Citation Nr: 21023537 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-04 283 DATE: April 20, 2021 ORDER Entitlement to service connection for a respiratory condition, to include chronic obstructive pulmonary disease (COPD) claimed as due to in-service inhalation of brake dust, is denied. Entitlement to service connection for a left hip disability, to include as due to aggravation by service-connected right knee disability is denied. Entitlement to service connection for sciatic nerve disability is dismissed. FINDINGS OF FACT 1. The Veteran’s currently diagnosed COPD did not have its onset during active duty and is not otherwise related to service. 2. The Veteran’s currently diagnosed left hip disability did not have its onset during active duty, did not manifest to a compensable degree within one year of discharge from service, and it not otherwise related to service. 3. Service connection for radiculopathy of the right leg, sciatic nerve, associated with moderate degenerative disc disease L3-L5 and for radiculopathy of the left leg, sciatic nerve, associated with moderate degenerative disc disease L3-L5 was granted in an October 2013 rating decision. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory condition, to include COPD claimed as due to in-service inhalation of brake dust are not 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 a left hip disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The claim of service connection for a sciatic nerve disability is dismissed. 38 U.S.C. §§ 7104; 38 C.F.R. §§ 20.104. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 1970 to June 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2012, September 2012 and October 2013 rating decisions by the North Little Rock, Arkansas Regional Office (RO) of the United States Department of Veterans Affairs (VA). These issues were previously before the Board, most recently in September 2020 at which time they were remanded for additional development. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in February 2012 and May 2013. The RO associated the Veteran’s service and VA private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection on a direct basis, the record requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of an injury or disease; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Arthritis, with a presumptive period of one year following separation from service, is a listed condition. However, as there is no evidence, argument, or allegation of currently claimed arthritis within the first post-service year, the presumption is not applicable here. Regarding service connection due to herbicide exposure, VA laws and regulations provide that if a Veteran was exposed to herbicides during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to herbicide. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation. Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that it was causally linked to such exposure. Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113 (b) and 1116 and 38 C.F.R. § 3.303. In addition to the law above, service connection may also be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE or PERC), benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune, even though there is no record of such disease during service, if they manifest to a compensable degree at any time after service, in a veteran, former reservist, or a member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune and/or Marine Corps Air Station New River in North Carolina, during the period beginning on August 1, 1953 and ending on December 31, 1987. 38 C.F.R. § 3.307(a)(7). The following diseases are deemed associated with exposure to contaminated water at Camp Lejeune: kidney cancer, liver cancer, Non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, Aplastic anemia and other myelodysplastic syndromes, and bladder cancer. 38 C.F.R. § 3.309(f). Finally, a disability which is proximately due to, or the result of, or aggravated by a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. §§ 3.306, 3.310. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence, the benefit of the doubt is afforded the claimant. Respiratory Disorder The Veteran asserts he has a respiratory disorder due to inhalation of brake dust during service. The Veteran’s service at Camp Lejeune has been verified and his exposure to contaminated water is conceded. However, none of the listed conditions relate to COPD. Similarly, COPD is not a condition for which the presumption of service connection is granted based on exposure to Agent Orange. Therefore, service connection for COPD on a presumptive basis need not be considered further. The Veteran’s service treatment records (STRs) are negative for a diagnosis and/or treatment of a respiratory disorder. The Veteran underwent a VA respiratory conditions examination in August 2012. The VA examiner noted the Veteran’s diagnosis of COPD and his 44-year history of smoking which ended in 2008. The VA examiner noted the Veteran’s military occupational specialty was a mechanic with probable exposure to asbestos. After service, the Veteran worked as a diesel mechanic for 6 to 9 months and then in management until his retirement. The Veteran reported that he began to notice shortness of breath in 2007 and was shown to have moderate COPD in 2008 after undergoing pulmonary function testing. Chest x-rays taken in connection with the examination revealed no findings supportive of asbestos exposure. The VA examiner concluded that it was less likely than not that the Veteran’s COPD was due to an in-service injury, event, or illness, and was attributable to his 44-year smoking history. In March 2014, an addendum opinion regarding the etiology of the Veteran’s COPD was provided. The VA examiner stated, that in his opinion, the Veteran’s COPD is not due to or the result of or aggravated by his exposure to brake dust in service. The VA examiner stated that the leading cause of COPD is cigarette smoking and noted the Veteran’s history of cigarette smoking. Treatment notes dated December 2005 and February 2008 indicate the Veteran had smoked 2 packs per day for 40 years. The Veteran’s COPD was first noted in February 2008. The VA examiner stated that since cigarette smoking is the leading cause of COPD, this risk factor really overwhelms all other causes. The VA examiner further stated that, assuming the Veteran was a mechanic in service, it is conceivable that exposure to brake dust could have contributed to his COPD otherwise his exposure is not significantly greater than that of civilian automobile drivers. In July 2018, the issue was remanded by the Board to consider the Veteran’s contentions that his history of cigarette smoking was far less extensive that suggested by VA examiners, and his contentions that he exposure to Agent Orange while in the Republic of Vietnam and to contaminated water while serving at Camp Lejeune are both causative factors in his COPD. The Board acknowledges that VA has previously conceded the Veteran’s exposure to Agent Orange and that the Veteran served at Camp Lejeune from August 1970 to November 1971. In June 2020, a VA contract medical opinion was obtained regarding the etiology of the Veteran’s COPD. The VA contract examiner determined that it is less likely than not that the Veteran’s COPD was incurred in or caused by the claimed in-service injury, event or illness as there is “no evidence of chronic dyspnea, chronic cough or chronic wheezing or any other symptoms of suspicious of a diagnosis of COPD found in STRs while on active duty.” A second VA contract medical opinion was provided which determined that the cause of the Veteran’s COPD is smoking. The VA contract examiner noted that “though there is evidence linking respiratory cancers to Agent Orange, there is no evidence linking COPD to Agent Orange nor to contaminated water in Camp Lejeune. Asbestos exposure has been linked to asbestosis, not COPD. Vet has not been diagnosed with asbestosis.” In September 2020, the Board remanded the issue once again because the June 2020 VA contract examiner did not consider the Veteran’s contentions regarding in-service inhalation of brake dust while working as a mechanic as a cause of his respiratory disorder. A VA contract medical opinion was obtained in December 2020. The VA contract examiner determined that it was less likely than not that the Veteran’s COPD was incurred in or caused by the claimed in-service injury, event, or illness. The VA contract examiner noted the Veteran’s diagnosis of COPD as of 2008. The VA contract examiner noted the Veteran’s history of smoking cigarettes for over forty years starting at age 18 and that according to the Veteran’s original filing in 1976, there was no report of respiratory problems. During an examination in 1977, there was no report of shortness of breath or difficulty breathing. The VA contract examiner noted that the Veteran began noticing shortness of breath in 2007 and was diagnosed with COPD in 2008. The VA examiner noted that according to UpToDate, cigarette smoking is the number one risk factor for developing COPD. The Veteran reported that he was potentially exposed to asbestos while working as an auto mechanic during service. He stated that this could have caused him to have asbestosis. The VA examiner noted that according to UpToDate, asbestosis specifically refers to the slowly progressive, diffuse pulmonary fibrosis caused by inhalation of asbestos fibers. The gross anatomic features of asbestosis include the presence of small, stiff lungs with fibrosis in the subpleural regions of the lower lobes. The adjacent visceral pleura may also be fibrotic and associated with parietal pleural plaques, while the central portions of the lung are relatively spared. The earliest symptom of asbestosis is usually the insidious onset of breathlessness with exertion. Dyspnea commonly progresses even in the absence of further asbestos exposure. Cough, sputum production and wheezing are unusual; if present, these symptoms tend to be a consequence of cigarette smoking rather than asbestos-induced lung disease. There is no evidence of progressive worsening of the veteran’s dyspnea. The record shows a chest x-ray done in 2008 which revealed moderate COPD but made no mention of findings of pulmonary fibrosis. In the opinion of the examiner for the March 2014 exam, the statement was made that exposure to brake dust from asbestos laden brake pads during service could have contributed to the Veteran’s COPD. UpToDate reports that numerous studies indicate that environmental exposure to particulate matter, dusts, vapors, fumes, or organic antigens may also be a risk factor for COPD. The VA contract examiner stated that while there is a possibility that exposure to brake dust laden with asbestos fibers could have contributed to the Veteran’s COPD, based on information available, the VA contract examiner believes damage from inhalation of such fibers would also be evident in chest x-rays and progressive worsening of the Veteran’s respiratory health requiring frequent visits for respiratory complaints. In conclusion, the VA contract examiner noted the Veteran did not appear to have respiratory problems during service or at separation from service; the Veteran has been diagnosed with COPD but no nexus has been established linking this to an event during service. While exposure to asbestos could have contributed to COPD, this VA contract examiner found no objective evidence that this is the case here. Direct service connection for COPD must be denied because the competent evidence of record shows that this disability was neither caused nor aggravated by service; nor does it show that the Veteran experienced symptoms of this condition that continued from service until the present. Rather, the evidence shows that the Veteran first sought treatment for COPD in 2008, approximately 32 years after his discharge from service. There is no competent and credible opinion relating COPD to service. Although the Veteran has expressed his belief in a connection, he lacks the knowledge and training required to render a nexus opinion on a cause and effect relationship unobservable to a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Veteran has simply asserted his opinion, without a clear rationale or support; no probative value is given his statements beyond their worth as physical observations. There is no medical evidence associated with the file that establishes a link between the Veteran’s service and his post service diagnosis of COPD, nor has the Veteran asserted that a medical professional told him that this condition was related to any injury or disease sustained in service. Service connection for the Veteran’s COPD is not warranted. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, at 1 Vet. App. 49 (1990). Left Hip Disability The Veteran asserts he has a left hip disability that is due to his service-connected right knee chondromalacia of the patella. The Veteran’s STRs are negative for treatment for and/or a diagnosis of a left hip disability or injury in service. A VA hip and thigh opinion was obtained in February 2015. The VA examiner noted the Veteran’s diagnosis of osteoarthritis of the left hip diagnosed in July 2014. The Veteran asserted his left hip disability was due to his service-connected degenerative joint disease, right hip. The VA examiner stated that this claim is without support in medical literature noting mild arthritis changes of the right hip do not correlate to changes or symptoms of the left hip. Arthritic changes do not progress, lead to, or cause degenerative osseous changes of a joint on the opposite side of the body. The VA examiner stated that there is no medical basis for this claim. The Veteran underwent a VA hip and thigh examination in September 2016. The VA examiner noted the Veteran’s diagnosis of left hip osteoarthritis in 2014. Subjective complaints included pain in left hip region, sometimes in buttock sometimes laterally. He has not had any surgery and uses a cane for ambulation. The Veteran stated that the pain started with his right knee and then when he favors the knee it went to his right hip, then his back and left hip region. Range of motion of the left hip was flexion from 0 to 100 degrees, extension from 0 to 20 degrees, abduction from 0 to 35, adduction from 0 to 20 degrees, external rotation from 0 to 45 degrees, and internal rotation from 0 to 20 degrees. Range of motion did not contribute to a functional loss. Arthritis of the left hip was documented. X-rays revealed mild arthrosis of the left SI joint. The VA examiner determined that it was less likely than not that the Veteran’s left hip condition was incurred in service. The VA examiner noted the X-rays revealed age related changes and suggested an age-related condition in the hips. In June 2018, the Board remanded this issue based on the statements of the October 2013 VA examiner who suggested a relationship between the Veteran’s patellar chondromalacia and a degenerative hip condition and the findings of the September 2016 VA examination in which no etiological relationship to the right knee was discussed. In January 2020, the Veteran underwent a VA contract hip and thigh examination. The VA contract examiner noted the Veteran’s diagnosis of left hip strain, osteoarthritis right hip and avascular necrosis right hip. Subjective complaints included feelings of weakness and experiencing near falls. Flare-ups of the left hip were described as occurring once a week, lasting for 2 minutes and as moderate to severe in intensity. Flare-ups were reportedly precipitated by walking and alleviated by stopping and waiting. X-rays of the left hip documented osteoarthritis. The VA contract examiner determined that it is less likely than not that the Veteran’s left hip disability is proximately due to or the result of the Veteran’s service-connected right knee chondromalacia “because there is not a medically based reason that can be explained.” The VA contract examiner noted that chondromalacia will not cause changes in gait or compensation of weight bearing on either lower extremity. The VA contract examiner determined that the left hip condition is likely due to age related natural progression. In June 2020 an addendum opinion was provided which determined that there was no clear evidence, from a review of orthopedic literature, to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis shortening of the injured limb resulting in length discrepancy of more than 5 cm so that the individuals gait pattern has been altered to the extent that clinically there is an obvious Trendelenburg gait. No Trendelenburg gait has been documented to date. The VA contract examiner further stated that it is not unusual for two joints to share properties in the same person, but one joint’s disease does not “spread” to another or cause damage to it. The condition of the left hip is due to something intrinsic to the left hip and not the right knee. The Board remanded the issue in September 2020 finding the opinions submitted in connection with the January 2020 VA contract examination were vague and unclear. A VA contract hip and thigh opinion was obtained in December 2020. The VA contract examiner noted the Veteran’s diagnosis of left hip arthritis and that the Veteran did not have any complaints of hip pain or treatment for hip problems in service. According to UpToDate, chondromalacia patella is a condition in which the cartilage behind the kneecap becomes too soft or can wear away. This can cause pain in the front of the knee, or around or behind the knee cap. The medical opinion of the provider conducting the exam in October 2013 states “Pt had severe injury to right knee and this resulted in an abnormal gait X many years. This had resulted in stress on back and hips causing more DJD changes.” This is an opinion not supported by evidence. The VA contract examiner indicated that the examiner in January 2020 did not support the medical opinion with evidence. As supported by findings from UpToDate, chondromalacia is a treatable condition with expectation of improvement with treatment. This was a treatable condition which would not be expected to cause the type of lifelong gait problem which would lead to arthritis in the hips. According to the NIH, arthritis of a joint can have several possible causes such as age, being overweight, history of injury or surgery on the joint, overuse of the joint, malformation of the joint, or family history. The VA contract examiner opined “to say the veteran’s arthritis of the left hip was caused by the chondromalacia of the right patella would require mere speculation on the part of this examiner. The claimed left hip condition is not related to or caused by any in service or even. A nexus has not been established.” After a careful review of the evidence of record, the Board finds that service connection for the Veteran’s left hip disability must be denied on both direct and secondary bases. The Board finds there is no competent evidence of record which links the Veteran’s left hip disability to his active duty service. The medical evidence first documents a left hip disability in July 2014, which is 38 years after the Veteran’s discharge from service. Although the Veteran has expressed his belief in a connection between his left hip disability and his service-connected right knee disability, he lacks the knowledge and training required to render a nexus opinion on a cause and effect relationship unobservable to a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Veteran has simply asserted his opinion, without a clear rationale or support; no probative value is given his statements beyond their worth as physical observations. No medical professional has supported the Veteran’s position. Therefore, the Board finds that service connection for a left hip disability must be denied because the competent evidence of record shows that a left hip disability was neither caused nor aggravated by service; and the evidence does not show a left hip disability, including arthritis, within one year of his separation from active service; or that he experienced symptoms of such a condition that continued from service until the present. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a left hip disability, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Sciatic Nerve Disability, Related to Service-Connected Right Knee Disability A review of the file reveals the Veteran’s claims for service connection for sciatic nerve disabilities, right lower extremity and left lower extremity, respectively, were granted in an October 2013 rating decision, each as secondary to moderate degenerative disc disease, L3-L5. This represents a full grant of the benefits sought by the Veteran. In January 2014, the Veteran filed a notice of disagreement with the October 2013 decision regarding the denial of service connection for right knee arthritis and tinnitus. A VA medical opinion was obtained in March 2014, which determined that the Veteran’s sciatic nerve disability was not caused nor aggravated by his service-connected diabetes mellitus but was consistent with his left L5 radiculopathy. A statement of the case (SOC) was issued in January 2015 which denied service connection for “sciatic nerve condition.” The Veteran perfected his appeal later that month indicating “[t]he service connection for sciatic nerve never was to be secondary to DMII but to my right knee,” and the matter was forwarded to the Board. However, it is clear from the record, including subsequent rating code sheets, that the grant was the intended decision. The SOC appears to be in error. Moreover, the Board notes that the January 2021 VA examiner specifically opined that the Veteran has a diagnosed sciatic nerve condition, which is due to lumbar stenosis. As indicated, the Veteran is already service-connected for radiculopathy of the right and left lower extremities as secondary to his service-connected lumbar spine disability. See the rating decision dated October 2013. Therefore, this appeal is dismissed for a lack of any controversy or justiciable claim. The Board simply has no jurisdiction. 38 U.S.C. § 7104. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Margaret M. Lunger 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.