Citation Nr: 21007873 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 19-14 021 DATE: February 11, 2021 ORDER 1. Entitlement to service connection for a right hip disability is denied. 2. Entitlement to service connection for a right eye disability, however diagnosed, is denied. REMANDED 3. Entitlement to service connection for a right knee disability is remanded. 4. Entitlement to service connection for a skin disability is remanded. FINDINGS OF FACT 1. The Veteran served in Vietnam during the Vietnam Era. 2. A right hip disability was not manifested in service; right hip arthritis was not manifested within a year following the Veteran’s separation from service; and no current right hip disability is shown to be etiologically related to his service or to have been caused or aggravated by a service-connected low back disability. 3. Cataracts of both eyes, right eye epiretinal membrane, and dry eye syndrome of both eyes were not manifested in service and the preponderance of the evidence is against a finding that any such disability is etiologically related to an event, injury, or disease in service. CONCLUSIONS OF LAW 1. Service connection for a right hip disability, to include as secondary to a service-connected low back disability, is not warranted. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. 2. Service connection for a right eye disability, however diagnosed, is not warranted. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from October 1968 to June 1969 including service in the Republic of Vietnam. This case is before the Board of Veterans' Appeals (Board) on appeal from February 2016 and October 2017 rating decisions. In August 2019 a videoconference hearing was held before the undersigned; a transcript is in the record. In March 2020, the case was remanded for further development. 1. Service connection for a right hip disability is denied. 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. § 1110; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Disorders first diagnosed after discharge may be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases (to include arthritis), may be presumed to be service connected if manifested to a compensable degree within a specified period of time postservice (one year for arthritis). 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). For diseases listed in 38 C.F.R. § 3.309(a) nexus to service may be established by showing continuity of symptomatology following service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (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. However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, will be service connected. VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, and any increase in severity due to the natural progress, from the current level. 38 C.F.R. § 3.310(b). For a Veteran who engaged in combat with the enemy, the Secretary of VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The Veteran contends that he has a right hip disability related to his service, or alternatively, that it is secondary to his service-connected low back disability. His service treatment records (STRs) are silent for complaints, findings, treatment, or diagnosis of a right hip disability. A May 2014 right hip X-ray showed a moderate amount of arthritis. On February 2016 VA hip examination, the examiner indicated that no right hip pathology was found on examination, but there is a notation of right hip osteoarthritis. The Veteran reported that he injured his right hip in Vietnam and has had pain since then. X-rays showed mild to moderate right hip osteoarthritis, consistent with age. The examiner opined that it was less likely than not that the Veteran’s right hip disability is related to his service. He explained that the Veteran did not report a hip disability on his separation report of medical history, a right hip disability was not noted on his separation examination, and there was no evidence of a chronic right hip disability after service except for one documented complaint of right hip pain in May 2014. At the August 2019 videoconference hearing, the Veteran testified that he fell while constructing a culvert and injured his right hip. He reported having current right hip pain, and also raised an alternate theory of entitlement, i.e., that a right hip disability is secondary to his service-connected low back disability. He testified that he sought VA treatment for his right hip in 1969 or 1970. An October 2019 VA treatment record notes that the Veteran’s right hip degenerative joint disease (DJD) was stable. On October 2020 VA hip examination, right hip osteoarthritis was diagnosed. The Veteran related that he fell and injured his hip during his service in Vietnam and that his current symptoms consist of right hip pain. He related that he has received hip injections, that he has difficulty walking and standing for any extended period, that he uses a cane for ambulation, and that he cannot bend or squat. The examiner provided multiple opinions that addressed direct service connection and whether or not a right hip disability was caused or aggravated by a low back disability. The examiner opined that a right hip disability was less likely than not related to the Veteran’s service. He acknowledged the Veteran’s report of an in-service injury and indicated that the STRs were otherwise silent for any evidence of treatment for a right hip disability. The examiner noted that a review of the Veteran’s postservice treatment records did not reveal treatment for any right hip disability and/or pain in the years immediately following his discharge from service. He noted that the right hip osteoarthritis was not diagnosed until 2014, over 40 years after the Veteran’s discharge from service and that no medical records [in the record] for that time showed an intermittent or chronic hip disorder. The examiner explained that osteoarthritis is caused by overuse of a joint, and overuse is part of the normal aging process. The examiner also opined that the Veteran’s right hip osteoarthritis was not caused or aggravated by the Veteran’s service-connected low back disability. He explained that a review of medical literature found no direct or indirect causal relationship between the lower back and the development of right hip osteoarthritis because osteoarthritis is caused by overuse of the joint and the normal aging process, and osteoarthritis would not be aggravated by a low back disability. A December 2020 response from the VA Connecticut Healthcare System indicated that records from January 1, 1969 to December 31, 1970 for the Veteran were unable to be located. It is not in dispute that the Veteran has a right hip disability, as right hip osteoarthritis was diagnosed on VA examination. However, a chronic right hip disability was not manifested in service as his STRs are silent for complaints, treatment, or diagnosis of a right hip disability. Consequently, service connection for a right hip disability on the basis that it became manifest in service and has persisted is not warranted. Additionally, as right hip arthritis is not shown to have been manifested in the first postservice year, the chronic disease presumptive provisions of 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309 do not apply. What remains for consideration is whether or not the Veteran’s right hip disability may otherwise be etiologically related to his service (or, as alleged, secondary to a service-connected back disability). Although laypersons are competent to provide opinions on some medical questions, see Kahana, 24 Vet. App. at 428, whether a right hip disability may (in the absence of onset in service/continuity since) be related to service that ended more than 40 years earlier or be secondary to a hip disability is a medical question outside the scope of common knowledge. It requires medical expertise. Jandreau, 492 F.3d at 1372. Although the February 2016 VA opinion is inadequate because it did not consider the Veteran’s reports of an injury in service, and did not address whether current right hip disability is secondary to his service-connected low back disability, the October 2020 VA examiner’s opinions are probative evidence against the Veteran’s claim and the Board finds them persuasive. The provider reviewed the record, considered the Veteran’s lay assertions regarding injuries in service, and supported the opinions with rationale that cites to supporting factual data (to include the lengthy postservice intervening period before the claimed right hip disability was shown and that there are nonservice-related etiological factors for the Veteran’s disability, to include the aging process). In essence, the provider determined that any undocumented-contemporaneously hip injury in service would have been acute because a chronic hip disability (arthritis) is not shown until decades after service, and that a non-service-related aging process, is the more likely etiology for the disability. The provider is a medical professional with subject matter expertise. Because there is no probative evidence to the contrary, the opinion is persuasive. There is likewise no competent (medical) evidence in the record that supports that that Veteran’s right hip disability was caused or aggravated by his service-connected back disability. The Veteran has not submitted any such evidence. The only competent evidence in the record that addresses this question is in the opinions of the VA examiners. In the October 2020 opinion (against the claim) the VA examiner explained that a review of medical did not reveal any support for the proposition that a back disability such as the Veteran’s service-connected back disability impacts on the diagnosed degenerative arthritis of the spine, explaining further that degenerative arthritis is a byproduct of the aging process. The opinion cites to supporting factual data and invokes medical principles. The Board finds the opinion to be probative evidence in the matter, and because also the Veteran has not presented competent evidence to the contrary, the Board finds it persuasive. The Veteran is a layperson and has not presented any probative medical evidence in support of his theory that his right hip disability is related to his fall in service and/or was caused or aggravated by a service-connected low back disability. Consequently, his own opinion in these matters is not probative evidence in the matter. In summary, as there is no probative evidence that shows or suggests that the Veteran’s right hip disability may be related to his service or that it was caused or aggravated by a service-connected back disability, the preponderance of the evidence is against this claim. Therefore, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. at 55. The appeal in this matter must be denied. 2. Entitlement to service connection for a right eye disability, however diagnosed, is denied. The Veteran’s STRs do not note any diagnosis of, or treatment for, an eye disorder. On June 1969 service separation examination, his visual acuity was 20/20 in each eye. An April 2014 VA treatment record notes diagnoses of dry eye syndrome in both eyes, artificial tears directed, epiretinal membrane in the right eye, and cataracts in both eyes, that were visually significant, but did not affect the Veteran’s activities of daily living (ADLs). A May 2016 VA treatment record notes that the Veteran reported mild blurry vision at a distance, and the assessment was mild cataracts in both eyes. An August 2018 VA treatment record notes that Dextran was prescribed for the Veteran’s dry eyes. At the August 2019 videoconference hearing, the Veteran testified that he sustained eye trauma from exposure to herbicide agents, UV rays, and a “milky white” substance (chemical solution) used for drilling, in service. He reported that after service in 1969 or 1970, he sought treatment for eye problems at the Newington, Connecticut Veterans Hospital. A March 2020 VA treatment record notes treatment for right eye epiretinal membranes, which are semi-translucent, fibrocellular membranes that form on the inner surface of the retina. On September 2020 eye examination, cataracts in both eyes, right eye epiretinal membrane, and dry eye syndrome in both eyes were diagnosed. The Veteran reported that his eyes became irritated and gritty during his service and that his current eye symptoms include decreased vision both at far and near. His eyeglasses cannot further correct his vision and cataract surgery has been recommended. In April 2014, the Veteran sought outpatient VA eye treatment, and his cataracts, right eye epiretinal membrane, and bilateral eye dry eye syndrome were initially diagnosed. There was no retinopathy found on examination. The examiner opined that the Veteran’s cataracts, right eye epiretinal membrane, and bilateral dry eyes are less likely than not related to his service, to include any exposure to Agent Orange/herbicide agents, UV rays, chemical solutions used in drilling, and diesel fuel. The examiner acknowledged the Veteran’s alleged exposures to Agent Orange/herbicide agents, UV rays, chemical solutions used in drilling, and diesel fuel in service but noted that his STRs did not show treatment for an eye disorder in service. The examiner explained that in part the Veteran’s eye disorders were normal variants and developmental in nature, and that the cataracts, right eye epiretinal membrane, and bilateral dry eyes were not diagnosed until April 2014. He explained that it was more likely that the Veteran’s cataracts are age related, also indicating that cataracts are a deterministic effect of radiation (UV) exposure, meaning that there is a threshold dose below which you would not expect to see cataracts, and above which you would expect to see them. He noted there is documentation in the record of UV ray exposure or the level of any such exposure (suggesting that no inference regarding the effects of any such exposure could be made). He explained that the most common cause of epiretinal membrane is an age-related condition called posterior vitreous detachment (PVD), where the vitreous gel that fills the eye separates from the retina causing symptoms of floaters and flashes; however, the Veteran’s right epiretinal membrane, which is only trace in presentation, is most likely idiopathic because he does not have PVD. The examiner noted that the Veteran’s dry eye syndrome was a common finding amongst the general population and that his current dry eye syndrome was not related to his past ocular history. He also explained that diesel fuel has been shown to be an eye irritant with no lasting [emphases added] ramifications, and that the nexus of Agent Orange to eye disorders is through diabetes mellitus (with eye pathology as a complication), of which the Veteran does not have a current diagnosis. As noted above, a December 2020 response from the VA Connecticut Healthcare System indicates that no records for the Veteran from January 1, 1969 to December 31, 1970 could be located. It is noteworthy that the Veteran’s diagnosed cataracts, right eye epiretinal membrane, and dry eye syndrome (for which service connection is sought) are not (of themselves) diseases listed in 38 C.F.R. § 3.309(e), and therefore the presumptive provisions under 38 U.S.C. § 1116 do not apply. It is not in dispute that the Veteran has current eye disabilities (as the diagnoses noted above were found on VA examination). However, a right eye disease or injury in service is not shown. On service separation examination, the eyes were normal on clinical evaluation (and a history of as right eye injury in service was not reported). Postservice treatment records do not show a diagnosis of an eye disability until 2014 (approximately 45 years after service). The etiology of various eye disabilities/diseases [particularly any not appearing directly following trauma or related disease) is a medical question, beyond the scope of common knowledge or lay observation; it requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran is a layperson, does not profess to have medical expertise, and does not cite to supporting medical opinion or treatise. His own opinion relating his current eye disabilities is not probative evidence in the matter. The September 2020 VA examiner opined that the Veteran’s currently diagnosed eye disabilities are less likely than not related to an injury, disease, or event in service. The examiner is a medical professional and the opinion provided is probative evidence in this matter; it reflects familiarity with accurate medical history and includes rationale that cites to supporting factual data (including medical principles that diesel fuel may be an eye irritant, but exposure to such has no lasting ramifications, and that the nexus of Agent Orange to eye disorders is through diabetes mellitus, which is not diagnosed, and that none of the current eye disabilities were diagnosed prior to 2014) and identifies other, nonservice-related, possible etiologies for the current right eye disabilities and/or that the diagnosed eye disability entities are normal variants and developmental in nature. The Board finds the VA examiner's opinion probative and persuasive. Considering the foregoing, the Board concludes that while the Veteran is shown to have current diagnoses of various eye disabilities (and is reasonably shown to have been subjected to the alleged exposures in service), there is no competent evidence an etiological relationship between the current eye disabilities shown and such exposures, and no credible evidence of other disease or injury in service to which the claimed eye disabilities could be related. Therefore, the preponderance of the evidence is against this claim, and the appeal seeking service connection for a variously diagnosed right eye disability must be denied. REASONS FOR REMAND 3., 4. Entitlement to service connection for a right knee disability and a skin disability. On review of the record, the Board finds the October 2020 medical opinions (for a right knee disability and a skin disorder) received in response to the March 2020 remand request are less than fully responsive to the remand directives, and inadequate for rating purposes, requiring corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). On October 2020 VA knee examination, the examiner opined that it is less likely than not that the Veteran’s right knee disability is related to his service. She acknowledged his report of an injury in service and noted that the STRs are silent for any evidence of treatment for a right knee disability. She noted that a review of his postservice treatment records did not reveal any treatment for a right knee disability in the years immediately following his discharge from service. She noted that right knee patellofemoral syndrome was not diagnosed until 2017, over 40 years after the Veteran’s discharge from service and no medical records during the intervening period note an intermittent or chronic right knee disorder. The examiner noted that patellofemoral syndrome is caused by overuse of the knee joint causing inflammation of the patella and patellar tendons. She also opined that the Veteran’s right knee disability was not caused or aggravated by a service-connected low back disability. She explained that a review of the medical literature found no support for a direct or indirect causal relationship between the lower back and the development of right knee patellofemoral syndrome because such disability is caused by overuse of the joint, and patellofemoral syndrome would not be aggravated by a low back disability. However, the opinion is inadequate for rating purposes. The examiner was to identify (by diagnosis) each right knee disability entity found or shown by the record during the pendency of the instant claim and identify the likely etiology for each right knee entity diagnosed. The examiner noted that diagnostic testing showed degenerative or traumatic right knee arthritis. A 2017 right knee X-ray showed moderate medial joint space narrowing and spurring at the intercondylar eminence compatible with osteoarthritis, and mild spurring was seen in the patellofemoral compartment of the knee. Since the 2017 right knee X-ray suggests that the Veteran has right knee pathology other than right knee patellofemoral syndrome, the opinion is incomplete, and remand for an examination to secure a fully adequate medical advisory opinion is necessary. On October 2020 VA skin diseases examination, dyshidrotic eczema was diagnosed. The Veteran reported experiencing dry, scaly, itchy skin since service and that he used Vaseline and skin cream for his symptoms. The examiner opined that it was less likely than not that the dyshidrotic eczema is related to his service. She noted that his STRs are silent regarding treatment for, or a diagnosis of, a skin disorder and that postservice treatment records do not show that the Veteran sought treatment for a skin disorder before 2013. She observed that potassium hydroxide (KOH) tests ruled out any fungal component, and that dyshidrotic eczema/or dermatitis was diagnosed. She explained that a review of the medical literature confirmed that there is no known etiology for dyshidrotic eczema, though it is noted to be more common in individuals with atopic dermatitis and allergies. She also indicated that there was no known association with herbicide agent/Agent Orange exposure, diesel fuel, and wearing wet clothes, and the development of dyshidrotic eczema. However, the opinion is inadequate for rating purposes. On the January 6, 2021 supplemental Statement of the Case (SSOC), a favorable finding of a diagnosis of dyshidrotic eczema and dermatitis was noted, and an additional favorable finding notes that dyshidrotic eczema and dermatitis are not considered presumptive disabilities associated with Agent Orange, (suggesting separate diagnoses for dyshidrotic eczema and dermatitis). Additionally, on October 2020 VA skin diseases examination, although dyshidrotic eczema was diagnosed, the examiner noted that the Veteran took medication for dyshidrotic dermatitis, and described symptoms of dermatitis (dry, itchy, scaly skin). Also, on physical examination, dermatitis was shown to cover less than 5 percent of the Veteran’s total body and exposed area, and eczema was not listed as a current skin disorder. The Board finds that there seems to be some inconsistency regarding the Veteran’s appropriate skin diagnosis or diagnoses. A clarifying medical advisory opinion is necessary. The matters are REMANDED for the following: 1. Arrange for an orthopedic examination of the Veteran (by a provider other than the October 2020 examiner) to determine the nature and likely etiology of his right knee disability. The Veteran’s claims file must be reviewed by the examiner in conjunction with the examination. On examination of the Veteran and review of his record, the examiner should: (a) Identify (by diagnosis) each right knee disability entity found/or shown by the record during the pendency of the instant claim (to include the right knee arthritis noted on October 2020 examination). (b) Identify the likely etiology for each right knee disability entity diagnosed. Specifically, is it at least as likely as not that it is etiologically related directly to the Veteran’s service/an injury therein? If not, is it at least as likely as not that it was caused or aggravated (the opinion must include aggravation) by a service-connected low back disability? (c) If the opinion is that a service-connected disability did not cause, but aggravated, a diagnosed right knee disability, specify, to the extent possible, the degree of disability (symptoms/impairment) that resulted from such aggravation. (d) If a diagnosed right knee disability is determined to be unrelated to service, please identify the etiology for the disability that is considered to be more likely and explain why that is so. All opinions must include rationale that cites to supporting factual data and medical principles. 2. Also arrange for the Veteran’s record to be forwarded to an appropriate clinician (other than the October 2020 examiner), such as a dermatologist, for review and a clarifying addendum opinion regarding the nature and likely etiology of his current claimed skin disability. [If further examination of the Veteran is deemed necessary for an opinion sought, such should be arranged.] The consulting provider should: (a) Identify (by diagnosis), each skin disorder entity found/shown by the record, specifically indicating whther the dyshidrotic eczema and dermatitis found on previous examination and shown in treatment records are separate and distinct skin disorders (or constitute the same disability variously characterized). (b) Identify the likely etiology for each skin disability diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that the disorder is etiologically related to the Veteran’s service/was incurred therein (to include as due to acknowledged exposures to herbicide agent/Agent Orange, diesel fuel, a substance used for drilling, and wearing wet clothes for extended periods)? All opinions must include rationale that cites to supporting factual data and medical principles. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.