Citation Nr: 1805283	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  17-47 710	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for left knee degenerative arthritis.

2.  Entitlement to service connection for anxiety disorder.

3.  Entitlement to service connection for diabetes mellitus.


REPRESENTATION

Veteran represented by:	Michael A. Rake, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

Joshua Castillo, Associate Counsel


INTRODUCTION

The Veteran had active duty from January 1963 to January 1967 and from February 2003 to October 2004.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

The Veteran previously submitted a claim of entitlement to service connection for left knee replacement ,which was denied in a March 2006 decision rating decision for lack of evidence of a chronic left knee injury during military service that later resulted in the need for a total left knee replacement.  The March 2006 rating decision became final because the Veteran did not submit a substantive appeal in response to the October 2006 statement of the case.  See 38 C.F.R. § 20.302(b).  In an unappealed August 2008 rating decision, the RO declined the Veteran's claim to reopen the claim of service connection for left knee replacement for lack of new and material evidence.  See 38 C.F.R. § 3.156(b).  The Veteran previously submitted a claim of entitlement to service connection for PTSD, which was denied in an August 2008 decision rating decision for lack of current diagnosis and nexus to service.  The August 2008 rating decision became final because the Veteran did not submit a notice of disagreement or new evidence in connection with the claim within the appeal period.  See id.  In connection with the Veteran's claims to reopen service connection for left knee and psychiatric disorders, the evidence shows a current diagnosis of PTSD and that his left knee disability was aggravated during service.  See Board hearing (December 2017); Private treatment record (July 26, 2013).  Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claims.  38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The issues of entitlement to service connection for left knee replacement and PTSD have been recharacterized as service connection of left knee degenerative arthritis and anxiety disorder, respectively.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).
 
In December 2017, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.
 
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 issue of entitlement to service connection for diabetes mellitus is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Left knee degenerative arthritis is presumed to have been incurred in service.

2.  Anxiety disorder is related to service.



CONCLUSIONS OF LAW

1.  The criteria for service connection for left knee degenerative arthritis have been met.  38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).

2.  The criteria for service connection for anxiety disorder have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Left Knee Arthritis

The Veteran seeks service connection for a left knee disability.

The evidence shows that the Veteran served on active duty form January 1963 to January 1967.  In 1989 and 1993, he injured his left knee and underwent surgery for acute cartilage tear in 1993.  See, e.g., Treatment records (July 30, 1989; March 17, 1993).

While on active duty from February 2003 to October 2004, the Veteran reported left knee pain, which was diagnosed as severe left knee degenerative arthritis on March 10, 2004, and underwent left knee replacement on May 19, 2004.  Prior to March 10, 2004, the Veteran had not been diagnosed with arthritis.  Indeed, the orthopedic surgeon who conducted the Veteran's medical board evaluation opined that his left knee disability, diagnosed as arthritis, occurred while on active duty and was exacerbated by his manual labor duties.  See Medical board evaluation and addendum opinion (September 20, 2004; December 14, 2007).

Degenerative joint disease (arthritis) is a chronic disease subject to presumptive service connection, provided that it is manifest to a compensable degree within one year after separation from service.  See 38 C.F.R. §§ 3.307, 3.309(a); Groves v. Peake, 524 F.3d 1306, 1309 (Fed. Cir. 2008).  Diagnostic Code 5003 and C.F.R. § 4.59 provides that painful motion due to arthritis, which is established by x-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion.  Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).

Resolving the benefit of the doubt in favor of the Veteran, the Board finds the Veteran was diagnosed with left knee degenerative joint disease, which manifested with painful motion to a compensable level, during active military service.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  As such, service incurrence is presumed for left knee degenerative arthritis under the presumptive provisions pertaining to chronic diseases.  As there is no affirmative evidence to the contrary that the disease is attributable to an intercurrent cause or willful misconduct, the service connection for left knee degenerative arthritis is warranted.  See Groves, 524 F.3d at 1309.

Anxiety Disorder

The Board finds that service connection for an acquired psychiatric disorder, diagnosed as anxiety disorder, is warranted.  During the appeal period, in May 2013 and October 2013, VA examiners diagnosed anxiety disorder.  In fact, the May 2013 VA examiner opined that the Veteran's anxiety disorder is related to his military trauma.  The Veteran relates feelings of anxiety and depression to a number of in-service events, to include patrolling the perimeter of Clarke Air Force Base, recovering remains from a C-135 crash, and flying wounded soldiers from Bagdad to Ramstein airports.  See, e.g., Statements (March 2006; July 2013).  Indeed, the Joint Services Records Research Command confirmed that a C-135 crashed at Clarke Air Force Base (May 1964) and the Veteran's service personnel records show that he served as an air policeman (June 1964 to January 1965), received hostile fire pay (2003), and received travel vouchers for flights Bagdad to Ramstein airports (August and September 2003).  This evidence supports the Veteran's reported in-service stressors.  Finally, the competent and credible testimony of the Veteran and his wife establish that his psychological symptoms had their onset during service, and have been recurrent since that time.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Thus, all three elements necessary to establish service connection have been met.  See 38 C.F.R. § 3.303; see also Cohen v. Brown, 10 Vet. App. 128 (1997).  The Board notes that none of the competent medical evidence opposes the notion that the Veteran's anxiety disorder is related to service.  Thus, the Board finds that the Veteran's current anxiety disorder is related to service and concludes that service connection for anxiety disorder is warranted.

Lastly, the Board need not address the issue of entitlement to service connection for an acquired psychiatric disorder other than anxiety disorder as the Veteran testified that the grant of service connection for any psychiatric disorder would satisfy his appeal.

ORDER

Service connection for left knee degenerative arthritis is granted.

Service connection for anxiety disorder is granted.


REMAND

The Veteran also seeks service connection for diabetes mellitus, which he relates, in pertinent part, to extensive exposure to Malathion, an insecticide, he regularly applied to canines as an air policeman during service from January 1963 to January 1967.  See, e.g., Notice of disagreement (June 19, 2013).  He further asserts that the chemical was sprayed in the human quarters to control insects.  The Veteran contends that medical studies relate Malathion exposure to diabetes mellitus.  

The Board finds that medical development is needed to address whether the Veteran's current diabetes mellitus is related to his reported Malathion exposure.

Accordingly, the case is REMANDED for the following action:

1.  Forward the claims file to an appropriate medical professional.  The examiner must review the entire claims file.  Based on this review, the examiner is to address each of the following questions:

Is it at least as likely as not that the Veteran's current diabetes mellitus has onset in or within one year after separation from service?

It is at least as likely as not that the Veteran's reported exposure to Malathion, an insecticide, as a dog handler caused his current diabetes mellitus?

The examiner's report must include a complete rationale for all opinions expressed.

Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinions.

2.  Finally, after conducting any other development deemed necessary, readjudicate the appeal.  If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board.

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 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).





______________________________________________
STEVEN D. REISS  
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs