Citation Nr: 21013870 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 12-14 373A DATE: March 10, 2021 ORDER New and material evidence has been submitted and the petition to reopen service connection for bilateral lower extremity arthritis, other than left knee osteoarthritis is granted. New and material evidence has been submitted and the petition to reopen service connection for a right knee disability is granted. Entitlement to service connection for hypertension, to include as due to exposure to herbicides is denied. REMANDED Entitlement to service connection for bilateral lower extremity arthritis, other than left knee osteoarthritis, to include as secondary to a service-connected left leg disability is remanded. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected left leg disability is remanded. FINDINGS OF FACT 1. The Veteran’s claims for service connection for a right knee disability and bilateral lower extremity arthritis were denied in a November 2004 rating decision. The decision was not appealed nor was new and material evidence received within one year. Accordingly, the November 2004 rating decision became final. 2. Evidence received since the November 2004 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claims for service connection for a right knee disability and bilateral lower extremity arthritis. 3. The Veteran's hypertension did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The November 2004 rating decision as to the denial of service connection for a right knee disability and bilateral lower extremity arthritis is final. 38 U.S.C. §§ 7103, 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156, 20.1103. 3. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral lower extremity arthritis. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156, 20.1103. 4. The criteria for service connection for hypertension, to include as due to exposure to herbicides have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)(b)(d), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1955 to January 1977. This appeal to the Board of Veterans’ Appeals (Board) arose from a July 2011 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO), inter alia, declined to reopen the claims for service connection for bilateral lower extremity arthritis, a right knee disability, and hypertension, on the basis that that new and material evidence had not been received. The Veteran filed a notice of disagreement (NOD) later that month and the RO issued a statement of the case (SOC) in June 2012. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans’ Appeals) later in June 2012. Following the receipt of additional relevant evidence, the RO continued to deny each claim on appeal, as reflected in supplemental SOCs (SSOC) dated in April and July 2014. In March 2016, the Veteran testified during a hearing before a Veteran’s Law Judge (VLJ). A transcript of that hearing is of record; however, that VLJ is no longer with the Board. Under VA regulations, a claimant is entitled to have final determination of his or her claim made by the VLJ who conducted a hearing. 38 C.F.R. § 20.707. The Veteran was sent correspondence in January 2021 informing him of this fact and inquiring whether he desired a new hearing. In addition, he was informed that if he did not respond within 30 days, the Board would assume he did not desire a new hearing. No response appears to be of record from the Veteran. Thus, the Board will proceed to address the claims on the merits. In July 2016, the Board, inter alia, reopened the claim for service connection for hypertension and remanded that service connection claim, along with the other requests to reopen referenced above for additional development. After accomplishing further action, the agency of original jurisdiction (AOJ) denied the remaining claims on appeal in an April 2020 SSOC, and returned the matters to the Board. In July 2020 the claims were again before the Board. The claims were remanded for additional development. After undertaking such development, the agency of original jurisdiction (AOJ) denied the claims on appeal in an October 2020 SSOC, and returned the matters to the Board. New and Material Evidence 1. Whether new and material evidence has been received sufficient to reopen a claim of service connection for a right knee disability 2. Whether new and material evidence has been received sufficient to reopen a claim of service connection for bilateral lower extremity arthritis, other than left knee osteoarthritis In order to reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the AOJ's actions, given the previous unappealed denial of the claims on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 to address the question of whether new and material evidence has been received to reopen the claims for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). The Veteran’s claims for service connection for a right knee disability and bilateral lower extremity arthritis were denied in a November 2004 rating decision, based on a finding that the Veteran did not have a current diagnosis of any claimed condition. These decisions were not appealed nor was new and material evidence received within one year, accordingly, the November 2004 rating decision became final. 38 C.F.R. §§ 3.156(b), 20.1103. Pertinently, since the issuance of the November 2004 rating decision, the Board notes that the Veteran was afforded a VA examination in May 2018. The examiner noted diagnoses of arthritis of the right knee and bilateral patellofemoral pain syndrome. In this case, the Board finds that the evidence is new, as it was not of record at the time of the final November 2004 rating decision. The evidence is also material as it relates to a current diagnosis, which is an unestablished fact necessary to substantiate the claim. Therefore, this evidence is new and material, and reopening of the Veteran’s claims is warranted. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). Service Connection 3. Entitlement to service connection for hypertension, to include as due to exposure to herbicides The Veteran contends that he has hypertension due to his exposure to herbicides during active service. Here, the Board notes that in a March 2020 memo, the AOJ conceded exposure to herbicides based on the Veteran’s nautical service in offshore eligible waters. Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). However, hypertension is not a disease that is presumptively associated with herbicide exposure. The question for the Board is whether the Veteran has a chronic disease that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran has hypertension, which is a chronic disease under 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a), it did not manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). VA treatment records show the Veteran was not diagnosed with hypertension until approximately 2001, 24 years after his separation from service and 23 years outside of the applicable presumptive period. Thus, service connection is not warranted as presumptively related to military service under 38 C.F.R. §§ 3.307, 3.309. There is no record of hypertension being diagnosed in service. Thus, service connection is not warranted under 38 C.F.R. § 3.303(a). Also, there is no evidence that the post-service diagnosis of hypertension is related to service. None of the post-service medical evidence relates the Veteran's hypertension to his military service. For this reason, service connection is not warranted under 38 C.F.R. § 3.303(d). The Veteran has not asserted that he has experienced high blood pressure symptoms since service. Rather, he is asserting that his hypertension is a result of his exposure to Agent Orange in service. In addition, there is no evidence of a chronicity in symptoms of hypertension since service, warranting service connection under 38 C.F.R. § 3.303(b). As to the Veteran’s assertion that his hypertension is related to herbicide exposure, the Board notes that the Veteran submitted a medical opinion from Dr. G. B. in May 2017. Dr. G. B indicated that the Veteran’s hypertension was related to active service; however, no rationale was offered for the opinion. Dr. G. B. noted only that the Veteran was instructed to adjust his diet and exercise, but that his blood pressure continued to rise. As no rationale was offered for the opinion, the Board finds that the May 2017 opinion has no probative value. The Board also notes that he was afforded a VA examination and medical opinion in June 2017. In a July 2020 remand the Board found that the opinion rendered was incomplete for adjudicative purposes, as it was predicated on a finding that the Veteran had not been exposed to herbicides. As noted above in a March 2020 memo, the AOJ conceded exposure to herbicides based on the Veteran’s nautical service in offshore eligible waters. Additionally, in the July 2020 remand the Board noted that the National Academy of Science (NAS), in its most recent Agent Orange update, moved hypertension from limited or suggestive of an association between hypertension and herbicide exposure to sufficient evidence of an association. Accordingly, the June 2017 examination has no probative value and will not be discussed further herein. The Veteran was then afforded an addendum medical opinion in September 2020. The examiner concluded that it was less likely than not that the Veteran’s hypertension was related to the conceded herbicide exposure. The examiner addressed the Agent Orange Update cited in the July 2020 remand. Specifically, the examiner pointed out that "A finding of limited or suggestive evidence means that epidemiologic research results suggest an association between exposure to herbicides and a particular outcome, but a firm conclusion is limited because chance, bias, and confounding factors could not be ruled out with confidence". Thus, the examiner pointed out that factors such as advancing age were not entirely accounted for. The examiner indicated that the Veteran was diagnosed with hypertension at the age of 63; noting that it is well-established in the peer-reviewed medical literature that advancing age is a significant risk factor for hypertension. The examiner noted that the Veteran's documented blood pressure readings show primarily a systolic hypertension, which is consistent with advancing age influencing the development. Accordingly, the examiner concluded that the Veteran’s advancing age most likely contributed most significantly to his development of hypertension, independent of his herbicide exposure. The examiner also noted that the Veteran’s STRs did not show hypertension during service and that he was not diagnosed with the condition until 2001. The examiner added that as hypertension is characterized as persistent and chronic elevation in blood pressure, the large time period of 24 years between separation from service and the diagnosis of hypertension makes his hypertension less likely to be temporally or etiologically related to service. The Board finds that the September 2020 examiner’s opinion is highly probative, as 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). Although the Veteran contends that he has hypertension due to his exposure to herbicides in service, he is not competent to make this conclusion. While lay persons are competent to provide opinions on some medical issues, the issue of whether hypertension is related to herbicide exposure falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As such, the Board assigns significantly more weight to the medical evidence than to the Veteran's lay assertions. Even considering the lay statements by the Veteran about the matters he is competent to address, the most probative evidence weighs against the claim of entitlement to service connection. In summary, the preponderance of the evidence of record indicates that his hypertension was not shown in service or for many years thereafter, and is not related to service, including his exposure to herbicides. Accordingly, service connection for hypertension is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for bilateral lower extremity arthritis, other than left knee osteoarthritis, to include as secondary to a service-connected left leg disability is remanded. 2. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected left leg disability is remanded. As noted above, the Veteran has current diagnoses of arthritis of the right knee and bilateral patellofemoral pain syndrome. Additionally, the Board notes that the Veteran’s private and VA treatment records indicate that the Veteran developed an antalgic gait as a result of his service-connected left leg disability, causing him to favor the right side. See CAPRI, records submitted, April 2017; Medical Treatment Record-Non Government Facility, submitted May 2017; Medical Treatment Record-Non Government Facility, submitted April 2019. To date, no VA opinion of record has addressed the etiology of the Veteran’s right knee disability or any diagnosed left lower extremity condition, other than arthritis of the left knee. As the medical evidence of record shows current diagnoses of disabilities of both the right and left leg/knee, and also raises the possibility that the condition may be caused or aggravated by the Veteran’s service-connected left leg disability, remand is necessary to obtain a VA medical opinion. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination, with a medical professional of appropriate expertise who has reviewed the claims file, to determine the nature, extent, and etiology of any diagnosed right knee disability or arthritis of the bilateral lower extremities. The examiner is asked to respond to the following: a.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed right knee arthritis (1) had its onset in service; (2) is related to the Veteran's military service; or is (3) caused or (4) aggravated by his service-connected left leg disability. b.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed bilateral lower extremity condition, other than arthritis of the left knee (1) had its onset in service; (2) is related to the Veteran's military service; or is (3) caused or (4) aggravated by his service-connected left leg disability. The examiner must address the May 2018 VA examination showing diagnoses of right knee arthritis and bilateral patellofemoral pain syndrome. (Continued on the next page)   The examiner must also address private and VA treatment records indicating that the Veteran developed an antalgic gait as a result of his service-connected left leg disability, causing him to favor the right side. See CAPRI, records submitted, April 2017; Medical Treatment Record-Non Government Facility, submitted May 2017; Medical Treatment Record-Non Government Facility, submitted April 2019. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Marsh II, 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.