Citation Nr: 20023040 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 17-47 508 DATE: April 2, 2020 ORDER Entitlement to service connection for a right knee condition, to include manifested by pain, is granted. Entitlement to service connection for a left knee condition, to include manifested by pain, is granted. Entitlement to service connection for prostate cancer is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a sleep disorder with night sweats and shaking hands is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral (right and left) knee pain interferes with his ability walk, stand, and sit for prolonged periods and consequently impairs his earning capacity. 2. His bilateral knee pain is at least as likely as not the result of repetitive physical trauma he sustained to his knees while in service. 3. It also is at least as likely as not that his prostate cancer is related to his exposure to various chemicals while in service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran’s favor, the criteria are met for entitlement to service connection for right and left knee conditions, including manifested by pain. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 (2018). 2. Resolving all reasonable doubt in his favor, the criteria are met as well for entitlement to service connection for prostate cancer. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1966 to February 1968. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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 relevant disease or an injury; and (3) a causal relationship (“nexus”) between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection also may be established on a secondary basis for disability that is proximately due to, or the result of, or being aggravated by a service-connected disability. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) indication the current disability was either (a) caused or (b) is being aggravated by the service-connected disability. See 38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a right knee condition, including manifested by pain 2. Entitlement to service connection for a left knee condition, including manifested by pain The Veteran contends that he suffers from bilateral (i.e., right and left) knee pain due to repetitive trauma he sustained to his knees while in service, including from repeatedly jumping in and out of armored personnel carriers (APCs) onto hard surfaces and often falling to his knees. He believes that wear and tear on his knees, intrinsic to his training and activity as a soldier, is the reason he now has chronic pain in his knees. In support of his claims and this posited correlation (“nexus”), the Veteran submitted a January 2020 letter from his board-certified physical therapist. This commenting physical therapist confirmed he had diagnosed bilateral knee pain. Significantly, mere pain, alone, even without any underlying pathology or disease process, can constitute a current disability if there is objective evidence that the pain causes functional impairment resulting in a decrease of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). To establish that pain is a disability, a veteran must show that his pain reaches the level of a functional impairment of earning capacity. Id., at 1367-68. Here, to this end, the Veteran’s physical therapist explains that the Veteran’s knee pain affects his ability to walk, stand, sit, and ascend/descend stairs. Additionally, the Veteran testified during his December 2019 videoconference hearing before the Board that his reason for applying for VA benefits is because he no longer can work because of the severity of his bilateral knee pain. Turning to nexus, the Veteran’s physical therapist opined that the Veteran’s current bilateral knee pain is more likely than not caused by repetitive physical trauma he experienced while in service. The Board finds this physical therapist’s opinion concerning the origins of both knee disabilities to be probative evidence supporting the claims for these disabilities since well-reasoned and based on consideration of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). According to the holding in Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), “a [V]eteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.”); see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An “absolutely accurate” determination of etiology is not a condition precedent to granting service connection, nor is “definite” or “obvious” etiology). Rather, this need only be an “as likely as not” proposition, which in this instance it is for the reasons and bases discussed. Thus, the Board finds that service connection is warranted for the Veteran’s right and left knee disabilities manifested by pain – especially when resolving all reasonable doubt in his favor concerning the origins of these disabilities. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for prostate cancer The Veteran also contends that he currently suffers from prostate cancer as a result of exposure to various chemicals while in service. His medical records confirm that he has a current diagnosis of prostate cancer. During his hearing he testified that he was exposed to various fuels, lubricants, and cleaners during service while working in a motor pool. He further testified that he was not provided protective gear prior to being exposed to those toxins. As for the posited correlation (“nexus”) between those exposures in service and his eventual diagnosis of prostate cancer, the Veteran submitted a December 2019 opinion from his private treating urologist. This commenting urologist first confirmed the Veteran has a current diagnosis of adenocarcinoma of the prostate. And then, based on his professional experience and knowledge of the medical literature, this commenting urologist indicated it is more likely than not that the Veteran’s prostate cancer was caused by chemical exposure he experienced while in service. The Board finds this urologist’s opinion concerning the origins of the Veteran’s prostate cancer to be probative evidence supporting his claim for this condition since well-reasoned and based on consideration of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).   According to the holding in Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), “a [V]eteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.”); see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An “absolutely accurate” determination of etiology is not a condition precedent to granting service connection, nor is “definite” or “obvious” etiology). Rather, this need only be an “as likely as not” proposition, which in this instance it is for the reasons and bases discussed. Thus, the Board finds that service connection is warranted for prostate cancer – especially when resolving all reasonable doubt in his favor concerning the origins of these disabilities. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. 2. Entitlement to service connection for a sleep disorder with night sweats and shaking hands is remanded. The Veteran contends that his hypertension and sleep disorder also were caused by his exposure to various toxic chemicals while in service. The evidence establishes he has hypertension and a possible sleep disorder. However, he has not been afforded a VA examination concerning these claims for a medical opinion regarding their claimed relationship with his military service. Medical comment is needed concerning this purported correlation before deciding these claims on appeal. See 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006).   These matters are REMANDED for the following action: Schedule the Veteran for appropriate VA examinations to determine the nature and etiology of his currently diagnosed hypertension and any sleep disorder confirmed to exist. All pertinent symptomatology and findings must be reported in detail and all indicated diagnostic tests and studies accomplished. The claims file must be made available to the examiners for review and consideration of the relevant medical and other history, including the Veteran’s lay evidence and hearing testimony. After reviewing the relevant evidence of record, including the Veteran’s statements and hearing testimony, the examiner must first confirm the Veteran has these claimed disabilities. And if confirmed he does, the examiner is then asked to additionally provide an opinion on whether the diagnosed disability is related to the Veteran’s military service – including especially, as he alleges, exposure to various toxic chemicals. When responding, either favorably or unfavorably, the examiner must provide explanatory rationale for all opinions expressed, preferably citing to evidence in the record supporting conclusions or accepted medical authority. If the examiner ultimately cannot provide the requested etiology opinions without resorting to mere speculation, this not only must be so stated expressly but, as importantly, the examiner must provide the reasons why an opinion would require speculation. As examples, the examiner must indicate whether there was any further need for information or testing necessary to make a determination, whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner, or whatever other reason precludes a sufficiently definitive response. In other words, merely saying he/she cannot respond will not suffice. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Baronofsky The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.