Citation Nr: 18146212 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 09-02 862 DATE: October 31, 2018 ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for Barrett's Esophagus is denied. Entitlement to service connection for brain disease due to trauma, also claimed as post-concussion syndrome, is denied. FINDINGS OF FACT 1. A left knee disability was not present during the Veteran’s active service, left knee arthritis was not manifest to a compensable degree within one year of separation from active duty, and the most probative evidence indicates that the current left knee disability is not causally related to the Veteran’s active service. 2. A right knee disability was not present during the Veteran’s active service, right knee arthritis was not manifest to a compensable degree within one year of separation from active duty, and the most probative evidence indicates that the current right knee disability is not causally related to the Veteran’s active service. 3. The Veteran’s Barrett’s esophagus was not present during his active service and the most probative evidence indicates that the current Barrett’s esophagus is not causally related to his active service. 4. The Veteran does not have brain disease due to trauma. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for Barrett's Esophagus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 4. The criteria for entitlement to service connection for brain disease due to trauma have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1969 to April 1971, including service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2007 and July 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In the April 2007 rating decision, the RO, in pertinent part, determined that new and material evidence had not been received to reopen a previously denied claim of service connection for brain disease due to trauma. In the July 2007 rating decision, the RO, in pertinent part, denied service connection for a bilateral knee condition and Barrett’s esophagus. In a November 2014 decision, the Board reopened the previously denied claim of service connection for brain disease due to trauma. The Board remanded the underlying claim for additional evidentiary development, as well as the additional issues set forth above. In July 2017, the Board again remanded these claims for additional development. Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that such a disease manifested to a compensable degree within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). For the showing of 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was noted during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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. Id; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). “It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran.” Gilbert, 1 Vet. App. At 54. 1. Entitlement to service connection for a left knee disability 2. Entitlement to service connection for a right knee disability The Veteran asserts that his bilateral knee disability was caused by his active service. Specifically, he asserts that he injured his knees during active service when he fell down in a bunker. He reports that he received treatment for his injuries in service. Factual Background The Veteran’s service treatment records are negative for complaints or findings of a knee injury. These records are similarly silent for complaints or abnormalities pertaining to either knee. At his April 1971 separation, the Veteran’s lower extremities were examined and determined to be normal. The Veteran reported that his condition was good. In August 1971, the Veteran submitted an original application for VA compensation benefits, seeking service connection for residuals of a concussion. His application is silent for any mention of a right or left knee disability, as is clinical evidence assembled in connection with the claim. That evidence includes a November 1971 VA medical examination at which the Veteran’s musculoskeletal system, bones, and joints were examined and determined to be normal. In January 2006, the Veteran submitted claims of service connection for multiple disabilities, including residuals of a knee injury. He indicated that “I injured my knee while I was at DaNang in Vietnam. I received treatment at a filed hospital in DaNang. I still have problems with my knee to date.” The Veteran did not specify which knee he had injured in service. In support of his claim, the Veteran submitted a statement from his spouse who indicated that the Veteran had injured his knee in service and was plagued with problems until 1977 when he had to have surgery. Clinical evidence received in support of the claim included private treatment records showing that in October 1980, the Veteran underwent a physical at which he reported a history of a right knee meniscectomy in the Summer of 1979. The Veteran reported that he had first injured his right knee at the age of 16. He did not report an in-service knee injury at that time. Examination showed decreased mobility of the right leg due to the meniscectomy. No complaints or abnormalities pertaining ot the left knee were recorded. Additional private treatment records show that in January 1984, the Veteran sought treatment for left knee pain which had been present for the past week. The Veteran reported that he had been playing football and could not remember what he did to it but “it started swelling just the other day.” The assessment was possible cartilage damage. In March 1995, the Veteran reported sore joints for the past two weeks after a virus with swelling of the joints. The diagnosis was arthritis. In May 1998, the Veteran reported to a private medical practitioner that had fallen and injured his left hamstring and calf. At that time, he reported that he led an “active lifestyle, swims, walks vigorously, and has had no problems.” Examination of the extremities showed no obvious signs of injury. In November 2005, the Veteran sought treatment for diffuse arthralgias which had been present for several years, mild at first and becoming progressively worse. He reported diffuse pain in his joints including the shoulders, hands, wrists and knees. On examination, knee range of motion was full and pain free, bilaterally. There was no swelling in the knees or tenderness around the knees. The impressions included possible rheumatoid arthritis, myositis, or polymyalgia rheumatica. In August 2006, a private medical practitioner attributed the Veteran’s orthopedic pain, including knee pain, to fibromyalgia. In April 2008, another private physician noted that the Veteran was being treated for serous negative rheumatoid arthritis. During a November 2010 PTSD examination, the Veteran reported a history of a right knee operation in 1977. He also reported a history of rheumatoid arthritis and fibromyalgia. The Veteran was afforded a VA medical examination in September 2015. He reported that he had fallen off a bunker while in Vietnam and “popped his right knee out.” He claimed that he was treated in a field hospital. He indicated that about six or seven years after service, he underwent surgery for his right knee. When asked about any ongoing issues with his right knee, the Veteran responded that it was OK. He denied having a current bilateral knee condition. The examiner noted that the Veteran did describe “migratory diffuse pain to joints,” rather than pain originating from the knees. Examination showed decreased range of motion in both knees. The Veteran exhibited pain both at rest and with knee flexion. The examiner noted a right knee meniscectomy scar but indicated that there were no other residuals present from that surgery. After examining the Veteran and reviewing the record, the examiner concluded that the Veteran’s claimed knee disabilities were less likely than not incurred in or caused by the claimed in-service injury. He explained that the record indicated that the Veteran had a history of seronegative rheumatoid arthritis and fibromyalgia, both of which were diffuse conditions not specific to the knees. The Veteran again underwent VA medical examination in September 2017. He reported injuries both knees in service after he fell down a bunker in a mortar attack. He indicated that he had right knee surgery in 1977. After examining the Veteran and reviewing the record, the VA physician concluded that it was less likely than not that the Veteran currently had a right or left knee disability which was due to service. The physician explained that the Veteran currently did not have a diagnosed bilateral knee disability other than pain. The VA physician acknowledged the Veteran’s history of reported knee injuries in service, a right knee meniscectomy in 1979, and a left knee injury after playing football in 1984. However, the examiner explained that subsequent clinical records are silent for disabilities of the knees; rather, the Veteran’s knee symptoms had been attributed to fibromyalgia. Analysis The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease. After considering the evidence of record, the Board finds that the preponderance of the evidence is against the claims. 38 U.S.C. §§ 1110, 5107; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). As set forth above, the Veteran’s service treatment records are negative for complaints or abnormalities pertaining to either knee, including arthritis. Although he reports sustaining injuries to one or both knees in Vietnam, at his April 1971 separation examination, both lower extremities were examined and determined to be normal, suggesting that any knee injury resolved without chronic disability. This conclusion is strengthened by the fact that in November 1971, the Veteran underwent a VA medical examination at which his musculoskeletal system, bones, and joints were examined and determined to be normal. Under these circumstances, the Board concludes that a chronic disability of the right or left knee was not present during active service or manifest to a compensable degree within one year of separation. Although a chronic disease was not present in service or within the first post-service year, service connection may nonetheless be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). In this case, however, the most probative evidence of record establishes that the Veteran’s knee complaints are not due to an in-service injury or disease. Rather, the record reflects that his knee pain is due to a diffuse condition, seronegative rheumatoid arthritis or fibromyalgia, which was not incurred in service. The Board notes that there is no other probative evidence of record which rebuts the conclusions reached by the VA examiners in September 2015 and September 2017 or otherwise suggests that the Veteran’s current knee pain or his fibromyalgia or rheumatoid arthritis were incurred in service. Under these circumstances, the preponderance of the evidence is against the claims of service connection for disabilities of the right and left knees. 3. Entitlement to service connection for Barrett's Esophagus The Veteran contends that his current Barrett’s Esophagus is related to his service, specifically a Malaria infection he sustained during active service. Factual Background There are no service treatment records of the Veteran being treated for gastrointestinal symptoms or disabilities or of a malaria infection. At his April 1971 separation examination, clinical evaluation was normal in all pertinent respects. Hospital records from October 1980 indicate that the Veteran was seen for upper gastrointestinal bleeding with a three year history of melena. It was noted that the Veteran had streaking ulcerations in the distal esophagus compatible with severe esophagitis. The treatment summary indicated that the Veteran reported that he had been in excellent health until age 20 when he contracted falciparum malaria in service for which he was treated. He indicated that he thereafter had done well until 1977, when he collapsed and was diagnosed with anemia. Since then he had had episodes of tarry stools followed by marked anemia. The diagnosis was anemia, secondary to iron deficiency due to gastrointestinal bleeding, most likely due to angiodysplasia and distal esophagitis. Although the Veteran informed the medical provider of his malarial infection in service, the medical provider did not consider the infection as a cause to the Veteran’s illnesses. Subsequent clinical records show that in February 1985, the Veteran was diagnosed as having esophagitis. In June 2004, he was diagnosed as having Barrett’s esophagus. In September 2017, the Veteran underwent VA medical examination. After examining the Veteran and reviewing the record, the examiner diagnosed Barrett’s esophagus, esophagitis, hiatal hernia and gastroesophageal reflux disease (GERD). The examiner opined that the Veteran’s gastrointestinal disabilities, including Barrett’s Esophagus, were less likely than not related to his service. The examiner considered the October 1980 private treatment report in which the Veteran stated that he had contracted malaria falciparum while serving in Vietnam. The examiner, however, explained that the Veteran’s malaria falciparum would have been treated and resolved as there was no evidence of untreated malaria after service, nor was there any medical research suggesting that the Veteran’s current gastrointestinal disabilities could be caused by malaria. Analysis The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the record reflects that the Veteran currently has Barrett’s esophagus, the preponderance of the evidence weighs against finding that such disability began during service or is otherwise related to an in-service injury or disease, to include a malaria infection. 38 U.S.C. §§ 1110, 5107; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). As explained above, a chronic gastrointestinal disability did not develop during the Veteran’s active service. His separation examination was normal and a November 1971 VA examination conducted shortly after service separation showed that his throat and digestive system were examined at that time and again determined to be normal. The post-service record on appeal shows that the Veteran was not diagnosed with Barrett’s esophagus until October 1980, more than nine years after his separation from service. Moreover, the record contains no indication that the Veteran’s post-service Barrett’s esophagus is causally related to his active service or any incident therein, to include his reported malaria infection. As set forth above, the September 2017 VA examiner reviewed the record and opined that the Veteran’s current Barrett’s esophagus is not at least as likely as not related to his service, to include his reported malaria infection. The Board finds that the examiner’s opinion is highly probative on the question of etiology, given the examiner’s review of the Veteran’s medical history, the clinical examination he conducted, and the rationale he provided. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Significantly, there is no competent evidence which contradicts his conclusion or otherwise suggests a relationship between the Veteran’s current Barrett’s esophagus and his active service. Under these circumstances, the preponderance of the evidence is against the claim of service connection for Barrett’s esophagus. 4. Entitlement to service connection for brain disease due to trauma The Veteran contends that he has a brain disease as a result of trauma he sustained when he was knocked unconscious by an explosion in Vietnam. In connection with his claim, the Veteran was afforded a VA medical examination in September 2017 at which he reported that he had been knocked unconscious after he was involved in an explosion while in Vietnam. He recalled that he woke up four days later and had had vision problems in his right eye since that time. After examining the Veteran and reviewing the record, the examiner explained that despite the reported in-service head injury, the Veteran did not currently exhibit a brain disease or condition due to trauma. Rather, the examiner explained that the Veteran exhibited Parkinson’s disease, for which service connection was already in effect. [The Board notes that service connection is currently in effect for Parkinson’s disease with multiple secondary conditions and residuals, including loss of use of the lower extremities, urinary incontinence, upper extremity tremors/bradykinesia, loss of automatic movements such as blinking leading to fixed gaze, loss of sense of smell, speech changes, and constipation. Service connection is also in effect for diabetes mellitus with right posterior subscapular cataract of the right eye. The Veteran is in receipt of a 100 percent disability rating, plus special monthly compensation at the housebound rate]. The examiner explained that there was no other evidence, either in the post-service clinical records or on current examination, of brain disease other than Parkinson’s disease. In other words, although there is evidence of a prior traumatic brain injury, there is no evidence of a current brain disease or condition due to the reported injury. The examiner explained that the Veteran’s Parkinson’s disease was presumptively caused by his exposure to Agent Orange in Vietnam. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim of service connection for brain disease due to trauma. The Board finds that the September 2017 opinion is probative and further notes that there is no other competent evidence of record which suggests that the Veteran currently has brain disease due to trauma. Under these circumstances, the preponderance of the evidence is against the claim. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Yun, Associate Counsel