Citation Nr: 21010218 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-13 332 DATE: February 24, 2021 ORDER Service connection for ischemic heart disease is granted. Service connection for a low back disorder, to include degenerative joint disease, compression fracture and osteoporosis is denied. Service connection for a bilateral knee disorder, to include pain and osteoarthritis is denied. FINDINGS OF FACT 1. With resolution of the doubt in his favor, the Veteran’s ischemic heart disease manifested to a degree of 10 percent after his service in the Republic of Vietnam. 2. The Veteran’s low back disorder was not incurred in or caused by service. 3. The Veteran’s bilateral knee disorder was not incurred in or caused by service. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for ischemic heart disease have been met. 38 U.S.C. §§ 1110, 1116 (2012); 38 C.F.R. §§ 3.303(d), 3.307(a)(6)(ii), (iii), 3.309(e), 3.655(a), (b) (2019). 2. The criteria to establish entitlement to service connection for a low back disorder have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a), 3.655(a), (b) (2019). 3. The criteria to establish entitlement to service connection for a bilateral knee disorder have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a), 3.655(a), (b) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1966 to August 1969, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the Indianapolis, Indiana Regional Office (RO). In August 2017, the Veteran was afforded a videoconference hearing before a Veterans Law Judge (VLJ) no longer employed by the Board. During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In March 2019, the Board remanded the appeal to the RO for additional action. There was substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In November 2020, VA notified the Veteran that the VLJ who conducted the August 2017 Board hearing was no longer employed by the Board and that the Veteran had 30 days from the date of the VA letter to request another Board hearing. The Veteran did not respond. 38 C.F.R. § 20.604 (2019). Service Connection Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2019). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Ischemic heart disease 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, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii) (2019). Where a veteran was exposed to an herbicide agent during active military, naval, or air service and ischemic heart disease (including but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina) becomes manifest to a degree of 10 percent or more at any time after service, service connection shall be established for such disability if the requirements of 38 C.F.R. § 3.307 (a)(6) are met even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e) (2019). In March 2019, the Board remanded the claim for the RO to schedule a VA examination to clarify the Veteran’s diagnosis and an etiology opinion; however, the Veteran did not report to the examination and did not provide good cause for his absence. VA regulations provide that where entitlement to a benefit cannot be established without an examination and the Veteran fails to report to a VA examination without good cause, the claim will be decided based on the evidence of record. 38 C.F.R. § 3.655(a), (b) (2019). The Veteran contends that his ischemic heart disease resulted from his exposure to Agent Orange during service in the Republic of Vietnam. Despite the Veteran not having reported to his scheduled VA examination, the claim will be granted. A military personnel record (MPR) titled “Foreign Service” reflects that the Veteran served in the Republic of Vietnam from March 1967 to September 1967. Service treatment records (STRs) are silent for complaints or contemporaneous reports concerning the Veteran’s heart. In his July 1969 pre-separation medical history report, the Veteran answered in the negative to the question of whether he then had, or once had chest pain, chest pressure, palpations, or a pounding heart. In the Veteran’s July 1969 pre-separation medical examination report, no heart abnormalities were noted. A September 1991 VA chest radiograph revealed no acute cardiopulmonary disease. A November 2010 VA treatment record reflects that the Veteran underwent a cerebrovascular accident. An April 2011 VA treatment record reflects a prior medical history of myocardial infarction. In an August 2011 VA treatment record, it was noted that the Veteran underwent a myocardial infarction in June 2010. Perfusion testing conducted in October 2010 revealed normal findings, specifically, negative findings for ischemia or infarction. A December 2011 VA treatment record reflects a diagnosis of coronary artery disease. In a July 2012 VA treatment record, the Veteran was diagnosed with an acute/subacute ischemic stroke. In the August 2013 VA examination, the examiner indicated that the Veteran was diagnosed with ischemic heart disease with an initial diagnosis date of June 2010; however, the examiner noted that the available information did not reflect that the Veteran had ischemic heart disease. The examiner also indicated that the Veteran’s treatment plan included taking continuous medication for his diagnosed condition. A February 2014 private chest radiograph revealed no acute cardiopulmonary findings. A March 2014 private treatment record reflects a prior medical history of unspecific cerebral artery occlusion with cerebral infarction and a heart attack. In his August 2017 Board hearing, the Veteran testified to having undergone a heart attack post-service but was unable to recall the exact number of post-service heart attacks. In a January 2018 private examination, the examiner indicated that the Veteran had a diagnosis of ischemic heart disease. The Board will grant the claim based on the benefit-of-the-doubt doctrine. The August 2013 VA examiner indicated that the Veteran had a diagnosis of ischemic heart disease since June 2010 but also indicated that the “available information” did not reflect that the Veteran had ischemic heart disease. The January 2018 private examiner diagnosed the Veteran with ischemic heart disease and the Veteran’s VA and private treatment records reflect a diagnosis of ischemic heart disease. The August 2013 VA examiner indicated that the Veteran’s treatment plan included continuous medication for ischemic heart disease. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, service connection is warranted and the claim is granted. Low back disorder Degenerative joint disease is a “chronic disease” listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a “continuity of symptoms” after service is required to establish service connection. 38 C.F.R. § 3.303(b) (2019). Additionally, as a chronic disease, degenerative joint disease will be considered to have been incurred in or aggravated by service if the disease becomes manifest to a compensable degree within one year from the date of service separation. 38 C.F.R. § 3.307(a)(3) (2019). As noted above, in March 2019, the Board remanded the claim for the RO to schedule a VA examination to obtain an etiology opinion concerning the Veteran’s low back disorder; however, the Veteran did not report to the examination and did not provide good cause for his absence. VA regulations provide that where entitlement to a benefit cannot be established without an examination and the Veteran fails to report to a VA examination without good cause, the claim will be decided based on the evidence of record. 38 C.F.R. § 3.655(a), (b) (2019). The Veteran contends that his low back disorder was caused from having conducted parachute jumps during service. The claim will be denied. A MPR titled “Awards and Decorations” reflects that the Veteran received the parachutist badge. Due consideration shall be given to the places, types, and circumstances of such veteran’s service as shown by such veteran’s service record, the official history of each organization in which such veteran served, such veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a) (2012). Having received the parachutist badge, the Veteran would have conducted parachute jumps during service. STRs are silent for complaints or contemporaneous reports concerning the Veteran’s low back. In his July 1969 pre-separation medical history report, the Veteran answered in the negative to the question of whether he then had, or once had recurrent back pain and whether he ever had any injury or illness other than those already noted. In the Veteran’s July 1969 pre-separation medical examination report, no spine abnormalities were noted. The STRs are highly probative evidence because they were generated with the specific view of recording the events they describe. In this respect, they are akin to official records, which generally enjoy a high degree of probative value in the law. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision). In a September 1991 VA examination not focused on the Veteran’s low back, the Veteran reported experiencing recurrent low back pain. A lumbar spine radiograph revealed straightening, narrowing at L5-S1, possible muscle spasm and possible disc pathology. A November 2001 VA treatment record reflects the Veteran’s report of experiencing intermittent back pain for approximately six years. He was diagnosed with back pain and “possibly arthritis.” The Veteran’s statement as to having experienced back pain for six years is highly probative. See Fed. R. Evid. 803(4) (statements made to physicians for purposes of diagnosis or treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care); Rucker, supra. A December 2001 VA treatment record reflects the Veteran’s report of experiencing back pain. A VA lumbar spine radiograph revealed narrowing of L3 through S1 disc spaces, osteoarthritic changes in the lumbar vertebrae and bony bridging in the lower thoracic vertebrae. A June 2004 VA treatment record reflects a prior medical history of generalized back osteoarthritis. A September 2010 VA treatment record reflects a prior medical history of degenerative joint disease and compression fracture of the lumbar spine. In a February 2011 VA treatment record, the Veteran reported experiencing back pain. He was diagnosed with low back pain, degenerative joint disease and osteoporosis. VA treatment records dated December 2012 and July 2013 reflect a prior medical history of degenerative joint disease and compression fracture of the lumbar spine. In an August 2013 VA examination not focused on the Veteran’s low back, the examiner indicated that the Veteran experienced limitations due to his back trouble. A March 2014 VA abdomen radiograph revealed moderate degenerative change in the lumbar spine. In his August 2017 Board hearing, the Veteran testified to not having landed safely on his last parachute jump during service and that he experienced low back pain since service. The Veteran is competent to report having experienced observable symptoms, such as low back pain; however, he is not competent, as a lay-person, to provide a medical opinion as to the cause of his low back pain. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran’s testimony as to experiencing low back pain since service is not credible because in addition to the highly probative STRs, as noted above, the Veteran reported experiencing low back pain for approximately six years in a November 2001 VA treatment record. Curry v Brown, 7 Vet. App. 59 (1994) (noting that contemporaneous evidence has greater probative value than the history as reported by the veteran). The January 2018 private examiner opined, without any supporting rationale, that the Veteran’s “lumbosacral pain” was caused by the Veteran’s “combat experiences in the combat zone in Vietnam.” The private examiner’s medical opinion is of low probative value for two reasons. The opinion is conclusory and does not provide the Board with sufficient analysis to consider and weigh the opinion. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding that a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor’s opinion). The examiner did not address the specific facts in the Veteran’s case because the Veteran has attributed his low back disorder to conducting parachute jumps and not to any claimed incident of combat. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A preponderance of the evidence is against a finding that the Veteran’s low back disorder was incurred in or caused by service. STRs are silent for complaints or contemporaneous reports concerning the Veteran’s low back. In his July 1969 pre-separation medical history report, the Veteran answered in the negative to the question of whether he then had, or once had recurrent back pain and whether he ever had any injury or illness other than those already noted. In the Veteran’s July 1969 pre-separation medical examination report, no spine abnormalities were noted. The Veteran’s testimony as to experiencing low back pain since service is not credible. As noted, the Veteran did not report for a scheduled VA medical examination. A claimant has the responsibility to present and support a claim for benefits under laws administered by the VA, 38 U.S.C.A. § 5107(a). While VA has a duty to assist the veteran in substantiating his claim, that duty is not a one-way street. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000) (the Veteran cannot passively wait for help from VA). Because the Veteran did not report for the examination, probative evidence was not developed. However, on this record, the claim will be denied. The January 2018 private examiner’s medical opinion is of low probative value. Therefore, service connection is not warranted and the claim is denied. Bilateral knee disorder As noted above, in March 2019, the Board remanded the claim for the RO to schedule a VA examination and obtain an etiology opinion concerning the Veteran’s bilateral knee disorder; however, the Veteran did not report to the examination and did not provide good cause for his absence. VA regulations provide that where entitlement to a benefit cannot be established without an examination and the Veteran fails to report to a VA examination without good cause, the claim will be decided based on the evidence of record. 38 C.F.R. § 3.655(a), (b) (2019). In his August 2017 Board hearing, the Veteran testified that his bilateral knee rheumatoid arthritis existed prior to service entrance and that it was aggravated by service. A veteran who served after December 31, 1946, is presumed to be in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious and manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in the examination reports are to be considered as noted. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2019). The presumption of soundness attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The provisions of 38 C.F.R. § 3.304(b) clarify that the term “noted” denotes “[o]nly such conditions as are recorded in the examination reports” and that “[h]istory of pre-service existence of conditions recorded at the time of examinations does not constitute a notation of such conditions.” Crowe v. Brown, 7 Vet. App. 238, 245 (1994); see also Cotant v. Principi, 17 Vet. App. 116 (2003). In his May 1966 pre-entrance medical history report, the Veteran answered in the negative to the question of whether he then had, or once had a trick or locked knee. In the Veteran’s May 1966 pre-entrance medical examination report, no lower extremity abnormalities were noted and the service medical examiner indicated that a bilateral knee examination revealed normal findings. The Veteran was assigned a profile designation of “1” for his lower extremities under the PULHES system. See generally Odiorne v. Principi, 3 Vet. App. 456, 457 (1992); ((observing that the “PULHES” profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)); also e.g., Army Regulation 40-501, December 2007 and update August 2010. Therefore, the Veteran is presumed sound at service entrance as to both knees. Osteoarthritis is a “chronic disease” listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker, supra. The Veteran contends that his bilateral knee disorder was caused from having conducted parachute jumps during service. The claim will be denied. As noted above, a MPR titled “Awards and Decorations” reflects that the Veteran received the parachutist badge. 38 U.S.C. § 1154(a) (2012). Having received the parachutist badge, the Veteran would have conducted parachute jumps during service. STRs are silent for complaints or contemporaneous reports concerning the Veteran’s knees. In his July 1969 pre-separation medical history report, the Veteran answered in the negative to the question of whether he then had, or once had a trick or locked knee and whether he ever had any injury or illness other than those already noted. In the Veteran’s July 1969 pre-separation medical examination report, no lower extremity abnormalities were noted. The STRs are highly probative evidence. Rucker, supra. In a September 1991 VA examination not focused on the Veteran’s knees, the Veteran reported experiencing bilateral knee aching. A November 2001 VA treatment record reflects the Veteran’s report of experiencing bilateral knee stiffness. A June 2004 VA treatment record reflects a prior medical history of bilateral knee osteoarthritis. A review of systems revealed bilateral knee pain. The Veteran was diagnosed with bilateral knee osteoarthritis. A February 2005 VA treatment record reflects the Veteran’s report of experiencing bilateral knee pain. VA treatment records dated December 2010 and February 2011 reflect a prior medical history of bilateral knee chronic diffuse arthritic pain. VA treatment records dated December 2012, March 2013, June 2013 and July 2013 reflect a prior medical history of bilateral knee osteoarthritis. In the August 2013 VA examination that did not focus on the Veteran’s knees, the examiner indicated that the Veteran experienced limitations due to his bilateral knee trouble. A February 2014 private treatment record reflects the Veteran’s report of experiencing bilateral leg swelling. A March 2016 VA treatment record reflects a prior medical history of bilateral knee osteoarthritis. In his August 2017 Board hearing, the Veteran testified to having landed wrong on his last parachute jump during service and that he experienced bilateral knee pain and swelling since service. The Veteran is competent to report having experienced observable symptoms, such as bilateral knee pain and swelling; however, he is not competent, as a lay-person, to provide a medical opinion as to the cause of his bilateral knee pain and swelling. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The January 2018 private examiner opined, without any supporting rationale, that the Veteran’s “bilateral knee pain” was caused by the Veteran’s “combat experiences in the combat zone in Vietnam.” The private examiner’s medical opinion is of low probative value for two reasons. The opinion is conclusory and does not provide the Board with sufficient analysis to consider and weigh the opinion. Stefl, supra. The examiner did not address the specific facts in the Veteran’s case because the Veteran has attributed his bilateral knee disorder to conducting parachute jumps and not to any claimed incident of combat. Nieves-Rodriguez, supra. As noted above, the Veteran did not report for a scheduled VA examination towards development of his claim as was his responsibility. 38 U.S.C. § 5107(a). On the record presented to the Board, a preponderance of the evidence is against a finding that the Veteran’s bilateral knee disorder was incurred in or caused by service. STRs are silent for complaints or contemporaneous reports concerning the Veteran’s knees. In his July 1969 pre-separation medical history report, the Veteran answered in the negative to the question of whether he then had, or once had a trick or locked knee and whether he ever had any injury or illness other than those already noted. In the Veteran’s July 1969 pre-separation medical examination report, no lower extremity abnormalities were noted. The Veteran is not competent to provide a medical opinion as to the cause of his bilateral knee pain and swelling. The January 2018 private examiner’s medical opinion was of low probative value. Therefore, service connection is not warranted and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Cohen, 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.