Citation Nr: 21012821 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 20-11 090 DATE: March 5, 2021 ORDER Entitlement to service connection for right knee osteoarthritis is denied. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s right knee osteoarthritis was shown as chronic in service, manifested to a compensable degree within the applicable presumptive period, or is otherwise etiologically related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran’s COPD began during service or is etiologically related to an in-service injury or disease, including his exposure to herbicide agents in Vietnam. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee osteoarthritis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for COPD are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to February 1968. This case is before the Board of Veterans’ Appeals (Board) on appeal from November 2018 and December 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded for additional development in an April 2020 Board decision. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). The Board notes that the AOJ requested that the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases including arthritis, may be service connected on a presumptive basis if manifested to a compensable degree within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a), 3.309(a). For chronic diseases recognized as such under 38 C.F.R. § 3.309(a), the in-service incurrence of a disease or injury and the relationship between the current disability and that in-service disease or injury may be established by a demonstration of continuity of symptomatology. See 38 C.F.R. § 3.303(b), see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). A veteran who served in the Republic of Vietnam between January 1962 and May 1975 is presumed to have been exposed during such service to an herbicide agent, absent evidence to the contrary. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). Under 38 C.F.R. § 3.309, certain enumerated diseases associated with exposure to certain herbicide agents, will be service connected if a veteran is found to have been exposed to such an agent. The Secretary of VA has reiterated that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined that a presumption of service connection is warranted. If there is no presumptive service connection available, direct service connection can still be established if the record contains competent medical evidence of a current disease process that has been related to exposure to an herbicide agent in service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 1. Entitlement to service connection for right knee osteoarthritis The Veteran contends that his right knee osteoarthritis is related to his time spent on active duty. He states that although he does not remember a specific injury to his right knee during service in Vietnam, he marched through all sorts of terrain carrying a heavy load in his duffle bag. See November 2018 VA examination and November 2020 VA examination. The Veteran is currently diagnosed with degenerative arthritis in his right knee, thereby establishing the current disability element of the claim. See November 2020 VA examination. As to the in-service incurrence element, the service treatment records (STRs) do not contain treatment or complaints related to the right knee. Clinical evaluations for the Veteran’s lower extremities were normal at induction in December 1965 and separation in February 1968. In the December 1965 induction report of medical history, the Veteran responded yes to the question “have you ever had or have you now” a trick or locked knee. During a February 1968 report of medical history at separation, the Veteran did not report a trick or locked knee, and the physician clarified that the Veteran reported having a swollen right knee once seven years ago (prior to service) which was currently asymptomatic. Despite the lack of right knee treatment in the STRs and the Veteran’s report that he does not remember a specific injury to his right knee during service, he has reported marching through all sorts of terrain carrying heavy loads while serving in Vietnam. The Veteran’s DD Form 214 reflects that he received a Purple Heart for his service in Vietnam. 38 U.S.C. § 1154(b), known as “the combat presumption,” stands for the proposition that, generally, VA will accept as credible a combat veteran’s report of an in-service event as long as the report is consistent with the circumstances, conditions, or hardships of such service. Accordingly, the Board finds the Veteran’s statement regarding long marches carrying heavy loads to be credible. See 38 U.S.C. § 1154(b). As such, the Board finds that the in-service incurrence element of the claim is established. However, the preponderance of the evidence is against finding a nexus between the Veteran’s right knee arthritis and his service. Specifically, a November 2020 VA examiner opined that it was less likely than not that the Veteran’s right knee arthritis began during or within one year of service or is etiologically related to an event or episode during his active service. During the examination, the Veteran reported that he could not remember any specific injury to his right knee during service but recalled walking through all sorts of terrain carrying heavy loads while in Vietnam. He reported that his knees became painful after he came back from Vietnam. The VA examiner noted that the Veteran returned from Vietnam in 1968 and that his initial documented complaints of right knee pain and diagnosis of arthritis was not until 2001, thirty-three years after discharge. Dr. T. noted that in between discharge in 1968 and 2001, the Veteran worked a series of physically demanding jobs. Specifically, the Veteran’s first job after returning from Vietnam was at an alcohol plant for eight years where he would fill bins up with grain. Subsequently, he worked as a groundskeeper for fifteen years and then as a construction worker and laborer until retirement. Dr. T. reasoned that during the thirty-three years between the Veteran’s discharge from service until his initial complaints of right knee pain and diagnosis of arthritis in 2001, the Veteran was working physically demanding jobs which aggravated his naturally progressing joint wear and tear. Dr. T. noted that there was no evidence in the years between 1968 and 2001 of right knee pain requiring medical attention. The record also contains a November 2018 VA opinion where the examiner opined that the Veteran’s right knee arthritis was less likely than not incurred in or caused by service. The VA examiner considered the Veteran’s statement that he did not remember a specific injury to his right knee in service but remembered walking ten miles with a 150-pound duffle bag while serving in Vietnam. She discussed the Veteran’s employment history, which included insulating attics, groundskeeping and building bridges, roofs and houses. The 2018 VA examiner reasoned that the first post-service documentation of right knee complaints and arthritis was not until 2010, and that the right knee osteoarthritis was most likely the result of wear and tear and aging over the years. In sum, the VA examiner noted that there was no documented timeline to link the two years of service to his current right knee issues. The examiner noted that it was highly unlikely that he had osteoarthritis of his knees in service at the age of 24 and there was no history of an injury in service that would have caused osteoarthritis to occur later. In this case, the Board affords the November 2020 VA examiner’s opinion significant probative weight. The examiner reviewed the claims file, thereby considering the STRs and post service treatment involving the right knee, as well as taking into account the Veteran’s lay statements regarding the onset and course of his right knee disability, including his report of marching with a heavy load during service but not sustaining a specific right knee injury during service. She offered a well-reasoned rationale that contains supporting facts from the record and is consistent with other evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; a threshold consideration is whether the person opining is sufficiently informed). In rendering her opinion, the examiner considered the thirty-three-year gap between service and the diagnosis of right knee arthritis, noting that during this thirty-three-year time period, the Veteran was employed in physically demanding jobs including construction and as a laborer. Ultimately, the VA examiner determined that his right knee arthritis was more likely the result of normal wear and tear aggravated by demanding physical employment over the course of many years and less likely related to his time in service, including his marches with heavy loads. Further, although the November 2018 VA examiner mistakenly reported that there was no documented treatment for the right knee until 2010, failing to mention treatment for the right knee in 2001, the Board finds that her opinion is still entitled to some probative weight. In rendering her opinion, she reviewed the claims file, considered the Veteran’s statement of long marches with a heavy duffle bag during service and accounted for the Veteran’s physically demanding post service employment. She also provided an adequate rationale, noting that it was highly unlikely that he had osteoarthritis of his knees in service at the age of 24 and noted that there was no history of an injury in service that would have caused osteoarthritis to occur later. Like the 2020 VA examiner’s opinion, she determined that the Veteran’s right knee arthritis was more likely the result of aging and wear and tear and less likely related to his time on active duty. Finally, the Veteran’s right knee arthritis may be granted service connection on a presumptive basis under 38 C.F.R. § 3.309, if manifested to a compensable degree within 1 year of separation from service. The presumption does not apply in the Veteran’s case because there was no x-ray evidence of arthritis until May 2001, decades after discharge. To the extent that the Veteran contends he has experienced pain in his right knee during service and ever since that time, the Board does not find his account credible. This statement is inconsistent with the rest of the evidence of record and with statements made by the Veteran on various occasions. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (when determining the credibility of lay evidence, the Board may properly consider internal consistency and consistency with other evidence of record). Specifically, when the Veteran filed his claim for compensation, he reported that his right knee disability began in 2003, not in service or immediately following service in 1968. See September 2018 compensation claim. Further, in June 2001 when the Veteran was initially seen for complaints of right knee pain at the VA medical center, he reported a two-month history of atraumatic right knee pain. He did not state that he had experienced right knee pain for many years but rather for only two months. In this regard, the Board notes that courts have recognized how medical history recounted during the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to, in turn, receive the best or most appropriate medical care. See Rucker v. Brown, 10 Vet. App. 67 (1997). Finally, the Board notes that during his November 2018 and November 2020 VA examinations, the Veteran acknowledged that he could not recall sustaining any specific injury to his right knee during service and stated that his knees did not become painful until after he returned from Vietnam; however he did not specify a date when the pain began. Additionally, after separation from service in 1968, the earliest evidence in the record of treatment related to the right knee is not until 2001, 33 years after discharge from active duty. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for a condition can be considered as a factor in resolving a claim but is not dispositive); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder). The evidence shows that the Veteran’s current right knee problems began in 2001 when the Veteran described the onset of atraumatic right knee pain two months prior to his visit to the VAMC. Since this time, VA treatment records show further complaints of right knee pain as his arthritis has progressed. Based on the above analysis, the Board finds that the preponderance of the evidence does not support a finding of continuity of symptomatology under 38 C.F.R. § 3.303(b). Although the Veteran believes that his current right knee arthritis is related to service, the Veteran is not competent to render this opinion, as he does not have the requisite medical experience or training to provide a medical nexus. Determining the likelihood that his right knee arthritis is related to service is a complex medical question and the Veteran has not been shown to have the experience, training, or education necessary to give a probative etiology opinion for his right knee arthritis. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the medical evidence of record. In summary, the preponderance of the evidence is against a nexus between the Veteran’s right knee arthritis and his active duty service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim for service connection for right knee arthritis must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 2. Entitlement to service connection for COPD The Veteran contends that his COPD is etiologically related to his active duty service, to include as a result of his exposure to Agent Orange while serving in Vietnam. See September 2018 compensation claim. The Veteran’s DD Form 214 reflects that he had verified service in the Republic of Vietnam during the Vietnam Era; therefore, he is presumed to have been exposed to herbicide agents, such as Agent Orange, during that time. While COPD is not on VA’s list of diseases presumptively associated with exposure to herbicide agents, as noted above, in cases where service connection on a presumptive basis is not warranted, a claimant is not precluded from establishing service connection with actual proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). As such, the Board will evaluate whether the Veteran’s COPD is directly related to service, including to in-service exposure to herbicide agents. As to the in-service incurrence element, service treatment records (STRs) do not contain notations referencing COPD and the Veteran’s December 1965 induction medical exam and February 1968 separation medical exam both reflect a normal clinical evaluation for the lungs and chest and also show a negative chest x-ray at entrance and discharge. Although in accompanying reports of medical history taken at entrance and discharge, the Veteran responded “yes” to the question “have you ever had or have you now” pain/pressure in the chest and a chronic cough, at discharge in 1968, the physician elaborated noting frequent sore throats and nasal congestion during service and found no evidence of chest pain or chronic cough at discharge. See February 1968 Report of Medical History. In this case, the Board finds that the in-service incurrence element of the claim is satisfied because the Veteran served in Vietnam and is therefore presumed to have been exposed to Agent Orange. The missing element to establish service connection is a nexus to service. However, the Board finds that the preponderance of the evidence is against finding a relationship between the Veteran’s COPD and his service, including his in-service exposure to herbicide agents. Specifically, a December 2020 VA examiner, J.T., M.D., opined that it was less likely than not that the Veteran’s COPD began during or is etiologically related to his active duty service, to include as due to exposure to herbicide agents, such as agent orange. The VA examiner stated that it was reasonable to expect that the Veteran was exposed to agent orange during his period of active duty in Vietnam. Dr. T. noted that although the Veteran reported that he never handled the chemical, he noted that “it was all over the place and we all inhaled it.” Dr. T. acknowledged the Veteran’s exposure to herbicide agents but reasoned that the National Academy of Sciences has indicated that there are no conclusive findings about the relationship between herbicide agents and non-cancerous respiratory diseases, such as COPD. In addition, Dr. T. cited to a study entitled: Self-reported and physician diagnosed COPD and spirometry patterns in Vietnam era United States Army Chemical Corps Veterans: a retrospective cohort study. She explained that the U.S. Army Chemical Corps in Vietnam had one of the highest levels of exposure to the chemicals in herbicide agents because that unit was responsible for the storage, preparation, maintenance and spraying of tactical herbicide agents to remove vegetative cover. Dr. T. reasoned that despite this high level of exposure in this specific group, and although a significant association was found between self-reported COPD and herbicide agents; she explained that forty years post-service, there was no spirometric evidence of COPD in excess for the U.S. Army Chemical Corps Veterans based on any of the spirometric airflow obstruction patterns tested. Instead, the VA examiner explained that the Veteran’s COPD was more likely related to his 53 years of smoking, noting that he stopped in 2014. Dr. T. stated that COPD is a slow progressive condition that includes emphysema and chronic bronchitis and is most often related to cigarette smoking. The VA examiner noted that the possibility of the Veteran developing COPD while in service or shortly thereafter was practically impossible because based on research studies, it takes 25 years of smoking for the affected percentage of the observed population to develop COPD; which implies that the Veteran would have started smoking at one year of age to develop COPD during service when he was 24 years old in 1966. Further, Dr. T. explained that for 50 years the biologic plausibility for a link between cigarette smoking and adverse respiratory system outcomes has been supported by epidemiologic and clinical evidence. In sum, Dr. T. noted that the longer people smoke, the higher the risk of developing COPD. The Board finds the December 2020 VA examiner’s opinion persuasive and entitled to significant probative weight. The VA examiner reviewed the claims file, including the STRs, considered the Veteran’s statements regarding his in-service herbicide agent exposure and the onset of his COPD, and provided a thorough, well-reasoned analysis for her conclusion. Dr. T. considered the Veteran’s risk factors for the development of COPD, including his in-service exposure to herbicide agents and his 53-year history of smoking. She also cited to relevant medical literature and research studies to support her conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; a threshold consideration is whether the person opining is sufficiently informed). Ultimately, although the VA examiner acknowledged the Veteran’s exposure to herbicide agents in service, she determined that his currently diagnosed COPD was less likely than not related to that exposure and more likely the result of his 53 years of smoking. (Continued on the next page)   Although the Veteran believes that his COPD was caused by exposure to agent orange, the Veteran is not competent to render this opinion, as he does not have the requisite medical experience or training. Determining the likelihood that COPD is related to service, including in-service exposure to herbicide agents, is a complex medical question, and the Veteran has not been shown to have the experience, training, or education necessary to give a probative etiology opinion for his COPD. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the medical evidence of record. Based on the above analysis, as the preponderance of the evidence is against finding a nexus between the Veteran’s COPD and his service, service connection for COPD must be denied. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alison M. Mecone, 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.