Citation Nr: 18151250 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 14-15 434A DATE: November 16, 2018 ORDER Service connection for a right knee disability is denied. Service connection for coronary artery disease is granted. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to an effective date before October 19, 2009 for the grant of service connection for bilateral hearing loss, tinnitus, and a back disability is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) resulting from service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran’s diagnosed right knee mild patellofemoral and degenerative changes are not shown to be causally or etiologically related to his active military service, including a fall on an aircraft in 1972. 2. The Veteran is currently diagnosed with coronary artery disease, a form of ischemic heart disease. 3. The Veteran’s credible lay testimony, in conjunction with his service personnel records, place him in service near the base perimeter of the Royal Thai Air Force Bases of Korat and Ubon during 1968, 1969, and 1972. 4. Given the facts of this particular case, the Board resolves reasonable doubt in favor of the Veteran regarding exposure to an herbicide agent used in support of military operations. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria to establish service connection for coronary artery disease are met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from March 1966 to March 1974. The Veteran appeared before the undersigned Veterans Law Judge in a videoconference hearing in May 2018 to present testimony on the issues on appeal. Service Connection Service connection generally requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a causal relationship, or nexus, between the claimed in-service event, injury, or disease and the current disability. 38 C.F.R. § 3.303; see Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for a right knee disability The Veteran has been diagnosed with patellofemoral and degenerative changes affecting the right knee, observed via x-ray taken in June 2011. VA addendum opinion, March 2013. This constitutes evidence of a current right knee disability. There is also credible evidence of the Veteran falling during service in January 1972. At the time of his separation examination in November 1973, the Veteran reported that on the flight line at Seymour Johnson Air Force Base in North Carolina, he fell from the backbone of an aircraft in icy conditions, hitting his back on the wing and the ground, was knocked unconscious for a short period, but did not report for any evaluation or treatment at the time of the fall. The Veteran then stated that he had “experienced pain in back every now and then since.” Report of Medical History, November 1973. The Board finds this to be competent and credible evidence of the occurrence of an in-service fall event. However, the Board does not find competent evidence showing a causation relationship between the in-service fall in 1972 and the Veteran’s current right knee disability. The Veteran admits he sought no evaluation or treatment at the time of the fall, for any injury to his knee, his back, or his loss of consciousness, so there is no contemporaneous medical evidence of any specific injury. Board hearing transcript, May 2018; Service treatment records, November 1973. During hearing testimony, the Veteran also provided no specific lay testimony regarding any knee symptoms he observed at the time. He stated that he hit one or both knees on the wing of the aircraft as he fell, but “there was no apparent damage done right then.” Board transcript, May 2018. Furthermore, when the Veteran reported this fall to a physician 22 months after the fall at the time of his separation examination, the Veteran reported no complaint regarding the knees. In 1973, the Veteran only described the fall as resulting in occasional back pain without mentioning any knee trouble. He expressly denied experiencing arthritis, a “trick” or locked knee, lameness, or any bone, joint or other deformity. The Veteran’s lower extremities were clinically evaluated as normal. Service treatment records, November 1973. In conjunction with the present claim for service connection benefits, the Veteran was afforded an examination of his right knee in June 2011. During this examination, the Veteran stated that his knees have bothered him since the 1972 fall and he was evaluated for both knees when he fell. He told the examiner that he complained of both knees, but that his left knee was worse and he had a noticeable limp. This is not supported by the contemporaneous service treatment records, nor the subsequent 1973 Report of Medical History provided by the Veteran which reports no such symptoms or complaints regarding the knees. The June 2011 examiner diagnosed bilateral knee degenerative joint disease, but offered an incomplete medical opinion stating that he could not resolve the issue of whether the Veteran’s knee condition was related to service without resorting to mere speculation, without giving any reason for this inability to reach a conclusion. An addendum opinion was sought in March 2013, but the physician did not have access to the Veteran’s service treatment records, so again could not reach a conclusion. Ultimately, in June 2013, a reviewing physician from orthopedic surgery was provided the Veteran’s claims file and service treatment records, which he reviewed. The examiner found the Veteran’s service treatment records to be silent regarding any complaint or treatment for the right knee. The history regarding the 1972 fall from the aircraft was described, but the examiner opined that it is unlikely that the Veteran sustained a significant injury to his knee since the Veteran did not disclose any knee injury or complaint at the time of the fall, and only mentioned his back pain, rather than any knee injury or residual knee problem, even when reporting the fall at the time of his separation examination the following year in 1973. Thus, the examiner opined that it is not at least as likely as not that the Veteran’s current right knee degenerative joint disease was incurred in or caused by the in-service fall in January 1972. The Veteran has submitted a September 2011 opinion letter from a private physician that states, in part, “His chronic back and right knee pain is at least as likely as not related to the documented fall he had from the aircraft during which time it was noted that he had injured his back and knee.” This opinion letter has little evidentiary value for two reasons. First, the examiner does not provide a medical rationale, or the reason or reasons upon which his conclusion is based. Without the grounds or reasons for the conclusion that he reaches, the Board is unable to weigh this physician’s opinion against the opposing opinion in evidence. Second, this private physician appears to base his conclusion, at least in part, on an inaccurate factual premise. This doctor describes noted injuries to the Veteran’s back and knee at the time of the fall. However, the Veteran’s service treatment records contain no such report of any knee injury or complaint, not only at the time of the fall in January 1972, but also at the time of the separation examination in November 1973. At neither time, nor in the interval in between, does the Veteran contemporaneously report experiencing any symptoms of right knee injury. As such, the Board affords more evidentiary weight to the June 2013 nexus opinion against a causal relationship, or nexus, between the in-service fall in 1972 and the current right knee disability. The preponderance of the evidence is against the Veteran’s claim, and the claim for service connection of a right knee disability must be denied. 2. Service connection for coronary artery disease Service connection can also be established in certain circumstances based on exposure to specific chemical herbicide agents used in support of military operations in the Republic of Vietnam and along the Korean demilitarized zone. 38 C.F.R. § 3.307(a)(6). Although the Veteran describes flying over Vietnam and landing there on at least one occasion, no documentary evidence of this occurrence has been located for this Veteran. However, it is also current VA practice that special consideration of herbicide exposure on an individual factual basis (also called a facts-found basis) should be extended to Veterans whose duties placed them on or near the perimeters of certain Royal Thai Air Force bases (RTAFB) when a Veteran with service in Thailand during the Vietnam Era claims service connection for disability based on herbicide exposure. To be clear, VA has determined that there are no records to show that the same herbicide agents used in Vietnam were used in Thailand, but that sporadic use of commercial herbicides were used within fenced perimeters on Thai airbases. Herbicide agents, such as that known as “Agent Orange,” are distinguished from commercially available herbicides approved by the Armed Forces Pest Control Board for use in routine base maintenance and vegetation control measures during this time. See VA Memorandum for the Record: Herbicide use in Thailand during the Vietnam Era. Nonetheless, for Veterans that served with the U.S. Air Force or Army in Thailand during the Vietnam Era at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang during the period from February 28, 1961, to May 7, 1975, consideration is required as to whether a Veteran’s military occupational specialty (MOS) is such as to indicate the performance of duties on a base perimeter as a security policeman, security patrol dog handler, member of the security police squadron, or otherwise was in regular contact with the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. In this case, the Veteran’s service personnel records confirm duties in Thailand at Korat RTAFB and Ubon RTAFB during the relevant time frame for relatively lengthy periods with stays in excess of 100 days. The Veteran also credibly describes living in various barracks and “hooches” located along the perimeter fence line, in such close proximity that he could reach across the fencing to take bananas from trees outside of the perimeter. Board hearing transcript, May 2018. The Board finds no reason to doubt the Veteran’s testimony. The Veteran is now diagnosed with coronary artery disease, a form of ischemic heart disease which has been identified as a disease associated with exposure to certain herbicide agents. 38 C.F.R. § 3.309(e). As such, given the specific facts of this case, the Board resolves all reasonable doubt in the Veteran’s favor and finds the grant of service connection for coronary artery disease to be warranted. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability is remanded. The Board cannot make a fully-informed decision on the issue of service connection for a left knee disability because no VA examiner has opined whether the Veteran’s current left knee disability is causally related to a documented fall occurring in Thailand in June 1969. Although the June 2013 VA addendum opinion discussed the relevant service treatment records from 1969, the opinion itself is phrased to explicitly address only that the Veteran’s bilateral knee condition was not incurred or caused by the fall incident in January 1972. The Veteran is also entitled to a medical opinion regarding the documented in-service left leg injury from a fall occurring previously in June 1969. An addendum opinion is needed. 2. Entitlement to an earlier effective date before October 19, 2009 for the grant of service connection for bilateral hearing loss, tinnitus, and a back disability is remanded. The effective date currently established for service connection for the Veteran’s hearing loss, tinnitus, and spine disability compensation is based on the date the claim was first received by VA stating the Veteran’s intent to seek this benefit. However, since the establishment of that effective date, the Veteran has consistently asserted that he initially filed a claim seeking compensation for service-connected disabilities, including hearing loss and a back condition, in 2005 at the same time that he first filed paperwork seeking eligibility for VA healthcare and medical benefits. See Correspondence from Veteran, September 2011. A VA Form 10-7131, Exchange of Beneficiary Information and Request for Administrative and Adjudicative Action, is contained in the Veteran’s claims file. This document was date stamped as received on November 2, 2005 and reflects that the VA Medical Center in Wilkes-Barre, Pennsylvania sought to verify the Veteran’s military service information and if he had any service-connected disabilities to determine his VA healthcare eligibility. A VA Form 21-526, Veteran’s Application for Compensation and/or Pension, is not of record showing a date stamp or confirming receipt by VA in 2005. The Veteran has submitted his copy of this document, but there is no verifiable evidence to confirm submission or receipt by VA of this claim in 2005. However, due to internal administrative error, the record also reflects that for a period prior to November 2009, the Veteran’s claim was filed under the incorrect file number by VA, with only the second digit differing from the Veteran’s correct file number. As such, the Board finds it appropriate to seek all records for this Veteran which may be in VA’s possession, yet filed under the incorrect claims file number, prior to reaching a determination on the present effective date claim. 3. A total disability rating due to individual unemployability With respect to the Veteran’s claim for a TDIU rating, the Board finds that the present grant of service connection for coronary artery disease may affect the claim for TDIU. Specifically, the Veteran does not currently meet the minimum schedular threshold of a combined 70 percent rating to qualify for a TDIU rating, yet the addition of a newly service-connected disability to the combined rating could affect the overall combined rating. 38 C.F.R. § 4.16. Furthermore, as the Veteran contends that his heart disease is a primary factor in his inability to obtain and maintain gainful employment, a thorough examination for rating purposes is necessary to have adequate evidence of the Veteran’s functional impairment presented by this disease. Such has not been conducted previously as this disability was not yet subject to service connection. Nonetheless, due to the procedural posture of these claims, the Board finds these issues to be inextricably intertwined and thus it would be premature to rule on the TDIU rating prior to a rating being established for the Veteran’s now service-connected coronary artery disease. To this end, the Veteran has also identified relevant outstanding private treatment records in a July 2018 physician’s letter. A remand is required to allow VA to obtain authorization and request these records as they may relate directly to his claimed unemployability. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Lehigh Valley Physician Group, as identified in the July 2018 correspondence, as well as any private cardiologist from whom he wishes VA to obtain records to support his TDIU claim. Make two requests for the authorized records from any properly identified facility unless it is clear after the first request that a second request would be futile. 2. Obtain any VA records for this Veteran which may remain filed under the incorrect claims file number previously used (one digit different from the current number), as identified in the February 2010 Report of Contact. Document the search for this information, including any negative response and/or finding of unavailability within the claims file. 3. Obtain an addendum opinion whether the Veteran’s left knee degenerative joint disease is at least as likely as not related to the June 1969 fall documented in the service treatment records. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDonald