkin's lymphoma, (4) Adult leukemia, (5) Multiple myeloma, (6) Parkinson's disease, (7) Aplastic anemia and other myelodysplastic syndromes, and (8) Bladder cancer. 38 U.S.C. § 1112; 38 C.F.R. § 3.309 (f) (effective March 14, 2017). COPD is not a recognized disease associated with Camp Lejeune Contaminated Water (CLCW). 38 U.S.C. § 1112; 38 C.F.R. § 3.309 (f) (effective March 14, 2017). The Veteran's service treatment records show he had breathing complaints in May 1978. During this time he complained of chest pain while breathing and increased pain with movement or deep breathing. These resulted in an assessment of possible fracture and impression of costochondritis, respectively. Chest X-rays were negative. See pages 4, 5, and 6 of STR - Medical. The Veteran's separation examination was normal. See page 11 of STR - Medical. Post-service treatment records note the presence of COPD in January 2010. See page 37 of Medical Treatment Record - Non-Government Facility received in September 2012. A May 2013 VA examination was conducted that confirmed the diagnosis of COPD. After reviewing the record, to include the Veteran's service treatment records, interviewing the Veteran, and conducting a physical examination of the Veteran, the clinician opined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The clinician explained that he was "unable to identify any [service treatment records] in the Veteran's [claims file] documenting evaluation/management for any medical conditions that might be related to the current diagnosis of COPD." The clinician acknowledged that during service, the Veteran was medically evaluated for "non-specific complaints of shortness of breath," but stated that those "would not be expected to result in a chronic lung condition or residuals." In January 2014, an addendum medical opinion was obtained to determine whether the Veteran's claimed COPD was related to his exposure to contaminated water at Camp Lejeune. The clinician noted that the Veteran had a hospital admission in January 2010, which was his sixth one over the past year and a half. The last admission was August 2009 and he was treated for hyperactive airways disease and mild bronchiectasis. The treatment record noted the Veteran had been working around concrete, dry wall, and a lot of dust for more than 25 years and that an old CT scan revealed changes consistent with mild bronchiectasis. The Veteran was a rare smoker and smoked cigars. The clinician opined that it was less likely than not that the Veteran's claimed disability was incurred in or caused by service. The physician stated that the Veteran's clinical course was more likely consistent with diagnoses of COPD and bronchiectasis. The risk factors for his COPD included ongoing tobacco use, underlying bronchiectasis, increased airway responsiveness, and a long history of exposure to dusts in his occupation as a construction worker. There was no objective evidence that exposure to contaminated water while stationed at Camp Lejeune would cause a lung condition like COPD in view of his other known, significant risk factors. See CAPRI records received in February 2014. The evidence as a whole, tends to show that the Veteran does not have a respiratory disability related to service. The breathing complaints noted during service were not shown to be a respiratory or lung disorder in light of the assessment and impression provided in service. The VA medical opinions, which are adequately supported by rationale and consistent with the record, are probative and unfavorable to the claim. There are also no contrary medical opinions of record. Moreover, the Veteran's respiratory disorder was not diagnosed until decades after service, which is another factor that weighs against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). To the extent the Veteran has asserted that he has a current respiratory disorder that is related to his service, while he may be competent to testify as to the symptoms he experiences (such as shortness of breath and other breathing problems), it is beyond his competence as a layperson to establish that any current respiratory disorder he might have is related to his experiences in service. The Veteran lacks the training to opine whether a respiratory disorder may be related to remote incidents in service; these are questions that are medical in nature and may not be resolved by mere lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court). In light of the absence of respiratory problems in service, initial diagnosis more than 30 years after service, and unfavorable nexus opinion, a preponderance of the evidence is against establishing service connection for a respiratory disability. There is no reasonable doubt to resolve in the Veteran's favor. See Gilbert, supra. Consequently, the claim is denied. ORDER Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. Service connection for a respiratory disorder, to include COPD, is denied. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs