Citation Nr: 21072396
Decision Date: 12/03/21	Archive Date: 12/03/21

DOCKET NO. 18-05 407
DATE: December 3, 2021

ORDER

Service connection for asthma is granted.

REMANDED

Entitlement to an initial compensable disability rating for residual scar, status post left inguinal hernia repair is remanded.

Entitlement to a separate compensable disability rating for ilio-inguinal neuropathy associated with the left inguinal hernia repair is remanded.

Entitlement to service connection for plantar fasciitis is remanded.

Entitlement to service connection for a left knee disability is remanded.

Entitlement to service connection for a right knee disability is remanded.

FINDING OF FACT

The competent and probative evidence is at least in equipoise as to whether the Veteran's current asthma had its onset in or is otherwise related to active service.

CONCLUSION OF LAW

Resolving all doubt in the Veteran's favor, the criteria for entitlement to service connection for asthma are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty with the United States Army from August 1978 to August 1981.

This appeal comes before the Board of Veterans' Appeals (Board) from a November 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service connection for plantar fasciitis, asthma, and left and right knee disabilities and granted service connection for a residual scar, status post left inguinal hernia repair and assigned a noncompensable rating effective July 26, 2016. The Veteran's notice of disagreement (NOD) was received in January 2017. The RO issued the statement of the case (SOC) in November 2017, and the Veteran's VA Form 9, substantive appeal was received in January 2018. 

In May 2021, the Veteran testified at a Board virtual hearing before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file.

In his initial claim, the Veteran sought service connection for "left groin hernia." As noted above, the RO granted service connection for the residual scar, status post left inguinal hernia repair because the November 2016 VA examination found no evidence of a current or recurrent hernia. However, during the May 2021 Board Hearing, the Veteran reported that he experiences pain the area underneath the scar. A July 2021 private medical opinion attributed this pain to likely entrapment of the iliohypogastric and/or ilioinguinal nerves as a result of the in-service hernia surgery. As the Veteran is seeking a higher rating for symptoms which appear to be unrelated to the service-connected scar but are nonetheless residuals of the same in-service hernia surgery, the Board has recharacterized the issues on appeal as indicated above in order to cover all of the Veteran's reported symptoms and diagnoses related to residuals from the in-service hernia surgery. See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

SERVICE CONNECTION

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran 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"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

1. Entitlement to service connection for asthma.

The Veteran contends that his asthma is related to his active service. Specifically, he asserts that his asthma was aggravated by his duties as a chemical operations specialist during service which included frequent exposure to tear gas. See May 2021 Hearing Transcript at 4.

A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by active service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The term "noted" refers to "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). A "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994).

When no preexisting condition is noted upon examination for entry into service, a veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304. To rebut the presumption of soundness under 38 U.S.C. § 1111, there must be clear and unmistakable evidence that (1) a Veteran's disability existed prior to service, and (2) that the preexisting disability was not aggravated during service. Id. When the presumption of soundness is not rebutted, the claim must be treated as a direct service connection claim.

This presumption can only be rebutted by evidence showing both the claimed disability clearly and unmistakably pre-existed service and clearly and unmistakably was not aggravated by service. 38 C.F.R. § 3.304; see also Wagner, supra. Thus, when the presumption of soundness applies, the Veteran is not required to show that a pre-existing injury or disease increased in severity during service. Id. Rather, the burden remains with VA to show by clear and unmistakable evidence that the pre-existing disease or injury was not aggravated by service. Id.

VA may show a lack of aggravation if clear and unmistakable evidence establishes that there was no increase in disability during service, or that any increase in disability was due to the natural progress of the pre-existing condition. Id. If this burden is met, then the claimant is not entitled to service connection benefits. Id.

On the other hand, if VA fails to show a lack of aggravation by clear and unmistakable evidence, then the presumption has not been rebutted. Id. at 1094 (holding that Congress intended to "convert aggravation claims to ones for service connection when the government fails to overcome the presumption of soundness under section 1111"). In that case, the claim will be considered as a normal claim for service connection and, if granted, no deduction for the degree of disability existing at the time of entrance will be made. Id. at 1096 (citing 38 C.F.R. § 3.322). In other words, the claim may not be denied, nor benefits deducted, on the basis of a finding that the disability in question pre-existed active service, if VA does not also meet its evidentiary burden of showing that the disability was not aggravated during service.

The clear-and-unmistakable-evidence standard is a much more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the clear-and-unmistakable-evidence standard is more demanding than the clear-and-convincing-evidence standard, which in turn is higher than the preponderance-of-the-evidence standard). It is an "onerous" and "very demanding" evidentiary standard, requiring that the evidence be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)).

The Veteran's STRs reflect that the Veteran responded, "I don't know" to a question of whether he has ever had or currently had asthma on his August 1978 entrance examination. Nevertheless, lung and chest x-rays were noted to be within normal limits and the Veteran was accepted onto active service without any notation of a pre-service respiratory condition. The presumption of soundness attached as to any respiratory disability. See Wagner, supra. VA has not rebutted this presumption as there is not clear and unmistakable evidence that the Veteran's asthma pre-existed service. The only evidence of a pre-existing respiratory disability is the Veteran's subjective reported history. This does not rise to the level of establishing by clear and unmistakable evidence that the Veteran had asthma prior to active duty service. Moreover, as there is evidence of multiple complaints of respiratory issues in service, to include allergic bronchitis, VA had not met its burden of showing by clear and unmistakable evidence that the Veteran's respiratory disability was not aggravated in service. Accordingly, the question is one of service connection and not aggravation.

The Veteran's STRs reflect several complaints of respiratory issues. A September 1978 service treatment note reflects that the Veteran had a 2 day history of sore throat with mild productive yellowish cough and slight rhinorrhea. An October 1978 service treatment note indicates that the Veteran had a sore throat for 3 days and was diagnosed with a mild respiratory infection. An August 1979 service treatment note indicates that the Veteran had a tight mass in chest, audible breathing and congested sinuses. It was noted that the Veteran had asthma as a child. An August 1980 service treatment note reflects that the Veteran complained that his sinuses were sloped up and that he had congestion of the chest. He reported having a cold for 5 days. The Veteran was diagnosed with allergic bronchitis. 

In July 2021, the Veteran submitted a private opinion from Dr. M.L., an independent medical examiner. Dr. M.L. noted that the Veteran's job during service was as a chemical operations specialist who trained and operated the gas chamber three times a year and was frequently exposed to tear gas. Dr. M.L. noted that the Veteran suffers from asthma and requires an inhaler every day. Dr. M.L. further noted that chest x-rays conducted in October 2016 revealed that the Veteran's lungs were hyperinflated. Dr. M.L. concluded that it is at least as likely as not that the Veteran's asthma was caused by his in-service exposure to tear gas and other noxious substances. He explained that the Veteran's exposure to tear gas while wearing only the same masks worn by servicemembers who were rarely exposed to repetitive doses of tear gas, exposed the Veteran to the toxic cumulative effect of tear gas and left him with chronic and severe damaging effects to his lungs, including his severe asthma and hyperinflation of the lungs caused by the destruction of the alveolar air sacs. 

The July 2021 private medical opinion is persuasive and probative as to the issue of whether the Veteran's current asthma was caused by or related to active-duty service as the private physician provided a clear explanation for the medical opinion based on review of the Veteran's treatment records, an evaluation of the Veteran, credible lay statements provided by the Veteran and medical expertise. Notably, there is no medical opinion to the contrary.

In view of the totality of the evidence, including the Veteran's documented in-service treatment for respiratory complaints, the July 2021 private medical opinion, and the competent and credible lay assertions of record, the evidence is at least in equipoise as to whether the Veteran's current asthma was caused by or is related to active-duty service. The Board finds that after resolving the benefit of the doubt in favor of the Veteran, service connection for asthma is warranted. 38 C.F.R. §§ 3.102, 3.303(a); see Gilbert, supra.

REASONS FOR REMAND

1. Entitlement to an initial compensable disability rating for residual scar, status post left inguinal hernia repair is remanded.

2. Entitlement to a separate compensable disability rating for ilio-hypogastric and/or ilio-inguinal neuropathy associated with the left inguinal hernia repair is remanded.

The Veteran is currently in receipt of a 0 percent (i.e., noncompensable) rating for residual scar, status post left inguinal hernia repair. He contends that he is entitled to a higher rating for the residuals of his left inguinal hernia repair during service. More specifically, he asserts that the area below the scar has been painful since the surgery. See May 2021 Hearing Transcript at 3. 

As noted in the introduction, the July 2021 private medical opinion attributed this pain to likely entrapment of the iliohypogastric and/or ilioinguinal nerves as a result of the in-service hernia surgery. However, the Veteran has not been provided a VA examination to assess the nature and severity of his hernia repair residuals, to include the ilio-hypogastric and/or ilio-inguinal neuropathy. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of this disability. Consequently, after all outstanding medical records are associated with the claims file, a contemporaneous examination is needed to rate the Veteran's claim for a separate compensable disability rating for ilio-inguinal neuropathy associated with the left inguinal hernia repair. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997).

3. Entitlement to service connection for plantar fasciitis is remanded.

4. Entitlement to service connection for right knee degenerative arthritis status post meniscal repair is remanded.

5. Entitlement to service connection for left knee degenerative arthritis is remanded.

The Veteran contends that his plantar fasciitis, right knee degenerative arthritis status post meniscal repair, and left knee degenerative arthritis are due to his duties during service. Specifically, the Veteran states that as part of his duties as a chemical operations specialist, he had to fill the water trucks for the decontamination unit and had to jump up and down from the truck 4 to 5 times a day when he was in the field. See May 2021 Hearing Transcript at 6. He also states that he had to run 5 miles a day for PT wearing combat boots. Id. He asserts that these activities caused his current plantar fasciitis, right knee degenerative arthritis status post meniscal repair and left knee degenerative arthritis. The Veteran stated that he first began experiencing knee pain approximately 3 to 4 years following service and first sought treatment for foot pain in 1989, approximately 8 years following service.

In accordance with the duty-to-assist provisions codified at 38 U.S.C. § 5103A (d) and by regulation found at 38 C.F.R. § 3.159(c)(4), a medical opinion or examination is required if the information and evidence of record does not contain sufficient evidence to decide the claim, but there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006).

As noted above, the Veteran has competently reported repeatedly jumping off and on a water truck each day during service and running 5 miles a day in combat boots. A private medical examiner indicated that these repetitive injuries put unusual strains on the cartilage of the knee joints and caused damage to the ligaments in the arch areas of his feet. Additionally, the Veteran has current diagnoses of plantar fasciitis, right knee degenerative arthritis status post meniscal repair and left knee degenerative arthritis. See VA treatment records dated in September 2016 and October 2016 (x-ray report).

The Veteran has not yet had a VA examination to determine whether his plantar fasciitis, right knee degenerative arthritis status post meniscal repair and left knee degenerative arthritis are related to his active service. As the Veteran has competently reported repetitive use injuries during service, his post-service treatment records reflect current diagnoses of plantar fasciitis, right knee degenerative arthritis status post meniscal repair and left knee degenerative arthritis, and a private medical opinion indicates that his plantar fasciitis, right knee degenerative arthritis status post meniscal repair and left knee degenerative arthritis may be associated with service, a remand for a medical evaluation and nexus opinion is warranted to decide the claim.

The record contains a July 2021 private medical opinion wherein Dr. M.L., an independent medical examiner, provided positive nexus opinions for plantar fasciitis, right knee degenerative arthritis status post meniscal repair and left knee degenerative arthritis. Specifically, Dr. M.L. explained that the Veteran did not have flat feet or plantar fasciitis on entrance to active service and that being subjected to miles of walking every day in basic training and PT wearing combat boots caused damage to the ligaments in the arch areas of his feet resulting in his plantar fasciitis. With regard to the Veteran's current knee disabilities, Dr. M.L. explained that driving the water truck and having to jump off of it and get back on it on a repetitive basis every day, put unusual strains on the cartilage of the knee joints, particularly the femoral and tibia bones and the patella. Dr. M.L. stated that this repetitive injury during service led to a progression of arthritis and ligament and meniscal damage over time that would not have happened if not for the Veteran's repetitive injuries during active service.

However, the opinions are not supported by adequate rationale. The private physician failed to address or reconcile the Veteran's reported post-service occupations involving physical labor with his positive nexus opinions linking the Veteran's current disabilities to his physical activities during service. In this regard, the Veteran reported working at the U.S. Mint for four years immediately following service where his duties involved moving boxes of coins and reported working as a custodian for 13 years after that. See May 2021 Hearing Transcript at 8. Additionally, VA treatment records dated in September 2016 indicate that the Veteran previously worked in railroad maintenance. Accordingly, the July 2021 private medical opinion is inadequate to support a decision on the claims as it fails to provide adequate rationale for its conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). For the forgoing reasons, addendum etiology opinions which adequately address the relevant evidence of record should be obtained on remand.

Finally, a September 2016 VA treatment note indicates that the Veteran reported receiving the majority of his care at Kaiser San Leandro. The record does not show that any correspondence was sent to the Veteran requesting authorization to obtain the identified private treatment records. As such, further development is necessary to associate all pertinent medical treatment records with the file prior to further adjudication.

The matters are REMANDED for the following action:

1. With appropriate authorization from the Veteran, obtain and associate with the claims file all of the Veteran's outstanding private treatment records relevant to the pending claims on appeal, including the identified private treatment records from Kaiser San Leandro.

2. Then, schedule the Veteran for a VA examination to determine the current nature and severity of the Veteran's hernia repair residuals to include the scarring and left groin neuropathy. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the report that the claims file was reviewed.

After a complete review of the claims file, the examiner should indicate the nerve roots involved, as well as the severity, of the Veteran's left groin neuropathy which has been attributed to likely entrapment of the iliohypogastric and/or ilioinguinal nerves as a result of the in-service hernia surgery.

If the examiner determines that the Veteran does not have signs or symptoms due to radiculopathy or neuropathy, the examiner should indicate whether the Veteran's reported left groin pain is a symptom of his service-connected residual scar, status post left inguinal hernia repair.

A rationale for all opinions expressed should be provided and relevant treatise evidence should be cited, where appropriate.

3. Obtain a VA examination and opinion regarding the current nature and likely etiology of the Veteran's plantar fasciitis. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the report that the claims file was reviewed.

After a complete review of the claims file, the examiner should opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's plantar fasciitis is related to an in-service injury, event, or disease. A rationale for all opinions expressed should be provided and relevant treatise evidence should be cited, where appropriate.

In particular, the examiner should discuss the Veteran's May 2021 hearing testimony including his statement that during service he had to run 5 miles a day while wearing combat boots. The examiner should also discuss the July 2021 private medical opinion and the Veteran's statement that he first sought treatment for foot pain in 1989, approximately 8 years following service.

4. Obtain a VA examination and opinion regarding the current nature and likely etiology of the Veteran's right knee degenerative arthritis status post meniscal repair and left knee degenerative arthritis. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the report that the claims file was reviewed.

After a complete review of the claims file, the examiner should opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's right knee degenerative arthritis status post meniscal repair, and left knee degenerative arthritis are related to an in-service injury, event, or disease. A rationale for all opinions expressed should be provided and relevant treatise evidence should be cited, where appropriate.

In particular, the examiner should discuss the Veteran's May 2021 hearing testimony including his statement that as part of his duties as a chemical operations specialist, he had to fill the water trucks for the decontamination unit and had to jump up and down from the truck 4 to 5 times a day when he was in the field. The examiner should also discuss the July 2021 private medical opinion and the Veteran's statement that he first began experiencing knee pain approximately 3 to 4 years following service.

(Continued on the next page)

 

In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand.

 

L. B. CRYAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Modesto, Victor

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.