Citation Nr: 21073752 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 16-58 794A DATE: December 10, 2021 ORDER Entitlement to service connection for a left knee disability, claimed as secondary to service-connected degenerative arthritis, chondromalacia patella right knee is granted. Entitlement to service connection for a respiratory disability, claimed as chronic obstructive pulmonary disease (COPD) and asthma, is granted. REMANDED Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a deviated septum is remanded. Entitlement to service connection for a skin disability, claimed as squamous cell carcinoma and actinic keratosis, is remanded. Entitlement to service connection for a respiratory disability other than COPD and asthma, claimed as sarcoidosis and bronchitis, is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to now service-connected COPD and asthma, is remanded. FINDINGS OF FACT 1. The Veteran's left knee disability has been attributed to his service-connected degenerative arthritis, chondromalacia patella right knee. 2. The Veteran's respiratory disability, diagnosed as COPD and asthma, had its onset in service or is otherwise etiologically related to his active service. CONCLUSIONS OF LAW 1. A left knee disability is proximately due to or the result of his service-connected degenerative arthritis, chondromalacia patella right knee. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a respiratory disability, diagnosed as COPD and asthma, are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1965 to February 1969, and from June 1969 to July 1977, including service in Vietnam, and is the recipient of numerous awards and commendations, including a Purple Heart Medal and Combat Action Ribbon. In July 2019, the Veteran attended an informal hearing conference with a Decision Review Officer (DRO). In January 2020, the Veteran testified before a Veterans Law Judge (VLJ), which resulted in a mostly inaudible transcript. By way of a March 2020 letter, the Veteran was informed that the hearing transcript was inaudible and was offered the opportunity to testify at another hearing. The Veteran testified before the undersigned VLJ in a September 2021 hearing. A transcript is of record. With respect to the Veteran's claim for a respiratory disability, the Board notes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Although the Veteran's claim was adjudicated by the RO as a claim for COPD and chronic bronchitis, the Veteran has consistently alleged that he is claiming entitlement to service connection for all respiratory symptomatology. See January 2020 Statement in Support of Claim (SISC). As such, the Board has recharacterized the issue of entitlement to service connection for a respiratory disability into two separate claims: (1) entitlement to service connection for a respiratory disability, claimed as COPD and asthma, and (2) entitlement to service connection for a respiratory disability, other than COPD and asthma, claimed as sarcoidosis and bronchitis. See id. Service Connection Under the relevant laws and regulations, 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. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that 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 which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Finally, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 1. Entitlement to service connection for a left knee disability, claimed as secondary to service-connected degenerative arthritis, chondromalacia patella right knee. The Veteran is service-connected for degenerative arthritis, chondromalacia patella right knee. He asserts that his left knee disability is the result of his service-connected right knee. The Veteran credibly testified at his September 2021 BVA hearing that he began overcompensating with his left leg due to his service-connected right knee disability. He stated that eventually his right knee gave out, causing him to fall and injure his left knee. See BVA Hearing Transcript (T.) at 4-5. The Veteran was provided a November 2015 VA examination. The VA examiner provided a negative etiological opinion, stating that the service records were silent for a left knee condition. Additionally, the VA examiner noted that the Veteran had not been diagnosed with a left knee condition due to his right knee. The examiner noted that the Veteran had not had treatment for a left knee disability until last year when he fell. The Board finds that the rationale for the opinion provided is inadequate. Additionally, the VA examiner did not address secondary aggravation as required by 38 C.F.R. § 3.310(b). While VA could undertake additional development with respect to this disability, based on the credible testimony provided by the Veteran, the Board will resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, the Board concludes that a grant of service connection for a left knee disability is warranted on a secondary basis. The nature and extent of the disability is not before the Board. 2. Entitlement to service connection for a respiratory disability, claimed as COPD and asthma. The Veteran contends that his respiratory disability, specifically COPD and asthma, is the result of toxic exposures from his service. Specifically, he has alleged that he was exposed to diesel fuel/exhaust, wood smoke, and asbestos. See January 2020 SISC and July 2015 Asbestos Questionnaire. Service treatment records do not specifically note treatment for a respiratory disability. The evidence reflects that following service, the Veteran has been diagnosed with COPD and asthma. Although a March 2016 VA examination and opinion were obtained, the VA examiner did not adequately comment on the Veteran's alleged in-service exposure and its effect, if any, on his current diagnoses. Little probative value is therefore accorded to this examination. Supporting the Veteran's claim is a September 2019 VA examination and opinion. The VA examiner diagnosed the Veteran with asthma and COPD. The examiner opined that the Veteran's asthma and COPD are at least as likely as not incurred in or caused by wood fires, burning feces, weapons fire, diesel, and exhaust fumes during service. The examiner commented that although they saw no reports of documentation in service, due to the Veteran's MOS and the geographical areas in which he served it is at least as likely as not that his asthma and COPD are related to service. The examiner provided medical studies to support their conclusion. Resolving all doubt in favor to the Veteran, the Board finds that the evidence supports a nexus between the Veteran's current COPD and asthma, and service. Accordingly, the Board concludes that a grant of service connection for COPD and asthma is warranted. The nature and extent of the disorders is not before the Board at this time. The Board remands below the portion of the respiratory disability claim dealing with the diagnoses of sarcoidosis and bronchitis. REASONS FOR REMAND 1. Entitlement to service connection for a right ankle disability is remanded. 2. Entitlement to service connection for a left ankle disability is remanded. Service treatment records reflect that the Veteran twisted his left ankle in February 1974. He was diagnosed with a sprain of the left ankle. A November 1974 service treatment record reflects that the Veteran sought treatment for trauma to his right ankle. An x-ray at that time did not show a fracture or dislocation, but one small area of a tear was noted. The Veteran was given crutches for one week. At the Veteran's September 2021 BVA hearing he testified that his participation as an instructor in Survival, Evasion, Resistance and Escape (SERE) training and the rigors involved with that led to his ankle disabilities. See BVA T. at 6-11. Service personnel records confirm that the Veteran was involved in SERE training. Post-service treatment records reflect complaints of bilateral ankle pain for 40 years. The Veteran has been diagnosed with mild early degenerative arthritis of the ankles bilaterally. See November 2014 VA treatment record. In May 2015, the Veteran submitted treatise information showing a possible link between sprains and the subsequent development of ankle osteoarthritis. The Veteran was afforded a November 2015 VA examination and opinion for his bilateral ankles. He was diagnosed with bilateral deltoid ligament sprain. The examiner provided a negative etiological opinion regarding his bilateral ankles at that time. The examiner noted that the Veteran had age related osteoarthritis. The examiner noted that the Veteran had no continuity of therapy since 1977. The Board finds that the rationale provided by the examiner is inadequate. The VA examiner did not adequately address the May 2015 research submitted by the Veteran and failed to appropriately consider the Veteran's credible assertions of continuity of bilateral ankle symptomatology since service, despite lack of treatment. The Board finds that an addendum opinion is necessary. 3. Entitlement to service connection for a deviated septum is remanded. Service treatment records reflect that the Veteran was in a motor vehicle accident in February 1971 and suffered trauma to his head. In the Veteran's substantive appeal, he attributes his deviated septum to head trauma in this February 1971 accident. A November 1974 service treatment record notes a small septal spur on the right. In an April 2016 Report of General Information, the Veteran reported that because the ship he was on was rocking from an incoming strike he fell and got a deviated septum. Personnel records confirm that the Veteran was awarded a special citation after the ship he was on experienced enemy fire. The personnel record notes that the Veteran was knocked to the deck by the concussion of a recoilless round exploding near the boat. The Board finds that a remand for a VA examination and opinion regarding the claim of service connection for a deviated septum is necessary. 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Entitlement to service connection for a skin disability, claimed as squamous cell carcinoma and actinic keratosis, is remanded. The Veteran asserts that he was exposed to a lot of sun during service. He attributes this sun exposure to the subsequent development of his skin cancer. See Board T. at 24-26. In a September 2021 statement, a fellow service member stated that he had served with the Veteran and that in March 1968 they were involved in swim survival training. The Veteran's buddy noted that the indoor pool was not available so the training was held outside in the sun. He attested that the Veteran got very sunburned and had very bad blisters on his back. Post service treatment records reflect diagnoses of squamous cell carcinoma and actinic keratoses. See March 2014 VA treatment record. The Veteran submitted a medical article noting the relationship between squamous cell carcinoma and Agent Orange. See Article submitted June 2014. The Veteran was provided a September 2019 VA examination and opinion. The examiner initially provided a negative etiological opinion stating that the diagnosed squamous cell carcinoma is less likely incurred in or caused by sun exposure during service. The examiner then wrote that there are service treatment records showing squamous cell carcinoma. In an addendum October 2019 opinion, the examiner noted that they had erroneously noted that there had been squamous cell carcinoma in service and their opinion should have read that there were no service treatment records showing squamous cell carcinoma in service. The Board finds that adequate rationale for these opinions was not provided and an additional VA opinion is warranted. 5. Entitlement to service connection for a respiratory disability, other than COPD and asthma, claimed as sarcoidosis and bronchitis is remanded. As noted above, the Board has granted service connection for a respiratory disability diagnosed as asthma and COPD. VA treatment records additionally note that the Veteran has been diagnosed with bronchitis and sarcoidosis. See January 2005, February 2006, and April 2013 (bronchitis); July 2013 and May 2014 (sarcoidosis) VA Treatment Records. In addition to asserting that his sarcoidosis and bronchitis are related to service, the Veteran asserts that his additional respiratory disabilities are secondary to his exposure to herbicides. See June 2014 Notice of Disagreement. A March 2016 VA examination and opinion were provided. This opinion is accorded little probative value as the rationale for the negative etiological opinion is inadequate. A subsequent September 2019 VA examination and opinion did not provide a specific opinion regarding the Veteran's sarcoidosis and bronchitis diagnoses. The Board finds that an addendum opinion is necessary. 6. Entitlement to service connection for GERD, to include as secondary to now service-connected COPD and asthma, is remanded. The Veteran asserts that he has GERD, to include as secondary to his now service-connected COPD and asthma. In a March 2016 VA examination, the Veteran was diagnosed with GERD. The examiner opined that his GERD was not related to service because it was essentially diagnosed long past his military service. The examiner then stated that "it may" be related to his treatment for COPD. Due to the speculative nature of this opinion, it is accorded lower probative value. In a subsequent September 2019 VA opinion, the examiner stated that the Veteran's GERD is less likely as not proximately due to or the result of the Veteran's asthma and COPD as the medical evidence does not support this. The VA examiner did not adequately address secondary aggravation as required by 38 C.F.R. § 3.310(b). In May 2015, the Veteran submitted medical articles exploring the relationships between COPD and GERD and asthma and GERD. One of the articles discussed that asthma could worsen GERD. The Board finds that an addendum opinion is necessary. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from a qualified examiner regarding the etiology of the Veteran's bilateral ankle disability. An examination is not required unless deemed so by the examiner. Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's bilateral ankle disability had its onset in service, within a year of service separation, or is otherwise related to an event or injury in service? Consider and discuss the Veteran's contentions that his involvement as a SERE instructor caused his bilateral ankle disability. Additionally, address the May 2015 medical article submitted by the Veteran. Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any requested opinions without resort to speculation, he or she should so indicate and explain why such a finding is made. If opinions cannot be provided without an in-person examination, such should be scheduled. 2. Obtain an opinion from a qualified medical professional to determine the nature and etiology of his deviated septum. An examination is not required unless deemed so by the examiner. The claims file must be reviewed in conjunction with such opinion, and the examiner must indicate that such review occurred. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any deviated septum had its onset during the Veteran's active service or is otherwise causally related to his service, to include the motor vehicle accident and injury from falling on board ship. Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any requested opinions without resort to speculation, he or she should so indicate and explain why such a finding is made. If opinions cannot be provided without an in-person examination, such should be scheduled. 3. Obtain an addendum opinion from a qualified examiner regarding the etiology of the Veteran's skin disability. An examination is not required unless deemed so by the examiner. Is it at least as likely as not (50 percent probability or greater) that the Veteran's skin disability had its onset in, or is otherwise related to an event or injury in service, to include herbicide exposure? Consider and discuss the Veteran's contentions that his exposure to extreme sun caused his skin disability, along with his buddy's statement acknowledging the Veteran's in-service sunburn with blisters during swim survival training. Additionally, address the medical articles submitted by the Veteran. Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any requested opinions without resort to speculation, he or she should so indicate and explain why such a finding is made. If opinions cannot be provided without an in-person examination, such should be scheduled. 4. Obtain an addendum opinion from a qualified examiner regarding the etiology of the Veteran's respiratory disability, diagnosed as sarcoidosis and bronchitis. An examination is not required unless deemed so by the examiner. Is it at least as likely as not (50 percent probability or greater) that the Veteran's respiratory disability other than asthma and COPD, diagnosed as sarcoidosis and bronchitis, had its onset in, or is otherwise related to an event or injury in service, to include his acknowledged herbicide exposure? Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any requested opinions without resort to speculation, he or she should so indicate and explain why such a finding is made. If opinions cannot be provided without an in-person examination, such should be scheduled. 5. Obtain an addendum opinion from a qualified examiner regarding the etiology of the Veteran's GERD. An examination is not required unless deemed so by the examiner. Is it at least as likely as not (50 percent probability or greater) that the Veteran's GERD had its onset in, or is otherwise related to an event or injury in service? Whether it is at least as likely as not that the Veteran's GERD was caused by his now service-connected respiratory disability, diagnosed as COPD and asthma. Whether it is at least as likely as not that the Veteran's GERD was aggravated by his now service-connected respiratory disability, diagnosed as COPD and asthma. The examiner is additionally requested to address the May 2015 medical articles submitted by the Veteran. Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any requested opinions without resort to speculation, he or she should so indicate and explain why such a finding is made. If opinions cannot be provided without an in-person examination, such should be scheduled. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.