Citation Nr: 21016080 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 06-13 002 DATE: March 19, 2021 ORDER Service connection for right knee disability is denied. Service connection for a heart disability is granted. Service connection for diabetes mellitus is granted. Service connection for peripheral neuropathy is granted. REMANDED Service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The Veteran’s right knee disability did not have its onset during active service and was not otherwise caused by her service and did not manifest within one year of separation from active service. 2. During his service in Thailand, the Veteran regularly and repeatedly operated, maintained, or served onboard C-123 aircraft that the United States Air Force used to spray the herbicides in Vietnam during Operation Ranch Hand, and was therefore, exposed to Agent Orange. 3. The Veteran has been diagnosed as having coronary artery disease and diabetes mellitus type 2, and the medical evidence shows that both disabilities are compensably disabling. 4. The Veteran’s peripheral neuropathy is proximately due to his service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a heart disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for diabetes mellitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for service connection for peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from January 1967 to February 1974, to include service in Thailand from January 1969 to December 1969. Unfortunately, the Veteran died from lung cancer in November 2012 and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2005 and August 2012 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Veterans Law Judge at a hearing held in September 2006. The appellant presented sworn testimony at a hearing before the undersigned Veterans Law Judge in January 2021. At the January 2021 hearing, the undersigned Veterans Law Judge notified the appellant that the Veterans Law Judge who chaired the September 2006 hearing was no longer employed by the Board and that the January 2021 hearing would substitute for earlier proceeding, a transcript of which is of record and will considered by the Board in the adjudication of this appeal. The present appeal has a complex procedural history, which includes prior actions by both the Board and the United States Court of Appeals for Veterans Claims (Court). In August 2007, the Board issued a decision denying the claims. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an Order issued in December 2008, the Court vacated the August 2007 Board decision and remanded the case to the Board for additional action consistent with a joint motion of the parties. The Board again denied this appeal in a March 2011 rating decision, which was vacated by the Court in a November 2011 order. Most recently, in a July 2012 decision, the Board remanded the Veteran’s claims for service connection for a heart condition, service connection for diabetes mellitus, and service connection for peripheral neuropathy for additional development. The Board finds that it is more appropriate to characterize the Veteran’s claim for service connection for PTSD broadly as one of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection To establish service connection for a claimed disorder, the following criteria must be met: (1) medical evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. 38 C.F.R. § 3.303; see also, Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active duty military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be found on a secondary basis where the following criteria is met: (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and, (3) evidence that the non-service-connected current disability is either proximately due to or as the result of a service-connected disability; or, aggravated beyond its natural progress by a service-connected disability. 38 C.F.R. § 3.310 (2018); see also, El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). 1. Service connection for right knee disability. The appellant asserts that the Veteran’s right knee disability is related to service. During the January 2021 hearing, the appellant testified that the Veteran always had right knee problems. The Board notes that the Veteran and the appellant were married in December 2009. See Marriage Certificate, August 2013. During the April 2012 VA examination, the Veteran reported that he experiences knee pain every day, has experienced instability for two years, and his knee pain started three to four years ago. He reported that he injured his knee while serving in Thailand by hitting it on a door. The examiner diagnosed the Veteran with degenerative joint disease of the right knee. After conducting an examination and reviewing the Veteran’s medical records, the examiner opined that it is less likely than not that the Veteran’s right knee disability is related to his military service. The examiner reasoned that the Veteran’s service treatment records indicate that the Veteran was seen one time for a diagnosis of right knee strain but there was no note of recurrent issues in the military, and the Veteran reported during the examination that his symptoms started three to four years ago. This opinion is based on an accurate medical history and the Board finds the opinion probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Notably, there is no competent medical opinion in support of the appellant’s claim. To the extent the appellant may be relating the Veteran’s disability to military service, the Board finds that the question regarding the potential relationship between the Veteran’s right knee disability and his military service to be complex in nature. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the appellant is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The appellant does not possess the medical knowledge to attribute the Veteran’s right knee disability to his military service. Therefore, the appellant’s contention that the Veteran’s right knee disability is related to his military service is not competent and consequently less probative than the medical evidence of record. The Board also notes that as there is no evidence of right knee arthritis within one year after separation from service, there is no basis to award service connection for arthritis on a presumptive basis. Moreover, there is no indication that arthritis manifested during service to a sufficient degree to identify the disease to allow for service connection based on recurrence of symptomatology. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant’s claim, that doctrine is not applicable in the instant appeal, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Service connection for a heart disability. 3. Service connection for diabetes mellitus. 4. Service connection for peripheral neuropathy. The appellant asserts that the Veteran’s heart disability, diabetes, and peripheral neuropathy are related to service. Indeed, in the August 2007 decision, the Board noted that the Veteran had submitted statements from two persons who served with him in support of his contention that he was exposed to Agent Orange in service. N. S. stated that the Veteran served in his command in Thailand from January to June 1969 and was dispatched on several occasions to perform maintenance on aircraft used to dispense Agent Orange. C. W. stated that he served with the Veteran in Thailand in 1969 with an avionics maintenance squadron and that their duties included the upkeep of the C-123 “Ranch Hand.” He also indicated that the Ranch Hands were used to spray Agent Orange, although this was not known to them at that time. At the September 2006 hearing, the Veteran testified that he had no service in Vietnam and that his exposure to Agent Orange occurred while working on planes used to dispense Agent Orange. He indicated that he thought “just being around” the planes resulted in his exposure to Agent Orange. When requested to provide more specific details, he testified that the nozzles used to spray Agent Orange were under the wings and sometimes dripped and that the drops landed on him on some occasions. Since the July 2012 Board remand, a regulation became effective allowing members of the Air Force and Air Force Reserve to be granted presumptive service connection based on exposure to herbicides for individuals who regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam Era. This regulation is applicable to any claim for service connection for an Agent Orange presumptive condition filed by a covered individual that is pending on or after June 19, 2015. 80 FR 35246. The regulation states that “regularly and repeatedly operated, maintained, or served onboard C-123 aircraft” means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. Such exposure constitutes an injury under 38 U.S.C. § 101(24)(B) and (C). If an individual described in this paragraph develops a disease listed in 38 C.F.R. § 3.309(e) as specified in paragraph (a)(6)(ii) of this section, it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(v). Here, the Veteran’s military occupational specialty was aircraft electronic navigation equipment repairmen. An Airman Performance Report described the Veteran’s duties as performing inspections, preventative maintenance, and troubleshooting of navigation equipment installed on A-1, A-26, C-123, C-47, U-10, and CH-3 aircrafts. Lay statements from the Veteran and fellow servicemen further note the Veteran was a member of the U.S. Air Force and stationed at Nakon Phanom Royal Thai Air Base as a member of the 56th Avionics Maintenance Squadron and part of his duties was to perform maintenance on C-123K “Ranch Hand” and “Candle” aircraft. See Lay Statements, May 2009. The evidence of record shows that the Veteran was exposed to Agent Orange through regular and repeated duties maintaining contaminated former Operation Ranch Hand (ORH) C-123 aircraft used to spray Agent Orange in Vietnam. Therefore, exposure to Agent Orange is conceded. Medical treatment records demonstrate a diagnosis of diabetes mellitus and related peripheral neuropathy as well as heart disease in the form of coronary artery disease. In light of the above, the inquiry shifts to whether the Veteran’s diabetes mellitus and coronary artery disease manifested to a compensable degree. VA treatment records show insulin use for diabetes and the use of multiple medications for coronary artery disease status post coronary artery bypass graft. See Medical Treatment Records, November 2008 and August 2012. Thus, under the criteria contained in Diagnostic Code 7913, diabetes mellitus, and Diagnostic Code 7005, coronary artery disease, the Veteran’s diabetes and coronary artery disease warrant a compensable evaluation. As such, service connection is warranted for diabetes mellitus and coronary artery disease. Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Medical treatment records show that the Veteran’s peripheral neuropathy is a complication of the Veteran’s diabetes. See Medical Treatment Records, February 2003. Therefore, the Board finds that the Veteran’s peripheral neuropathy is secondary to his now service-connected diabetes mellitus. Accordingly, service connection is warranted. REASONS FOR REMAND 1. Service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD) is remanded. The appellant asserts that the Veteran’s PTSD is related to his service. During the January 2021 hearing, the appellant testified that the Veteran had nightmares about his experiences in service. Alternatively, the appellant submitted an April 2018 statement asserting that the Veteran’s psychiatric condition is secondary to his other disabilities. At the October 2011 VA examination, the Veteran reported that he experiences nightmares and anger issues. He denied any psychiatric history prior to service in the military, denied any inpatient or outpatient treatment, and denied any family psychiatric history. The Veteran stated that when he was on base in Thailand, tigers or insurgents would trip flares in the area where he was working. He also stated that he assisted in the landing of an aircraft that had been badly shot. The aircraft landed safely but the co-pilot was shot and decapitated. The examiner diagnosed the Veteran with depressive disorder not otherwise specified and stated that the Veteran is not presenting with PTSD. The examiner reasoned that the Veteran’s claimed stressors are not the type of events that are typically associated with the development of PTSD as they are not related to his fear of hostile military or terrorist activity. In regard to the mood disorder, the examiner stated that there is no evidence that it is related to Veteran’s military service. Given the appellant’s assertions and the grants of service connection in this decision, the Board finds that remand is necessary to obtain a retrospective opinion addressing the etiology and onset of the Veteran’s psychiatric disability, including the issue of secondary service connection. The matters are REMANDED for the following action: Obtain an opinion from a VA examiner as to the onset and etiology of the Veteran’s psychiatric disability. All psychiatric disabilities found to be present must be identified. A diagnosis of PTSD must be ruled in or excluded. Following a review of the lay and medical evidence, the examiner should determine all diagnoses and provide an opinion as to whether it is at least as likely as not that the Veteran’s psychiatric disability had its onset during service or is otherwise related to service. The examiner must also opine as to whether it is at least as likely as not that the Veteran had a psychiatric disability that was caused or aggravated by his service-connected disabilities, to include the aggregate impact of these conditions. In offering this opinion, the examiner must acknowledge and discuss the lay statements of record. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.