Citation Nr: 18150374 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 14-04 952 DATE: November 15, 2018 ORDER Service connection for a right hand disorder is denied. Service connection for a right knee disorder is denied. Service connection for a respiratory disorder is denied. REMANDED Entitlement to service connection for a wrist disorder is remanded. FINDINGS OF FACT 1. A right hand disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest within one year of discharge from active duty. 2. A right knee disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest within one year of discharge from active duty. 3. At no time during the pendency of the claim does the Veteran have a current disability of a respiratory disorder, and the record does not contain a recent diagnosis of such disability prior to the Veteran’s filing of a claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hand disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a respiratory disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1974 to March 1977, with additional service in the Army National Guard from April 1991 to April 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in June 2013 by a Department of Veterans Affairs (VA) Regional Office. In June 2015, the Board denied the claims of service connection for a wrist disorder, a respiratory disorder, and tinnitus. At such time, and again in June 2016, the Board remanded the issues of entitlement to service connection for a right hand disorder and right knee disorder for additional development. The Veteran subsequently appealed the Board’s June 2015 decision regarding the denial of service connection for a wrist disorder, a respiratory disorder, and tinnitus to the U.S. Court of Appeals for Veterans Claims (Court). In October 2017, the Court granted the parties’ Joint Motion for Partial Remand (JMPR), which vacated and remanded the Board’s June 2015 denial of such claims. Thereafter, in March 2018, the Board remanded the issues on appeal, as well as the issue of entitlement to service connection for tinnitus. While on remand, a May 2018 rating decision granted service connection for tinnitus. As such represents a full grant of the benefits sought with respect to such issue, it is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The remaining issues on appeal now return for further appellate review. Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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 service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability”). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. 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. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a right hand disorder. 2. Entitlement to service connection for a right knee disorder. The Veteran contends that his currently diagnosed right hand and right knee disorders are related to his military service. Specifically, he alleges that he developed a right hand disorder as a result of his in-service duties as a wheeled vehicle mechanic, and/or due to an injury when he hurt his hand on barbed wire. He further alleges that his right knee was injured during service due to jumping from helicopters and marching with full gear. In this regard, the Veteran’s service treatment records (STRs) reveal that, in July 1974, he injured his right knee after he ran into a wall and, in March 1976, he complained of right hand pain. An assessment of a bruised hand was noted. However, the remainder of his STRs from active duty and National Guard service are otherwise negative for any complaints, treatment, or diagnoses referable to a right hand or right knee disorder. In January 2013, the Veteran was afforded a VA examination to determine the nature and etiology of his right hand and right knee disorders. At such time, the examiner found that the Veteran had a diagnosis of right hand and right knee degenerative changes, and opined that such disorders were less than likely as not related to the Veteran’s military service. In this regard, the examiner acknowledged the Veteran’s documented injuries in his STRs, but found that he had not sought treatment for the conditions in over 40 years. However, as such rationale was based solely on the lack of documented medical treatment after service, the Board found such to be inadequate in the June 2015 remand. Consequently, an addendum opinion addressing the etiology of the Veteran’s right hand disorder was obtained in January 2016. At such time, the examiner opined that it was less likely as not that such disorder was incurred in or otherwise related to his military service. In support thereof, she noted the Veteran’s in-service treatment for his bruised right hand, but found that there was no indication that he could not perform his duties with his dominant hand for the remainder of his time in the military nor was there any further complaints, to include on his 1977 separation examination and his 1991 entrance examination into the Army National Guard. As pertinent to the Veteran’s right knee disorder, in a June 2013 addendum opinion, an examiner noted that the Veteran’s STRs revealed a right knee injury in July 1974 when he ran into a wall; however, X-rays showed no fracture, dislocation, or abnormality. She further observed that the Veteran’s STRs contained no further evidence of a knee condition, he did not report knee problems at separation, and he did not report knee problems when he joined the National Guard in 1991. The examiner noted that the current examination showed mild degenerative changes that were consistent with the Veteran’s age and occupational history, rather than a remote trauma. Consequently, she opined that it was less likely than not that the Veteran’s diagnosed right knee degenerative changes were incurred in or caused by military service. In June 2016, the Board found that another addendum opinion addressing the etiology of the Veterans right hand and right knee disorders was necessary as the prior examiner did not address the impact of the Veteran’s in-service duties on his claimed disorders. Thereafter, the Veteran underwent another VA examination in August 2016 to determine the nature and etiology of his right hand and right knee disorders. Such examiner diagnosed the Veteran with right hand degenerative arthritis and right knee strain, and opined that it was less likely than not that such disorders were etiologically related to his military service. Specifically, he explained that the Veteran had right knee pathology that was not unexpected for a man of his age, and his STRs contained no episodes of knee pain following jumps with full gear and only a single entry regarding striking his knee on a wall. Thus, the examiner concluded that it was medically implausible to invoke events during service as the cause of likely age-related changes in the joint more than four decades later in the absence of evidence of ongoing knee issues in the interval. With regard to the Veteran’s right hand disorder, he explained that the Veteran’s 2013 radiograph showed only minor degenerative changes in the second and fifth distal interphalangeal joints, and explained that such changes were very common in a man of the Veteran’s age and did not merit invoking events in service as the cause, especially in the absence of any supporting medical documentation. The Board places great weight on the June 2013, January 2016, and August 2016 VA examiners’ opinions that addressed whether the Veteran’s right hand and right knee disorders are related to his documented in-service injuries and/or the nature of his military duties. In this regard, the opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). There is no medical opinion to the contrary. The Board also acknowledges that the Veteran believes his current right hand and right knee disorders are related to his military service. However, while lay persons are competent to provide opinions on some medical issues, in this case, the cause of the Veteran’s right hand and right knee disorders falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons are not competent to diagnose cancer); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Specifically, such matter involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In this regard, the etiology of arthritis, which involves the degeneration of a joint, is an internal process, and specialized knowledge is necessary to determine whether a specific injury led to such disorder. Moreover, whether the symptoms the Veteran reportedly experienced during or after service are in any way related to his currently diagnosed right hand and right knee disorders is a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (“although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”). Accordingly, the Veteran’s opinion as to the onset and etiology of such disorders is not competent evidence and, consequently, is afforded no probative weight. Furthermore, the evidence of record fails to demonstrate that arthritis of the right hand and/or right knee manifested within one year of the Veteran’s separation from service. In this regard, his January 1977 separation examination, as well as an April 1991 National Guard examination, revealed that his upper and lower extremities were normal upon clinical evaluation and he denied having arthritis. Moreover, while the Veteran has reported a continuity of right hand and right knee symptomatology since service, no medical professional has related such complaints to a diagnosis of arthritis in the first post-service year. Consequently, presumptive service connection, to include on the basis of a continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. Therefore, the Board finds that the Veteran’s right hand disorder and right knee disorder are not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest within one year of discharge from active duty. Consequently, service connection for such disorders are not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claims for service connection for a right hand disorder and a right knee disorder. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 3. Entitlement to service connection for a respiratory disorder. The Veteran contends that he has a respiratory disorder that had its onset during his military service and/or is related to asbestos exposure during service. He also asserts that he started smoking during service as he was provided cigarettes by the military. As an initial matter, the Board notes that service connection for a disability on the basis that it resulted from an injury or disease attributable to tobacco usage during service is prohibited. 38 U.S.C. § 1103. Thus, direct service connection is not available for claims received after June 9, 1998, for disabilities or death attributed to a veteran’s use of tobacco products during service. 38 C.F.R. § 3.300. Furthermore, while the Veteran’s exposure to asbestos during service has been acknowledged due to his military occupational specialty as a wheeled vehicle mechanic, the Board finds that service connection for a respiratory disorder is not warranted as the evidence of record reveals that the Veteran does not have a current disability of such disorder at any time pertinent to his claim. In this regard, the Veteran’s STRs are negative for any complaints, treatment, or diagnoses referable to a respiratory disorder. In fact, his January 1977 separation examination indicated that his lungs and chest were normal upon clinical evaluation, and he denied a chronic cough, shortness of breath, or pain or pressure in his chest. In January 2013, the Veteran was afforded a VA examination, at which time the examiner found that he did not have a respiratory disorder. In this regard, she noted the Veteran’s reports of smoking 3/4 of a pack of cigarettes per day over the last 40 years and his report of a “light” cough with occasional yellow discharge, shortness of breath, and occasional wheezing. She also observed that the Veteran did not have evidence of asbestos/pleural plaques. Similarly, the Veteran’s January 2013 pulmonary function tests (PFTs) likewise failed to show a respiratory disorder. Pursuant to the March 2018 remand, the Veteran underwent another VA examination in May 2018 at which time he examiner found that there was no evidence in the record of evaluation, diagnosis, or treatment for an upper respiratory condition either during or after service. He also noted that the Veteran’s examination, PFTs, and imaging conducted at the time of the VA examination were normal. Thus, he concluded that no respiratory diagnosis was applicable. Additionally, the examiner referenced a February 2018 chest x-ray that noted an impression of a 1.7-centimeter nodular opacity overlying the left upper lobe, projecting over the anterior second rib. However, he explained that a nodular opacity within the lung itself was not an indication of a lung condition as it was a nondiagnostic finding. Specifically, the examiner explained that lung nodules were common findings on chest x-rays and were often benign. He also noted that the Veteran had a CT scan coming up and was reminded to submit those findings to the AOJ when the test was completed. However, the Veteran has not identified or submitted such results for consideration in his appeal. Furthermore, while the Veteran is competent to report respiratory symptomatology he may have experienced, which is within the realm of his personal experience, he is not competent to relate such symptomatology to a diagnosed respiratory disorder, or offer an opinion as to the etiology of such alleged disorder. 38 C.F.R. § 3.159; see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Specifically, the Board finds that such is not a simple medical condition the Veteran, as a lay person, is competent to diagnose or determine the etiology thereof. In this regard, such matters fall outside the realm of common knowledge of a lay person as it involves interpretation of results found on physical examination and diagnostic testing, and knowledge of the respiratory system that cannot be identified by mere personal observation. See Jandreau, supra. The Veteran has not indicated that he has specialized medical training which would enable him to be competent to address such complex medical matters. Accordingly, he is not competent to diagnose a current respiratory disorder, or offer an opinion as the etiology of his respiratory complaints, and his opinion in this regard is of no probative value. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, based on the foregoing, the Board finds that service connection for a respiratory disorder is not warranted as the Veteran does not have a current disability during the pendency of his claim, and the record does not contain a recent diagnosis of disability prior to his filing of a claim. See McClain, supra; Romanowsky, supra. Thus, where, as here, there is no probative evidence indicating that the Veteran has the disability for which service connection is sought, there can be no valid claim for service connection. See Brammer, supra. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection for a respiratory disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 4. Entitlement to service connection for a wrist disorder. The Board finds that a remand is necessary to obtain an addendum opinion as to determine the nature and etiology of the Veteran’s claimed wrist disorder. In this regard, pursuant to the March 2018 remand, he was afforded a VA examination in May 2018 at which time the examiner found that he did not have a current wrist diagnosis. However, the examiner noted that there were mild degenerative changes on X-ray regarding the Veteran’s right wrist. Additionally, the Veteran reported that he had wrist functional loss or functional impairment due to pain. In this regard, the U.S. Court of Appeals for the Federal Circuit recently found that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” Saunders, supra. Thus, the Board finds that, in light of Saunders, an addendum opinion is needed to determine whether the Veteran’s wrist pain presents a functional impairment of earning capacity, and if so, whether that impairment is related to his military service. The matter is REMANDED for the following action: Return the record to the VA examiner who conducted the Veteran’s May 2018 wrist examination. The record and a copy of this Remand must be made available to the examiner. If the May 2018 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should address the following inquiries: (A) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s reported wrist pain results in a functional impairment of earning capacity, i.e., a disability for VA purposes? (B) If so, is it at least as likely as not (50 percent or greater probability) that such disability had its onset in, or is otherwise related to the Veteran’s military service, to include as a result of the nature of his duties as a wheeled vehicle mechanical and/or his alleged incident of injuring his wrist on barbed wired? (C) If arthritis is diagnosed, is it at least as likely as not (50 percent or greater probability) that such disability manifested within one year of his March 1977 separation from service, i.e., by March 1978? If so, describe the manifestations. In offering such opinions, the examiner must consider and discuss the lay statements of record regarding the onset of the Veteran’s wrist disorder and the continuity of symptomatology of such disorder. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Clark, Associate Counsel