Citation Nr: 18158535 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-55 160 DATE: December 18, 2018 ORDER Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a peripheral vestibular disorder, to include as secondary to posttraumatic stress disorder (PTSD), is denied. Entitlement to service connection for residuals of a traumatic brain injury (TBI) is denied. REMANDED Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to service connection for sleep apnea, to include as secondary to PTSD, is remanded. Entitlement to service connection for hypertensive vascular disorder, to include as secondary to PTSD and diabetes mellitus, is remanded. Entitlement to service connection for a skin disorder, to include skin cancer and actinic keratosis, to include as due to herbicide agent exposure, to include as secondary to diabetes mellitus, is remanded. FINDINGS OF FACT 1. The Veteran does not have a current left knee disorder. 2. The Veteran does not have a current peripheral vestibular disorder. 3. The Veteran does not have a current TBI or residuals of a TBI. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 307, 309 (2018). 2. The criteria for service connection for a peripheral vestibular disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. The criteria for service connection for residuals of a TBI have not been met. 38 U.S.C. §§ 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the U.S. Army from February 1967 to January 1969, to include service in Vietnam. This appeal comes to the Board of Veterans’ Appeals (Board) from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board notes that after the RO issued a statement of the case (SOC) in September 2016, but before the RO certified the claims to the Board in November 2018, additional evidence was added to the record. When the AOJ receives pertinent evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the SOC or SSOC, it must prepare an SSOC addressing that evidence. 38 C.F.R. § 19.31 (2017). As this new evidence is relevant to the claims being remanded, upon remand the RO will have the opportunity to issue an SSOC regarding these issues as required. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2018). Service connection may 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) (2018). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2018). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Id. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2018). A claimant “can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a).” Walker, 708 F.3d at 1337. Service connection may nonetheless be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Furthermore, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a peripheral vestibular disorder, to include as secondary to PTSD. 3. Entitlement to service connection for residuals of a TBI. The Veteran is seeking service connection for a left knee disability, peripheral vestibular disorder, and residuals of a TBI. The Veteran contends that he fell 12 feet from a helicopter while he was stationed in Vietnam in April 1968 during a combat assault. He landed on his head and shoulder. The Veteran contends that his right shoulder condition, left knee, and TBI are a result of this incident. He also asserts that he has vertigo and dizziness due to the fall. Further, the Veteran’s left knee disorder stems from the stress and physically strenuous activity of being an infantryman. He attributes his left knee damage to being on military service patrol in the jungle while carrying a 90-pound pack on his back. See January 2014 Statement in Support of Claim, May 2015 Notice of Disagreement (NOD), October 2016 VA Form 9, and November 2018 Appellate Brief. The Board notes that the Veteran is competent to report injuries and symptoms relating to a disability. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (holding that a veteran is competent to report on that of which he or she has personal knowledge). The Veteran’s DD 214 shows that his military occupational specialty was Weapons Infantryman. Also, the Veteran’s DD Form 214 shows that he served in Vietnam and received several service medals, to include the National Defense Service Medal and the Vietnam Campaign Medal, along with other awards. Therefore, the Board finds the Veteran’s statements to be credible regarding the circumstances of his injuries that occurred while in service. Service treatment records are silent for any signs, symptoms, complaints, or diagnoses of a left knee disorder, peripheral vestibular disorder, or residuals of a TBI. The Veteran’s May 1966 Report of Medical Examination and Report of Medical History for enlistment were silent for any such disabilities. Moreover, the Veteran’s January 1969 Report of Medical Examination for separation is also silent for any such disabilities. On the Veteran’s January 1969 Report of Medical History for separation, the Veteran checked “no” to having “swollen or painful joints,” a “history of a head injury,” “frequent or severe headache[s],” “trick or locked knee,” “loss of memory or amnesia,” and to having “periods of unconsciousness.” The main question to be addressed in this claim is whether the Veteran has a current disability for which service connection may be granted. Post service treatment records are also silent for any signs, symptoms, complaints, or diagnoses of a left knee disability, peripheral vestibular disorder, or residuals of a TBI. In October 2014, the Veteran was afforded a VA examination for ear conditions. He was examined for vertigo and dizziness. The VA examiner noted that the Veteran had not been diagnosed with an ear or peripheral vestibular condition. The examiner noted that the Veteran denied symptoms related to the condition, and that a diagnosis could not be endorsed at the time. The VA examiner opined that the Veteran’s vertigo and dizziness were less likely as not incurred in or caused by the in-service injury, event, or illness during military service because the Veteran denied experiencing vertigo and dizziness. In October 2014, the Veteran was afforded a VA examination for TBI. The VA examiner concluded that the Veteran did not have any residuals of a TBI. There were no records in the c-file to indicate that the Veteran sustained a head injury during service. The Veteran’s report of medical history dated January 8, 1969, showed no history of a head injury or period of unconsciousness. Residuals related to TBI were also not present in the claims file during examination. There was no diagnosis made at the examination. The VA examiner opined that the Veteran’s TBI was not incurred or caused by the in-service injury, event or illness during military service. In October 2014, the Veteran was afforded a VA examination for his knees. The VA examiner noted that the Veteran developed left knee pain 5 years ago and had an MRI that revealed deterioration of the cushion inside. However, range of motion testing revealed that the Veteran’s left knee flexion was normal. The VA examiner opined that the Veteran’s left knee condition was less likely than not incurred in or caused by an in-service injury or event during service. There was no mention of a left knee condition in the Veteran’s medical records. In the exam, the Veteran presented a normal left knee without any limitations. The Veteran’s left knee was within normal limits on the examination. The VA examiner did not render a clinical diagnosis. Although the VA examiner did not fully consider the Veteran’s lay statements regarding the nature of his in-service injuries and relied on the fact that there was no medical evidence during his military service that documented such injuries, this does not diminish the probative value of these medical opinions. In fact, the medical evidence of record supports the fact that the Veteran does not currently have a left knee disorder, a TBI or residuals of a TBI, or a peripheral vestibular disorder, to include pain with resulting functional limitation. The medical record is lacking for any current complaints, signs, symptoms, or treatment for such disabilities. Even if the VA examiner considered the Veteran’s lay statements regarding his in-service injuries, an essential element of the theory for direct service connection would still be missing, which is that of a current disability. Absent persuasive competent and credible evidence of a diagnosis of a disability, there can be no valid claim of service connection for such a disability. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the claims for service connection for a left knee disorder, residuals of a TBI, and a peripheral vestibular disorder must be denied. The preponderance of the evidence is against the claims, and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b) (2012). REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disorder is remanded. The Veteran is seeking service connection for a right shoulder disorder. The Veteran contends that his current right shoulder disorder is related to a fall he had from a helicopter while he was in Vietnam in April 1968. See January 2014 Statement in Support of Claim, May 2015 NOD, October 2016 VA Form 9, and November 2018 Appellate Brief. Most recently, in September 2016, the Veteran was afforded a VA examination for his shoulder condition. The VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that although the Veteran reported falling from a hovering helicopter at approximately 12 feet above ground during Vietnam, there was no evidence in the medical records provided of the Veteran being evaluated for a right shoulder condition during military service. Furthermore, the condition was not noted on his separation examination conducted on January 8, 1969. Therefore, the examiner opined that the current right shoulder condition was less likely than not related to military service. The Board finds that a remand is warranted for an addendum opinion. Although the VA examiner noted the Veteran’s report of the accident in service, the VA examiner seemed to disregard the Veteran’s statements merely because there was no medical evidence showing that the Veteran was evaluated for his right shoulder in service. Thus, the examiner relied on the absence of evidence to support his conclusion. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that a VA examination was inadequate because the examiner failed to comment on the Veteran’s report of an in-service injury and relied on the absence of evidence in the service treatment records to provide a negative opinion); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (finding that the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence of record, but that the lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible). The Board finds the Veteran’s statements regarding the incident in service to be credible. Therefore, a remand is warranted for a new VA addendum opinion to address this matter. 2. Entitlement to service connection for sleep apnea, to include as secondary to PTSD, is remanded. In October 2014, the Veteran underwent a VA examination for sleep apnea. The VA examiner concluded that the Veteran did not have a diagnosis of sleep apnea and opined that the claimed condition was less likely than not related to his military service. The VA examiner stated that there was no sleep study confirming a clinical diagnosis of a sleep apnea condition. However, VA treatment records reveal that in October 2014, the Veteran had, in fact, had a sleep study performed and was diagnosed with severe obstructive sleep apnea. This renders the October 2014 VA medical opinion inadequate because it did not consider the sleep study. Therefore, on remand, the RO should obtain an addendum medical opinion to determine whether the Veteran’s currently diagnosed sleep apnea is related to his military service, to include as secondary to his PTSD. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 3. Entitlement to service connection for hypertensive vascular disorder, to include as secondary to PTSD and diabetes mellitus, is remanded. On the Veteran’s November 2016 VA examination for diabetes mellitus, the VA examiner opined that the Veteran’s diabetes mellitus permanently aggravated his hypertension. However, no further rationale was provided. On remand, the RO should obtain an addendum opinion that provides an adequate rationale as to why the Veteran’s diabetes mellitus was considered to have aggravated his hypertension. Additionally, the RO should obtain an opinion on whether the Veteran’s hypertension is secondary to his PTSD. Further, an opinion should be obtained for the theory of direct service connection, as the October 2014 opinion addressing this issue is inconclusive because the VA examiner stated that the etiology of the Veteran’s hypertension was unknown. 4. Entitlement to service connection for a skin disorder, to include skin cancer and actinic keratosis, to include as due to herbicide agent exposure, to include as secondary to diabetes mellitus, is remanded. The Veteran is seeking service connection for a skin disorder, to include skin cancer and actinic keratosis, to include as due to herbicide agent exposure and secondary to diabetes mellitus. The Veteran contends that he was exposed to severe hot weather and hot sun while in Vietnam and he was exposed to Agent Orange. He asserts that these caused his current skin conditions. See August 2013 NOD. The Veteran’s DD Form 214 shows that he served in the Army from February 1967 to January 1969. He also had service in Vietnam during that time period. Thus, the Board presumes that the Veteran has been exposed to herbicide agents. See 38 C.F.R. § 3.307(a)(6)(iii) (2018). A June 2013 private treatment record shows that the Veteran was diagnosed with squamous cell carcinoma and actinic keratosis. In May 2017, the Veteran was afforded a VA examination for skin disease. The VA examiner diagnosed the Veteran with actinic keratosis. The VA examiner noted that the Veteran also had multiple skin cancer resections. The VA examiner concluded that the Veteran’s actinic keratosis was secondary to sunlight (UV) exposure and not his alleged diabetes. A review of the record shows that a VA medical opinion has not been rendered on whether the Veteran’s diagnosed skin disabilities are related to his military service, to include exposure to herbicide agents and sunlight and hot weather conditions. Therefore, on remand, the RO should obtain an addendum opinion to address these matters. The matters are REMANDED for the following action: 1. Obtain any pertinent, outstanding VA treatment or private treatment records and associate with the claims file. 2. Following completion of the above, obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran’s right shoulder disorder. If an opinion cannot be provided without affording the Veteran a VA examination, then a VA examination should be provided. The record, including a copy of this remand, must be made available to and reviewed by the examiner. The VA examiner should address the following: (a.) Whether the Veteran’s right shoulder disorder is at least as likely as not (50 percent or greater probability) related to his military service, to include his falling from a helicopter. See January 2014 Statement in Support of Claim, May 2015 NOD, October 2016 VA Form 9, and November 2018 Appellate Brief. Absence of evidence alone is not sufficient to undermine the Veteran’s competent reports of in-service shoulder injury. (b.) A rationale for all requested opinions should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in the medical community at large and not those of the particular examiner. 3. Obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran’s hypertension. The Agency of Original Jurisdiction should request the same examiner who conducted the November 2016 examination for diabetes to provide an opinion, is possible. However, if that examiner is not available, then another appropriate examiner should be found. If an opinion cannot be provided without affording the Veteran a VA examination, then a VA examination should be provided. The record, including a copy of this remand, must be made available to and reviewed by the examiner. The VA examiner should address the following: (a.) Whether the Veteran’s hypertension is at least as likely as not (50 percent or greater probability) of service onset or otherwise related to his military service or was present to a compensable degree within one year of service discharge. (b.) Whether the Veteran’s hypertension is at least as likely as not (50 percent or greater probability) caused by his service-connected PTSD. (c.) Whether the Veteran’s hypertension is at least as likely as not (50 percent or greater probability) aggravated by his service-connected PTSD. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. (d.) Whether the Veteran’s hypertension is at least as likely as not (50 percent or greater probability) caused by his service-connected diabetes mellitus. (e.) Whether the Veteran’s hypertension is at least as likely as not (50 percent or greater probability) aggravated by his service-connected diabetes mellitus. See November 2016 VA examination for diabetes mellitus. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. (f.) A rationale for all requested opinions should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in the medical community at large and not those of the particular examiner. 4. Obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran’s sleep apnea. If an opinion cannot be provided without affording the Veteran a VA examination, then a VA examination should be provided. The record, including a copy of this remand, must be made available to and reviewed by the examiner. The VA examiner should address the following: (a.) Whether the Veteran’s diagnosed sleep apnea is at least as likely as not (50 percent or greater probability) related to his military service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed sleep apnea was caused by his service-connected PTSD. (c.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed sleep apnea was aggravated (any increase beyond natural progression) by his service-connected PTSD. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. (d.) The VA examiner should comment upon the medical articles submitted by the Veteran in May 2015 regarding the relationship between PTSD and sleep apnea. See May 2015 Correspondence. The examiner should also consider and comment upon the medical article referenced in the November 2018 Appellate Brief regarding the relationship between sleep apnea and PTSD. (e.) A rationale for all requested opinions should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in the medical community at large and not those of the particular examiner. 5. Obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran’s skin disability, to include actinic keratosis and skin cancer. If an opinion cannot be provided without affording the Veteran a VA examination, then a VA examination should be provided. The record, including a copy of this remand, must be made available to and reviewed by the examiner. The VA examiner should address the following: (a.) Whether the Veteran’s skin disabilities, to include actinic keratosis and skin cancer, are at least as likely as not (50 percent or greater probability) related to his military service, to include exposure to hot weather and sunlight and exposure to herbicide agents while he served in Vietnam. The Veteran is presumed to have been exposed to herbicide agents while in service. See 38 C.F.R. § 3.307(a)(6)(iii) (2018). (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s skin disabilities, to include actinic keratosis and skin cancer, were caused by his service-connected diabetes mellitus. (c.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s skin disabilities, to include actinic keratosis and skin cancer, were aggravated (any increase beyond natural progression) by his service-connected diabetes mellitus. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. (d.) A rationale for all requested opinions should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in the medical community at large and not those of the particular examiner. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel