Citation Nr: 18150495 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 13-06 273 DATE: November 15, 2018 ORDER The appeal for entitlement to service connection for a shoulder disability is dismissed. The appeal for entitlement to service connection for a back disability is dismissed. The appeal for entitlement to service connection for an eye disability, to include macular degeneration, poor eyesight due to radiation exposure, and refractive error, is dismissed. The appeal for entitlement to service connection for a sinus disorder due to asbestos exposure is dismissed. The appeal for entitlement to service connection for a lung disorder due to asbestos exposure is dismissed. The appeal for entitlement to service connection for a sleep disorder, to include obstructive sleep apnea, is dismissed. The appeal for entitlement to service connection for a gastrointestinal disorder, to include stomach ulcers, is dismissed. The appeal for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and a nervous disorder due to radiation exposure, is dismissed. New and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability. Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a left knee disability as secondary to service-connected right knee disability is granted. Entitlement to service connection for headaches is granted. REMANDED Entitlement to service connection for fibromyalgia, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for left leg neuropathy due to herbicide agent exposure is remanded. FINDINGS OF FACT 1. Prior to promulgation of a decision, on the record at his March 2018 Board hearing, the Veteran withdrew his appeal regarding his shoulder disability, back disability, eye disability, sinus disorder, lung disorder, sleep disorder, gastrointestinal disorder, and psychiatric disorder claims. 2. A January 1970 rating decision denied service connection for a right knee condition; the Veteran did not appeal that decision, and new and material evidence was not received within one year of notice of its issuance. 3. Evidence received more than one year since the January 1970 rating decision is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for a right knee disability. 4. The Veteran’s right knee disability is related to active duty service. 5. The Veteran’s left knee disability is proximately due to service-connected right knee disability. 6. The Veteran’s headaches were not noted upon entrance into active duty. 7. Although headaches clearly and unmistakably existed prior to service, the evidence does not clearly and unmistakably show that the Veteran’s headaches were not aggravated by such service. 8. The Veteran’s headaches are related to his active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for the claims of entitlement service connection for a shoulder disability, back disability, eye disability, sinus disorder, lung disorder, sleep disorder, gastrointestinal disorder, and psychiatric disorder are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The January 1970 rating decision denying the claim of entitlement to service connection for a right knee condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 3. New and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The criteria for entitlement to service connection for a right knee disability have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 5. The criteria for entitlement to service connection for a left knee disability as secondary to service-connected right knee disability have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. 6. The criteria for entitlement to service connection for headaches are met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1967 to October 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2010 and August 2013 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran testified during a Board 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). 38 U.S.C. § 7107(b)(1). Withdrawal 1. The appeal for entitlement to service connection for a shoulder disability is dismissed. 2. The appeal for entitlement to service connection for a back disability is dismissed. 3. The appeal for entitlement to service connection for an eye disability, to include macular degeneration, poor eyesight due to radiation exposure, and refractive error, is dismissed. 4. The appeal for entitlement to service connection for a sinus disorder due to asbestos exposure is dismissed. 5. The appeal for entitlement to service connection for a lung disorder due to asbestos exposure is dismissed. 6. The appeal for entitlement to service connection for a sleep disorder, to include obstructive sleep apnea, is dismissed. 7. The appeal for entitlement to service connection for a gastrointestinal disorder, to include stomach ulcers, is dismissed. 8. The appeal for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and a nervous disorder due to radiation exposure, is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made on the record at a hearing by the appellant or by his or her authorized representative. Id. In the present case, the Veteran, at his March 2018 Board hearing, advised that he wished to withdraw his appeal regarding service connection for a shoulder disability, back disability, eye disability, sinus disorder, lung disorder, sleep disorder, gastrointestinal disorder, and psychiatric disorder. See March 2018 Board Hearing Transcript at 2. Accordingly, he has withdrawn the appeal as to these issues and, hence, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal regarding his shoulder disability, back disability, eye disability, sinus disorder, lung disorder, sleep disorder, gastrointestinal disorder, and psychiatric disorder claims, and those issues are dismissed. New and Material Evidence 9. New and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence is defined as existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The RO denied the Veteran’s claim for service connection for a right knee condition due to lack of a current disability in a January 1970 rating decision. The Veteran was informed of this decision in the same month, he did not appeal the decision, and new and material evidence was not received within one year of notice of the decision. Thus, the January 1970 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). Evidence received more than one year since the January 1970 rating decision constitutes new and material evidence in regard to the Veteran’s right knee disability claim. Specifically, a November 2012 VA treatment record diagnosing right knee subacromial bursitis/calcific tendonitis and a February 2013 VA examination report diagnosing right knee patellofemoral pain syndrome. This evidence is new as it was not previously considered by the RO. The evidence is also material, as it is not cumulative or duplicative of evidence previously considered and it raises a reasonable possibility of substantiating the claim. As such, the Veteran has presented new and material evidence to reopen the previously denied claim of entitlement to service connection for a right knee disability and the claim is reopened. Service Connection Service connection may be established for a disability resulting from injury or disease incurred in or aggravated during active service. 38 U.S.C. §§ 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in- service. 38 C.F.R. § 3.303(d). Generally, to establish service connection the evidence must show: (1) the existence of a present disability; (2) in- service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). When there is an indication that a disorder for which the Veteran seeks service connection preexisted service, the presumption of soundness must be addressed. The presumption of soundness provides that a Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment into service and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed.Cir.2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Once the presumption of soundness applies, the burden of proof shifts to and remains with VA to prove both preexistence and aggravation by clear and unmistakable evidence. A “claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong,” even if clear and unmistakable evidence establishes that a disease preexisted service. In other words, the “burden is not on the claimant to show that his disability increased in severity.” To the contrary, the burden is on VA to “establish by clear and unmistakable evidence that [a preexisting disease] did not [increase in severity during service] or that any increase was due to the natural progress of the disease.” This burden must be met by “affirmative evidence” demonstrating that there was no aggravation. The burden is not met by finding “that the record contains insufficient evidence of aggravation.” Horn v. Shinseki, 25 Vet. App. 231 (2012). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. Secondary service connection generally requires (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512. When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. 38 U.S.C. §5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 10. Entitlement to service connection for a right knee disability is granted. 11. Entitlement to secondary service connection for a left knee disability is granted. The Veteran maintains that his right knee disability is due to an injury he sustained in service when he was running away from a malfunctioning steam air hose and hit his knee on a hatch coming out the side of the ship and fell to the ground. Additionally, he asserts his left knee disability is secondary to his right knee due to an altered gait and putting more pressure on his left knee from his right knee disability. See October 2009 VA Form 21-4138 and March 2018 Board Hearing Transcript at 3-6. As the discussion below is favorable to both claims, and no other theories of entitlement have been proffered, the Board will only address direct service connection for his right knee and secondary service connection based on causation for his left knee disabilities. The Veteran has current diagnoses of right knee subacromial bursitis/calcific tendonitis and patellofemoral pain syndrome and left knee anserine bursitis/degenerative joint disease. See November 2012 VA treatment record and February 2013 VA examination report. Thus, element one for both direct (right knee) and secondary (left knee) service connection is met. Regarding element two for direct service connection, in-service incurrence of a disease or injury, the Veteran’s service treatment records (STRs) note his complaints of pain and stiffness after striking his right knee on a hatch while running to get out of the way of a broken steam hose. Medical personnel diagnosed a right knee contusion and prescribed ice water soaks to manage swelling and bed rest for four months. See February 1967 STRs (see also February 2018 Buddy Statement from former hospital corpsman D. L. S. attesting to personally witnessing and prescribing treatment for the Veteran’s right knee injury). Additionally, regarding element two of secondary service connection, a service-connected disability, the Veteran is awarded service connection herein for a right knee disability. Thus, element two for both direct (right knee) and secondary (left knee) service connection is also met. As to element three for both direct and secondary service connection, nexus, the only competent opinion of record substantiates the claim. Specifically, in his April 2018 private opinion, Dr. D.G.Y. opined it is more probable than not that the Veteran’s in-service right knee injury placed into action a series of events that are at the root cause of his current bilateral knee disability. In support of his opinion, he noted that he has been treating the Veteran since 1996 and that he had a history of knee symptomatology prior to his motor vehicle accident in 1996 and that the Veteran complained his right knee had gone downhill after his Navy injury. Dr. D. G. Y. indicated at the time in 1996, he did not treat the Veteran for knee injuries because the accident involved his neck and shoulder, but noted he displayed signs of an abnormal gait which were consistent with knee pains and problems and that he favored his right knee, which hurt all the time, and was placing too much pressure on his left knee to compensate for his abnormal gait. He also noted that this overcompensation caused a secondary injury/abnormal wear to his left knee and that in 2008 he noticed the Veteran using a cane for assistance and both knees were deteriorating. Further, he highlighted that he has been treating accidents for 25 years and sees medical history all the time and that upon receiving an initial accident of significant force/impact to any body part, of which knees are very frequent, the patient’s initial injury always deteriorates, unless proper medical intervention is administered immediately. To this end, he noted that in the Veteran’s case due to the conditions during service and without a trained medical officer on board, he did not receive the proper treatment, which lead to his abnormal knee conditions today. Thus, he concluded the Veteran’s right knee injury during service caused his current bilateral knee disability. The Board finds that this opinion tends to demonstrate that there is a relationship between the Veteran’s in-service right knee injury and his current right knee disability as. Dr. D.G.Y. thoroughly reviewed the claims file, took the Veteran’s lay statements into consideration, and provided an understandable and rational basis for his opinion, which relied on an accurate history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Further, the Board finds nothing in the record to doubt the qualifications of Dr. D.G.Y., who has a long-standing history of providing treatment to the Veteran, and thus finds this medical opinion to be competent. For these reasons, the Board affords this opinion high probative value. The Board recognizes the February 2013 VA examiner ultimately reached a conclusion unfavorable to the Veteran’s right knee claim, however the examiner did not address all of the Veteran’s current diagnoses of record or the Veteran’s report of continuous right knee pain since his in-service injury in providing a rationale for that conclusion. Accordingly, the Board assigns this negative opinion no probative value. See Nieves, 22 Vet. App. 295. Lastly, in his opinion above, Dr. D. G. Y. also indicated that the Veteran’s left knee disability is secondary to his right knee disability due to him favoring his right knee and placing too much pressure on his left knee which caused abnormal wear. There is no competent evidence to the contrary. Accordingly, service connection for a right knee disability and service connection for a left knee disability as secondary to service-connected right knee disability are warranted. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. 12. Entitlement to service connection for headaches, to include as due to radiation exposure, is granted. The Veteran seeks service connection for headaches. As the discussion below is favorable regarding direct service connection, no other theories of entitlement will be addressed. The Veteran maintains that his headaches started prior to service but they increased during service due to heat, light, and smoke exposure. He asserts that his headaches continued post-service, including migraine headaches and that he has taken “countermeasures” to improve his headaches. See February 2013 VA examination report. With regard to whether the Veteran’s headaches preexisted service, a January 1967 entrance examination report noted the Veteran’s head as normal and that he was qualified for service. Thus, because a headache condition is not noted on the actual examination at service entrance, the Veteran is presumed sound. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner, 370 F.3d at 1096. Therefore, to rebut the presumption of soundness as noted above, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. Here, the Veteran endorsed “frequent or severe headaches” on his Report of Medical History at his entrance examination, reported chronic eye trouble and headaches all summer; a familiar history of migraine headaches; and an automobile accident five years prior resulting in a scar over his right eye that may be the etiology of his headaches in December 1967, and complained of right orbital headaches for three years in July 1968. See January 1967, December 1967, and July 1968 STRs. Moreover, as noted above during his February 2013 VA examination, he indicated he had headaches before service when was he was younger. Thus, clear and unmistakable evidence shows the Veteran had headaches prior to service. However, VA cannot show that his headaches clearly and unmistakably were not aggravated by service. Specifically, the Veteran’s STRs support his claim that he experienced headaches during service. In June 1967, the Veteran complained of moderately severe headaches on the right side of his head, frequent headaches with a feeling if someone was pushing on his right eye, and severe headaches, and in December 1967 he was diagnosed with tension and pass refractile headaches. Moreover, the February 2013 VA examiner opined that the Veteran’s headaches which clearly and unmistakably existed prior to service were acutely aggravated during service. He reasoned that the Veteran’s STRs document frequent headaches that occurred daily on some notes. Therefore, the evidence does not clearly and unmistakably show that his pre-existing headaches were not aggravated by service. Accordingly, the presumption of soundness has not been rebutted, and the claim is treated as an ordinary claim for service connection. Wagner, 370 F.3d 1089 at 1096. As to element one, a current disability, the Veteran is competent to report current headaches and a February 2013 VA examination report confirmed a diagnosis of the same. Additionally, regarding element two, in-service incurrence of a disease or injury, his STRs demonstrate numerous complaints of headaches throughout service. See June 1967, December 1967, and July 1968 STRs. Thus, the first and second elements of service connection are met. Regarding the final element, nexus, the Veteran is competent to determine that his in-service headaches are of the same nature as his post-service headaches; thus, he is competent to establish a nexus between his current headaches and service, which are supported by his STRs and lay statements. Moreover, the February 2013 VA examiner’s statements that there is no “chronic aggravation identified” and “this aggravation resolved after service” do not negate the Veteran’s assertion that he still experiences headaches currently (although he states they have improved due to preventive medication) that are of the same nature as his in-service headaches. Accordingly, resolving all doubt in the Veteran’s favor, service connection for headaches is established. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 13. Entitlement to service connection for fibromyalgia, to include as due to herbicide agent exposure, is remanded. 14. Entitlement to service connection for left leg neuropathy due to herbicide agent exposure is remanded. The Veteran seeks service connection for fibromyalgia and left leg neuropathy that he maintains is due to Agent Orange exposure in Vietnam. Additionally, he asserts that his fibromyalgia began during service with symptoms of joint pains and muscle aches. See February 2012 VA Form 21-526b, April 2014 Notice of Disagreement (NOD), and March 2018 Board Hearing Transcript at 6, 13. A February 2013 VA treatment record indicates a diagnosis of fibromyalgia and notes a long history of the disorder, and a January 2012 VA treatment record notes burning in the Veteran’s left thigh with a prior VA treatment record in 1998 noting paresthesias in his left foot (although no specific left leg neuropathy diagnosis). Although fibromyalgia and left leg neuropathy are not disabilities subject to presumptive service connection based on herbicide agent exposure under 38 C.F.R. § 3.309(e), that fact alone does not automatically mean that the Veteran’s fibromyalgia or left leg neuropathy are not related to his presumed exposure to herbicide agents in Vietnam. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). To this end, the evidence of record shows a history of fibromyalgia and left leg neurologic symptoms as noted above. Thus, given the Veteran’s statements, the concession of in-service exposure to Agent Orange, and the presence of a current fibromyalgia disability and symptomatology suggesting a left leg neurological disability, the Board finds that a VA examination and medical nexus opinion on direct service connection is warranted and should be obtained on remand. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Any outstanding treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any relevant outstanding private treatment records. 3. Then schedule the Veteran for a VA examination to determine the nature and etiology of his fibromyalgia and any current left leg neurological disability. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. All indicated tests and studies should be conducted, and all findings reported in detail. For fibromyalgia and each left leg neurological disability present since February 2012, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such disability had its onset in service or is otherwise related to service, to include as a result conceded herbicide agent exposure in Vietnam and the Veteran’s reports of joint and muscle pain beginning in service. In addressing this question, the examiner is advised that the fact that a given disability is not one for which service connection can be presumptively awarded cannot be used as the sole basis for a negative opinion. A complete rationale must be provided for each opinion expressed. In the event the examiner is unable to provide a medical opinion, he or she must provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Asante, Associate Counsel