Citation Nr: 20004302 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 16-29 878 DATE: January 17, 2020 ORDER 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 non-hodgkin’s lymphoma, to include as due to Agent Orange exposure, is granted. REMANDED Entitlement to service connection for a right broken foot is remanded. Entitlement to service connection for post-traumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a cervical spine disability is remanded. FINDINGS OF FACT 1. The Veteran does not have a right or left knee disability. 2. The Veteran has a current diagnosis of non-Hodgkin’s lymphoma. 3. The Veteran served with the United States Air Force while in service and the evidence is in equipoise as to whether the Veteran was exposed to Agent Orange as a result of parachute jumping from C-123 aircraft. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for non-hodgkin’s lymphoma have been met. 38 C.F.R. §§ 3.303, 3.307(a)(6)(v), 3.309(e). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1972 to September 1993. The Veteran requested a hearing before a Veteran’s Law Judge; however, VA’s Veterans Appeals Control and Locator System (VACOLS) shows that the Veteran canceled the hearing. Therefore, the hearing request is withdrawn. See 38 C.F.R. § 20.704 (e). As a threshold matter, the Board notes that currently on appeal is a claim of service connection for a right broken foot disability. However, the Board has inferred a claim of service connection for a left foot disability for the following reasons. In his January 2012 claim, the Veteran requested service connection for a broken foot, but he did not specify whether he was referring to his right or left foot. In his November 2012 VA foot examination, he reported that he broke his foot during a helicopter demonstration in service but, again, he did not specify which foot was broken; however, he described having throbbing pain around his left heel and along-side of his foot and reported no injuries to his right foot. Conversely, in his August 2014 Statement in Support of claim, the Veteran reported that he broke his right foot in a helicopter incident. The Board notes that in its December 2012 rating decision, the AOJ adjudicated a claim of service connection for a broken right foot and issued a Statement of the Case for the same; however, the AOJ denied the Veteran’s right foot claim based, in part, on findings in his November 2012 examination, which appear to relate solely to the Veteran’s left foot, and based on an October 2014 addendum opinion requested by the RO which pertained to the Veteran’s diagnosed left foot strain. Given the above, the Board finds that an informal claim for a left foot disability has been raised by both the Veteran and the AOJ; thus, the Board has inferred a claim of service connection for a left foot disability. Therefore, the claim is REFERRED for adjudication. The claim of service connection for a right broken foot disability is remanded for further development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for left knee pain. 2. Entitlement to service connection for right knee pain. The Veteran seeks service connection for right and left knee disabilities. After reviewing the evidence, the Board finds that service connection is not warranted as the Veteran does not have a current right or left knee disability. A review of the evidence shows that in his January 2012 claim, the Veteran reported having knee pains from an incident while attending ski school in service. Service treatment records (STRs) confirm the Veteran’s report and shows that he suffered a partial tear of the medial collateral ligament of the left knee, which resulted in a cast being placed. However, there is nothing in the Veteran’s STRs pertaining to a right knee injury. In his April 2012 knee examination, the examiner found that the Veteran’s bilateral knee pain was not related to service since there was no current pathology to render a diagnosis. Physical examination showed range of motion was normal, with no evidence of painful motion or functional loss. The Veteran’s knees had normal stability, normal muscle strength, no subluxation or dislocation, and no meniscal conditions or other abnormalities. Imaging showed no arthritis or subluxation and it was noted that the Veteran does not use an assistive device for locomotion. In his April 2012 Statement in Support of Claim, the Veteran reported having continued knee pain since service; however, there is no objective evidence of record to substantiate his contention. Specifically, private treatment records from the Anglyn Family Medical Center between May 2008 and September 2012 do not show complaints of knee pain. For example, in his September 2008 physical examination, the Veteran reported having the “usual aches and pains,” however, there was no specific pain to his right or left knee mentioned. In addition, the examiner noted that the Veteran appears to be in no acute distress; he appeared healthy, was in good spirits, and had no significant degenerative changes. Similarly, in his October 2009, September 2010, and September 2011 physical examinations, the Veteran reported no musculoskeletal problems; and, in September 2012, he reported only issues with his back. Furthermore, other private treatment records show no reports of pain to his knees or a diagnosed knee disability, and there are no VA treatment records of evidence to consider. The Board notes that pain alone, without an underlying diagnosis or functional impairment, is not a disability; but, pain with functional impairment is a disability for VA compensation purposes. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); see also Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). “Functional impairment” is defined as “the ability of the body or a constituent part of it to function under the ordinary conditions of daily life including employment.” Id. at 1363 (quoting 38 C.F.R. § 4.10). In this case, the Veteran was not found to have any functional impairment related to his right or left knee condition. Moreover, although the Veteran reported having flare-ups that impact his yard work and limits his steps, there is no objective evidence showing that his pain has led to functional impairment. Since the Veteran does not have an in-service event or injury relating to his right knee, or a currently diagnosed right or left knee disability, service connection cannot be granted. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection for a right or left knee disability. As such, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Entitlement to service connection for non-hodgkin’s lymphoma, as due to Agent Orange exposure. The Veteran seeks service connection for non-hodgkin’s lymphoma contending that the condition is the result of in-service Agent Orange exposure. Service connection may be established on a presumptive basis for certain disabilities resulting from herbicide exposure. Agent Orange is generally considered a herbicide agent and will be so considered in this decision. A veteran who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309. Herbicide exposure is also presumed for veterans of certain units that served in or near the Korean DMZ anytime between April 1, 1968 and August 31, 1971. 38 C.F.R. § 3.307 (a)(6)(iv). If a veteran was exposed to an herbicide agent during active military, naval, or air service, there are certain diseases that shall be service-connected even though there is no record of such disease during service provided that the provisions of 38 C.F.R. § 3.307 (a)(6) are met. These diseases include non-Hodgkin’s lymphoma and respiratory cancers such as cancer of the lung or larynx. 38 C.F.R. § 3.309 (e). At the outset, the Board notes that the Veteran does not meet the criteria for presumptive exposure to herbicides as required in 38 C.F.R. §§ 3.307, 3.309. However, exposure can be established on a direct basis outside of the presumption. The Veteran asserts such an exposure. Specifically, he contends that he was exposed to Agent Orange when he jumped from C-123 aircrafts as a parachutist in service in March, July, and August 1977. Effective June 19, 2015, VA amended its regulation governing individuals presumed to have been exposed to certain herbicides by expanding the regulation to include an additional group consisting of individuals who performed service in the Air Force or Air Force Reserve under circumstances in which they had regular and repeated contact with C-123 aircraft known to have been used to spray an herbicide agent (“Agent Orange”) during the Vietnam era. Specifically, the new regulation states that an individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. For purposes of this paragraph, “regularly and repeatedly operated, maintained or served onboard C-123 aircraft” means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code (AFSC) indicating duties as a flight, ground maintenance, or medical crew member of such aircraft. 38 C.F.R. § 3.307 (a)(6)(v). A review of the Federal Register reveals that some C-123s were used to actually spray herbicide in Vietnam. 80 Fed. Reg. 35,246 (June 19, 2015). For this reason, the presumption of herbicide exposure under 38 C.F.R. § 3.307 (a)(6)(v) is limited to contact with C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. In the Veteran’s case, the Board initially notes that the Veteran was diagnosed with non-Hodgkin’s lymphoma in August 2016. Therefore, the Veteran has met the requirement of a current disability. Additionally, military personnel records show that the Veteran was a member of the Georgia National Guard and was assigned to Departments of the Army and Air Force. He received a Master Parachutist Badge, a German Army Parachutist Badge, and a Honduran Parachutist Badge. Records also show a list of the Veteran’s numerous parachute jumps, to include jumps from a C-123 aircraft on four occasions in March, July, and August 1977. In April 2018, the AOJ contacted B.S., an Archivist, from the Air Force Historical Research Agency to verify whether the C-123 aircrafts, from which the Veteran performed jumps in 1977, may have been contaminated with Agent Orange. In his emailed response, B.S. noted that he was unable to answer the question without knowing exactly which USAF unit was flying the aircraft, which aircraft, and when in the March to August 1977 time period of when it supposedly flew. He further noted that his emailed response is an official response by the Department of the Air Force and has been accepted by the VA and various appeals courts for over 10 years. In an April 2018 internal VA email, a VA representative noted that the Veteran’s personnel records do not indicate which USAF units may have been assigned to the 1977 flights. The Board has reviewed the Veteran’s personnel records and concludes the same. Based on the above, the Board finds that service connection is warranted. Here, the Veteran has a current diagnosis of non-Hodgkin’s lymphoma, which has been associated with herbicide exposure. The evidence shows that he served with the Air Force as a parachutist, which qualifies under flight duty, and made jumps from a C-123 aircraft between March and August 1977. Since the question could not be resolved as to whether the Veteran jumped from C-123s that were exposed to Agent Orange, the Board finds it plausible that the Veteran may have been exposed to Agent Orange as a result of his parachuting jumps from the C-123 aircraft. As such, the Board concludes the evidence is in equipoise as to whether the Veteran was exposed to Agent Orange and resolves all doubt in favor of the Veteran. Accordingly, service connection for non-Hodgkin’s lymphoma is granted. REASONS FOR REMAND 1. Entitlement to service connection for right broken foot is remanded. The Board finds that remand is warranted to obtain a VA examination for the Veteran’s claim of service connection for a right broken foot disability. The Veteran’s STRs show that he injured his right heel and ankle in a helicopter incident while in service. Although a foot examination was afforded to the Veteran, the examination is unclear as to whether the Veteran’s right foot was evaluated. In the examination, the Veteran noted pain to his left heel and made no mention of a right foot condition. Although the examiner diagnosed the Veteran with left foot strain and found that the condition was unrelated to service, the Board cannot determine whether the examiner only evaluated the Veteran’s left foot based on the Veteran’s statements, or whether the Veteran’s right foot was also examined but the examiner found no diagnosis for the Veteran’s right foot. As such, the Board finds an examination is warranted to determine whether the Veteran has a current right foot disability, and if so, whether the condition was related to service. 2. Entitlement to service connection for PTSD. The Veteran contends that his PTSD was caused by several incidents in service. In his August 2013 NOD, he reported that while on jump status, he witnessed several of his friends killed in Europe and at Fort Benning. In June 2016, he submitted a photo of a gravestone as evidence purporting to be two of the service-members noted in his NOD. The Veteran further reported that his neighbor and close friend was killed at Fort Campbell, Kentucky after he nominated him to be a member of the 160th Special Operations Regiment. He reported that he blames himself for his death since he encouraged him to go to that unit. The record shows that the Veteran has a diagnosis of PTSD; however, he has not been afforded a VA psychiatric examination, nor has the AOJ attempted to verify his stressors. Since the Veteran has submitted plausible evidence of an in-service stressor and the record contains a diagnosis for PTSD, the Board finds a VA examination is warranted. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 3. Entitlement to service connection for a cervical spine disability. With regard to the Veteran’s claim of service connection for a neck disability, the Board notes that in his August 2013 Notice of Disagreement (NOD), the Veteran contended that VA did not contact his private chiropractor, Dr. P., to obtain treatment records. However, in an October 2012 Report of General Information, it was noted that the Veteran was contacted in reference to his VA Form 21-4142s, Authorization for Release of Information, and waived his request to seek records from Dr. P., Eagle’s Landing Family Practice, and Anglyn Family Medical Center. Nonetheless, VA subsequently sent requests and received a written statement summarizing his treatment of the Veteran from Dr. P. and treatment records were received from Anglyn’s Family Medical Center; however, there is no indication that a request was sent to retrieve records from Eagle’s Family Landing Practice, and the record is absent of any records from this facility. In his VA Form 21-4142, the Veteran reported that he was treated for neck and back pain at this facility between 1995 to 2005. Therefore, since these records may be relevant to the adjudication of the Veteran’s claim, remand is warranted to attempt to retrieve these records to satisfy VA’s duty to assist. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the Veteran’s claims folder. 2. Obtain any private treatment records identified by the Veteran not already of record, to include records from Eagle’s Landing Family Practice identified in the Veteran’s April 2012 VA Form 21-4142. The Veteran’s assistance should be requested as needed. All obtained records should be associated with the evidentiary record. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. 3. Take appropriate action to attempt to verify the Veteran’s claimed stressor. All efforts to verify the stressor should be documented. 4. Schedule the Veteran for a VA examination for his right foot disability. The examiner is requested to review all pertinent records associated with the claims file, including this Remand. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a right foot disability that was incurred in, or is otherwise related to service? 5. Schedule the Veteran for a VA examination to determine the nature and etiology of his psychiatric disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including this Remand. a) The examiner should first identify all psychiatric disorders found to be present. b) If PTSD is diagnosed, the examiner must specifically opine as to whether it is at least as likely as not related to a verified stressor. c) If any psychiatric disorder other than PTSD is diagnosed, the examiner must specifically opine as to whether it is at least as likely as not (50 percent probability or greater) that such psychiatric disorder is related to any injury, disease, or event incurred in service. The examiner is asked to provide a complete rationale for any opinion offered, including discussion of the facts of this case and any medical studies or literature relied upon. If the examiner is unable to provide any requested opinion without resorting to mere speculation, the examiner must provide a reasoned explanation for such conclusion. 6. Then, readjudicate the claim. If any benefit sought remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board for further review. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, Associate Counsel 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.