Citation Nr: 21002725 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 19-35 010 DATE: January 14, 2021 REMANDED Entitlement to service connection for a heart condition, to include valvular heart disease and coronary heart disease, is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1956 to July 1984. During the pendency of the appeal, the Veteran died in February 2020. In May 2020, the Department of Veterans Affairs (VA) Regional Office (RO) granted substitution to the appellant over the current claims. The Board notes that the October 2019 Statement of the Case included the issue of entitlement to service connection for bilateral hearing loss. However, the November 2019 Form 9 did not list the issue of entitlement to service connection for bilateral hearing loss. Therefore, this issue is not on appeal. The appellant attended a hearing before the undersigned Veterans Law Judge in November 2020. A transcript of the hearing is of record. Although relevant evidence was added to the claims file after the October 2019 Statement of the Case, the appellant waived RO consideration at the hearing. 1. Entitlement to service connection for a heart condition, to include valvular heart disease and coronary heart disease, is remanded. The appellant contends that service connection is warranted for the Veteran’s heart condition, to include valvular heart disease and coronary heart disease. Specifically, the appellant argues that the Veteran’s heart condition was related to potential exposure to herbicides during his active duty service. The Veteran’s service personnel records (SPRs) show that he served in Korea from March 31, 1968 to May 30, 1969 and, during that time, was attached to the HHC USA Ascom Depot. However, the Veteran’s unit is not a unit determined by the Department of Defense as one that operated in or near the Korean demilitarized zone (DMZ). Nevertheless, the Board finds that remand is required to confirm whether the Veteran’s service in Korea from March 1968 to May 1969 included service in or near the DMZ by requesting verification of exposure to herbicides from the United States Army and Joint Service Records Research Center (JSRRC). 2. Entitlement to service connection for a right shoulder disability is remanded. The appellant contends that the Veteran’s right shoulder condition was related to his active duty service. Medical treatment records from September 2016 note degenerative changes of the right shoulder. Furthermore, service treatment records from December 1968 note right shoulder complaints and lay statements from the Veteran indicate that he injured his right shoulder during a fall while doing Army physical fitness training. Furthermore, the appellant testified at the November 2020 Board hearing that the Veteran’s right shoulder was worn out due to repeated training exercises. No medical examination or opinion has been obtained regarding the Veteran’s claimed right shoulder disability. Under 38 C.F.R. § 3.159 (c)(4), a VA examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the Veteran has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the Veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service- connected disability, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board finds these requirements are met, and a remand for an opinion on the matter is warranted. 3. Entitlement to service connection for a right knee disability is remanded. The appellant contends that the Veteran’s right knee condition was related to his active duty service. Medical treatment records from December 2016 note an impression of severe bilateral knee degenerative joint disease. Furthermore, service treatment records from September 1970 note treatment for the Veteran’s right knee and lay statements from the Veteran indicate that he injured his right knee due to demands of 28 years of rigorous Army physical fitness training to include road marches with full rucksacks and running for miles on hard surfaces in leather combat boots. Furthermore, the appellant testified at the November 2020 Board hearing that the Veteran’s right knee was worn out due to repeated training, running, and walking throughout service. No medical opinion has been obtained regarding the Veteran’s claimed right knee disability. Under 38 C.F.R. § 3.159 (c)(4), an opinion on the matter is warranted. 4. Entitlement to service connection for a left knee disability is remanded. The appellant contends that the Veteran’s left knee condition was related to his active duty service. The Veteran had an examination for his left knee condition in September 2019. The examiner opined that the Veteran’s left knee condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner stated that the Veteran was treated for leg cramps while in the service and had a fracture of his left leg at age 16, from which he made a full recovery. The examiner further stated that the medical literature does not support either of these conditions as a cause of arthritis of the knee. The appellant testified at the November 2020 Board hearing that the Veteran’s bilateral knee condition was caused by the rigors of training and running and walking throughout his years of service, which caused his knees to wear out. The Board finds the September 2019 examiner’s opinion to be inadequate. It is not clear whether the examiner considered the Veteran’s lay statements of record. Specifically, the Veteran stated that his left knee condition was the result of the demands of 28 years of rigorous Army physical fitness training to include road marches with full rucksacks and running for miles on hard surfaces in leather combat boots. The matters are 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. Contact the JSRRC, or other appropriate entity, to determine whether it is at least as likely as not that the Veteran’s unit, or any unit to which his company was attached or provided support, served in or near the DMZ from March 1968 to May 1969. Any appropriate development to address this inquiry, such as request for or review of unit histories or other such records, must be conducted. 2. Obtain an addendum medical opinion from a qualified VA medical professional to determine the nature and etiology of any right shoulder disability. The examiner should review the claims folder, and then respond to the following question: Is it at least as likely as not (i.e., probability of 50 percent or greater) that a right shoulder disability is related to the Veteran’s active duty service? In answering this question, attention is invited to the relevant service treatment records. See VBMS, document labeled STR - Medical, receipt date 07/10/2017, page 52. The examiner should also address the Veteran’s lay assertions of record, to include his statement that he injured his right shoulder during a fall while doing Army physical fitness training. See VBMS, document labeled VA 21-526EZ, Fully Developed Claim (Compensation), receipt date 05/25/2017. Also, note that the Veteran is competent to describe any symptoms he may have experienced since service discharge. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. Note that the lack of a diagnosed disability in service cannot serve as the sole basis for a negative nexus opinion. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Obtain an addendum medical opinion from a qualified VA medical professional to determine the nature and etiology of any right knee disability. The examiner should review the claims folder, and then respond to the following question: Is it at least as likely as not (i.e., probability of 50 percent or greater) that a right knee disability is related to the Veteran’s active duty service? In answering this question, attention is invited to the relevant service treatment records. See VBMS, document labeled STR - Medical, receipt date 07/10/2017, page 50. The examiner should also address the Veteran’s lay assertions of record, to include his statement that he injured his right knee due to demands of 28 years of rigorous Army physical fitness training to include road marches with full rucksacks and running for miles on hard surfaces in leather combat boots. See VBMS, document labeled VA 21-526EZ, Fully Developed Claim (Compensation), receipt date 05/25/2017. Also, note that the Veteran is competent to describe any symptoms he may have experienced since service discharge. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. Note that the lack of a diagnosed disability in service cannot serve as the sole basis for a negative nexus opinion. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Obtain an addendum medical opinion from a qualified VA medical professional to determine the nature and etiology of any left knee disability. The examiner should review the claims folder, and then respond to the following: (a) Did the Veteran’s left knee disorder clearly and unmistakably (obvious, manifest, undebatable) pre-existed his period of active service? (b) If it is your opinion that any left knee disorder clearly and unmistakably pre-existed service, is there clear and unmistakable evidence that the left knee disorder was not aggravated by service, either because there was no increase in disability during service or because any increase in disability was due to the natural progress of the pre-existing condition? (c) If you conclude that a left knee disorder did not clearly and unmistakably pre-exist service, is it at least as likely as not (probability 50 percent of more) that any left knee disorder had its onset in service? The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. Note that the lack of a diagnosed disability in service cannot serve as the sole basis for a negative nexus opinion. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David M. Sebstead, 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.