Citation Nr: 21002463 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 18-15 699 DATE: January 13, 2021 ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability, to include as secondary to a left knee disability, is denied. REMANDED Entitlement to service connection for prostate cancer, to include as due to exposure to herbicide agents, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence fails to establish an etiological relationship between the Veteran’s left knee disability and his active service. 2. The evidence fails to establish an etiological relationship between the Veteran’s right knee disability and his active service. CONCLUSIONS OF LAW 1. A left knee disability was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. A right knee disability was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1969 to May 1972. This appeal arises from a June 2015 rating decision. The Veteran testified before the undersigned Veterans Law Judge in November 2020. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, 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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Finally, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability, to include as secondary to a left knee disability. The Veteran contends that he injured his left knee in basic training. See BVA Hearing Transcript (T.) at 9. He attributes his right knee disability to his left knee issues. See BVA Hearing T. at 13. Service Connection Based on Presumptive Disability Where a veteran served continuously for ninety days or more during a period of war, or during peacetime service after December 31, 1946, and certain disabilities become manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1131, 1133; 38 C.F.R. §§ 3.307, 3.309. However, the Veteran’s treatment records do not reflect a diagnosis of or treatment for a right or left knee disability listed under 38 C.F.R. § 3.309(a) for several years following separation from service. Thus, this presumption is not available to the Veteran. Id. Service Connection on a Direct Basis The Board also considers the theory of entitlement to service connection for left and right knee disabilities on a direct basis. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). However, the evidence does not show a causal relationship between the claimed disorders and any other incident of active service, as will be discussed below. Service treatment records initially show that in a report of medical history, completed in May 1969 prior to service entrance, the Veteran reported occasional giving way of his right knee. Nevertheless, his clinical evaluation of his lower extremities was normal at service entrance. As such, the Board finds that a right knee disability was not noted at entry into service and the Veteran is therefore presumed to have been in a sound condition. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Service treatment records reflect that the Veteran sought treatment for a sore left knee in December 1969. An examination revealed popping of the patella. The Veteran sought treatment about a week later and a physical examination at that time revealed crepitation of the left patella. An x-ray of both knees in December 1969 reflected normal findings. An April 1972 separation examination of his lower extremities was normal. Next, and more importantly, post-service evidence does not reflect complaints of left or right knee issues for several years after service discharge. Such tends to negate a finding for service connection based on direct service incurrence. The Veteran’s reported history of continued symptomatology since active service has also been considered but is not found to be accurate. In making this determination, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant’s uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Notably, records do not reflect problems related to the Veteran’s knees until at earliest 1976, four years following separation from service. See November 2006 VA treatment record noting surgery in 1976. The mere absence of medical records does not contradict a Veteran’s statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). This long period without problems is a factor that weighs against the claims. Accordingly, the Board finds the statements made by the Veteran asserting continuity of symptomatology of a left or right knee disability since service lack credibility and are without probative value. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a veteran’s statements, it may consider whether self-interest may be a factor in making such statements). Continuity of symptomatology has not been established, either through the competent evidence or through the statements submitted by the Veteran. Having determined that the Veteran’s alleged clinical history regarding onset and continuity of left or right knee disabilities is not consistent with the evidence, the Board next considers that service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. The service and post-service evidence provide particularly negative evidence against these claims. A May 2017 VA examination was provided. The Veteran was diagnosed with left knee mild medial degenerative joint disease and history of right knee arthroscopy. The VA examiner considered the Veteran’s assertions that he first had a problem with his knee in basic training. He reported that he didn’t really do anything strenuous after basic training, so his knee never really gave him a problem. He stated that he would sprain and wrap it, but it was not really a major problem for him while he was in the military. The Veteran reported that after the military when he went back to work about a year later, he was working with heavy equipment and would occasionally hurt his knee to the point where he would have to wrap it. The Veteran reported that after service he did absolutely nothing for a year and then went back to work which involved climbing up and down equipment. He reported that he saw a civilian doctor but that he had died, and he could not get the records from this time. The Veteran told the examiner that in 1977 or 1978 he tore the cartilage in his right knee at work when he fell onto a rock and had to have arthroscopic knee surgery. The VA examiner opined that the Veteran’s knee disability is less likely than not incurred in or caused by the claimed in-service injury, event or illness. The VA examiner stated that there is no nexus linking the Veteran’s single episode of left knee soreness to his current left knee condition. She noted that there is no diagnosis of left knee internal derangement during service that would explain his current left knee condition. She noted that he had been seen twice in December 1969 for the left knee and then never again for any knee complaint while in-service. The VA examiner considered that the Veteran’s post-service work history, as detailed in the examination, clearly documents the relationship between the Veteran’s post-service job activities and his development of bilateral chronic knee complaints. She stated that the Veteran stressed his knees repeatedly over the course of years in his post-service engineering, mechanic and plumbing work and these activities are at least as likely as not the cause of his knee complaints. After a review of the evidence of record, the Board finds that the preponderance of the evidence is against the claims for service connection for left or right knee disabilities. In so finding, the Board gives significant probative value to the May 2017 VA examination report and nexus opinion of record. Here, the VA examiner reviewed the Veteran’s claims file and statements of symptomatology and conducted physical examination of the Veteran. Based on this thorough examination, the examiner opined that it was less likely than not that the Veteran’s current disability is caused by service. This opinion is the only competent medical opinion of record to address the medical relationship, if any, between the Veteran’s knee disabilities and service. The medical opinion provides a thorough, clear rationale based on an accurate and thorough discussion of the evidence of record. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). The basis for the negative opinion is consistent with the evidence of record. Neither the Veteran nor his representative has presented or identified any contrary medical opinion that would, in fact, support the claim for service connection for a left or right knee disability. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The only other evidence of record supporting the Veteran’s claims is his own lay statements. In those statements, the Veteran contends that his bilateral knee disability is related to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of a knee disability falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In any event, the probative value of the contentions of the Veteran is outweighed by the May 2017 medical opinion of record. The VA examiner considered the Veteran’s statements, as well as reviewed the claims file in reaching her conclusion. In sum, the competent evidence does not establish that the Veteran’s right or left knee disabilities are related to his active duty in any way. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the claims, and as such they must be denied. Finally, the Veteran has asserted that his right knee may be secondary to his left knee disability. However, as the Veteran is not service-connected for a left knee disability, a secondary service connection claim for a right knee disability as secondary to a left knee disability must be denied as a matter of law. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310; see also Sabonis v. Brown, 6 Vet. App. 426 (1994). In sum, the competent evidence does not establish that the Veteran’s right or left knee disabilities are related to his active duty in any way. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the claims, and as such they must be denied. REASONS FOR REMAND 1. Entitlement to service connection for prostate cancer, to include as due to exposure to herbicide agents. Treatment records reflect that the Veteran was initially treated for prostate cancer in 2004. More recent treatment records reflect treatment for metastatic hormone refractory prostate cancer. See April 2020 Private Treatment Record. The Veteran asserts that this disability is related to his exposure to herbicide agents during active duty service, and this disability is included in the list of diseases that are presumed to be associated with exposure to certain herbicide agents. See 38 C.F.R. § 3.309(e). The Board finds additional development should be conducted regarding the Veteran’s claimed exposure to herbicide agents. The Veteran has submitted numerous statements and testimony asserting that he was exposed to herbicide agents while stationed in Okinawa, Japan. He has submitted numerous internet articles noting potential evidence of herbicide agents used in this location. The Veteran has additionally asserted that a May 1971 service treatment record, which shows that he was treated for red spots on his arms and chest, demonstrates he was exposed to herbicides in service. He testified that while inventorying herbicides that had to be moved from the Machianto Supply Depo to Johnston Island, some of the liquid splashed on him. See BVA Hearing T. at 5. The Veteran’s personnel records confirm service in Okinawa from May 1970 to November 1971. The Board notes that there are specific procedures in effect for development and adjudication of claims related to exposure to herbicides. The Veteran asserted in his substantive appeal that all procedures to verify his exposure were not completed. In June 2015, the RO determined that there was insufficient information to send to U.S. Army and Joint Service Records Research Center (JSRRC) or National Archives and Records Administration (NARA) to corroborate herbicide exposure outside the Republic of Vietnam. The Veteran has submitted numerous statements, testimony and articles, since this initial consideration. Additional development must be undertaken to verify whether the Veteran was exposed to herbicides while in service. The claim must be remanded to carry out such development. In this regard, for claims based on exposure to herbicide agents in locations other than Vietnam, Korean DMZ, or Thailand, the AOJ is to send an e-mail with the dates, location, and circumstances of claimed herbicide exposure to Compensation Service at VAVBAWAS/CO/211/AGENTORANGE and request a review of the Department of Defense’s inventory of herbicide operations to determine whether herbicides were used as claimed. If the Compensation Service is unable to confirm that the herbicides were so used, then the information is to be submitted to the JSRRC to determine whether such exposure can be verified. If the JSRRC is unable to verify the exposure, the case must be referred to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. Additionally, the United States Court of Appeals for Veterans Claims has held that VA should, if necessary, submit multiple requests to the JSRRC covering the relevant time window in 60-day increments, given the JSRRC’s 60-day requirement. Gagne v. McDonald, 27 Vet. App. 397 (2015). 2. Entitlement to TDIU. The Veteran’s claim for entitlement to TDIU is inextricably intertwined with his remanded claim. Therefore, the Board will not issue a decision on this claim at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are ‘inextricably intertwined’ when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following actions: 1. Send information regarding the Veteran’s described herbicide exposure to the Compensation Service at VAVBAWAS/CO/211/AGENTORANGE, and request a review of the Department of Defense’s (DOD’s) inventory of herbicide operations to determine whether herbicides were used as described. If the Compensation Service is unable to confirm that the herbicides were used as described, then the information is to be submitted to the Joint Services Records Research Center (JSRRC) to determine whether such exposure can be verified. If the JSRRC is unable to verify the exposure, the case must be referred to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. All requests and responses received should be associated with the claims file and a summary of the findings in this regard should be provided in a memorandum associated with the file. If such verification is not possible, it should be so certified for the record (along with a description of the extent of the verification conducted), and the Veteran should be notified of such. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any of the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. Thereafter, the Veteran should be afforded the appropriate opportunity for response. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. M. Clark, 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.