Citation Nr: 21010641 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-27 592 DATE: February 25, 2021 ORDER Entitlement to service connection for a right knee medial meniscus tear is granted. Entitlement to service connection for asthma is granted. REMANDED Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a skin disability, to include contact dermatitis and eczema, is remanded. FINDINGS OF FACT 1. The evidence is at least in relative equipoise as to whether the Veteran’s right knee medial meniscus tear is related to his active duty service. 2. The Veteran’s asthma pre-existed service, and the evidence is at least in relative equipoise as to whether increased in severity during a period of active service; it is not clear and unmistakable that such increase was due to the natural progression of the disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee medial meniscus tear have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for asthma have been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corp from January 1981 to January 1985. From 1985 to 2012, he served in the United States Marine Corps Reserves with active duty periods from January 1993 to April 1993, November 1994 to April 1995 (on active duty for special work), March 1999 to September 1999, July 2000 to September 2000, October 2001 to April 2002, May 2002 to September 2002, and from January 2003 to January 2005. He had additional periods of active duty for training, some lasting from one to two months, each year between 2005 and his retirement in 2012. He was awarded a Combat Action Ribbon, Bronze Star Medal, and Legion of Merit, among other decorations, in recognition of his distinguished service. These matters come before the Board of Veterans’ of Appeals (Board) on appeal from a September 2013 decision by a Department of Veterans Affairs (VA) regional office. The Veteran testified at a hearing with the undersigned Veterans Law Judge in November 2017. These matters were remanded by the Board in April 2018 and have returned for further appellate review. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for a right knee disability. The Veteran asserts that he has a current right knee disability related to service. Specifically, he contends that wear and tear over his many years of military service resulted in a current right knee disability. The record reflects a diagnosis of a current right knee disability. As noted above, the Veteran does not assert that he experienced a specific injury in service; rather, he contends that his knee disability is due to long-term wear and tear. Accordingly, the question for resolution is whether the Veteran’s current right knee disability is related to his service. The Veteran first underwent VA examination in connection with his claim in February 2012, at which time the examiner diagnosed chondromalacia patella but did not provide an opinion. A VA opinion was obtained in August 2013; the examiner diagnosed mild degenerative joint disease and stated that it was “less likely as not secondary to right knee pain in 1983.” The Board previously found this opinion insufficient for purposes of determining service connection. In that regard, there is little to no rationale provided in support of the opinion. The opinion states only that the Veteran’s current right knee disability is not related to his in-service complaint of knee pain in 1983 but does not address the Veteran’s assertion regarding continuous wear and tear over his 31 years of service. The Veteran again underwent VA examination in October 2019. The examiner diagnosed osteoarthritis and opined that the condition was less likely than not related to service. In support of the opinion, the examiner noted occasions when the Veteran had reported knee pain and referenced the previous negative VA opinions. The examiner also stated that “the patients [sic] medical records are silent for a knee condition from the time of discharge to 2010 and from 2012 through the present time,” but did not explain the significance of this finding. The Board finds that this opinion is also insufficient for purposes of determining service connection. In that regard, the examiner relies heavily on the previous negative opinions and the absence of complaints in the Veteran’s treatment records, neither of which provide a sufficient rationale for the negative opinion. In May 2020, the Veteran submitted a private medical opinion from Dr. J.B., dated April 2020. Doctor J.B. noted that he had personally examined the Veteran and reviewed his medical records, and opined that it is more likely than not that the Veteran’s current right knee medial meniscus tear, which was repaired surgically in December 2019, was related to the Veteran’s activities and duties while serving in the Marine Corps. Doctor J.B. referenced the Veteran’s reports of continuous physical activity during service, including long-distance hiking, running, martial arts training, Marine Corps infantry training, and combat training, as the cause of his disability. Upon review of the record, the Board finds Dr. J.B.’s April 2020 opinion to be probative. As such, the evidence is at least in relative equipoise as to whether the Veteran’s current right knee medial meniscus tear is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a right knee medial meniscus tear is warranted and the claim is granted. 2. Entitlement to service connection for a respiratory disability, to include asthma. The Veteran asserts that he had childhood asthma which recurred due to or was aggravated by later periods of active duty service, specifically his deployments to Southwest Asia. Generally, a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304(b). Such conditions are considered to be preexisting. This presumption of soundness can be overcome with clear and unmistakable evidence both that a disability preexisted service and was not aggravated by service. Id. In this case, the evidence does not reflect that the Veteran underwent an entrance examination for the relevant period of service, or that asthma was ever noted upon entry to a specific period of service. As such, and because the evidence demonstrates that the Veteran’s asthma existed since childhood, the presumption of soundness does not apply with respect to asthma. When a disorder pre-exists entry, a veteran has the burden of showing that it is at least as likely as not that the disorder increased in severity during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). If a veteran meets that burden and shows that an increase in severity occurred, the burden then shifts to VA to show whether such increase is clearly and unmistakably due to the natural progression of the pre-existing disability rather than due to service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 235 (2012); C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). Reports of the Veteran and medical evidence of record establish that the Veteran experienced childhood asthma which went dormant when the Veteran was approximately 10 years old, but that his asthma recurred in 2002 and he was treated by civilian providers. He noted a history of asthma on a February 1999 report of medical history, but service treatment records prior to his period of deployment are otherwise silent as to asthma. The record further reflects that the Veteran reported increased respiratory symptoms following his deployment to Southwest Asia. The Veteran first underwent VA examination in connection with this claim in August 2013, at which time the examiner opined that there was no evidence that the Veteran’s asthma was aggravated beyond the natural progression during his active service. The Veteran again underwent VA examination in connection with this claim in October 2019. Upon review of the claims file and examination of the Veteran, the examiner opined that the Veteran’s asthma was at least as likely as not aggravated beyond its natural progression by the Veteran’s active duty service, to include his deployment to Southwest Asia and possible exposure to dust, toxic fumes, and other environmental hazards. Based on the October 2019 VA opinion and the other evidence of record, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran has met the burden of demonstrating that his pre-existing asthma increased in severity during service. In the absence of clear and unmistakable evidence that the increase in severity of the Veteran’s asthma was due to the natural progression of the disease, the Board finds service connection is warranted and the claim is granted. REASONS FOR REMAND 1. Service connection for bilateral pes planus and right shoulder disability. Pursuant to the Board’s April 2018 remand, the Veteran underwent VA examination in connection with his bilateral pes planus and right shoulder claims in October 2019. With respect to both disabilities, the examiner provided negative opinions. However, the examiner did not provide sufficient rationale for the opinions. In that regard, the examiner appears to have relied heavily on prior negative VA opinions, which the Board clearly found insufficient, as well as an absence of affirmative evidence. Additionally, the examiner failed to address the Board’s remand directives with respect to pes planus; specifically, the examiner did not address whether pes planus preexisted and was aggravated by service. Accordingly, the Board finds remand is warranted so that additional opinions may be obtained. 2. Service connection for a skin disability. The Veteran also underwent VA examination with respect to his claim for entitlement to service connection for a skin disability in October 2019. The examiner provided a negative opinion, stating that the Veteran did not currently have any active eczema, dermatitis, or other dermatologic condition. The Board finds this opinion is also insufficient. In that regard, the Veteran is not required to have an active skin condition at any given moment; rather, the evidence must reflect a diagnosis of a skin disability during the pendency of the appeal. The record reflects that the Veteran was diagnosed with a skin disability during the pendency of the appeal, including during the August 2013 VA examination when the examiner diagnosed contact dermatitis. Additionally, the October 2019 VA examiner did not address the Board’s April 2018 remand directive to consider the significance of the fact that the Veteran currently uses the same topical creams he was prescribed in service to address conditions that affect his skin today. Accordingly, the Board finds remand is warranted so that an additional opinion may be obtained. Updated VA treatment records, as well as any relevant identified private treatment records, should be obtained and associated with the record. The matters are REMANDED for the following actions: 1. Ask the Veteran to identify all outstanding treatment records relevant to his pes planus, right shoulder, and skin claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to the nature and etiology of his bilateral pes planus. The claims file must be made available to and reviewed by the examiner. Following review of the claims file, the examiner should address the following: a. Is it at least as likely as not (50 percent probability or greater) that the Veteran’s pes planus had onset during or is otherwise related to any period of active duty service, to include periods of active duty for training? b. If pes planus is found to pre-exist any period of active duty service, did pes planus increase in severity during that period of service? If so, was the increase clearly and unmistakably solely the result of the natural progression of the condition? In offering the requested opinions, the examiner is asked to consider the Veteran’s contention that he acquired pes planus as a result of military training over a period of years in combat boots, and that he worked a desk job that was not physical demanding when not serving in the military. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 3. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to the nature and etiology of any right shoulder disability, to include tendinitis, impingement syndrome, glenohumeral joint osteoarthritis, and acromioclavicular joint arthritis. The claims file must be made available to and reviewed by the examiner. Following review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any right shoulder disability had onset in or is otherwise related to the Veteran’s periods of active duty service, to include periods of active duty for training In offering the requested opinion, the examiner is asked to consider that it appears that a suspected rotator cuff tear was noted during a period of active duty for training in August 2011. The examiner should also specifically address the Veteran’s contention that his current condition was caused by carrying a 23-pound machine gun with ammunition and from using his right arm to throw his backpack across his back over many years. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 4. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to the nature and etiology of any skin disability diagnosed at any point during the pendency of the appeal, to include dermatitis and eczema. The claims file must be made available to and reviewed by the examiner. Following review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed skin condition had onset in or is otherwise related to the Veteran’s periods of active duty service, to include periods of active duty for training. In offering the requested opinion, the examiner is asked to consider notations of skin abnormalities made in the 1980s as well as the diagnosis of eczema in January 2004, during a period of active duty, along with the Veteran’s contention that he uses the same topical creams to treat his current skin condition that he did during service. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. D. Bruce, 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.