Citation Nr: 21064401 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 16-24 312 DATE: October 20, 2021 ORDER Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. Service connection for a prostate condition, to include as secondary to exposure to herbicide agents, including Agent Orange, is denied. REMANDED The service connection claim for hypertension is remanded. The service connection claim for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD) and depressive disorder (acquired psychiatric disability) is remanded. The service connection claim for a heart condition, to include supraventricular arrhythmia (heart condition) is remanded. The service connection claim for right eye cataract is remanded. The service connection claim for left eye cataract is remanded. The service connection claim for erectile dysfunction, to include as secondary to type 2 diabetes, and/or hypertension is remanded. FINDINGS OF FACT 1. There is no probative evidence of an in-service event or injury to the right knee, nor is there any x-ray showing right knee degenerative arthritis manifest to a compensable degree within a year after his separation from service; and there is no evidence that his right knee disability is otherwise causally related to his active military service. 2. There is no probative evidence of an in-service event or injury to the left knee, nor is there any x-ray showing left knee degenerative arthritis manifest to a compensable degree within a year after his separation from service; and there is no evidence that his left knee disability is otherwise causally related to his active military service. 3. There is no evidence that the Veteran's benign prostate hyperplasia is causally related to his active military service; or that this condition is the result his in-service exposure to herbicide agents, including Agent Orange. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a left knee condition have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a prostate condition, including secondary to exposure to herbicide agents, to include Agent Orange, have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 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 Army from March 1967 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In June 2019, the Board remanded this matter to the Regional Office for further evidentiary development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in, or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of a current disability that is related to an injury or disease in service. 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 that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Veteran asserted that the VA examiner who rendered examinations and medical opinions for his disabilities, including his knee disabilities and prostate condition was a non-specialist. He further asserted that the Veteran "had a long and complicated medical history [in which] many of his disabilities are very complex issues going back decades", and that, "it does not appear that . . . VA provided an 'appropriately trained clinician', as is usually required." See August 2021 Appellate Brief from the Veteran's Representative. However, the Board finds that the Veteran has not provided any competent, probative evidence to support his above-mentioned assertions. As noted above, the Veteran suggests that by virtue of the fact that the VA examiner was not a specialist in the pertinent area of medicine for which he rendered medical opinions for the Veteran's disabilities, this VA examiner is not an appropriately trained clinician who is competent to render the medical opinions for the disabilities on appeal. Generally, with very few limited exceptions, an examiner is not required to possess a specialty in the pertinent field of medicine pertaining to the disability in question, to qualify as an examiner that is competent to render the examination or opinion. Rather, a VA examiner is competent to render a VA examination or opinion merely if he or she is qualified, through education, training or experience, to provide a medical diagnosis, statements, or opinions, notwithstanding the examiner's status as a physician or designated medical specialist. See Cox v. Nicholson, 20 Vet. App. 563, 568 (2007) (citing Goss v. Brown, 9 Vet. App. 109, 114 (1996)). Thus, in this regard, the Board clarifies that the VA examiner who rendered VA opinions on the Veteran's bilateral knee and prostate disabilities is a licensed physician who is a doctor of osteopathic medicine. See e.g. June 2015 VA Opinion for Prostate Condition; see also April 2016 VA Opinion for Bilateral Knee Disability. Further, there is no indication, nor has the Veteran provided any evidence, that a greater level of specialized training, beyond the scope of his capacity as a qualified, licensed physician or doctor of osteopathy, is required for his medical opinions on his bilateral knee and prostate disabilities. More so, the Veteran has not presented any other arguments, nor has he presented any competent, probative evidence, to support his assertion that the VA examiner is not an "appropriately trained clinician" that is qualified to render an opinion on his disabilities. Thus, the Board finds that the Veteran has not raised a specific or legitimate challenge to the VA examiner's competency to render examinations and opinions on his disabilities. Additionally, in asserting entitlement to service connection for his disabilities, including bilateral knee and prostate disabilities, the Veteran asserted that he has not had any medical examinations for his claimed disabilities since June 2016. With respect to a service connection claim, a VA examination and medical nexus opinion are required when there is evidence of a current disability or persistent or recurrent symptoms of a disability; evidence of an in-service event, injury, or disease, or a disease manifested in accordance with presumptive service connection regulations; and an indication that the current disability may be related to an in-service event, injury, or disease, but at the same time, presents as insufficient evidence for deciding the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Notwithstanding the lack of any evidence of an in-service event, injury, disease, or a disease manifested in accordance with presumptive service connection regulations, however, the Regional Office obtained a VA medical opinion for his bilateral knee and prostate disabilities in 2015 and 2016. Since these dates, however, the Veteran has not provided any new or additional evidence of an in-service event, injury, disease, or a disease manifested in accordance with presumptive service connection regulations, that may be suggestive of a correlation with his current bilateral knee or prostate disabilities. Additionally, the probative evidence does not suggest that these VA opinions are inadequate. Thus, without any new evidence to suggest that there is a correlation between the Veteran's service and his current bilateral knee or prostate disabilities, nor any indication that these VA opinions are inadequate, there is no reasonable basis for VA to obtain a VA examination, or to render a new or addendum opinion for the bilateral knee and prostate disabilities. Thus, for purposes of adjudicating the service connection claims for the bilateral knee and prostate disabilities, the Board finds that VA does not have any additional duty to either: (1) schedule the Veteran for a VA examination for his bilateral knee and prostate disabilities; and/or (2) obtain new or addendum opinions on the Veteran's bilateral knee and prostate disabilities. Notwithstanding these findings, the Board has considered and addressed the Veteran's service connection claims for the bilateral knee disability and the prostate disability independently. 1. Right and Left Knee Disabilities (Bilateral Knee Disability) As indicated above, The Veteran asserts entitlement to service connection for his bilateral knee disability. The medical evidence indicates that the Veteran is currently diagnosed with bilateral knee pain and degenerative joint disease. See e.g. January 2015 Primary Care Outpatient Note; see also April 2016 VA Opinion for Knee Conditions. However, service treatment records (STRs) do not indicate that the Veteran sustained any injuries, illnesses, or diseases that may be associated with either right or left knee disability. Further, the Veteran has not asserted, nor do any STRs show or indicate that the Veteran sustained any knee-related injuries from an accident or event during his active service. Notwithstanding, the Regional Office obtained an etiological opinion from a VA examiner. In an April 2016 VA opinion, the VA examiner opined that it is less likely than not the Veteran's claimed bilateral knee conditions were incurred in or caused by an in-service injury, event, or illness. As the rationale for this opinion, the VA examiner explained that STRs do not show any evidence of a diagnosis or treatment for a knee condition or injury that would disrupt the articular surface of the knee joints. Further, the VA examiner explained that the Veteran was diagnosed with degenerative joint disease of the knees, more than 40 years after his separation from service. Thus, he suggested that his bilateral knee disabilities are most likely due to events that occurred after the Veteran's separation from service, as well as neutral aging. Although the Board is cognizant that generally, the absence of evidence of in-service complaints, treatment, or a diagnosis of condition is an insufficient rationale to support an opinion that a disability is not related to a veteran's active service, see Dalton v. Nicholson, 21 Vet. App. 23 (2007), the Veteran has not submitted any other evidence, such as, for example, private treatment records from a period of his active service, in which he sought treatment and/or was diagnosed with a right or left knee disability, and/or testimonies from witnesses about a knee injury or condition. Thus, there is no other evidence to evaluate or consider, in the adjudication of these direct service connection claims for the right and left knee disabilities. Additionally, the Board has considered whether service connection is warranted, on a presumptive basis, for a chronic disease that was diagnosed within one year of the Veteran's separation from service, such as for example, the Veteran's right or left knee degenerative joint disease (arthritis). 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. However, the medical evidence does not show that the Veteran's degenerative joint disease of either right or left knee was diagnosed within a year after his separation from service. More specifically, the Veteran was diagnosed with degenerative joint disease of the knees well after his separation from service, and approximately, more than 40 years after his separation from service, with a latency period that is too remote from the December 1969 date when the Veteran separated from active service. In summary, the Board finds that the preponderance of the evidence is against this claim, and thus, the service connection claims for right and left knee disabilities must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Prostate Disability The Veteran asserts entitlement to service connection for a prostate disability, to include as secondary to his in-service exposure to herbicides, including Agent Orange. See e.g. August 2021 Appellate Brief. Pertinent to this claim, a veteran is presumed exposed to herbicide agents, including Agent Orange, if he or she had active military, naval, or air service in the Republic of Vietnam from January 9, 1962 to May 7, 1975, "unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C. § 1116(f) ; 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to herbicides, including Agent Orange, during active service, service connection is presumed for a limited number of disabilities in an enumerated list, under 38 C.F.R. § 3.309(e). Furthermore, in Section 3 of the Agent Orange Act of 1991, Public Law No. 102-4, 105 Stat. 11, the Secretary of Veterans Affairs (Secretary) entered into an agreement with the National Academies of Sciences, Engineering, and Medicine (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in Vietnam and various diseases suspected to be associated with such exposure. NAS was to determine, to the extent possible, whether there is a statistical association between the suspect disease and herbicide exposure, taking into account the strength of the scientific evidence and the appropriateness of the methods used to detect the association; the increased risk of disease among individuals exposed to herbicides during the service in the Republic of Vietnam during the Vietnam era; and whether there is a plausible biological mechanism or other evidence of a causal relationship between herbicide exposure and the suspect disease. NAS was required to submit reports of its activities every two years. Based on these studies by NAS, the Secretary, under the authority of the Agent Orange Act of 1991, determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. If a veteran was exposed to a herbicide agent, to include Agent Orange, during active military, naval or air service and has contracted a disease, as specified by statute, under 38 C.F.R. § 3.309, or as otherwise determined by the Secretary, to a degree of 10 percent or more, at any time after service (except for chloracne and early-onset peripheral neuropathy, which must be manifested within a year of the last exposure to a herbicide agent during service), the veteran is entitled to a presumption of service connection, even if there is no record of such disease during service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(e). The medical evidence reflects that the Veteran has benign prostate hyperplasia. See e.g. January 2015 Primary Care Outpatient Note; see also June 2015 VA Opinion on Prostate Conditions. However, this condition is not one of the diseases listed in the enumerated list of presumptive diseases associated with herbicides agent exposure, under 38 C.F.R. § 3.309(e). Therefore, the Board finds that presumptive service connection for benign prostate hyperplasia is not warranted, even though the evidence confirms that the Veteran served in the Republic of Vietnam during the presumptive service period, and VA concedes in-service exposure to herbicides. See e.g. February 1968 Announcement and Enumerated List of Awardees for the Award of the Purple Heart (identifying the Veteran's name in the list, for wounds he received in connection with military operations against a hostile force during his service in the Republic of Vietnam). While the criteria for presumptive service connection for benign prostate hyperplasia, secondary to in-service herbicide agent exposure, is not established, this finding is not dispositive of the service connection claim for a prostate condition. Alternatively, the Veteran may still establish direct service connection for a prostate condition, under 38 C.F.R. § 3.303(d), if there is evidence that this disability was incurred during, or was aggravated by service, notwithstanding presumptive statutory regulations. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Despite a current, benign prostate hyperplasia diagnosis, however, STRs not indicate that the Veteran sustained any injuries, illnesses, or diseases that may be associated with a prostate condition, including benign prostate hyperplasia. Further, the Veteran has not asserted, nor do any STRs show that the Veteran sustained any prostate-related injuries from an accident or event during his active service. Nonetheless, the Regional Office obtained a VA etiological opinion on the Veteran's prostate condition in June 2015. In this opinion, the VA examiner opined that the Veteran's benign prostate hyperplasia was less likely than not incurred in, or caused by an in-service injury, event, or illness. As the rationale for this opinion, the VA examiner explained that STRs do not show any evidence of a diagnosis or treatment for a prostate condition. He further explained that the Veteran was diagnosed with benign prostate hyperplasia after his military service, and that this disease is not a presumptive condition associated with herbicide agent exposure. As noted above, while the absence of evidence of in-service complaints, treatment, or a diagnosis of a condition is usually an insufficient rationale to support an opinion that a disability is not related to a veteran's active service, the Veteran has not submitted any other probative evidence for the Board to consider. Other than the above-mentioned assertions about the competency of the VA examiner to render an opinion on his disabilities, as well as his suggestion that he should be afforded a contemporaneous VA examination, the Veteran has not submitted any other pertinent statements or assertions that are specific to the onset and history of his prostate condition. Pertinently, he has not even asserted that he developed or sustained any prostate-related injuries, diseases, or illnesses during his active service. Therefore, the Board finds that the preponderance of the evidence is against this claim, and service connection for a prostate condition, to include as secondary to exposure to herbicide agents, including Agent Orange, must be denied. Gilbert, 1 Vet. App. at 53; 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND The Board regrets further delay, as additional developments are required before it may render a fully-informed decision on the remaining issues on appeal. 1. Hypertension The Veteran asserts entitlement to service connection for hypertension. See e.g. August 2021 Appellate Brief. At the time the Regional Office denied this claim in a June 2015 rating decision, however, hypertension was not on the enumerated list of diseases that are presumptively associated with an in-service exposure to Agent Orange during the presumptive, statutory period of service in Vietnam. While VA still does not consider this disability to be subject to a regulatory presumption of service connection, as one of the limited diseases in the enumerated list under 38 C.F.R. § 3.309(e), the National Academies of Sciences, Engineering, and Medicine published an updated publication of Veterans and Agent Orange: Update 11 (2018), which found sufficient evidence of an association between hypertension and exposure to Agent Orange, as well as other herbicide agents that were used during the Vietnam War. Essentially, this publication updated a previous classification of hypertension from "limited or suggestive evidence", to a classification of "sufficient evidence" of an association with exposure to Agent Orange. While an "association" does not constitute "causation", there is an indication of a relationship between hypertension and exposure to herbicide agents, which triggers VA's duties to obtain a supplemental medical opinion. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Thus, a remand is required for a supplemental opinion on the nexus between the Veteran's active service and his hypertension. 2. Erectile Dysfunction The Veteran asserts entitlement to service connection for erectile dysfunction. See e.g. August 2021 Appellate Brief. Although there is a likelihood that the Veteran's erectile dysfunction may be caused by or aggravated by his hypertension or service-connected diabetes, a June 2015 VA opinion did not render an opinion on secondary service connection. Therefore, a remand is required for an addendum opinion on secondary causation and aggravation. 3. Acquired Psychiatric Disability The Veteran asserts entitlement to service connection for an acquired psychiatric disability. See e.g. August 2021 Appellate Brief. In a June 2015 VA opinion, however a VA examiner found that the Veteran did not meet the DSM-5criteria for post-traumatic stress disorder, and that the Veteran is not diagnosed with a mental disorder. To the contrary, however, medical treatment records indicate that the Veteran is diagnosed with mental disorders, including PTSD and depressive disorder. See e.g. March 2008 Psychiatry Consult Note; see also January 2020 Mental Health Note. However, the VA examiner did not reconcile or explain the inconsistency or discrepancy between the findings from these treatment records and his finding that the Veteran does not have a mental disability. Thus, this VA opinion is inadequate, as it inconsistent with the medical evidence, and further raises questions as to whether the Veteran has a mental health disability. Thus, for these reasons, a remand is required for a new VA examination and opinion on the presence, and if any, etiology of the Veteran's psychiatric disability. 4. Heart Condition The Veteran asserts entitlement to service connection for a heart condition. See e.g. August 2021 Appellate Brief. He was afforded an evaluation of his heart conditions in June 2015. In the corresponding June 2015 VA examination report, a VA examiner diagnosed the Veteran with cardiac arrhythmia. Additionally, the VA examiner found that the etiology of the Veteran's heart conditions, including the relationship/causality to other heart conditions, is hypertension. Thus, as this this suggests that the Veteran's heart condition may be secondary to hypertension, this issue is intertwined with the issue of service connection for hypertension. Therefore, a remand is also required, pending the adjudication of the service connection claim for hypertension. 5. Right and Left Eye Cataracts (Bilateral Eye Cataract) The Veteran asserts entitlement to service connection for a bilateral eye condition, to include bilateral eye cataract. The Veteran was afforded a VA examination for eye conditions in May 2016. Although a VA examiner diagnosed the Veteran with bilateral incipient cataract, he did not render a nexus opinion on the bilateral cataract. Additionally, the VA examiner remarked that he considers the Veteran's incipient cataracts as "age normal" and "not due to or aggravated by diabetes at this time." However, he did not provide a rationale to support his finding that the bilateral cataract is not due to or aggravated by the Veteran's service-connected diabetes. Thus, as this opinion is inadequate for purposes of adjudicating the claims for the right and left eye disabilities, a remand is required for a new nexus opinion on the bases of direct and secondary service connection. The matters are REMANDED for the following action: 1. Obtain a supplemental opinion on the nexus between the Veteran's hypertension and his active service. The VA examiner must conduct a complete review of the claims file and he/she must disclose this in the report. A copy of this REMAND must also be provided to the VA examiner. The VA examiner must undertake the following: a. Opine whether it is at least as likely as not (more than 50 percent probability) that the Veteran s hypertension is the result of his in-service exposure to herbicide agents, including Agent Orange, during his active service in the Republic of Vietnam. b. In rendering an opinion, please consider and discuss the National Academies of Sciences, Engineering, and Medicine's updated findings on the association between hypertension and exposure to herbicides in its publication, Veterans and Agent Orange: Update 11 (2018). 2. Obtain a supplemental opinion on the etiology of the Veteran's erectile dysfunction. The VA examiner must review a complete claims file and must note that review in the report. A copy of this REMAND must also be provided to the VA examiner. The VA examiner must undertake the following: Opine whether it is at least as likely as not (more than 50 percent probability) the Veteran s erectile dysfunction is caused by his hypertension. Also, opine whether it is at least as likely as not the Veteran's erectile dysfunction is aggravated by his hypertension. "Aggravation" means an increase in severity of the disorder beyond any medically established baseline. Further, opine whether it is at least as likely as not the Veteran's erectile dysfunction is caused by his service-connected diabetes. Additionally, opine whether it is at least as likely as not the Veteran's erectile dysfunction is aggravated by his service-connected diabetes. 3. Also, schedule the Veteran for a VA examination for mental health conditions. The VA examiner must review a complete claims file and must note that review in the report. A copy of this REMAND must also be provided to the VA examiner. The VA examiner must undertake the following: a. Identify all diagnosed mental disabilities since January 9, 2014, even if any mental disability has since resolved. If it is determined that the Veteran did not have a mental disability at any time between January 9, 2014 and the current period, please explain, with a clear rationale, all discrepancies with findings in treatment records that indicate that the Veteran has mental disorders. b. Then, for each mental disability diagnosed at any time, from January 9, 2014 to the current period, opine whether it is at least as likely as not (more than 50 percent probability) that the pertinent mental disability was incurred in service; is the result of an in-service illness, injury, disease or event; or is otherwise related to his active service. c. In rendering an opinion, please consider all lay statements from the Veteran about onset, continuity of symptoms, or any related pertinent information. 4. Also, obtain a supplemental opinion on the Veteran's heart condition. The VA examiner must review a complete claims file and must note that review in the report. A copy of this REMAND must also be provided to the VA examiner. The VA examiner must undertake the following: a. Opine whether it is at least as likely as not (more than 50 percent probability) the Veteran's heart condition is caused by hypertension. b. Opine whether it is at least as likely as not the Veteran's heart condition is aggravated by hypertension. 5. Also, obtain a new opinion on the nexus between the Veteran's right and left eye disabilities and his active service. The VA examiner must review a complete claims file and must note that review in the report. A copy of this REMAND must also be provided to the VA examiner. The VA examiner must undertake the following: a. For each eye disability, opine whether it is at least as likely as not (more than 50 percent probability) the Veteran's eye disability is the result of an in-service injury, illness or event; was incurred in active service; and/or is otherwise related to his active service. b. Opine whether it is at least as likely as not the pertinent eye disability is caused by the Veteran's service-connected diabetes. c. Opine whether it is at least as likely as not the eye disability is aggravated by the Veteran's service-connected diabetes. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V-N. Pratt 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.