Citation Nr: 18156009 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 17-46 537 DATE: December 6, 2018 ORDER Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for residuals of a traumatic brain injury is denied. 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 a right arm injury, with severed tendons, is denied. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for bladder cancer, to include due to radiation exposure is remanded. Entitlement to service connection for prostate cancer, to include due to radiation exposure is remanded. FINDINGS OF FACT 1. The Veteran does not have a traumatic brain injury disability that is related to service. 2. Neither a chronic bilateral knee disorder nor a chronic right ankle disorder was shown inservice, arthritis of the knees and right ankle was not manifested to a compensable degree within one year of separation from active duty, and these disorders are not caused or worsened by a service connected disorder. 3. The service treatment records are silent for any right arm or shoulder disorder and there is no medical opinion linking any current disorder to service. CONCLUSIONS OF LAW 1. A right ankle disorder was not incurred in or aggravated by service, arthritis of the right ankle may not be presumed to have been so incurred, and a right ankle disorder was not caused and is not aggravated by a service connected disability. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 2. Residuals of a traumatic brain injury residuals were not incurred or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303. 3. A left knee disorder was not incurred in or aggravated by service, arthritis of the left knee may not be presumed to have been so incurred, and a left knee disorder was not caused and is not aggravated by a service connected disability. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 4. A right knee disorder was not incurred in or aggravated by service, arthritis of the right knee may not be presumed to have been so incurred, and a right knee disorder was not caused and is not aggravated by a service connected disability. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 5. A right arm disability is neither the result of disease or injury incurred in or aggravated by service, nor is it proximately due to or aggravated by a disability for which service connection has already been established. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from January 1951 to January 1953. This case is before the Board of Veterans’ Appeals (Board) from September 2015 and December 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018 the Veteran testified before the undersigned at a videoconference Board hearing. With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The Veteran has not received VA examination for some of his service connection claims. A VA medical examination or opinion is necessary if the information and evidence of record does not contain sufficient evidence to decide the claim, but there is: (A) competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (B) evidence establishing that the veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in 38 C.F.R. §§ 3.309 and 3.313, manifesting during an applicable presumptive period (provided the claimant has the required service or triggering event to qualify for that presumption); and (C) evidence indicating that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4)(i)(A)-(C). Part (C) could be satisfied by competent evidence showing post-service treatment for a condition, or other possible association with military service. 38 C.F.R. § 3.159 (c)(4)(i)(C)(ii). It is undisputed that the Veteran has current diagnoses involving the right ankle, shoulder and back, but there is no evidence indicating that these disorders are related to service. Competent evidence showing diagnoses of disabilities related to a traumatic brain injury and bilateral knee disorders are not contained in the record. As explained further below the Board finds there is no evidence of an event, injury or disease in service or an indication that the current disabilities may be related to service; instead the Board finds that there is a lack of competent and credible evidence on this matter. Therefore, no further examination or opinion pertaining to these disorders is necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service Connection VA disability compensation may be awarded if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. § 1110. To establish a right to compensation for a present disability, a Veteran 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 or aggravated during service” - the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309 (a) may be considered for service connection under 38 C.F.R. § 3.303 (b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Entitlement to service connection for arthritis may be presumed when such disability is shown to a degree of 10 percent or more within one year of the veteran's discharge from active duty. 38 U.S.C. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). This permits service connection not only for a disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation of a disability by a service-connected disability. See 38 C.F.R. § 3.310 (b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Right Ankle. The Veteran asserts that his current right ankle disability is related to an in-service right ankle injury. 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. A review of the service treatment records reveals that in September 1951 the claimant suffered pulled ligaments in his right ankle after falling down a flight of stairs. X-ray study revealed no bony pathology. A cast was applied, and he was hospitalized. After December 1951 no additional complaints, findings or diagnose of a right ankle disorder were made inservice. At his January 1953 separation examination the claimant’s lower extremities were clinically evaluated as normal. VA treatment records show the Veteran was not diagnosed with right ankle arthritis until 2015, over 60 years after his separation from service. In September 2015 and July 2017 VA examiners opined that the Veteran’s current right ankle arthritis was not at least as likely as not related to an in-service injury, event, or disease, including a ligament sprain. The rationale was that this disorder was more likely than not the result of age instead of an injury to the ankle in 1952 because it was more than 50 years after that injury that the Veteran sought medical attention. The examiner’s opinions are probative, because they are based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no competent evidence to the contrary. The Board concludes that, while the Veteran has a current diagnosis of right ankle arthritis, and while the evidence shows that an in-service right ankle injury occurred, the preponderance of the evidence weighs against finding that his current right ankle arthritis began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303(a), (d). While the Veteran is competent to report experiencing symptoms of ankle pain and weakness intermittently since service, he is not competent to provide a diagnosis or offer an opinion that his postservice symptoms and diagnosis are due to his inservice ankle sprain. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As there is no contrary medical nexus opinion, the preponderance of the evidence is against the claim for service connection for a right ankle disability. The claim is denied. Traumatic Brain Injury The Veteran contends that he suffered a traumatic brain injury when he fell from a pole during active duty and was knocked out. The service personnel records confirm that his military duties including climbing poles as a pole lineman. 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. Here, the Board concludes that the Veteran does not have a current diagnosis of residuals of a traumatic brain injury, and that he has not had such a diagnosis at any time during the pendency of the claim or recent to the filing of the claim. Hence, without evidence of a current disorder the claim must be denied. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). There is no evidence of traumatic brain injury or symptoms thereof in the Veteran’s service treatment records. Further, there is no evidence that the appellant currently suffers from such a disorder. While the Veteran contends his current symptoms are the residual of a traumatic brain injury in service, he does not have the specialized training needed to diagnose traumatic brain injury or determine whether particular symptoms are the result of any inservice brain injury. Jandreau, 492 F.3d at 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Diagnosing and determining the etiology of a traumatic brain injury requires medical testing and expertise. Accordingly, the appellant’s lay opinion as to whether he suffers from a traumatic brain injury disability is not competent medical evidence. Here, the most probative evidence demonstrates that the Veteran does not suffer from residuals of a traumatic brain injury. Further, even if the appellant suffers from residuals of a traumatic brain injury, there is no competent evidence that there is a connection between such a disorder and service. In sum, the Board finds that the weight of the evidence is against a finding that the Veteran has residuals of a traumatic brain injury that are related to service. Accordingly, the preponderance of the evidence is against the claim, and service connection for residuals of a traumatic brain injury must be denied. Bilateral knee disorders The Veteran contends that he has a current knee disorders that are due to, or aggravated by, an in-service injury. As above, the salient question 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 Veteran has residuals of a 2004 left knee replacement and while he argues that he has right knee arthritis, the preponderance of the evidence is against finding that any knee disorder began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303(a), (d). The Veteran has not submitted medical evidence linking any current knee disorder to his active duty service. Indeed, there is no evidence of a knee disorder in the Veteran’s service treatment records, no evidence that arthritis in either knee joint was compensably disabling within a year of his separation from active duty, and no evidence of a knee disorder for decades after the claimant left active duty. While the Veteran believes his knee disabilities are related to an in-service injury, event, or disease, including the fall noted in his records, he is not competent to provide a nexus opinion in this case. The etiology of any current knee disorder is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau. As a chronic knee disorder was not demonstrated inservice, as arthritis of the knees was not compensably disabling during the first year following the claimant’s separation from active duty, and as there is no competent evidence linking any current right knee disorder to service, the claims of entitlement to service connection for a bilateral knee disorder are denied. Right arm The Veteran contends that he has a current right arm condition that is due to, or aggravated by, an in-service injury. After reviewing the evidence of record the Board concludes that, while the Veteran has a current diagnosis of right shoulder osteoarthritis with a rotator cuff tear, the preponderance of the evidence is against finding that this disorder began during active service, or is otherwise related to an in-service injury, event, or disease. Hence, service connection will be denied. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303(a), (d). While argument has been presented that the Veteran’s right arm disability, with severed tendons, is related to a fall during service, the preponderance of the probative evidence weighs against findings that any in-service injury to the right arm and any current condition are connected. The service treatment records do not reveal any complaints, findings, or diagnoses of a right arm disorder. The Veteran’s January 1953 separation documents contain no complaints related to a right arm or shoulder disorder. Further, the Veteran has not submitted a nexus statement, from a competent source, that connects any current right arm or shoulder disorder to service to include an inservice fall. The Veteran underwent a shoulder MRI from Suffolk Magnetic Resonance Imaging PC in September 2007 following a fall in early August 2007. Once again, while the Veteran contends his current right arm, symptoms are the residual of an inservice injury, the appellant does not have specialized training sufficient to diagnose a right arm injury during service or determine whether any current symptoms are the result of a fall during service. Jandreau. In this regard, connecting a current arm/shoulder injury to service performed more than 60 years ago requires medical testing and expertise to diagnose. Accordingly, the claimant’s lay opinion as to whether his current right arm disability is related to service is not competent medical evidence. In sum, the weight of the evidence is against a finding that the Veteran has a right arm disability that is related to service. Accordingly, the preponderance of the evidence is against the claim, and service connection for a right arm disability must be denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND Back Injury. The Veteran contends that he has a lower back disability which was caused by an injury during his active duty service. At a July 2018 Board hearing, he testified that he fell down the stairs while on active duty and that this fall caused his current back disability. In support of his claim the Veteran has submitted two statements by Mark Sterling, M.D., which connect a current back disorder to service. The statements by Dr. Sterling explain that the chronicity of the Veteran’s symptoms and his private MRI findings are consistent with the injuries he is claimed to have sustained while on active duty and that his current injuries are more likely than not related to those incidents. In September 2015 a VA examiner opined that the appellant’s low back disorder, diagnosed as lumbar degenerative disc disease and lumbar arthrosis, was more likely related to his advanced age. The examiner, however, discounted without discussion the Veteran’s statements and relied on the absence of active duty evidence of a back injury. The opinion from September 2015 fails to properly consider the continuity of symptoms described by the Veteran. The examiner further included limited rationale for why a back injury was not related to his fall in service. A July 2017 VA examiner’s addendum opinion similarly lacks discussion of the Veterans history of back symptoms. This opinion points to a 50-year gap in between the injury as the reason the condition is less likely than not connected with service. The Veteran has not submitted any medical evidence of complaints related to his back during the period between the end of service and the filing of his claim. It is notable, however, that no attempt has been made to see if Dr. Sterling has any pertinent treatment records. Accordingly, further development is necessary and any and all private treatment records should be obtained. The Board also finds that a new examination is required. The submitted private examinations rely only on the Veteran’s diagnosis of a back injury in service and have limited rationale. Bladder and prostate cancer The Veteran asserts that his bladder cancer and prostate cancer were caused by exposure to ionizing radiation and/or unspecified chemicals during a period of three months from January to April 1952 while stationed in Eta Jima, Japan. Service connection for a disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. Davis v. Brown, 10 Vet. App. 209, 211 (1997). First, there are diseases that are presumptively service connected in “radiation-exposed veterans” under 38 U.S.C. § 1112 (c) and 38 C.F.R. § 3.309 (d). Second, if the condition at issue is a “radiogenic disease,” service connection can be established under 38 C.F.R. § 3.303 (d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311. Third, direct service connection can be established under 38 C.F.R. § 3.303 (d) by showing that the disease was incurred during or aggravated by service. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Presumptive service connection under 38 U.S.C. § 1112 (c) and 38 C.F.R. § 3.309 (d) is warranted for certain diseases present in a “radiation-exposed veteran.” A “radiation-exposed veteran” is one who participated in a “radiation-risk activity.” A “radiation-risk activity” is defined to mean the onsite participation in a test, or within six months of the test, involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki immediately after World War II, or presence at other certain specified sites. 38 C.F.R. § 3.309(d)(3). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. At the outset that the Veteran is not a “radiation exposed veteran” for purposes of 38 C.F.R. § 3.309 (d)(3). He did not participate in one of the specifically listed radiation-risk activities, such as on-site participation in an atmospheric detonation of a nuclear device, service in Hiroshima or Nagasaki between August 6, 1945 and July 1, 1946, or any other specified activity. The Veteran has also not asserted such participation. If a claimant does not qualify as a “radiation-exposed veteran” under 38 C.F.R. § 3.309 (d)(3) and/or does not suffer from one of the presumptive conditions listed in 38 C.F.R. § 3.309 (d)(2), a veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the veteran suffers from a “radiogenic disease” and claims exposure to ionizing radiation in service. “Radiogenic disease” means a disease that may be induced by ionizing radiation and includes certain enumerated diseases. 38 C.F.R. § 3.311 (b)(2). Prostate and bladder cancer are radiogenic diseases. 38 C.F.R. § 3.311 (b)(2)(xiii). In all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period of time, and it is contended that a disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose. 38 C.F.R. § 3.311 (a)(1). Here, the claims file reflects the Veteran has been diagnosed with prostate and bladder cancer, which are radiogenic diseases, and he contends that these diseases are result of exposure to ionizing radiation while in service. Thus, a dose assessment is necessary prior to adjudication of the claim. The provisions of 38 C.F.R. § 3.311 details the procedures for procuring dose estimates based on claimed exposure. In claims such as this section 3.311(a) requires that a request be made for any available records concerning the Veteran’s exposure to radiation. These records normally include but may not be limited to the Veteran’s Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service treatment records, and other records that may contain information pertaining to the Veteran’s radiation dose in service. All such records will be forwarded to the VA Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311 (a)(2)(iii). The matters are REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for a back disorder, bladder cancer, and prostate cancer since separation from active duty. After securing the necessary release, take all appropriate action to obtain any pertinent records. This specifically includes any records of treatment provided by Mark J. Sterling, M.D., of Suffolk Spine and Rehabilitation Medicine. If these records cannot be secured after two attempts inform the Veteran and provide him with the chance to submit any additional pertinent records. 2. After obtaining any outstanding medical treatment records, or after providing the appellant a reasonable period of time within which to respond, schedule the Veteran for a VA orthopedic examination to determine the etiology of any diagnosed low back disability. The examiner must review the VBMS and Virtual VA/Legacy files and should note that review in the report. The examiner must consider and address the lay statements and hearing testimony of record regarding a fall during service and continued symptoms of back pain. Following the examination the examiner must opine whether it is as likely as not (50 percent probability or greater) that any diagnosed low back disability is due to or related to active service. The term “at least as likely as not” means that the medical evidence both for and against conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. The physician is advised that the Veteran as a lay person is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. The physician is further advised, however, that while the absence of corroborating clinical records may NOT be the determinative factor, the terms competence and credibility are not synonymous. If there is a medical basis to doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A complete, well-reasoned rationale must be provided for any opinion offered. 3. The RO/AMC should make an attempt to verify the appellant’s alleged exposure to radiation and/or chemical hazards at Eta Jima in 1952. The RO/AMC should attempt to secure any Record of Occupational Exposure to Ionizing Radiation (DD Form 1141). All efforts made should be fully documented and negative responses should be included in the file if no records are found. 4. Thereafter provide the VA Under Secretary for Health access to the appellant’s VBMS and Virtual VA/Legacy files for preparation of a radiation dose estimate that fully takes into account the Veteran’s statements and testimony regarding his in-service, occupational exposure to radiation. The dose estimate must take into account and refect full consideration of the service medical and personnel records, the Veteran’s statements outlining his alleged radiation exposure and the Veteran’s hearing testimony. A copy of any letter sent to the Undersecretary for Health requesting a radiation dose estimate for the Veteran, and any reply, should be included in the claims file. 5. After the Undersecretary for Health responds with an updated radiation dose estimate for the Veteran, the AOJ should review that estimate and determine whether any additional development of this claim is required, to include whether it should be resent to the Undersecretary for Benefits for an updated opinion based on any change in evidence of record. A copy of any determination that additional development is required, to include any letter sent to the Undersecretary for Benefits requesting additional review of this claim, should be included in the claims file. 6. After the development requested above has been completed, the RO should again review the record. Any additional evident evidentiary or procedural development must be accomplished. The RO should then readjudicate the claims. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph Montanye, Associate Counsel