Citation Nr: 18146620 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 10-28 189 DATE: October 31, 2018 ORDER Service connection for degenerative arthritis of the lumbar spine as secondary to service-connected degenerative joint disease of the bilateral knees is granted. Service connection for hypertension and a prostate disability is denied. FINDINGS OF FACT 1. The evidence favors a finding that the Veteran’s current degenerative arthritis of the lumbar spine was aggravated beyond its natural progress by his service-connected degenerative joint disease of the bilateral knees. In October 2016 a VA clinician opined that it is at least as likely as not that the Veteran’s low back condition is aggravated beyond its natural progression by his service-connected knee condition. The clinician’s opinion was supported by rationale, to include consideration of the Veteran’s altered gait due to his knee condition and medical literature linking it to orthopedic changes of the lumbar spine. Although the clinician indicated that a baseline level of severity could not be determined without resort to speculation, the Board finds that this portion of the opinion is not probative because the clinician went on to state that the baseline was “small” and as a result it can reasonably be determined. 2. The preponderance of the evidence is against a finding that the Veteran was exposed to Agent Orange during his service. 3. The preponderance of the evidence is against a finding that the Veteran’s hypertension is associated with his service, or was manifest during service or to a degree of 10 percent within one year of separation. 4. The preponderance of the evidence is against a finding that the Veteran’s prostate disability is associated with his service. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative arthritis of the lumbar spine as secondary to service-connected degenerative joint disease of the bilateral knees have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 2. The criteria for service connection for hypertension and a prostate disability have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to August 1968. He served honorably in the United States Air Force, including at Travis Air Force Base in California. The Board thanks the Veteran for his service to our country. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from May 2008 and September 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The May 2008 decision denied reopening the Veteran’s claim for service connection for a low back disability and the September 2011 decision denied service connection for hypertension and a prostate disability. This matter was previously before the Board in October 2015 when the claim for service connection for a back disability was reopened and remanded for further development, along with the other claims herein, to include for a secondary service connection nexus opinion as to the Veteran’s low back disability, research into his claims of Agent Orange exposure, and so that outstanding medical records could be obtained. The Board notes that a hearing was held in January 2014 before the undersigned Veterans Law Judge. A transcript of that hearing is of record. At that time, the merits of the Veteran’s claims for service connection for hypertension and a prostate disability were heard. The Board subsequently reopened his claim for service connection for a low back disability in its October 2015 decision. Later, in June 2018, the Veteran requested an additional hearing pertaining to these claims; on the other hand, the record shows that after the Veteran requested a hearing his representative communicated to VA that a Form 646 would be submitted and an Informal Hearing Presentation was received. The Board finds that, to the extent an additional hearing is still being sought, it is not required because the Board is granting the Veteran’s claim for service connection for a low back disability and the merits of his claims for service connection for hypertension and a prostate disability have already been addressed in a prior Board hearing. See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). Service Connection Direct service connection may be awarded with a showing of medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309 (a) that manifest to a degree of 10 percent within one year of service separation or during service and then again at a later date. Id. §§ 3.303(b), 3.307. Hypertension is named as a chronic disease. Evidence of continuity of symptomatology may be sufficient to warrant service connection if a claimant demonstrates (1) that a condition was noted during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.303 (b). If a Veteran served in the Republic of Vietnam during the Vietnam Era, then he is presumed to have been exposed to herbicide agents. See 38 C.F.R. § 3.307. For the presumption to apply, the Veteran must have either set foot in the Republic of Vietnam or served in its inland waterways. See id. VA currently recognizes prostate cancer as presumptively associated with exposure to herbicide agents. See 38 C.F.R. § 3.309 (e). Secondary service connection may be granted where the evidence shows that a chronic disability has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310; see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). For the purposes of evaluating lay evidence, to include a veteran’s statements about the circumstances of his service, competent evidence is “limited to that which the witness has actually observed, and is within the realm of his personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). For example, although a lay person is competent to report observable symptomatology of an injury or illness (such as pain or the visible flatness of his feet), a lay person is “not competent to opine as to medical etiology or render medical opinions.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Entitlement to service connection for hypertension and a prostate disability Here, VA treatment records show that the Veteran has hypertension and a prostate disorder. Records reflect that he takes medication for his prostate and that he has had surgical treatment for benign prostatic hypertrophy (BPH). He has consistently contended, to include in his September 2011 Notice of Disagreement and during the January 2014 Board hearing, that his conditions are due to Agent Orange (AO) exposure and/or other such “chemicals” in-service at Travis Air Force Base in California. The Veteran did not serve in Vietnam, nor any other qualifying location for the purposes of the presumption of AO exposure under 38 C.F.R. §§ 3.307, 3.309. The Board has considered the application of a recently finalized regulation, 3.307(a)(6)(v), which affords presumptive AO exposure to Air Force and Air Force reserve Veterans “under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era.” Consideration of this regulation is not prejudicial to the Veteran as his service personnel records reflect he was connected with a security police squadron and the record contains a document noting that Travis AFB was not a location where AO was used, tested, stored, or transported. The official service records do not show that he was assigned to a squadron that was permanently assigned one of the affected aircraft. Also, there is no indication in the record, nor does the Veteran assert, that he had one of the Air Force Specialty Codes required by regulation. The Board notes that hypertension and non-cancerous prostate conditions are not subject to the presumption in any event. Regarding the Veteran’s contentions about his exposure, the Board concludes that the preponderance of the evidence is against a finding that he was exposed to AO in-service. This is because, in part, the Veteran’s service records are negative for exposure to AO, and, although he contends that he was exposed to from aircraft and cargo at Travis Air Force Base, his qualifications to identify AO or that there is otherwise a sound basis for knowing he was exposed have not been shown. The Board declines to find his statements as to the presence of AO competent and instead finds that the absence of AO exposure from the claims file, to include the Veteran’s service records, as well as negative findings from DPRIS and the Air Force Historical Research Agency to be more persuasive. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that “the Board did not err by rejecting [a veteran’s] lay evidence that he was exposed to gases or chemicals during his less than two-month tour of duty on the basis that such exposure is not documented in his personnel records.”). Accordingly, based on the preponderance of the competent evidence, in-service incurrence has not been demonstrated and direct service connection is not warranted. Last, regarding hypertension, the Board notes that it has considered the applicability of presumptive service connection under 38 C.F.R. § 3.309 (a) and continuity of symptomatology. However, as there is no evidence that the Veteran’s hypertension was noted during service; as the evidence does not support a finding of continuity of symptomatology (for example, heart and vascular functions were affirmatively indicated to be normal on the Veteran’s April 1968 separation medical examination); and as there is no evidence that hypertension was manifested to a compensable degree during the year following service (acknowledged by the Veteran during the January 2014 Board hearing), service connection is not warranted on those bases. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Fales, Associate Counsel