Citation Nr: 21072842 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 16-15 288A DATE: December 6, 2021 ORDER Entitlement to service connection for hypertensive heart disease (heart disease) is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a heart condition which manifested within a year or service or is related to service or an in-service event. 2. Left knee strain, left knee joint osteoarthritis, and left knee meniscal tear were not shown in service or within a year of discharge; and the preponderance of the evidence is against a finding that the Veteran's diagnosed left knee disabilities are related to active service. 3. Right knee strain and right knee joint osteoarthritis were not shown in service or within a year of discharge; and the preponderance of the evidence is against a finding that the Veteran's diagnosed right knee disabilities are related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertensive heart disease (heart disease) have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 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 from September 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2014 and June 2015 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board remanded this appeal in August 2018 and March 2021 for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases, including hypertension, cardiovascular disease, and arthritis, may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service (one year for hypertension, cardiovascular disease, and arthritis). 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. A veteran who, during active military, naval, or air service, served in the Republic of 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 (e.g., Agent Orange), unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, and develops certain diseases to a compensable degree any time after such service, the disease shall be service-connected even though there is no record of such disease during service, provided that the rebuttable presumption provisions of § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The list of diseases that are presumed to be related, or due to, herbicide agent exposure are updated by the Secretary based on information provided by the National Academy of Sciences (NAS). In that regard, the Secretary of VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. If shown by the probative evidence of record, presumptive service connection for heart disease would be warranted pursuant to 38 C.F.R. § 3.309(e). Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection. Stefl v. Nicholson, 21 Vet. App. 120 (2007). When a claimed disability is not included as a presumptive disability, direct service connection may nevertheless be established by evidence demonstrating that the disability was in fact incurred during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 1. Entitlement to service connection for hypertensive heart disease (heart disease) The Veteran contends service connection for hypertensive heart disease is warranted. The Veteran submitted a medical report diagnosing hypertensive cardiovascular disease. The Veteran's service records show he served in the Republic of Vietnam, and Agent Orange exposure is presumed. Shedden elements (1) and (2) are met. Turning to element (3), a nexus, June 2014 and March 2015 VA examiners stated the Veteran did not have a current heart disability, nor has he ever been diagnosed with a heart condition. A November 2020 VA examiner opined that the claimed heart disability was less likely than not caused or aggravated by active service. The examiner based his opinion on the lack of service treatment records showing that the Veteran had these conditions during service. The RO obtained an addendum medical opinion in May 2021. The VA examiner stated that the Veteran does not have hypertensive heart disease. She based this opinion on an interview with the Veteran, and careful consideration of lay statements, service records, medical records, and cardiac studies. The examiner explained that hypertensive heart disease refers to heart conditions caused by hypertension, and include left ventricular hypertrophy (LVH), heart failure (systolic or diastolic), ischemic heart disease including myocardial infarctions or coronary interventions, and cardiac arrhythmias. The examiner determined there was no evidence of hypertensive heart disease, cardiomegaly, cardiomyopathy, congestive heart failure, myocardial infarctions, cardiac arrhythmias, major valvulopathy, cardiac surgeries, angioplasties, revascularization procedures, or pacemakers. Furthermore, the medications that are currently prescribed control the Veteran's service-connected hypertension and prior cerebral strokes. The examiner explained that the Veteran's medication is not prescribed for cardiac events. Citing a previous stress test and a March 22, 2021 echocardiogram, the examiner stated the Veteran had normal ejection fraction, no evidence of ischemia, and there was no evidence of structural heart disease or pathology to support a diagnosis of hypertensive heart disease or disability. The ventricular size, thickness, function, and systolic function are normal. The May 2021 examiner noted medical records showed no diastolic dysfunction, regional wall motion abnormalities, major valvulopathy, aortic valve stenosis, mitral valve prolapse, mitral stenosis, mitral regurgitation, tricuspid stenosis, pulmonic stenosis. She stated aortic sclerosis without stenosis is an expected variant related to the aging process, and is not indicative or consistent with heart disease or disability. The examiner explained that mild aortic regurgitation without dilation, mild tricuspid regurgitation and mild pulmonic regurgitation are considered physiologic and found in normal hearts and are part of the aging process. These symptoms are not indicative of heart disease or disability. Citing an April 2021 physical examination, the examiner noted normal cardiac function, no jugular vein dilation, regular rhythm, point of maximum intensity at 5th space left sternal border, no murmurs, no clicks, and no gallops. Additionally, she stated that available service records do not show any evidence of recurrent signs, symptoms, diagnosis, treatments, nor a chronic disability pattern to support the diagnosis of hypertensive heart disease during active duty, nor within a year after separation from active duty. The Board finds that the preponderance of the evidence is against granting the Veteran's claim of service connection for hypertensive heart disease or a heart disability. The Board affords the May 2021 examiner's opinion great weight, as it was based on medical principles, adequate rationale and supported by medical evidence of record. Importantly, the examiner considered the Veteran's lay statements and history of symptom manifestation. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board has carefully considered the medical opinion of Dr. C.M.Q., M.D. dated May 2014. However, the Board finds the May 2021 report is more probative. Dr. C.M.Q.'s report merely lists all of the Veteran's claimed conditions and states on a different page that all are secondary to "his military service performance." The Board finds that this opinion did not provide a rationale in support of the claim and instead provided a vague conclusory statement. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, and/or provide unsupported conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Thus, this opinion is inadequate, is of low probative value and is inadequate to support a grant of entitlement to service connection of the claim. Cardiovascular disease may be granted service connection on a presumptive basis under 38 C.F.R. § 3.309 (a) and (e) provided he meets the requirements thereof. However, the presumptions do not apply in the Veteran's case because the preponderance of the evidence shows he does not currently have hypertensive heart disease nor has he had a heart disability at any point since discharge. Moreover, treatment records and VA examination reports do not show a continuity of symptomatology. As such, the evidence does not support a finding of continuity of symptomatology under 38C.F.R. §3.303(b). It is acknowledged that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The specific issue in this case, however, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The claimed disability at issue is not a condition that is readily amenable to lay diagnosis or probative comment regarding chronicity or etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). There is no indication that the Veteran is competent to etiologically link any symptoms to service or a service-connected disability. He is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise as to these disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). To the extent that he is competent, the reasoned opinion of the 2021 VA examiner is entitled to more probative weight, as discussed above. Based on the foregoing, the service connection is not warranted for hypertensive heart disease and/or heart disability. The preponderance of the evidence is against the claim. 2. Entitlement to service connection for a left knee and right knee disability is denied. The Veteran contends service connection is warranted for his left knee and right knee disabilities. The Veteran is diagnosed with bilateral knee strain, bilateral knee joint osteoarthritis, and left knee meniscal tear. A November 2020 VA examiner opined that the claimed bilateral knee disabilities were less likely than not caused or aggravated by active service. The examiner observed the lack of service treatment records showing that the Veteran had these conditions during service. VA obtained an addendum medical opinion in May 2021. The examiner opined that the claimed left and right knee disabilities were less likely than not caused or aggravated by active service. The examiner reviewed service treatment records, lay statements, a December 2014 private medical opinion, VA examination reports, and conducted an in-person examination. During the examination, the Veteran reported his bilateral knee disabilities started approximately five years ago and he denied any trauma or injury during active service. The examiner found no evidence of a bilateral knee injury, diagnosis, or treatment during service or at separation. She also stated there was no evidence of continuity or chronicity of any bilateral knee condition. The VA examiner explained that the current bilateral knee disabilities were diagnosed in 2014 by x-ray imaging. The images show non-traumatic degenerative arthritis that is seen during the normal progression of the aging process. The examiner also stated that the Veteran underwent right knee partial meniscectomy in 2005 and left knee meniscal tear in 2009, more than 30 years after service. The Board assigns significant probative weight to the May 2021 VA examiner's opinion because not only is it factually accurate and fully articulate, but the examiner conducted an interview, thoroughly reviewed the claims file, considered the Veteran's contentions and provided adequate rationale discussing why there was no current heart disability as a result of active service. The Board has considered the medical opinion of Dr. C.M.Q., M.D. However, the Board finds the May 2021 report is more probative. Similar to Dr. C.M.Q.'s opinion regarding the Veteran's hypertensive cardiovascular disease, his report regarding the Veteran's bilateral knee disabilities does not provide a rationale in support of the claim and instead provides a vague conclusory statement. As noted above, inadequate medical examinations that do not provide an etiological opinion, are not based upon a review of medical records, and provide unsupported conclusions are inadequate. See Nieves-Rodriguez. Therefore, this opinion is inadequate, is of low probative value and is inadequate to support a grant of entitlement to service connection of the claim. Arthritis may be granted service connection on a presumptive basis under 38 C.F.R. § 3.309 (a) if manifested to a compensable degree within 1 year of separation from service. Here, preponderance of the probative evidence shows bilateral degenerative knee joint disease was diagnosed in February 2014, approximately 47 years after discharge. Moreover, the Veteran denied any trauma during service and reported he experienced knee issues in 2016. The May 2021 VA examiner found no evidence of continuity or chronicity of any bilateral knee condition. As such, the evidence does not support a finding of continuity of symptomatology under 38 C.F.R. § 3.303(b). It is acknowledged that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The specific issue in this case, however, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The claimed disability at issue is not a condition that is readily amenable to lay diagnosis or probative comment regarding chronicity or etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). There is no indication that the Veteran is competent to etiologically link any symptoms to service. He is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise as to these disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). To the extent that he is competent, the reasoned opinion of the 2021 VA examiner is entitled to more probative weight, as discussed above. Based on the foregoing, the Board denies the claim to service connection for a left knee disability and a right knee disability. The preponderance of the evidence is against the claim. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disability and service connection for a right shoulder disability are remanded. The Board remanded these issues in March 2021 for new VA examinations. The Remand directives specifically stated that the VA examiner must not render an opinion solely based on the absence of evidence of complaints, diagnosis and treatment. More importantly, a detailed explanation was requested for all opinions provided. The Veteran underwent a VA examination in May 2021 and reported he injured his neck during service. The examiner opined that the claimed cervical spine disability was less likely related to service. He explained there was no evidence of trauma, diagnosis, or treatment during service or within one year after discharge for any cervical condition. The examiner believed the cervical spine conditions were related to the aging process. The examiner stated the Veteran's right shoulder claim was less likely related to service because there was no evidence of right shoulder treatment, complaints, diagnosis, or injury during active service or one year after discharge. The Board finds that these opinions do not provide a rationale in support of the medical opinions. Instead, the examiner provides two conclusory statements without any rationale. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, and/or provide unsupported conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). When VA provides an examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, a remand to obtain an addendum opinion is necessary. 2. Entitlement to TDIU is remanded. The Veteran's claim for TDIU may be impacted by the outcome of his claims for service connection for a right shoulder disability and a cervical spine disability. Therefore, the issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a significant impact upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Obtain any outstanding treatment records. 2. Obtain opinions addressing the etiologies of the right shoulder and cervical spine disabilities. The VA examiner must review the claims file and must note that review in the report. The VA examiner must undertake the following: Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's right shoulder disability and/or cervical spine disability is the result of an in-service injury, illness, disease, or event; and/or is otherwise related the Veteran's active service; and/or manifested within one year of service. (Continued on the next page) The VA examiner must not render an opinion that is solely based on the absence of evidence of complaints, diagnosis, or treatment for the pertinent disability. A detailed, thorough, and well-reasoned rationale is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mohammad Mahmoudi, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.