Citation Nr: 1807927 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 11-32 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a heart disability to include as secondary to exposure to herbicide agents. 2. Entitlement to service connection for a lumbar spine disability. 3. Entitlement to service connection for a bilateral hip disability. 4. Entitlement to service connection for a bilateral leg disability. 5. Entitlement to service connection for a left knee disability. 6. Entitlement to service connection for a right knee disability, to include as secondary to a left knee disability. 7. Entitlement to service connection for a bilateral ankle disability. 8. Entitlement to service connection for a cervical spine disability. 9. Entitlement to service connection for a right shoulder disability. ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to December 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal of March 2010 (all disorders except a heart disability) and May 2011 (heart disability) rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing, but in September 2012 he withdrew his request for a hearing. There is no request for a hearing pending. In April 2017, the Board remanded these issues for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). All issues except entitlement to service connection for a heart, lumbar spine, and bilateral hip disabilities 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 weight of evidence is against a finding that the Veteran currently has or has had a heart disability during the pendency of this appeal. 2. The weight of the evidence is against findings that a lumbar spine disability was demonstrated in-service, that lumbar spine arthritis was compensably disabling within a year of separation from active duty, or that there is a nexus between the current diagnosis of a lumbar spine disability and service, to include parachute jumping. 3. The weight of evidence is against a finding that the Veteran currently has or has had a bilateral hip disability during the pendency of this appeal. CONCLUSIONS OF LAW 1. A heart disability was not incurred in service, and a heart disability may not be presumed to have been so incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(e) (2017). 2. A lumbar spine disability was not incurred in service, and lumbar spine arthritis may not be presumed to have been so incurred in service. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. A bilateral hip disability was not incurred in service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran has not raised any issues with the duty to notify or duty to assist other than a request for VA examinations, which was made to prior to the April 2017 Board remand. See Scott, 789 F.3d at 1381 (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Governing Law and Regulation Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active duty. See 38 U.S.C. § 1110. Service connection may also be warranted 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). In order to establish service connection for the claimed disorder, there must be (1) medical 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) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. Ischemic heart disease is listed under that section as one of these diseases. The laws and regulations pertaining to Agent Orange exposure provide for a presumption of service connection due to exposure to herbicide agents for Veterans who have any of several diseases and served in the Republic of Vietnam during the Vietnam War shall be presumed to have been exposed during such service to herbicide agents, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during the period of service. Certain chronic disabilities, such as arthritis and cardiovascular diseases, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. § 3.303(b). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Analysis Entitlement to service connection for a heart disability to include as secondary to exposure to herbicide agents The Veteran filed a claim of entitlement to service connection for a heart disability in March 2011. The competent medical evidence does not show that the Veteran currently has or has had a heart disability since he filed a claim in March 2011. A February 2011 private pharmacologic radionuclide stress test revealed no scintigraphic evidence of myocardial ischemia or scarring. That test also revealed a preserved left ventricular systolic function. A September 2012 private treatment record reflects that an echocardiogram showed a left ventricular ejection fraction of 77 percent and the presence of mild concentric left ventricular hypertrophy, mild mitral regurgitation, mild tricuspid regurgitation, and mild aortic valve sclerosis with mild aortic insufficiency. This treatment record did not contain a diagnosis of a current heart disability. VA and private treatment records show a diagnosis of hypertension but not a diagnosis of a heart disability. The July 2017 VA examination report reflects that the Veteran does not have or has ever been diagnosed with a heart disability. An echocardiogram revealed a left ventricular ejection fraction of 60 to 65 percent with normal wall motion and normal wall thickness. The examiner noted that the exercise stress test in 2012 was normal and did not show ischemia. In a July 2017 VA medical opinion, the examiner stated that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale was that the claims folder and VA electronic medical record are silent for diagnosis and therapy of a heart condition related to Agent Orange. In a March 2011 statement, the Veteran asserted that he had a "heart stroke" in January 2011 and that the heart stroke is related to exposure to Agent Orange. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the existence of a heart disability falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Therefore, Hickson element (1), current disability, is not satisfied as to the claim of entitlement to service connection for a heart disability. For the reasons and bases set forth above, the Board concludes that the most probative and persuasive evidence weighs against a finding that the Veteran currently has or has had a heart disability since he filed a claim in March 2011. Therefore, the preponderance of the evidence is against the claim, and it is denied. Entitlement to service connection for a lumbar spine disability A July 2017 VA examination report shows a diagnosis of degenerative arthritis of the spine. Therefore, Hickson element (1), current disability, is satisfied. The Veteran has asserted that he injured his low back while parachute jumping. His DD Form 214 shows that he received the Parachute Badge. His service treatment records are negative for any complaints, findings, or diagnoses of a lumbar spine disability. At an October 1969 separation examination, the spine was normal and the Veteran denied any history of recurrent back pain. Despite the lack of documentation of a low back injury in service, the Veteran is competent to report his injury parachute jumping, and the Board finds him credible. Therefore, Hickson element (2), injury or disease, is established. As for Hickson element (3), medical nexus, there is conflicting medical evidence on whether the current lumbar spine disability is related to active service. While the Board is not free to ignore the opinion of a treating physician, neither is it required to accord it additional weight. Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993). The United States Court of Appeals for the Federal Circuit has declined to adopt a "treating physician rule," which would give preference, i.e., additional evidentiary weight, to this type of evidence. White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Board has reviewed all of the evidence of record, to include service treatment records, private and VA treatment records, and the July 2017 VA examination report. The weight of the evidence is against findings that a lumbar spine disability was demonstrated in-service, that lumbar spine arthritis was compensably disabling within a year of separation from active duty, or that there is a nexus between the current diagnosis of a lumbar spine disability and service, to include parachute jumping. As for the degenerative arthritis of the lumbar spine, there is no evidence that the arthritis was compensably manifested within one year of separation from active duty. Arthritis of the lumbar spine was first diagnosed at the July 2017 VA examination. In a March 2009 statement, a private doctor noted that because parachute jumping is a repetitive activity, the appearance of bad posture, loss of correct alignment of the column, degeneration of the vertebras and articulations, and loss of curvature of the cervical, thoracic, and lumbar lordosis are normal. The doctor opined that after considering the evidence of record, the Veteran's back problems are more probable than not to be caused as a result of the job he had in service and thus service connected. In contrast, the July 2017 VA examiner opined that it is less likely than not that the lumbar spine disability arose during service or is otherwise related to service, to include the multiple parachute jumps. The examiner stated that the lumbar spine disability is secondary to changes that occur as part of the normal aging process. The examiner indicated that imaging studies done for this evaluation are positive for classic atraumatic aging degenerative changes. The examiner noted that the medical literature is not supportive concerning degenerative changes being related to parachute jumps. The examiner quoted as an example a 1977 study from Annals of the Rheumatic Diseases: "This study does not implicate parachuting as a cause of intervertebral disc degeneration, either cervical or lumbar, nor as a cause of spondylolysis or spondylolisthesis. Serious long-term disability from pain appears to be uncommon among parachutists despite the frequency of the spinal trauma they sustain." Annals of the Rheumatic Diseases, 36, 327-331 (1977). Unlike the private doctor, the July 2017 VA examiner reviewed X-rays of the lumbar spine. The VA examiner's opinion was more thorough and cited a specific medical treatise. Therefore, the Board gives greater weight to the July 2017 VA examiner's opinion than to the opinion of the private doctor. The Veteran has not claimed continuity of symptomatology. He has, however, related his lumbar spine disability to active service. In that regard, the relationship between a lumbar spine disability and parachute jumping falls outside the realm of common knowledge of a lay person. Jandreau, 492 F.3d at 1733 n. 4. In summary, for the reasons and bases set forth above, the Board concludes that the most probative and persuasive evidence weighs against a finding that the Veteran's degenerative arthritis of the lumbar spine are related to service. Therefore, the preponderance of the evidence is against the claim, and it is denied. Entitlement to service connection for a bilateral hip disability The Veteran filed a claim of entitlement to service connection for a bilateral hip disability in April 2009. The competent medical evidence does not show that the Veteran currently has or has had a bilateral hip disability since he filed a claim in April 2009. In the March 2009 statement, the private doctor did not diagnose a hip disability. Private and VA treatment records do not reveal a diagnosis of a hip disability. The Veteran underwent a thorough examination of his hips in July 2017, but the VA examiner did not diagnose a current disability. The Veteran reports that he has bilateral hip pain. Pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection can be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). The existence of a hip disability falls outside the realm of common knowledge of a lay person. Jandreau, 492 F.3d at 1733 n. 4. In short, for the reasons and bases set forth above, the Board concludes that the most probative and persuasive evidence weighs against a finding that the Veteran currently has or has had a bilateral hip disability since he filed a claim in April 2009. Therefore, the preponderance of the evidence is against the claim, and it is denied. ORDER Entitlement to service connection for a heart disability, to include as secondary to exposure to herbicide agents, is denied. Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a bilateral hip disability is denied. REMAND In April 2017, the Board remanded the claims to obtain medical opinions regarding whether the disabilities were related to service, to include the in-service parachute jumping. The medical opinions regarding the cervical spine, right shoulder, knees, and ankles were based in large part on the absence of trauma, treatment, diagnoses, or complaints in the service treatment records involving these particular joints. The Veteran is competent to report that he injured those joints in service while parachute jumping though there is no documentation of these injuries in the service treatment records, and the Board finds him credible. Accordingly, addendums to the June 2017 VA examination reports are necessary. Stegall v. West, 11 Vet. App. 268 (1998). With regard to the general claim of entitlement to service connection for a bilateral leg disability, the RO should contact the Veteran and clarify what he is claiming service connection for other than his knees and ankles. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Ask the Veteran to clarify what he is seeking service connection for with his general claim of entitlement to service connection for a bilateral leg disability, other than his knees and ankles. If clarification is obtained, undertake any additional development to include scheduling the Veteran for an examination to determine whether the disability is related to active service, to include in-service parachute jumping. 2. After the development in 1 is completed, the AOJ should arrange for the Veteran's claims file to be reviewed by the June 2017 VA examiner(s) who conducted the examination of the cervical spine, right shoulder, knees and ankles for preparation of an addendum to the examination report regarding the nature of these disorders. If the examiner(s) is unavailable, arrange for the claims file to be reviewed by another medical professional. The Veteran should only be scheduled for another physical examination if the June 2017 VA examiner(s) or the new medical professional deems it necessary. The VA examiner should render an opinion as to whether it is at least as likely as not (50 percent probability or more) that the current disability in either ankle, knee, cervical spine, or right shoulder is related to his in-service parachute jumping. The Board is particularly interested in ascertaining whether repeated parachute jumps led to any current cervical spine, right shoulder, knee, or ankle disability. A clear rationale for the opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if a requested opinion cannot be provided without resorting to speculation, the VA examiner should so state and explain why an opinion cannot be provided without resorting to speculation. 3. After the development above is completed, the AOJ should undertake any additional development deemed necessary based on the evidence of record and readjudicate the issues on appeal with consideration of all evidence of record. If any benefit is not granted, the Veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran has 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). ______________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs