Citation Nr: 21000294 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-36 546 DATE: January 5, 2021 ORDER Entitlement to service connection for a left knee condition is denied. REMANDED Entitlement to service connection a lung condition, including pneumonia and coughing, and including as due to asbestos exposure is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for skin cancer, including as due to asbestos exposure, is remanded. Entitlement to service connection for a back injury is remanded. Entitlement to service connection for a right knee condition is remanded. FINDING OF FACT The Veteran does not have a current left knee disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty from December 1973 to December 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the July 2015 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). Neither the Veteran nor his attorney have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 a duty to assist argument). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). A veteran is entitled to the benefit of the doubt, standard of proof for benefit claim decisions. 38 U.S.C. § 5107(b). The benefit of the doubt is applicable when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for a left knee condition is denied. The Veteran contends that he has a left knee disability that is related to service. At his August 2020 Board hearing, he testified that he has problems with his left knee but that they are less severe than his right knee. Also, he testified that he had surgery on his right knee, but not on his left knee. He did not describe his current symptoms or symptoms he experienced during the appeal period. In his June 2016 Notice of Disagreement (NOD), he stated that his knee problems were due to climbing stairs with a carbon dioxide tank on his back for welding, and working on a fire crew. The Veteran’s private treatment records do not indicate a left knee condition. In a May 2004 and private treatment record, he had full range of motion of his left knee, without pain. In a different May 2004 record, he reported pain in his left buttock, thigh, and down his left leg, but did not report knee pain even though he was seeking treatment for his left lower extremity. He was assessed with a re-herniation of a disc in his back, not a knee problem. In June 2004 her reported his leg pain had improved and the assessment was a L4-5 herniated nucleus pulposus, improving clinically. In a June 2006 private treatment records, the Veteran reported left buttock, thigh, and leg pain, but did not state he had knee pain. It was noted that he had a new disc herniation and that his straight leg raising test was positive on the left side. A July 2006 private treatment record noted that his previously reported left leg pain “has completely gone.” A July 2009 private treatment record noted full range of motion of the left knee without pain, with normal strength and reflexes. In the July 2017 Substantive Appeal, the Veteran’s attorney stated that the Veteran had “severe [left knee] pain which greatly interferes with his ability to function during the day.” Severe knee pain was not described at the Veteran’s August 2020 hearing. At his hearing, he described left leg pain that radiated from his back. He stated that he had a problem with his sciatic nerve that caused him to have to get off his feet, and that severe pain was a daily occurrence. He stated that standing for more than five minutes caused the pain in his left leg was at an 8 or 9 out of 10, and that he had numbness in his leg. He stated that sometimes he had to stop driving because of the sciatic pain. When asked specifically about his knees, he stated that he had achiness, slept with a pillow between his knees, and tried to take vitamins to increase blood flow to his knees. When asked if this was for his left knee, the Veteran stated, “[i]t’s the right knee that is still the one that is sore.” He stated that he “… had problems with [the left knee] but not like the right knee.” He did not describe severe knee pain. The Board finds that the Veteran is competent to describe his observable symptoms such as pain and where the pain is located. The Veteran’s hearing testimony is also credible. When asked directly about his left knee, he did not state that he had severe pain that interfered with is ability to function. Instead, he focused on his right knee and stated that his left knee was not as bad. He credibly described severe left leg pain from sciatica, which interfered with his ability to walk and drive. His testimony is more probative than the statement from his attorney in the July 2017 Substantive Appeal. His testimony supports a finding that he does not have a left knee disability for VA purposes. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Based upon review of the evidence, there is no current diagnosis of a left knee disability, or of one during the appeal period. However, service connection is not precluded solely when there is no diagnosis, if there is nevertheless functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Here, the Veteran has not shown that he has left knee symptoms that cause functional impairment of earning capacity. Given that the preponderance of the evidence is unfavorable to the claims, VA’s benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.1. Accordingly, the Board finds the preponderance of the evidence is against the claims and service connection is denied. REASONS FOR REMAND 1. Entitlement to service connection for a lung condition, including pneumonia and coughing, and including as due to asbestos exposure is remanded. The Veteran contends that he has a lung disability that is related to service. At his August 2020 Board hearing, he testified that while he was in service, he had severe pneumonia, and believed it was due to asbestos exposure. He believed that the pneumonia weakened his immune system. Also, he stated since service he gets pneumonia more often and has “coughing attacks.” VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). The threshold for determining whether the evidence “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id., at 83. The Veteran’s medical records do not show symptoms or a diagnosis of a lung condition. The Veteran competently described symptoms of coughing, and his testimony was credible. He also stated that his coughing impacted his ability to work, and that he had to retire early because he was unable to do his job properly. This is competent evidence of symptoms of a disability. In the Veteran’s March 1976 service treatment record (STR), it was noted that his chest sounded slightly irregular congestion. Also, in the March 1977 STR, he complained of congestion, and he reported a productive cough. His assertion that he was exposed to asbestosis is sufficient to meet the low threshold as to what “indicates” that there “may” be a nexus to service. The medical evidence of record is not sufficient for the Board to decide the claim. A VA examination is needed. 2. Entitlement to service connection for bilateral hearing loss is remanded. In the August 2020 Board hearing, the Veteran testified he first noticed his hearing loss before his discharge from service. In the June 2015 VA examination, the VA examiner opined that the Veteran’s bilateral hearing loss is less likely than not caused by or a result of an event in military service. The VA examiner reasoned that the Veteran’s hearing was within normal limits when he entered service and upon discharge. Also, reasoned that the Veteran’s military assignment has a low probability of hazardous noise exposure. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the June 2015 VA opinion did not address the October 1975 audiogram that indicates hearing loss during service. Also, in the referenced audiogram—in 1977 separation examination—noted audiometer malfunctioning. Therefore, a remand is necessary for a supplemental medical opinion addressing the etiology of the Veteran’s bilateral hearing loss and the discrepancies in the Veteran’s STRs. 3. Entitlement to service connection for skin cancer, including as due to asbestos exposure, is remanded. In the August 2020 Board hearing, the Veteran testified that his skin cancer may be related to asbestos exposure or flight deck sun exposure during service. The Board acknowledges that the Veteran’s military occupational specialty of Data Processing Technician carries a minimal probability of exposure to asbestos. See M21-1, Part IV, Subpart ii, Chapter 1, Section I, Paragraph 3, “Developing Claims for [Service Connection] for Asbestos-Related Diseases”. Also, his private treatment records indicate years of treatment for skin cancer. Additional development is needed to determine the etiology of the Veteran’s skin cancer. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, the Veteran was not provided an VA examination addressing the etiology of his skin cancer. Therefore, a remand is necessary. 4. Entitlement to service connection for a back injury is remanded. 5. Entitlement to service connection for a right knee condition is remanded. In the August 2020 Board hearing, the Veteran testified that he carried a 60-pound C02 bottle up and down ladders constantly during the day. One day, he testified that he twisted and turned and felt his back pull. As a result, he testified that he reported this back pull and he was given time off to elevate his feet. This is corroborated in the August 1976 STR where it is noted that he sprained his ankle and was prescribed to keep his feet elevated. Additionally, the Veteran testified that carrying the C02 bottle caused his right knee condition as well. The Veteran’s private treatment records indicate treatment over the years for his back and right knee. Additional development is needed to determine the etiology of the disabilities. McClendon, 20 Vet. App. 79. Here, the Veteran was not provided VA examinations addressing the etiology of these conditions. Therefore, a remand is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination for his claimed lung condition. The entire claims file and a copy of this remand must be made available to the examiner for review. First, the examiner must determine what lung conditions the Veteran currently has, or has had during the appeal period (which began in March 2015), including whether he has chronic pneumonia. Then, for each lung condition diagnosed, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it began during active service, is related to an incident of service, to include asbestos exposure. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. 2. Provide the Veteran’s claims file to a qualified examiner to determine the etiology of the Veteran’s bilateral hearing loss. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination(s) is only required if deemed necessary by the examiner. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: a. The November 1977 separation examination where it notes audiometer malfunctioning. b. The October 1975 audiogram indicating hearing loss. c. The August 2020 Board hearing transcript, where the Veteran testified that he first noticed hearing loss during service. The examiner must opine as to whether the Veteran’s bilateral hearing loss was at least as likely as not (50 percent or greater probability) incurred in or is otherwise etiologically related to the Veteran’s service, or manifested within one year of separation from service. A negative opinion based solely on normal hearing at separation from service is not adequate for VA purposes. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. 3. Schedule the Veteran for an examination with an appropriate clinician for his skin cancer. The entire claims file and a copy of this remand must be made available to the examiner for review. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: a. The Veteran’s private treatment records for skin cancer treatment. b. The August 2020 Board hearing transcript where the Veteran testifies that he was exposed to asbestos and the sun during service. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s skin cancer began during active service, or is related in-service asbestos exposure and/or sun exposure. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. 4. Schedule the Veteran for an examination with an appropriate clinician for his back injury. The entire claims file and a copy of this remand must be made available to the examiner for review. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: a. The August 1976 STR indicating the Veteran had a sprained left ankle and prescribed to elevate his feet. b. The Veteran’s private treatment records indicating treatment for his back injury. c. August 2020 Board hearing transcript where the Veteran testifies that his back injury is due to carrying a 60-pound C02 bottle up and down ladders constantly during the day. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s back injury began during active service, or is related to an incident of service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. 5. Schedule the Veteran for an examination with an appropriate clinician for his right knee condition. The entire claims file and a copy of this remand must be made available to the examiner for review. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: a. The Veteran’s private treatment records indicating treatment for his right knee condition. b. August 2020 Board hearing transcript where the Veteran testifies that his right knee condition is due to carrying a 60-pound C02 bottle up and down ladders constantly during the day. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right knee condition began during active service, or is related to an incident of service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. 6. If the claims remain denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran an opportunity to respond. The case should then be returned to the Board, if in order, for further review. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Willoughby, 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.