Citation Nr: 21068504 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-22 239 DATE: November 10, 2021 ORDER Service connection for a right knee condition, to include as secondary to a right leg injury from a mortar round, is denied. Service connection for heart disease is denied. VETERAN'S CONTENTIONS The Veteran contends that he has a right knee condition secondary to his service-connected right leg injury from a mortar round. The Veteran contends that he has heart disease as a result of exposure to herbicides including Agent Orange. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of a right knee condition that is separate and distinct from symptoms associated with his service-connected right leg injury from a mortar round. 2. The Veteran's heart disease clearly and unmistakably preexisted service. 3. The Veteran's heart disease is congenital in nature and did not first manifest during service; neither was it permanently worsened beyond normal progression during or as a result of service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee condition are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for heart disease are not met. 38 U.S.C. §§ 1101, 1111, 5107; 38 C.F.R. §§ 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1964 to January 1966. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction is currently with the RO in Phoenix, Arizona. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in June 2020. The transcript of the hearing has been associated with the claims file. These matters were previously before the Board at which times they were remanded for further development. Service Connection Generally, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may be granted for congenital diseases, but not congenital defects. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (discussing VAOPGCPREC 82-90); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). Service connection may be granted for congenital diseases which either first manifest during service or which preexist service and progress at an abnormally high rate during service. See VAOPGCPREC 67-90; 55 Fed. Reg. 43253 (1990); VAOPGCPREC 82-90; see also 38 C.F.R. §§ 3.303 (c), 3.306. Service connection for a congenital defect can only be established if the congenital defect was subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. VAOPGCPREC 82-90 (July 18, 1990). In addition, a veteran who, during active service, served in Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, including Agent Orange, 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; 38 C.F.R. § 3.307(a)(6)(iii). If a veteran is presumed to have been exposed to an herbicide during such active service, the veteran shall be service connected for the diseases listed under 38 C.F.R. § 3.309(e), if the disability manifested to a degree of 10 percent or more at any time after service. See 38 C.F.R. § 3.307(a)(6)(ii). Further, service connection may be established on a secondary basis for a disability which was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107 (b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge). 1. Entitlement to service connection for a right knee condition, to include as secondary to a right leg injury from a mortar round The threshold question that must be addressed is whether the Veteran has a current right knee condition. After a review of the evidence of record, the Board finds that the preponderance of the evidence establishes that the Veteran has not been diagnosed with a right knee condition that is separate and distinct from his service-connected right leg injury from a mortar round, during the course of the appeal. 38 C.F.R. §§ 3.303, 3.317(a)(2), 4.88a. As such, service connection must be denied. In this regard, a March 2016 VA examiner opined that the Veteran's symptoms were specifically just below the shrapnel injury scar and mostly likely proximately due to or the result of the status post right leg shrapnel wound. A December 2020 VA examiner similarly opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran does not have a diagnosed right knee condition. In August 2020 and February 2021, the Board remanded the Veteran's claim to obtain an addendum opinion addressing whether right knee pain caused functional impairment related to service in light of Saunders v. Wilkie. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). A May 2021 VA examiner again opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran does not have a diagnosed right knee condition and the Veteran did not have any functional impairments associated with right knee, to include any neurological abnormalities that are separate and distinct from the otherwise compensated residuals of the service-connected right leg injury from a mortar round. The examiner further reasoned that the Veteran did not have complaints of a right knee problem, examination findings were normal other than decreased range of motion which is strictly age-related, and March 2016 x-rays were normal. Upon consideration of all the evidence, the Board finds that the Veteran does not currently have a right knee condition that is separate and distinct from his service-connected right leg injury from mortar round. The Board acknowledges the Veteran's competent and credible reports of swelling after use and inability to walk. However, as a lay person, he is not able to diagnose himself with a right knee condition and although the Veteran reported functional impairment and pain, the medical evidence of record demonstrates that his pain and functional impairment is associated with his service-connected right leg injury from mortar round. The Board also notes that both the March 2016 and December 2020 VA examiners indicated that the Veteran did not have a right knee condition that impacted his ability to work. In the absence of evidence of a current disability for which service connection may be granted, there can be no grant of service connection under the law. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection for a right knee condition is denied. 2. Entitlement to service connection for heart disease A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Generally, a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. If a pre-existing disorder is "noted" upon entering service, in accordance with 38 U.S.C. § 1153, the veteran has the burden of showing an increase in disability during service. If the veteran meets that burden and shows that an increase in disability occurred, the burden then shifts to the government to show that any increase was due to the natural progress of the disease. Wagner, 370 F.3d at 1096. Lastly, congenital, or developmental defects are not considered to be diseases or injuries within the meaning of VA laws governing the award of service connection for diseases and injuries related to service. 38 C.F.R. § 3.303. However, VA General Counsel has rendered a legal opinion which holds that service connection may be granted for hereditary diseases which either first manifested during service or which pre-existed service and progressed at an abnormally high rate, presumably due to aggravation or to a superimposed injury during service. VAOPGCPREC 82-90 (July 18, 1990). In this case, after reviewing the Veteran's claims file, the Board finds that entitlement to service connection for heart disease is not warranted as the evidence demonstrates that (1) the Veteran's heart disease clearly and unmistakably preexisted service, and (2) the Veteran's heart disease clearly and unmistakably was not aggravated during service. Accordingly, the Board will deny the Veteran's claim. As an initial matter, the Board finds the presumption of soundness to be applicable in the instant case as heart disease was not noted on the Veteran's enlistment examination. Thus, to rebut this presumption of soundness, the evidence must show, by clear and unmistakable evidence, both (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. Here, the evidence clearly and unmistakably demonstrates that the Veteran's heart disease preexisted service. A January 2016 VA examiner opined that aortic stenosis was due to a congenital abnormality of the aortic valve; rheumatic fever that can cause scarring of the valve of calcium deposits. A December 2020 VA examiner opined that the current heart condition was due to a congenital structural abnormality and there is no medical evidence that the condition occurred in or was caused by service. An August 2021 VA examiner opined that the Veteran's aortic stenosis (which led to an aortic valve replacement) appeared to be congenital based on medical records and history. Therefore, the Board finds that there is clear and unmistakable evidence that the Veteran had preexisting heart disease prior to service due to its congenital nature. Moving to the second requirement of aggravation, the Board finds that the evidence clearly and unmistakably demonstrates that the Veteran's heart disease did not undergo a worsening beyond its natural progression in service. A May 2021 VA examiner opined that it is less likely as not that the condition is related to service, manifested in service, or preexisted service and progressed at an abnormally high rate due to service. The examiner reasoned that the Veteran's STRs did not indicate that the Veteran was seen or treated for complaints of signs or symptoms related to a heart condition. Also, separation examination dated January 28, 1966 was negative for heart problems. In an August 2021 addendum, an examiner noted the Veteran's contention regarding Agent Orange, and again opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran's aortic stenosis (which led to an aortic valve replacement) appears to be congenital based off of his medical records and history and the heart condition can be worsened by cardiovascular risk factors such as diabetes, high cholesterol, and hypertension. However, the Veteran did not have a history of hypertension while on active duty; the Veteran's exit examination was silent for complaints of chest pain and no heart murmur was noted at that time; and his blood pressure was normal on separation examination. The Board finds the January 2016, December 2020, May 2021, and August 2021 VA opinions to be highly probative. The opinions were based on a review of the claims file and/or examination of the Veteran, and review of relevant facts, and the examiners provided detailed rationales. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). There is no opinion to the contrary. The Board acknowledges the Veteran's complaints related to his heart disease and recognizes that the Veteran is competent to describe symptoms he experienced based on his personal knowledge. Layno, 6 Vet. App. at 470. However, the issue of whether his current heart disease is related to service is a complex medical issue which the Veteran is not competent to address. See Davidson v. Nicholson, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In sum, the evidence clearly and unmistakably demonstrates that the Veteran's heart disease preexisted service and was not aggravated by service; entitlement to service connection is not warranted. As such, the claim will be denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.