Citation Nr: 1803520 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-10 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for malaria, and if so, whether service connection is warranted. 2. Entitlement to service connection for hepatitis. 3. Entitlement to service connection for a prostate condition. 4. Entitlement to service connection for a right knee disability. 5. Entitlement to service connection for a left knee disability. 6. Entitlement to a rating in excess of 10 percent for right lower extremity peripheral neuropathy. 7. Entitlement to a rating in excess of 10 percent for left lower extremity peripheral neuropathy. WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD J. Anderson, Counsel INTRODUCTION The Veteran had active duty from September 1962 to December 1982, to include service in the Republic of Vietnam from December 1965 to February 1967 and from July 1969 to February 1971. The Veteran was awarded a Combat Infantryman Badge, among other decorations. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2012 and February 2012 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans' Law Judge (VLJ). A transcript of that hearing is of record. These matters were previously before the Board in May 2017, when they were remanded for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to increased ratings for right and left lower extremity peripheral neuropathy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's claim for entitlement to service connection for malaria was last denied in a January 2003 rating decision that was not appealed, nor was any new and material evidence submitted within the appeal period. 2. Evidence received since the final January 2003 denial of malaria is cumulative of the evidence previously considered and / or does not relate to an unestablished fact necessary to substantiate the claim. 3. The weight of the probative evidence indicates that the Veteran has not had hepatitis during the pendency of the appeal. 4. The weight of the probative evidence indicates that the Veteran's current prostate condition was not incurred during service and is not related to service. 5. The weight of the probative evidence indicates that the Veteran's current right knee disability was not incurred during service and is not related to service. 6. The weight of the probative evidence indicates that the Veteran's current left knee disability was not incurred during service and is not related to service. CONCLUSIONS OF LAW 1. The January 2003 rating decision that denied the Veteran's claim for entitlement to service connection for malaria is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence has not been received since the January 2003 denial of service connection for malaria. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The requirements to establish service connection for hepatitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.317 (2017). 4. The requirements to establish service connection for a prostate condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317 (2017). 5. The requirements to establish service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.317 (2017). 6. The requirements to establish service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veteran has raised no 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). The Board also finds there has been substantial compliance with the prior remand directives. In September 2017, VA requested that the Veteran identify any relevant recent private treatment providers. To date, he has not responded. An addendum opinion regarding the Veteran's right and left knees was obtained in November 2017. Finally, additional VA treatment records have been obtained. Accordingly, no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). Petition to Reopen Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2012). New evidence means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156(a) (2017). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. 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. Id. The United States Court of Appeals for Veterans Claims (the Court) has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for malaria was last denied in a January 2003 rating decision on the basis that while service treatment records indicate that the Veteran was hospitalized for symptoms of malaria and treated with antimalarial medication, there was no evidence of a current diagnosis of or any residuals attributable to malaria. Although the Veteran was notified of this rating decision and his appellate rights in a January 15, 2003 letter, he did not appeal. Additionally, new and material evidence was not received within the appeal period. As such, the January 2003 rating decision became final. See 38 U.S.C. § 7105(c) (2012); see also 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). Subsequently, the Veteran filed a petition to reopen his claim. A February 2012 rating decision denied the Veteran's petition to reopen. The Veteran timely appealed. Evidence received since the last denial of the claim consists of the Veteran's reports that he was treated for malaria during service. Such evidence is merely cumulative of the prior evidence. The Veteran has made the same or substantially the same statements prior to the last final denial of his claim. To date, evidence indicating that the Veteran currently has malaria or any residual thereof has not been received. As such, the evidence received since the January 2003 rating decision does not relate to an unestablished fact necessary to substantiate the Veteran's claim for service connection for malaria. Therefore, the evidence is not new and material, and the claim cannot be reopened at this time. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2017); see also Walker v. Shinseki, 708 F.3d 1110, 1340 (Fed.Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2017). Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, where a veteran served continuously for 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. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Moreover, a veteran who served in the Republic of Vietnam during the Vietnam era (January 9, 1962 to May 7, 1975) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (2017). For veterans presumed to have been exposed to herbicide agents during the required period, a presumption of service connection exists for certain enumerated diseases. See 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307, 3.309(e) (2017). A presumption of service connection for a particular disability based on exposure to Agent Orange does not attach, unless specifically so determined by the Secretary of the VA. See, e.g., 77 Fed. Reg. 47,924-47,925 (August 10, 2012). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Hepatitis The Veteran asserts that service connection for hepatitis is warranted because he was treated for hepatitis during service and is now barred from donating blood due to his prior hepatitis infection. Following a review of the record, the Board finds that the evidence demonstrates that the Veteran has not had hepatitis or residuals thereof during the pendency of the appeal. In this regard, a June 2011 VA examination report indicates that the Veteran reported being treated for hepatitis B in 1965 while he was deployed to Vietnam. He noted that he was sent to Japan for treatment and had no complaints related to hepatitis since that time. The examiner opined that the Veteran contracted hepatitis B in 1965, but did not have any liver disease or residuals from his in-service hepatitis B. Treatment records dated during or just prior to the relevant period on appeal are silent for any diagnosis of or treatment for hepatitis B. To the extent that the Veteran asserts that service connection is warranted because HBcAB testing continues to be reactive and he cannot give blood, the Board notes that a laboratory result indicating prior exposure to hepatitis B, without a diagnosed or identifiable underlying malady or condition, does not constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Additionally, the June 2011 examiner expressly referenced the Veteran's HBsAG, HBcAB, and HBsAB results and concluded that the Veteran did not have hepatitis or any residuals thereof. The Veteran, as a lay person, is competent to report what he has observed, including being told he cannot donate blood. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994). However, the record shows that the Veteran has not been diagnosed with hepatitis or residuals thereof during the pendency of the appeal. The question as to whether he has hepatitis or hepatitis residuals is a complex medical question. Accordingly, appropriate medical expertise is required to make this determination. In the present case, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to diagnose hepatitis or interpret the significance of his reactive HBcAB test results. See 38 C.F.R. § 3.159(a)(1)(2017). See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board affords more weight to the June 2011 VA examiner's finding that the Veteran does not have any disability related to hepatitis. Congress has specifically limited entitlement to service-connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. §§ 1110, 1131 (2012). Hence, where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As a preponderance of the evidence demonstrates that the Veteran does not currently have hepatitis or residuals thereof, the Board concludes that the basic criteria for service connection are not met. Accordingly, the claim for service connection for hepatitis B is denied. In reaching the above conclusions with respect to all issues, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Prostate Condition The Veteran asserts that he has a current prostate condition related to his military service, to include his service in Vietnam. Treatment records indicate that the Veteran has an elevated prostate-specific antigen (PSA). However, that is a laboratory finding and not a disability for VA purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Nevertheless, the medical evidence of record indicates that the Veteran has been diagnosed with benign prostatic hypertrophy (BPH). Thus, the first criterion for establishing service connection, a current disability, has been met. The question becomes whether the current disability is related to service. The Veteran has not asserted, and the evidence does not indicate, that there was an in-service prostate injury or disease. The Veteran's contention is that is current prostate condition was caused by his presumed in-service herbicide agent exposure. The Board notes that in accordance with section 3 of the Agent Orange Act of 1991, Pub. L. 102-4, 105 Stat. 11, the Secretary has entered into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in support of military operations in the Republic of Vietnam during the Vietnam Era and each disease suspected to be associated with such exposure. As required by the statute and agreement, the NAS submits a report to the Secretary every two years regarding the results of their review and summarization of the medical literature. None of these studies have indicated any kind of relationship between BPH and herbicide agents. See, e.g., Veterans and Agent Orange Update: Update 2010 (Update 2010), 77 Fed. Reg. 47924-8 (Aug. 10, 2012); Update 2012, 79 Fed. Reg. 20308-01 (Apr. 11, 2014). . Within this context, the Board finds that the presumptive service connection provisions for herbicide agents do not apply to the current claim for service connection for a prostate disorder. BPH, the only current prostate disorder, is not among the disorders listed under 38 C.F.R. § 3.309(e) (2017) for which the herbicide exposure regulations apply. As noted above, presumptive service connection based on exposure to herbicide agents used in Vietnam during the Vietnam era is not warranted for conditions that the Secretary has not identified under 38 C.F.R. § 3.309. See 38 C.F.R. § 3.307 (2017). While presumptive service connection is not applicable, the Board must still consider whether service connection is warranted on a direct basis. The Veteran has not submitted a medical opinion or medical literature indicating that his prostate condition is related to service. Additionally, the medical treatment records addressing the Veteran's BPH do not indicate or otherwise suggest that it is related to the Veteran's military service or herbicide agent exposure. To date, the only evidence indicating that the Veteran's BPH is related to his herbicide agent exposure are the Veteran's own conclusory assertions. The question of whether BPH is related to herbicide agent exposure is outside the realm of common lay knowledge. The relationship between BPH and herbicide exposure is a complex medical question as it deals with largely unobservable processes of the body, and the complex etiology of relationship to chemical exposure, especially because the Veteran's prostate condition did not manifest for many years after service. As the evidence does not show the Veteran has such medical knowledge, the Veteran's statements regarding the relationship between his BPH and presumed herbicide agent exposure are not afforded any probative weight. 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). The Board acknowledges that a VA examination was not obtained on this issue. However, there is no competent evidence indicating the condition arose in service, and no competent evidence suggesting the condition is related to service for any reason. Accordingly, a VA examination is not required. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination because it would "eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations in virtually every veteran's disability case"). In the absence of competent evidence suggesting that there is a nexus between the Veteran's BPH and active service, including herbicide agent exposure, the claim must be denied. In reaching the above conclusions with respect to all issues, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Right and Left Knee Disabilities The medical evidence of record indicates that the Veteran has been diagnosed with various right and left knee disabilities, including osteoarthritis and patellofemoral syndrome (PFS). Thus, the first criterion for establishing service connection, a current disability, has been met. The question becomes whether the current disabilities are related to service. The Veteran's service treatment records are silent for any reports of, treatment for, or diagnoses related to the Veteran's right or left knees. Additionally, a September 1982 report of medical examination indicates that clinical evaluation of the Veteran's lower extremities was normal and on an October 1982 medical history report the Veteran denied painful or swollen joints. At his hearing, the Veteran stated that he did not injure his knees during service. However, he asserted that his current disabilities were the result of the wear and tear from his duties as an infantryman, which required a lot of exercise, knee bending, and carrying heavy things. As a knee disability was not shown in service and arthritis was not shown within a year following discharge from service, competent evidence linking the knee conditions with service is needed to establish service connection. The Veteran was provided a VA examination in January 2012. The examiner opined that the Veteran's current right and left osteoarthritis was less likely than not incurred in or caused by the Veteran's military service. The examiner explained that the Veteran's service treatment records were silent for any complaints or evaluations pertaining to his knees and a report of medical examination in proximity to the Veteran's separation from service indicated that clinical evaluation of his knees was normal. The examiner noted that a review of medical literature indicated that the most common cause of knee osteoarthritis was aging with wear and tear on the joint. He also explained that traumatic arthritis, such as that claimed by the Veteran, usually occurred within two years of the injury and that late onset arthritis was unusual unless there was significant joint instability and injury, which was not evident in the Veteran's service treatment records. Therefore, in the absence of any significant joint injury it was less likely as not that the Veteran's right and left knee arthritis was incurred in or caused by service. At his March 2017 hearing, the Veteran testified that a doctor had told him that the aforementioned duties might have caused his joint problems. A March 2008 treatment record from the Guam Naval Hospital notes "patellofemoral syndrome: discussed etiology." However, the records do not contain a medical opinion linking his knee disabilities with service activities. In a November 2017 addendum opinion, another VA clinician opined that the Veteran's current knee complaints were consistent with bilateral osteoarthritis. The clinician acknowledged that the Veteran had a history of bilateral PFS, but the current medical records were consistent with that being a historical diagnosis that did not account for his current symptoms that were attributable to osteoarthritis without PFS. The examiner explained that PFS was also known as "runner's knee" and is typically an acute and transitory condition present during excessive repetitive axial loading such as running and that it resolves with rest. The examiner noted that while the Veteran noted a history of knee pain attributable to strenuous physical activity during combat and training, that history was consistent with only episodic acute and transitory knee pain from overuse that would resolve with rest, and inconsistent with a chronic knee condition. The examiner indicated that the history of the knee conditions associated with overuse, such as PFS, was consistent with the objective medical evidence at that time which did not document persistent knee symptoms or a finding of a chronic knee conditions during or immediately following service. He further noted that the Veteran's post-service diagnosis of PFS many years after service was consistent with post-service overuse, and was less likely than not incurred in or caused by service, including the Veteran's physical training and combat service. The VA examination reports and opinions are supported by sound rationales and are consistent with the evidence of record; thus the Board finds them highly probative. The Board acknowledges the Veteran's assertions of a link between his current knee disabilities and military service; nevertheless, the Veteran has not been shown to have the requisite medical expertise to render an opinion on a complex medical question such as this. See Jandreau, 492 F.3d at 1376-77. Accordingly, the Board affords the VA opinions significantly more probative weight than the Veteran's assertions. With regard to the Veteran's report that his doctor told him that his military duties "might" have caused his current joint problems, the Veteran is competent to report what a clinician told him. Moreover, his assertion is corroborated to some extent by a March 2008 treatment record that indicates that the etiology of the Veteran's knee problems was discussed. Nevertheless, the treatment record does not indicate the etiology of the Veteran's knee problems or suggest it is related to service. Additionally, the positive opinion as reported by the Veteran is speculative and does not include a detailed rationale in support of the opinion. See Warren v. Brown, 6 Vet. App. 4, 6 (1993) (holding that a physician's statement framed in terms such as "may" or "could" is not probative). Accordingly, the Board finds that the VA opinions, which were supported by a detailed rationale that was consistent with the evidence of record and rendered after reviewing the claims file, are significantly more probative than the secondhand speculative opinion. In sum, a chronic knee condition was not shown in service or for many years thereafter, and the most probative evidence of record indicates that the Veteran's current knee disabilities are not related to service. Accordingly, the preponderance of the evidence is against the claims, and service connection for right and left knee disabilities is denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert, 1 Vet. App. at 55-57. ORDER New and material evidence not having been received, the appeal to reopen the claim for service connection for malaria is denied. Entitlement to service connection for hepatitis is denied. Entitlement to service connection for a prostate condition is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. REMAND Further development is necessary prior to adjudication of the remaining claims. In a statement received on December 12, 2017, the Veteran stated that his physical condition had deteriorated. In light of the assertion of worsening and the fact that the record contains no medical evidence regarding the Veteran's peripheral neuropathy subsequent to the July 2016 VA peripheral nerve examination, a remand is warranted to provide the Veteran another VA examination to assess the current severity of his service-connected lower extremity peripheral neuropathy. As the Board is remanding the claims for other development, the Veteran should be provided an opportunity to identify any updated treatment relevant to his peripheral neuropathy. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). Expedited handling is requested.) 1. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his lower extremity peripheral neuropathy. After securing the necessary releases, request any relevant records identified that are not duplicates of those already contained in the claims file. If any requested records cannot be obtained, the Veteran should be notified of such. 2. Schedule the Veteran for a VA examination to assess the current severity of his service-connected lower extremity peripheral neuropathy. The claims file must be reviewed by the examiner in conjunction with the examination. Any necessary diagnostic testing must be conducted and any pertinent symptomatology and findings must be reported in detail. 3. After completing the above and any other development necessary, readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs