Citation Nr: 21013842 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 18-54 111 DATE: March 10, 2021 ORDER Entitlement to service connection for decreased memory, to include as due to lead exposure, is denied. Entitlement to service connection for a left ankle condition, claimed as left swollen ankle/ankle weakness, to include as due to lead exposure, is denied. Entitlement to service connection for a right ankle condition, claimed as right swollen ankle/ankle weakness, to include as due to lead exposure, is denied. REMANDED Entitlement to service connection for anemia, to include as due to lead exposure, is remanded. Entitlement to service connection for hypertension, to include as due to lead exposure, is remanded. Entitlement to service connection for a kidney condition, to include as due to lead exposure, is remanded. Entitlement to service connection for a left knee condition, claimed as left knee weakness, to include as due to lead exposure, is remanded. Entitlement to service connection for a right knee condition, claimed as right knee weakness, to include as due to lead exposure, is remanded. FINDING OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had decreased memory at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence of record is against finding that the Veteran’s left ankle condition was incurred in or otherwise related to his active duty service. 3. The preponderance of the evidence of record is against finding that the Veteran’s right ankle condition was incurred in or otherwise related to his active duty service. CONCLUSION OF LAW 1. The criteria for service connection for deceased memory, to include as due to lead exposure, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left ankle condition, to include as due to lead exposure, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a right ankle condition, to include as due to lead exposure, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1962 to August 1966. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a January 2021 virtual Board hearing. A transcript of that hearing has been associated with the claims file. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis Missouri. 1. Entitlement to service connection for decreased memory, to include as due to lead exposure. The Veteran contends that he has decreased memory, to include as due to in-service exposure to lead. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of decreased memory and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A March 11, 2008 VA treatment record notes the Veteran had "[n]o loss of memory". A March 16, 2015 private treatment record from Collom & Carney Clinic notes the Veteran was negative for memory impairment. A December 1, 2015 private treatment record from Collom & Carney Clinic notes the Veteran was negative for memory impairment. A March 3, 2016 private treatment record from Collom & Carney Clinic notes the Veteran was negative for memory impairment. The Veteran testified at the January 7, 2021 Board hearing that while on active duty he would lose his memory which led to his going to a clinic where they "diagnosed [him] with lead." He stated that testing showed that lead was in his urine, but not in his blood, and that he was hooked up to an IV with medicine in it. He then stated that he had to go to the clinic every week for 8 to 12 weeks for treatment. The Veteran denied being treated for any memory problem since his service. While the Veteran believes he has a current diagnosis of decreased memory, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Accordingly, the Board finds that the evidence of record is against a finding of service connection for decreased memory. As the preponderance of the evidence is against the claim of service connection for decreased memory, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a left ankle condition, claimed as left swollen ankle/ankle weakness, to include as due to lead exposure. 3. Entitlement to service connection for a right ankle condition, claimed as right swollen ankle/ankle weakness, to include as due to lead exposure. The Veteran contends that his left and right ankle conditions are due to his exposure to lead while on active duty. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of degenerative joint disease of the bilateral ankles, and evidence shows that in-service exposure to lead occurred, the preponderance of the evidence weighs against finding that the Veteran’s degenerative joint disease of the bilateral ankles began during service or is otherwise related to an in-service injury, event, or disease. In his May 25, 1966 report of medical history for separation, the Veteran denied having swollen or painful joints. A January 19, 2011 VA treatment record notes the Veteran reported having increased pain in his knees and ankles with the onset of cooler weather. A February 24, 2014 VA treatment record notes the Veteran had a diagnosis of inflammatory arthritis of the bilateral ankles and bilateral knees. A March 3, 2016 private treatment record from Collom & Carney Clinic notes the Veteran had bilateral ankle edema. The Veteran was afforded a VA ankle conditions examination in May 2018. A diagnosis of degenerative joint disease of the bilateral ankles was noted. A date of onset in 1988 was noted. The examiner noted that according to the Mayo Clinic, lead exposure is not the cause or a risk factor for degenerative joint disease and, as such, opined that the Veteran's degenerative joint disease of the bilateral ankles is less likely than not caused by or related to his exposure to lead in the service. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran testified at the January 2021 Board hearing that he never had any ankle problems in the service, but since then he has developed arthritis and believes that his lead exposure has caused rheumatoid arthritis. He then stated a belief that his lead exposure came from using lead paint, paint thinners and cleaning fluids. He stated that he was not provided with a respirator to protect him from the fumes. The Veteran believes his degenerative joint disease of the bilateral ankles is related to his exposure to lead while on active duty. However, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/anatomical relationships and the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the opinion of the VA examiner. Accordingly, the Board finds that the evidence of record is against a finding of service connection for degenerative joint disease of the bilateral ankles. As the preponderance of the evidence is against the claim of service connection for decreased memory, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for anemia, to include as due to lead exposure, is remanded. The Veteran was afforded a VA hematologic conditions examination in May 2018. A diagnosis of anemia was noted. The examiner noted that according to the Mayo Clinic, lead exposure can cause aplastic anemia, but further noted that the Veteran has either iron deficiency anemia or thalassemia, and as such, opined that his anemia was less likely than not related to his service. A January 19, 2011 VA treatment record notes the Veteran had a diagnosis of mild anemia upon review of labs for several years consistent with probable hemolysis. Subsequently, the Veteran submitted an article from the Agency for Toxic Substances and Disease Registry (ATSDR) titled Lead Toxicity: What are the physiologic effects of lead exposure? The article notes that acute, high-level lead exposure has been associated with hemolytic anemia. Based on the above, the Board finds that a remand for an addendum opinion is required. 2. Entitlement to service connection for hypertension, to include as due to lead exposure, is remanded. The Veteran was afforded a VA hypertension examination in May 2018. A diagnosis of hypertension from 1974 was noted. The examiner noted that according to the Mayo Clinic, lead exposure is not a cause or a risk factor of hypertension, and as such, opined that his hypertension was less likely than not related to his service. The Board notes that the Veteran-submitted ATSDR article indicated that lead exposure may “may contribute to the onset and development of hypertension” and that “higher exposures (primarily occupational) increase the risk for hypertensive heart disease”. Further, the Veteran testified at the January 2021 Board hearing that he was under high stress while in the Air Force and asserted that this contributed to his hypertension. Based on the above, the Board finds that a remand for an addendum opinion is required. 3. Entitlement to service connection for a kidney condition, to include as due to lead exposure, is remanded. The Veteran was afforded a VA kidney conditions examination in May 2018. A diagnosis of diabetic nephropathy, with an onset in the 1970s, was noted. The examiner noted that according to the Mayo Clinic, lead exposure is not a cause or a risk factor of kidney disease, and as such, opined that his kidney condition was less likely than not related to his service. The Board notes that the Veteran-supplied ATSDR article indicates that there are many studies which indicate a “strong association between lead exposure and renal effects”. Based on the above, a remand for an addendum opinion is necessary. 4. Entitlement to service connection for a left knee condition, claimed as left knee weakness, to include as due to lead exposure, is remanded. The Veteran testified at the January 2021 Board hearing that he had problems with his knees while in the service, but self-medicated with aspirin. He then stated that after the service he was diagnosed with arthritis and that a doctor told him that if he had been exposed to lead that it could cause his arthritis. He then endorsed lots of climbing up and down stairs while in the service. Based on this, the Board finds that a remand for an addendum opinion to address the Veteran’s assertions is required. 5. Entitlement to service connection for a right knee condition, claimed as right knee weakness, to include as due to lead exposure, is remanded. The Veteran was afforded a VA knee and lower leg conditions examination in May 2018. Diagnoses of total right knee arthroplasty and left knee degenerative joint disease were noted. The examiner noted that according to the Mayo Clinic, lead exposure is not the cause or a risk factor for degenerative joint disease and, as such, opined that the Veteran's total right knee arthroplasty and left knee degenerative joint disease are less likely than not caused by or related to his exposure to lead in the service. The Board notes that the examiner failed to discuss the October 27, 1965 service treatment record which notes the Veteran reported injuring his knee during a football game 3 years prior and now has pain with prolonged walking. The examiner also failed to discuss the October 27, 1965 service treatment record which notes the Veteran's right medial collateral ligament was weak due to an "old football injury". An x-ray revealed some slight osteophytic spurring of the lateral tibial spine. When VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). As the VA examiner failed to discuss the service treatment records which clearly document right knee symptoms while on active duty, the Board finds that the examination opinion is of no probative value and remands this matter for a new A examination. The matters are REMANDED for the following action: Anemia 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s anemia is at least as likely as not related to in-service lead exposure. The examiner’s attention is invited to the January 19, 2011 VA treatment record which notes the Veteran had a diagnosis of mild anemia upon review of labs for several years consistent with probable hemolysis. The examiner’s attention is invited to the ATSDR article titled “Lead Toxicity: What are the physiologic effects of lead exposure?” which notes that acute, high-level lead exposure has been associated with hemolytic anemia. Hypertension 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s hypertension is at least as likely as not related to in-service lead exposure and/or in-service stress. The examiner’s attention is invited to the ATSDR article titled “Lead Toxicity: What are the physiologic effects of lead exposure?” which notes that lead exposure may “may contribute to the onset and development of hypertension” and that “higher exposures (primarily occupational) increase the risk for hypertensive heart disease”. The examiner’s attention is invited to the Veteran’s testimony at the January 2021 Board hearing that he was under a lot of stress while on active duty due to SAC alerts which would require him to pull guard duty for 12-hour shifts. Kidney 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s kidney condition is at least as likely as not related to in-service exposure to lead. The examiner’s attention is invited to the ATSDR article titled “Lead Toxicity: What are the physiologic effects of lead exposure?” which notes that there are many studies which indicate a “strong association between lead exposure and renal effects”. Left Knee 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s left knee condition is at least as likely as not related to claimed knee problems while in-service. The examiner’s attention is invited to the Veteran’s testimony at the January 2021 Board hearing that he experienced problems with his knees in-service but self-medicated with aspirin. Right Knee 5. Schedule the Veteran for a VA examination for his right knee condition. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s right knee condition at least as likely as not related to service, to include exposure to lead and/or documented right knee pain? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Is it at least as likely as not that the right knee condition (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Did the right knee condition clearly and unmistakably (undebatable) preexist the Veteran’s service? If the examiner finds it did clearly and unmistakably preexist service, was it clearly and unmistakably not aggravated by service? If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to service. The examiner’s attention is invited to the October 27, 1965 service treatment record which notes the Veteran reported injuring his knee during a football game 3 years prior and now has pain with prolonged walking. The examiner’s attention is invited to the October 27, 1965 service treatment record which notes the Veteran's right medial collateral ligament was weak due to an "old football injury". An x-ray revealed some slight osteophytic spurring of the lateral tibial spine. (Continued on the next page)   6. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran and his representative a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.