Citation Nr: 1806524 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-12 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a left knee disability, to include left knee strain, status post arthroscopy and meniscal tear and left knee degenerative joint disease. 2. Entitlement to service connection for a right knee disability, to include right knee strain and right knee degenerative joint disease. 3. Entitlement to service connection for a neck disability, to include as secondary to a left knee disability. 4. Entitlement to service connection for a back disability, to include as secondary to a left knee disability. 5. Entitlement to service connection for a bilateral foot disability, to include as secondary to a bilateral knee disability and/or back disability. 6. Entitlement to service connection for basal cell carcinoma, to include as due to herbicide agent exposure and/or sunlight exposure. 7. Entitlement to a total disability rating based on individual unemployability (TDIU). 8. Entitlement to special monthly compensation (SMC) at the housebound rate under 38 U.S.C. § 1114(s). REPRESENTATION Veteran represented by: James T. Curfman, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Asante, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1967 to September 1969, which included combat service in the Republic of Vietnam and receipt of four Bronze Star Medals. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at hearings before Decision Review Officers (DROs) in March 2015 and November 2015. During the March 2015 hearing, the Veteran's representative expressed his desire to withdraw from appeal the issues of entitlement to service connection for ischemic heart disease and for shortness of breath. As such, these claims are withdrawn and are not before the Board. See 38 C.F.R. § 20.204 (2017). The RO has construed the Veteran's left knee disability claim as left knee strain, status-post arthroscopy and meniscal tear with degenerative changes and his right knee disability claim as right knee strain. However, in light of the Veteran's assertions and other evidence of record, the Board has recharacterized his knees claims as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The record also reflects that after the final Supplemental Statement of the Case (SSOC) the Veteran submitted additional relevant evidence to the Board. A subsequent SSOC is not necessary, as set forth in 38 U.S.C. § 7105(e) (2012). The issues of entitlement to service connection for a left knee disability, a right knee disability, and entitlement to a TDIU are addressed below. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's left knee disability is a result of his combat service. 2. The Veteran's right knee disability is a result of his combat service. 3. The Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected left knee and right knee disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability are met. 38 U.S.C. §§ 1110, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(d) (2017). 2. The criteria for entitlement to service connection for a right knee disability are met. 38 U.S.C. §§ 1110, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(d) (2017). 3. The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veteran's Contentions The Veteran asserts that he incurred his right and left knee disabilities during combat service in Vietnam. Specifically, he maintains that continuously jumping on and off a "Duster" tank carrying heavy ammunition as a part of his military occupational specialty (MOS) as an Air Defense Artillery Crewman resulted in multiple insults to his knees. Further, he asserts that one incident in particular where he was thrown off the tank onto the ground, resulted in pain and swelling in his knees and that he has had continuous knee problems since service. See March 2012 Veteran Statement in Support of Claim, May 2012 VA examination report, and March 2015 DRO Hearing Transcript at 8. He also maintains that he is no longer able to maintain a substantially gainful occupation due to his service-connected disabilities. See March 2012 Veteran Statement in Support of Claim and March 2015 DRO Hearing Transcript at 30. II. Applicable Law i. 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). If the Veteran engaged in combat with the enemy, and it is claimed that a disease or injury was incurred in such combat, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Even where the combat presumption applies, a veteran must still show that a causal relationship exists between the present disability and the in-service injury or disease. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). Every reasonable doubt must be resolved in the Veteran's favor, and service connection of injuries or diseases linked to combat may be rebutted only by clear and convincing evidence. 38 U.S.C. § 1154(b). 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). ii. TDIU A TDIU may be assigned where the schedular rating is less than total if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R §§ 3.340, 3.341, 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). The determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than medical question. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See id. III. Analysis i. Service Connection-Bilateral Knees The Veteran has current diagnoses of left knee strain, status-post arthroscopy with meniscal repair, a right knee strain, and bilateral knee degenerative joint disease (arthritis). See May 2012 VA examination report and February 2013 private treatment record. Thus, element one for both knees is met. Regarding element two, in-service incurrence of a disease or injury, there is no evidence of record to support in-service incurrences of diseases or injuries for either knee. Indeed, the Veteran specifically denied swollen or painful joints at service separation and his lower extremities examination was normal. See July 1969 service treatment record (STR). However, since the Veteran has reported that he incurred his bilateral knee injuries as a result of strenuous jumping on and off a tank and his report is consistent with the circumstances of his combat service, he is entitled to the combat presumption, unless there is clear and convincing evidence to rebut the combat presumption. 38 U.S.C. § 1154(b). The Board notes that there is an April 1997 statement from the Veteran that the only injury he incurred during service is a burned hand. However, this statement does not meet the high threshold of clear and convincing evidence necessary to rebut the combat presumption. Thus, not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, at 998-99. Therefore, element two for both knees is also met. As to element three, nexus, there are conflicting medical opinions of record. A May 2012 VA examination report is inadequate as the VA examiner rendered his opinion without affording the Veteran the benefit of the reasonable doubt concerning the combat presumption and additionally cited the lack of medical problems noted at separation from service as reason for his negative opinion. Thus, the examination report will not be considered. A June 2015 VA examination report opined that it was less likely than not that the Veteran's bilateral knee conditions are due to his conceded in-service combat injuries. The VA examiner relied on the lack of evidence in the Veteran's STRs regarding any knee injuries and the fact that there are no knee complaints "until 2010 where it clearly shows he stepped into a hole and injured his knee, which eventually required arthroscopy due to a meniscus injury," to support his conclusion. Additionally, the examiner noted that the Veteran had degenerative disease in numerous areas of his body and that this is a natural progression of age; that his morbid obesity plays into the "wear and "tear" of major joints over time; and that his previous occupations have been standing type work over the years, as additional issues and risk factors that more likely caused the Veteran's bilateral knee disabilities. The Board finds that the examiner relied on an inaccurate factual history as there are complaints of knee pain and the use of a knee brace before 2010. See July 2009 VA treatment record. Further, the August 2010 private treatment record that the VA examiner referenced regarding this left knee injury, was later clarified by Dr. C. E. W. who stated that the Veteran had knee pain prior to this injury and that the meniscal tear was not the sole cause of his knee pain and impairment. See January 2016 private doctor statement. Lastly, it is unclear whether or not the VA examiner specifically provided an etiology opinion on the Veteran's right knee strain diagnosis. Thus, the Board assigns this opinion low probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). On the other hand, Dr. I. C. W. took the Veteran's circumstances of combat into consideration and his medical knowledge regarding the progression and treatment of arthritis, and concluded that the Veteran's bilateral knee arthritis is as likely as not related to his in-service combat injuries. Albeit quite brief, Dr. I. C. W. provided an understandable and rational basis for the opinion, and relied on an accurate history. See Nieves-Rodriguez, at 302 (2008). Further, the Board finds nothing in the record to doubt the qualifications of Dr. I. C. W., and thus finds this medical opinion to be competent and affords it high probative value. Therefore, the medical evidence of record is in at least relative equipoise, thus entitling the Veteran to the benefit of the reasonable doubt. Accordingly, element three for both knees is met. In sum, the most probative evidence of record reflects that the Veteran has current bilateral knee disabilities, that he presumptively incurred bilateral knee injuries during combat service, and that his current bilateral knee arthritis is related to those in-service injuries. Thus, service connection for both claims is warranted. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(d). ii. TDIU The Veteran is service-connected for the following disabilities: non-Hodgkin's lymphoma with chronic lymphocytic leukemia rated as 100 percent disabling since November 2, 2016; posttraumatic stress disorder (PTSD) rated as noncompensably disabling from May 1, 2005, 50 percent disabling from September 8, 2010, and 70 percent disabling from March 19, 2012; tinnitus rated as 10 percent disabling from February 3, 1997; bilateral hearing loss rated as noncompensably disabling from February 3, 1997 and 10 percent disabling from July 30, 2008; and left knee and right knee disabilities, not yet rated. His combined disability rating was 80 percent from March 19, 2012, until a 100 percent rating came into effect since November 2, 2016. Thus, the schedular criteria for a TDIU are met prior to November 2, 2016. See 38 C.F.R. § 4.16(a)(2). The Veteran has a high school diploma with prior employment in manufacturing. His last known full-time employment was in December 1995 as a factory worker for Eaton Corporation, which the Veteran stated he left due, in part, to the work being tough on his knees. See March 2012 VA Form 21-8940 and March 2015 DRO Hearing Transcript at 30. The May 2012 VA examiner found that the Veteran's knees impacted his ability to work by preventing him from standing or walking for prolonged periods of time. Additionally, the Veteran competently and credibly reported during the examination that he experienced bilateral knee pain with prolonged sitting and walking. See May 2012 VA examination report. He also indicated that his last time working was doing lawn care five years prior (marginal employment), in which he was able to "muster himself on the rider." Id. Thus, physical employment is precluded due to the Veteran's service-connected right knee and left knee disabilities, and as noted above, the entirety of his work history involved manual labor. Thus, the Board finds the Veteran is unable to secure or follow substantially gainful employment and a TDIU is established. 38 U.S.C. §§ 1155; 38 C.F.R §§ 3.340, 3.341, 4.16(a). ORDER Entitlement to service connection for a left knee disability, to include left knee strain, status-post arthroscopy and meniscal tear and left knee degenerative joint disease, is granted. Entitlement to service connection for a right knee disability, to include right knee strain and right knee degenerative joint disease, is granted. Entitlement to a TDIU is granted. REMAND Regarding the Veteran's neck and back disabilities, the Veteran asserts that he incurred these disabilities as a result of his MOS during combat service, specifically from an incident where he tried to jump back on a tank and was slammed against a track of the tank, injuring his neck and back. Further, he asserts that his general duties from his MOS such as lifting and maneuvering heavy ammunition, constantly jumping on and off a tank, and riding atop of the tank over terrains that was constantly starting, stopping, twisting, and pivoting, were very strenuous on his neck and back and conducive to neck and back injuries. See March 2012 and July 2014 Veteran Statements in Support of Claim and March 2013 Notice of Disagreement (NOD). Alternatively, he asserts that his neck and back disabilities are secondary to his left knee disability. The Veteran was afforded a VA examination in May 2012 and the VA examiner opined it was less likely than not that the Veteran's neck and back disabilities incurred in or caused by "being thrown to his back and jumping off of a tank". The Board previously deemed the VA examination report as inadequate due to the examiner basing his negative opinion on silent medical problems at separation from service and failing to afford the Veteran the reasonable doubt concerning the combat presumption. Thus, an addendum opinion that adequately takes into consideration the combat presumption is warranted. Lastly, as service connection for the Veteran's left knee disability was granted in the decision portion above, an addendum opinion on secondary service connection is also warranted on remand. As to the Veteran's bilateral foot disability, the Veteran asserts that he had flat feet prior to service and that in combination with conditions of his military service caused his bilateral foot disability. See March 2012 Veteran Statement in Support of Claim. Specifically, he maintains that his bilateral foot condition was incurred during service due to duties of his MOS, specifically carrying heavy ammunition and jumping off a tank, and that his bilateral foot pain began in-service and has continued post-service. Lastly, he asserts that his bilateral foot condition is also secondary to his bilateral knee and/or back disabilities. See id.; see also May 2012 VA examination report. Regarding the Veteran's pre-existing flat feet contention, there is a rebuttable presumption of soundness unless a condition is noted at entry. The presumption of soundness may be rebutted by clear and unmistakable evidence that flat feet both existed prior to service and was not aggravated by such service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C. § 1153. Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. Wagner, 370 F.3d at 1096; 38 U.S.C. § 1153. There is no notation of flat feet on the Veteran's entrance examination or anywhere in his STRs. The only indications that the Veteran had flat feet prior to service are lay statements from the Veteran and his ex-wife. See March 2012 Veteran Statement in Support of Claim and July 2014 Ex-Wife Statement. Currently, the Veteran has a diagnosis for bilateral foot strain and his STRs indicate a complaint of bilateral foot pain and a possible stress fracture. See May 2012 VA examination report and October 1967 STR. In a May 2012 VA examination report, the VA examiner concluded that there was no evidence to support the Veteran's bilateral foot condition as being related to his military service. In support of his opinion, the examiner reasoned that the Veteran's history of bilateral foot pain apparently resolved in service and no further care was noted in his STRs. However, he failed to take into consideration the combat presumption and it is unclear whether or not the Veteran was examined specifically for flat feet. Further, the examiner did not render an opinion on secondary service connection, noting the Veteran was not service-connected for bilateral knee and/or back disabilities. However, as previously noted this decision granted service connection for his right knee and left knee disabilities. Lastly, further analysis is required to determine whether the Veteran had flat feet that both clearly and unmistakably pre-existed service or was not aggravated by service. Thus, a new VA foot examination is warranted to address these questions. As to the Veteran's skin disability, the Veteran asserts that the basal cell carcinoma located on his nose is a result of herbicide agent exposure and/or sunlight exposure in Vietnam. See June 2012 Veteran Statement, March 2013 NOD, and November 2015 DRO Hearing Transcript at 3. The Veteran was given a VA skin diseases examination in October 2017 however, the examiner did not opine on whether or not the Veteran's basal cell carcinoma was related to his conceded in-service exposure to herbicide agents and/or sunlight. Thus, an addendum opinion is warranted on remand. Any outstanding VA treatment records should also be secured. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Then schedule the Veteran for a VA foot examination, to include an examination for flat feet (pes planus), to determine the nature and etiology of any current foot condition. 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. The examiner is requested to address the following: (a) Diagnose any current foot condition. (b) For each foot condition diagnosed, to include bilateral foot strain and flat fleet, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that such disability had its onset during service or is otherwise related to service, to include as the result of the cumulative impact of the physical activities associated with the Veteran's MOS including carrying heavy ammunition and constantly jumping on and off a tank. In addressing this question, the examiner is advised that in-service injuries to the Veteran's bilateral feet are established by virtue of the combat presumption, despite no documentation of the same. Failure to concede in-service bilateral foot injuries and the resulting disabilities will render the opinion inadequate. (c) For each foot condition diagnosed, whether it is at least as likely as not (50 percent or greater probability) that such disability: (i) was caused by his service-connected bilateral knee disability; or (ii) has been aggravated (worsened) by his service-connected bilateral knee disability. If examiner diagnoses flat feet, the examiner must opine as to whether there is clear and unmistakable evidence that the disorder existed prior to service. If such evidence is found, the examiner must then address whether there is clear and unmistakable evidence that flat feet was not aggravated (worsened) during military service. Additionally, if the examiner finds that the Veteran's flat feet had its onset during or is otherwise related to service, the examiner must opine as to whether any other diagnosed foot disability: (i) was caused by service-connected flat feet; or (ii) has been aggravated (worsened) by service-connected flat feet. A complete rationale must be provided for all opinions expressed. If unable to provide a medical opinion, 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. 3. Then refer the claims file to the May 2012 VA examiner (or another qualified physician, if unavailable) for preparation of an addendum opinion regarding his neck disability. The entire claims file, including a copy of this remand, must be made available to the examiner, and the examiner should confirm that such records were reviewed. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The examiner is requested to address the following: (a) Whether it is at least as likely as not (50 percent or greater probability ) that the Veteran's neck disability had its onset during service or is otherwise related to service, to include as the result of being slammed against the track of a tank and/or the cumulative impact of the physical activities associated with his MOS including lifting and maneuvering heavy ammunition, constantly jumping on and off a tank, and riding on top of the tank over terrains that was constantly starting, stopping, twisting, and pivoting. In addressing this question, the examiner is advised that in-service injuries to the Veteran's neck are established by virtue of the combat presumption, despite no documentation of the same. The examiner must acknowledge and comment on the cumulative impact of the physical activities associated with his MOS as cited above. Otherwise, the opinion will not be adequate. (b) Whether it is at least as likely as not (50 percent or greater probability) that his neck disability: (i) was caused by his service-connected left knee disability; or (ii) has been aggravated (worsened) by his service-connected left knee disability. A complete rationale must be provided for all opinions expressed. If unable to provide a medical opinion, 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. 4. Then refer the claims file to the May 2012 VA examiner (or another qualified physician, if unavailable) for preparation of an addendum opinion regarding his back disability. The entire claims file, including a copy of this remand, must be made available to the examiner, and the examiner should confirm that such records were reviewed. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The examiner is requested to address the following: (a) Whether it is at least as likely as not (50 percent or greater probability ) that the Veteran's back disability had its onset during service or is otherwise related to service, to include as the result of being slammed against the track of a tank and/or the cumulative impact of the physical activities associated with his MOS including lifting and maneuvering heavy ammunition, constantly jumping on and off a tank, and riding on top of the tank over terrains that was constantly starting, stopping, twisting, and pivoting. In addressing this question, the examiner is advised that in-service injuries to the Veteran's back are established by virtue of the combat presumption, despite no documentation of the same. The examiner must acknowledge and comment on the cumulative impact of the physical activities associated with his MOS as cited above. Otherwise, the opinion will not be adequate. (b) Whether it is at least as likely as not (50 percent or greater probability) that his back disability: (i) was caused by his service-connected left knee disability; or (ii) has been aggravated (worsened) by his service-connected left knee disability. If the examiner finds that his back disability is service-connected, please opine on whether the Veteran's bilateral foot disability: (i) was caused by his service-connected back disability; or (ii) has been aggravated (worsened) by his service-connected back disability. A complete rationale must be provided for all opinions expressed. If unable to provide a medical opinion, 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. 5. Then refer the claims file to the October 2017 VA examiner (or another qualified physician, if unavailable) for preparation of an addendum opinion. The entire claims file, including a copy of this remand, must be made available to the examiner, and the examiner should confirm that such records were reviewed. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's basal cell carcinoma had its onset in service or is otherwise related service, to include conceded in-service exposure to herbicide agents and/or sunlight exposure therein. A complete rationale must be provided. If unable to provide a medical opinion, 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. 6. Then, after taking any additional development deemed necessary, readjudicate the issues on appeal. The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs