Citation Nr: 1804468 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 13-14 848 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for left knee arthritis, status-post left total knee replacement. 2. Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to January 1990. He was awarded the Vietnam Campaign Medal with device, among other decorations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from RO decisions of July 2010 and August 2010. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran when further action on his part is required. REMAND The Veteran contends service connection is warranted for left knee arthritis and for hypertension. He asserts that both disabilities began during service, with a left knee inversion injury in 1988, as well as general wear and tear on both knees during the course of his service responsibilities, which involved lifting and carrying heavy things. He also asserts that his hypertension may be related to herbicide exposure in Vietnam. The Veteran's post-service medical records are incomplete. Currently, the available post-service medical records are dated within the past ten years. However, the Veteran was discharged from service in 1990. Especially because he asserts he had early signs of both disabilities at issue during service, records of medical care proximate to service are likely to be relevant to his appeal. Therefore, upon remand, the Veteran should identify the sources of his post-service medical care so that information about his left knee and blood pressure more proximate to service can be obtained. The record currently contains a single VA treatment record from the Hampton VA Medical Center dated in 1995. This indicates that the Veteran was receiving VA medical care at some point after service. Any VA medical records are deemed to be constructively of record in proceedings before the Board and should be obtained prior to further review of the claims file. Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, upon remand, all VA treatment records from January 1990 to the present should be obtained for review. With regard to the Veteran's left leg, the record contains two directly conflicting medical opinions. A March 2011 opinion from the Veteran's treating physician (who began treating the Veteran in 2007) is to the effect that the Veteran's history is consistent with damage that started taking place during his time in the Navy from 1966-1990. The physician concluded that he believes it to be "highly probable" the Veteran's left knee osteoarthritis started "during and directly a result of his service." To the contrary, in August 2010, a VA examiner opined that it is less likely the Veteran's left knee arthritis is related to the injury reflected in his 1988 service treatment records. The basis for the opinion was that the Veteran himself had reported that his knee pain began in 2008. The Board notes that in November 2011, the Veteran underwent a total left knee replacement surgery. It does not strain the bounds of credulity that arthritis of this magnitude may have had its initial inception during the Veteran's twenty-four years of service. However, neither of the two opinions of record is conclusive, as it stands now. We hope that obtaining additional medical evidence pertaining to the condition of the Veteran's left knee more proximate to service will assist medical reviewers and adjudicators in making a better-informed decision. With regard to the hypertension claim, review of his service treatment records does not confirm the Veteran's assertion that he had elevated blood pressure during service. However, hypertension may be presumed under law to have been incurred during service if it is manifested to a degree of 10 percent during the first year after service, even though there is no evidence of such disease during the Veteran's period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Therefore, obtaining post-service records should provide more information as to this contention as well. There are two additional potential theories of entitlement to be explored, however. The Veteran is presumed to have been exposed to herbicides in service as his service records reflect that he served in the Republic of Vietnam during the Vietnam War Era. Current VA regulations do not provide hypertension as a presumptive disability associated with herbicide exposure. However, the National Academy of Sciences (NAS), in 2006 and 2008 updates, concluded that there was "limited or suggestive evidence of an association" between hypertension and herbicide exposure. See 75 Fed. Reg. 32,540, 32,549 (June 8, 2010); 75 Fed. Reg. 81,332, 81,333 (December 27, 2010). A more recent study, on a study cohort of Army Chemical Corp Veterans who likely had above average exposure, found an association between hypertension and herbicide exposure. See http://www.publichealth.va.gov/epidemiology/studies/vietnam-army-chemical-corps.asp. As there is evidence indicating that there may be an association between hypertension and herbicide exposure, a VA opinion must be obtained. Secondly, service connection is already in effect for coronary artery disease. As hypertension is also a cardiovascular disease, a medical opinion should be obtained as to whether the Veteran's hypertension may be secondary to, or aggravated by his service-connected coronary artery disease. Disability which is proximately due to or the result of a service-connected disease or injury also shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The RO should request that the Veteran complete a comprehensive list of the different medical facilities where he received medical care following his discharge from service in January 1990. After securing the necessary release(s), the RO should obtain these records for inclusion in the claims file. 2. The RO should ascertain where the Veteran has received VA medical care since January 1990, and request complete records of this treatment from all VA Medical Centers and related clinics, to include, but not limited to the Hampton VA Medical Center, for inclusion in the claims file. 3. AFTER all records pursuant to the above request are obtained, then an informed VA opinion regarding whether it is more, less, or equally likely Veteran's left knee arthritis (now post-total knee replacement) is related to service should be obtained. The need for examination is left to the discretion of the examiner. This opinion should take into account the following: * the Veteran's lengthy period of service with his description of lifting and carrying heavy things; * the report of a left knee inversion injury in 1988; * the extent of his left knee arthritis prior to the replacement surgery, as well as a comparison with the condition of the Veteran's right knee; and * the reasoning underling the March 2011 private opinion who opined that it is "highly probable" the Veteran's left knee osteoarthritis started "during and directly a result of his service." The complete rationale for all opinions expressed should be fully explained. 4. AFTER all records pursuant to the above request are obtained, then RO adjudicators should review any records generated during the Veteran's first post-service year to ascertain whether he manifested hypertension to a degree of 10 percent during that year. IF SO, then any additional development to confirm a grant of service connection for a chronic disability presumed to have been incurred during service should be undertaken. 5. IF a grant of service connection for hypertension as a chronic disability is not reached, then an informed VA medical opinion regarding other theories of entitlement regarding the Veteran's hypertension should be obtained. The reviewer is requested to provide an opinion as to whether it is more, less, or equally likely that the Veteran's hypertension is due, wholly or in part, to his herbicide agent exposure in Vietnam, and/or whether his hypertension may be secondary to, OR aggravated by, his service-connected coronary artery disease. In so deciding, the examiner is requested to discuss the medical standard for diagnosing hypertension and the medical significance, if any, of any elevated blood pressure readings in service. The examiner is also requested to review any relevant studies regarding a potential relationship between hypertension and an herbicide agent including http://www.publichealth.va.gov/epidemiology/studies/vietnam-army-chemical-corps.asp. Again, the complete rationale for all opinions expressed should be fully explained. If the reviewer deems that additional tests and studies and/or a clinical examination of the Veteran would be helpful, then such tests/studies/examination should be arranged. 6. After the development requested above has been completed to the extent possible, the RO should again review the record. If either benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the 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 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). _________________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).