Citation Nr: 21063970 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 19-15 142 DATE: October 18, 2021 ORDER Entitlement to service connection for low middle back disability denied. Entitlement to service connection for left knee disability is denied. Entitlement to service connection for right knee disability denied. Entitlement to service connection for obstructive sleep apnea (OSA) is denied. Entitlement to service connection for leukemia is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that low middle back disability began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that left knee disability began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that right knee disability began during active service, or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that OSA disability began during active service, or is otherwise related to an in-service injury or disease or secondary to a service-connected disability. 5. The preponderance of the evidence is against finding that leukemia began during active service, or is otherwise related to an in-service injury, event, or illness, or exposure to chemicals. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for low middle back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 2. The criteria for entitlement to service connection for left knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 3. The criteria for entitlement to service connection for right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 4. The criteria for entitlement to service connection for OSA have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309. 5. The criteria for entitlement to service connection for leukemia have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1959 to March 1959 and in the Army National Guard from November 1978 to November 1985 and in the Army Reserves from November 1985 to December 2001. The Veteran was called to active duty for training in March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 and January 2020 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Board issued a remand in July 2020 instructing the RO to obtain the Veteran's service personnel records and medical records and VA examinations to determine the nature and etiology of the Veteran's disabilities. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO obtained military personnel records and August 2021 VA examinations. The Board finds the RO substantially complied with the July 2020 remand directives. The Board has reviewed all the evidence in the Veteran's claims file, with an emphasis on medical and lay evidence for the issues on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service Connection 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, 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). Secondary service connection requires: (1) a service-connected disability; (2) a nonservice connected disability; and (3) evidence that the nonservice connected disability is either (a) proximately due to or the result of the service-connected disability or (b) aggravated (increased in severity) by the service-connected disability. See 38 C.F.R. § 3.310. Service connection for injury or disease incurred or aggravated during a period of active duty for training (ACDUTRA) is also warranted. 38 U.S.C. § 101 (24)(B); 38 C.F.R. § 3.6 (a). ACDUTRA is, among other things, (a) full-time duty in the Armed Forces performed by Reserves for training purposes; (b) full-time duty for training purposes performed as a commissioned officer of Reserve Corps of the Public Health Service (i) on or after July 29, 1945, or (ii) before that date under circumstances affording entitlement to "full military benefits", or (iii) at any time, for the purposes of chapter 13 of this title; (c) in the case of members of the Army National Guard or Air National Guard of any State, full-time duty under section 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law; (d) duty performed by a member of a Senior Reserve Officers' Training Corps program when ordered to such duty for the purpose of training or a practice cruise under chapter 103 of title 10 for a period of not less than four weeks and which must be completed by the member before the member is commissioned; and (e) authorized travel to or from such duty. 38 U.S.C. § 101(22). INACDUTRA is (a) duty (other than full-time duty) prescribed for Reserves (including commissioned officers of the Reserve Corps 1 of the Public Health Service) by the Secretary concerned under section 206 of title 37 or any other provision of law; (b) special additional duties authorized for Reserves (including commissioned officers of the Reserve Corps of the Public Health Service) by an authority designated by the Secretary concerned and performed by them on a voluntary basis in connection with the prescribed training or maintenance activities of the units to which they are assigned; and (c) training (other than active duty for training) by a member of, or applicant for membership (as defined in section 8140(g) of title 5) in, the Senior Reserve Officers' Training Corps prescribed under chapter 103 of title 10. 38 U.S.C. § 101(23). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a) (2019). This presumption only applies to periods of active duty and not to the Veteran's ACDUTRA or INACDUTRA because, by definition, the presumption of service connection applies where there is no evidence that a condition began in or was aggravated during the relevant period of service. Regarding a claimant whose claim is based solely on a period of ACDUTRA or INACDUTRA, however, there must be some evidence that the condition was incurred or aggravated during the relevant period of service. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). The Veteran can attest to factual matters of which he or she has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person 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). In such cases, the Board is within its province to weigh that testimony and to make a determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for low middle back disability. The Veteran contends that he was diagnosed with a back condition during his active duty service. See April 2018 Notice of Disagreement (NOD); April 2018 Statement. More specifically, the Veteran contends that he suffered a major injury during jungle warfare school in 1981 and this injury led to his current back disability. See December 2019 Supplemental Claim; February 2020 NOD (35 to 40 foot fall from ropes); March 2020 Photograph of the cargo ropes. The Veteran also submitted an April 2016 statement from R.W. The statement recounted the events related to the Veteran's fall from the cargo ropes. R.W. stated that he and the Veteran were going through the Green Hell obstacle course and climbing down the cliff. He saw the Veteran fall of the ropes 30 to 35 feet. He saw the Veteran in pain and went to sick call that day. See also August 2016 F.J. Statement; February 2017 J.S. Statement (difficulty with back pain in service). A February 1959 service treatment records (STR) shows a complaint of lower back pain for one week. It was also noted that he had chills, fever and infected urine. The diagnosis was influenza, virus type undetermined. Three days later he was fit for duty. A report of medical examination conducted in March 1959 for the purpose of discharge shows that clinical evaluation of the spine was normal. A November 1998 reserve STR indicates the Veteran complained of back pain and was diagnosed with back pain osteoarthritis. An October 2004 Retention Physical Examination showed the Veteran had osteoarthritis of the back. During an August 2015 visit at Miami Beach Medical Center (MBMC), the Veteran reported that for the past three weeks he had a sharp pain in the middle of his back to the right midline. During an October 2015 visit at CNS LLP Homestead (CNS), the Veteran reported that his back pain began on August 6, 2015. He stated that the pain started without a precipitating event. The physician opined that the Veteran had thoracic and cervical pain towards the right which was mainly secondary to spondylosis with no evidence of radicular symptoms. An October 2015 MRI found the Veteran to have cervical arthritis. A July 2016 MBMC record indicated the Veteran was diagnosed with thoracic disc degeneration. The evidence of record does not show the Veteran developed a back injury while on active service. Post-service treatment record indicate the Veteran has a current disability for the purpose of service connection. Other than lay statements provided in the record, there is no indication that the Veteran suffered a fall or other injury during his National Guard or reserve time. Nevertheless, the Veteran was afforded an examination to determine the nature and etiology of his disability. The Veteran was afforded a VA examination in October 2016. The medical opinion stated that the Veteran's condition was less likely than not related to his active service, because there was no objective medical evidence showing an in-service injury. The Board found that a remand was necessary to obtain any medical records and service records to determine whether the Veteran's injury was documented during an Inactive Duty for Training (INACDUTRA) period and to obtain a medical opinion as to whether his current back condition was consistent with such an injury from a fall in 1981. The military records obtained after the Board's remand did not show the Veteran suffered an injury during his National Guard or Reserve service during Jungle Warfare training. An addendum opinion was obtained in August 2021. The examiner commented on the Veteran's active service from January 1959 to March 1959 as well as the buddy statements submitted in the claims file. More specifically, the examiner acknowledged the narrative involving the Veteran's fall during Jungle Warfare training. Along with other acknowledgements of evidence in the record, the examiner opined that the Veteran's back disability was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. The examiner explained that while J.S. described when the Veteran fell 35 ft from cargo net, he did not describe at all which body part was hurt in the fall. There was no evidence of sick call visit or "in line of duty status report" and there was no evidence of chronic complaints or treatment for back pain until 2015-2016 which was more than 35 years after the described fall in 1981. If the Veteran sustained a significant back injury from fall in 1981, there would likely be evidence of chronic back complaints and treatment of chronic back pain in medical and military records in the 1980's, 1990'S, 2000's. Current back complaints developed only about 4-5 years ago and are much more likely due to normal advanced aging process and normal wear and tear from 80 years of normal life strain and stressors on the spine. Therefore, the examiner did not provide a positive nexus for the claim. The Board acknowledges the Veteran's contentions that his claimed fall in 1981 occurred during active service and that event caused his current back disability. A lay person is not considered competent to medically attribute a back disability to service as doing so to requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinkseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the objective medical evidence of record answered this question. The record showed one note related to back pain in the February 1959 STR. The record also showed the Veteran complained of back pain many years after service. However, the evidence did not show a diagnosis of a back disability within one year of discharge. In addition, there was no evidence of the Veteran's fall in 1981. Medical opinions of record concluded that the Veteran's back disability was more likely due to the normal advanced aging process. The Veteran has not submitted any medical opinions to contradict this finding. In addition, the Veteran stated in a post-service treatment record that his back pain had started only 4 to 5 years earlier. Accordingly, the criteria for entitlement to service connection for low middle back disability have not been established, either through medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for low middle back disability, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for left knee disability. 3. Entitlement to service connection for right knee disability. The Board addresses the service connection claims together as they stem from the same factual background and are addressed under the same legal basis. The Veteran contends that he was diagnosed with a left knee and right knee condition while in service. See April 2018 NOD; April 2018 Statement. More specifically, the Veteran contends that he suffered a major injury during jungle warfare school in 1981 and this injury led to his disability. See December 2019 Supplemental Claim; February 2020 NOD (35 to 40 foot fall from ropes). Service treatment records (STR) from January 1959-March 1959, including the March 1959 separation examination, does not show the complaint, treatment, or diagnosis of a knee disability. His lower extremities were normal on clinical evaluation for separation in March 1959. A November 1998 reserve STR indicates the Veteran was diagnosed with left and right knee osteoarthritis. An October 2004 Retention Physical Examination showed the Veteran had diabetic osteoarthritis of both knees. The Veteran indicated on the record that he had surgery for both knees due to cartilage tear. A March 2016 CNS records indicated the Veteran had shooting left knee pain exacerbated by weightbearing. He underwent intra-articular knee injection with the right knee. A July 2016 MBMC record indicated the Veteran was diagnosed with osteoarthritis of the knee. Defense Personnel Records Information Retrieval System and the Army Records Processing Center records do not show the incident or injury of the Veteran's fall in 1981. Nevertheless, relying on the corroboration of lay statements, the Veteran was afforded a VA examination in December 2016. The medical opinion stated that the Veteran's conditions were less likely than not related to his active service, because there was no objective medical evidence showing an in-service injury. The Board found that a remand was necessary to obtain any medical records and service records to determine whether the Veteran's injury was documented during an INACDUTRA period and to obtain a medical opinion as to whether his current knee conditions were consistent with such an injury from a fall in 1981. An addendum opinion was obtained in August 2021. The examiner commented on the Veteran's active service from January 1959 to March 1959 as well as the buddy statements submitted in the claims file. More specifically, the examiner acknowledged the narrative involving the Veteran's fall during Jungle Warfare training. Along with other acknowledgements of evidence in the record, the examiner opined that the Veteran's right knee disability was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. The examiner explained that while J.S. described when the Veteran fell 35 ft from cargo net, he did not describe at all which body part was hurt in the fall. There was no evidence of sick call visit or "in line of duty status report." Medical records indicated that the Veteran had knee surgery in 1978 for meniscus tear, prior to the fall in Panama. Therefore, there was clear and un-mistakable evidence that there was a chronic right knee condition prior to fall in Panama, and no clear evidence that he injured the knee with the fall in Panama. Likewise, the examiner opined that the Veteran's left knee disability was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. The medical records indicated that the Veteran had left knee surgery in 1995 for meniscus tear which was 14 years after the fall. Records from this surgery were not provided for review, but likely indicate there was another clear knee injury around 1995, and doubtful that left knee surgery in 1995 was due to a fall 14 years earlier. It was more likely than not that there was subsequent knee injury in 1995 that was not reported. The Board acknowledges the Veteran's contentions that his claimed fall in 1981 occurred during active service and that event caused his current knee disabilities. A lay person is not considered competent to medically attribute a knee disability to service as doing so to requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinkseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the objective medical evidence of record answered this question. The evidence showed the Veteran complained of knee pain many years after service. In addition, there was no evidence of a knee disability in service or evidence of the Veteran's fall in 1981. However, evidence showed osteoarthritis of the knees which were found to be due to aging. The medical opinions of record confirmed this finding. The Veteran has not submitted any medical opinions to contradict this finding. Accordingly, the criteria for entitlement to service connection for left and right knee disability have not been established, either through medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for left and right knee disability, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 4. Entitlement to service connection for OSA. The Veteran contends that he was diagnosed with a sleep disorder while in service. See April 2018 NOD; April 2018 Statement. More specifically, the Veteran contends that he suffered a major injury during jungle warfare school in 1981 and this injury led to his disability. See December 2019 Supplemental Claim; February 2020 NOD (35 to 40 foot fall from ropes). Service treatment records (STR) from January 1959-March 1959, including the March 1959 separation examination, does not show the complaint, treatment, or diagnosis of a sleep disorder. However, the Veteran contends that his diagnosed severe sleep apnea is related to exposure to chemical or biological agents during his service. As the Veteran has a confirmed diagnosis of severe sleep apnea, but no VA examination had been conducted, a remand was necessary to obtain medical records, as indicated above, and an appropriate medical opinion concerning his contentions. See July 2020 Board's Remand; December 2016 Private Treatment Record (physician diagnosed the Veteran with OSA). In the August 2021 VA medical opinion, the examiner noted in the claims that the Veteran was in the Army Reserve and worked with biological weapons. The Veteran stated he did not have excessive bleeding with any of his previous surgeries but that he had been, bruising for several years even before Plavix. He was a postal service worker and worked in the sun for many years. He also stated that he had severe fatigue and was a smoker. The Veteran also underwent a sleep study in May 2017 at the Homestead hospital. The examiner wrote that there was no medical evidence or research to suggest that biological or chemical exposure has been shown to be a cause of sleep apnea. Obesity, increased neck girth, and sinus/palate issues are still the most common cause of OSA. OSA is a mechanical condition where the muscles of the soft palate relax and cause an obstruction of the airway. There is no known medical explanation to explain how chemical exposures could directly cause OSA. In this case, the Veteran was not shown to have OSA until 2017. This was 57 years after his active-duty service in 1959. Therefore, the examiner opined that the Veteran's OSA was less likely than not incurred or caused by his active military service. It was more than 50 percent likely that the cause of his OSA was obesity. The examiner also opined that the Veteran's OSA was not due to any other service-connected disabilities. The Veteran is service connected for hearing loss and tinnitus. The Board acknowledges the Veteran's contentions that his OSA is related to his military service. A lay person is not considered competent to medically attribute OSA to service as doing so to requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinkseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the objective medical evidence of record answered this question. STRs do not show a complaint, treatment, or diagnosis of a sleeping disorder. Post-service treatment records indicate the Veteran was diagnosed with OSA more than 50 years after discharge from active service. Medical opinion of record did not support a finding that the Veteran's OSA was related to his military service or secondary to his service-connected disabilities. The Veteran has not submitted any medical opinions to contradict this finding. Accordingly, the criteria for entitlement to service connection for OSA have not been established, either through medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for OSA, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 5. Entitlement to service connection for leukemia. The Veteran contends that he was diagnosed with a condition while in service. See April 2018 NOD; April 2018 Statement. On an April 2020 NOD, the Veteran wrote that he was exposed to herbicides, nerve agents, chemical and biological while serving as an instructor. See also February 2021 Statement. The Veteran contends that his diagnosed leukemia is related to exposure to chemicals and biological agents during Army National Guard Service. Service Personnel records from the Army National Guard indicate that the Veteran worked as an instructor, including a chemicals instructor. The Veteran submitted a May 2017 lay statement from J.S. in support of his claim. J.S. served as a chemical, biological, and radiological instructor in the Army. J.S. wrote that there was nuclear waste that was buried at Ft. McClellan and they were exposed to biological and chemical toxins, herbicides stored, leaking, and used in training from 1992-1994. They were unaware of the history of toxins stored at the base, but they were assured that post-storage was safe and the handling of such would not be harmful to them. At Pelham Range, they set up and exploded munitions for a course. They were exposed to the ground, dust, and clouds of smoke on the range. The area they did chemical and biological training on was a toxic gas yard, radiological survey area, and biological weapons survey area. The barracks they slept in were full of asbestos. J.S. believed the Veteran developed leukemia as a result of his exposure. STRs from January 1959-March 1959, including the March 1959 separation examination, does not show the complaint, treatment, or diagnosis of a blood condition. Post-service treatment records did not show the development leukemia within one year of discharge. A November 2018 private medical opinion stated that the Veteran's chronic "leukemia was most likely than not directly [related] to chemical/biological /radiological exposure in the army." However, the physician did not provide rationale for why he believed this to be true. He did not mention a review of the Veteran's file or evidence in the record that supported the conclusion reached. The medical opinion was a single sentence conclusion. In January 2019, the Department of the Army issued a statement that there was no record of the Veteran having been exposed to ionizing radiation during his service. As such, a remand was necessary in order to obtain additional medical records and a medical opinion concerning the Veteran's leukemia. See July 2020 Board's Remand. In August 2021 medical opinion, the examiner confirmed the diagnosis of leukemia with an onset in 2016. The Veteran reported that he was diagnosed in 2016 with chronic lymphocytic leukemia. He was very weak and having trouble walking. He could not walk to the mailbox. The examiner noted the Veteran completed antineoplastic chemotherapy in 2019 and his leukemia was currently in remission. The examiner opined that it was less likely than not that the Veteran's leukemia was incurred in or caused by his military service. The VA records showed that the Veteran was only on active-duty orders for two months in 1959. It was less likely than not that he was exposed to any substantial or significant toxins in those two months of active-duty service to lead to leukemia 60 years later. The Veteran described a life-long career of chemical exposures; however, military records do not show that he was on active-duty service during those years. The Board finds the August 2021 medical opinion to be more probative than the November 2018 private medical opinion because the physician offered a rationale to support the conclusion reached. The service treatment records did not indicate complaint, treatment, or diagnosis of a blood disorder and post-service treatment records indicated that the disability developed more than 60 years after discharge from service. (Continued on the next page) Accordingly, the criteria for entitlement to service connection for leukemia have not been established, either through medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for leukemia, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harris, Attorney Advisor 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.