Citation Nr: 21027193 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-48 114 DATE: May 4, 2021 ORDER Entitlement to service connection for hypertension is granted. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a low back disability is denied. FINDINGS OF FACT 1. The Veteran's hypertension is related to in-service exposure to herbicide agents. 2. The preponderance of the evidence is against finding that the Veteran's right knee disability began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that the Veteran's left knee disability began during active service, or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that the Veteran's low back disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right knee disability 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 left knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1968 to December 1970, with service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in June 2018. A transcript of that hearing is of record. These matters were remanded by the Board several times, most recently in August 2020. The Board finds there has been substantial compliance with its remand directives for the claims decided herein. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection 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). 1. Entitlement to service connection for hypertension The Veteran contends that his hypertension was caused by exposure to herbicide agents in service. The Board concludes that the Veteran has a current disability that is related to exposure to herbicide agents in service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). An October 2019 VA examination shows the Veteran has a current diagnosis of hypertension. Thus, the question becomes whether the current disability is related to service. Service connection may be established on a presumptive basis for certain disabilities resulting from exposure to herbicides. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to herbicides, unless there is affirmative evidence to establish that the Veteran was not so exposed during that service. 38 C.F.R. §§ 3.307(a)(6)(iii). The Veteran served in the Republic of Vietnam from May 1969 to April 1970, which means that exposure to herbicides during service is presumed, However, hypertension is not one of the diseases that VA will presume was caused by herbicide exposure. 38 C.F.R. § 3.309(e). Therefore, presumptive service connection is not available in this case. Even though the Board cannot grant service connection for hypertension on a presumptive basis, it must still consider whether service connection is appropriate on a direct-incurrence basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes an October 2019 medical opinion finding no nexus between service and the Veteran's hypertension. The examiner's rationale was that there is limited evidence of such, and it is not a common risk factor. The evidence in favor of the claim includes a January 2021 VA medical opinion in which the clinician cited articles from the National Academy of Sciences (NAS) about the association between herbicide exposure and hypertension, and concluded that the Veteran's hypertension is at least as likely as not due to or caused by his in-service Agent Orange exposure. The Board finds that the January 2021 medical opinion is at least as probative as the October 2019 medical opinion. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current hypertension is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for hypertension is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a right knee disability The Veteran contends that his right knee disability is due to crawling in service. 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 osteoarthritis, and his service treatment records (STRs) show that he did suffer from knee pain in June 1969 and some injury to his right leg in December 1969, the preponderance of the evidence weighs against finding that the Veteran's right knee osteoarthritis began during service or is otherwise related to an in-service injury, event, or disease. Although the Veteran's STRs do reference a right leg or knee injury in service, he denied trick or locked knee in the October 1970 separation report of medical history. The Veteran has provided several histories of the onset of his right knee pain. In the April 2014 VA examination, he reported that the onset of right knee pain was during service in the late 1960s, and that it had continued intermittently since then. He testified in the June 2018 hearing that his right knee pain began a year or a year-and-a-half after service. In the October 2019 examination, he reported his knee pain had its onset in 1975. These varying histories are contradicted by the medical record. The Veteran first sought treatment for right knee pain in November 2008, at which point he attributed the pain to gout. In December 2008, the Veteran reported right knee pain for three weeks, which directly contradicts his later assertions of lingering knee pain since service or since the 1970s. The Board finds that statements made for treatment purposes are more probative than statements made in the pursuit of a claim for disability benefits. Pond v. West, 12 Vet. App. 341 (1999). Therefore, the most probative evidence of record does not support a finding that the Veteran has suffered continuous right knee pain since service or within one year of service. There are four negative VA examinations as to the right knee. The most probative of these is the January 2021 VA examination, which concluded that the Veteran's right knee disability is less likely than not due to or caused by service. As rationale, the examiner acknowledged the right knee or leg pain in 1969, but determined that the Veteran's right knee complaints were resolved. The Board notes that the denial of a trick or locked knee upon separation is consistent with this finding. Although the examiner later erroneously noted a lack of documents of in-service knee complaints, presumably because a portion of the left knee opinion was mistakenly copied into the right knee opinion, the clinician clearly discussed the 1969 complaints and thus based the opinion on an accurate understanding of the Veteran's medical history. The examiner also noted that the Veteran's first documented post-service right knee complaint was in 2008, when he was seen for a gout flare and diagnosed with osteoarthritis of the right knee. The examiner's rationale included the assertion that gout is known to cause osteoarthritis. The Board finds that this opinion is probative because, notwithstanding one erroneous sentence, 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 (2008). The Board recognizes that the Veteran clearly believes that his right knee disability was caused by activity such as crawling in service. However, the Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships. 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 (Fed. Cir. 2007); Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA medical opinions of record. As the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for a left knee disability The Veteran asserts that his left knee disability, like the right knee disability, is caused by crawling in service. 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 an October 2019 VA examination shows the Veteran has a current diagnosis of degenerative arthritis of the left knee, the preponderance of the evidence weighs against finding that the Veteran's disability began during service or is otherwise related to an in-service injury, event, or disease. There is no reference to a left knee injury or complaint in the Veteran's STRs. He denied trick or locked knee in the October 1970 separation report of medical history. He testified in his June 2018 hearing that his bilateral knee pain started maybe a year or year and a half after service, and reported in the October 2019 VA examination that his bilateral knee pain began in 1975, five years after service. He did not seek treatment until December 2008, at which point he was noted to have crepitus in the left knee. The primary complaint in this treatment note was right knee pain of three weeks duration, as noted in the section above. In September 2018 the Veteran sought specific treatment for his left knee, which he reported had been hurting with stiffness for one week. These treatment notes contradict the Veteran's history of left knee pain since shortly after service. There are three negative VA medical opinions as to the left knee disability. The most recent of these is the January 2021 opinion, which found that it is less likely than not that degenerative joint disease of the left knee was due to service. The rationale was the lack of in-service knee complaints, the Veteran's report that his knee pain started years after service, and the presence of gout, which the examiner noted is known to cause osteoarthritis. 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, 22 Vet. App. at 304. As with the right knee disability, the Board acknowledges the Veteran's belief that his left knee disability is related to service, but finds that he does not have the medical training to provide an opinion on this medically complex issue. Jandreau, 492 F.3d at 1372; Kahana, 24 Vet. App. at 428. Consequently, the Board gives more probative weight to the medical opinions of record. As the most probative evidence of record demonstrates that it is less likely than not that the Veteran's left knee disability is due to service, there is no reasonable doubt to be resolved, and his claim must be denied. 4. Entitlement to service connection for a low back disability The Veteran contends that his low back disability is caused by the combination of his duties in service, and may be related to his knee disabilities. 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 an October 2019 VA examination shows the Veteran has a current diagnosis of lumbosacral strain, the preponderance of the evidence weighs against finding that the Veteran's disability began during service or is otherwise related to an in-service injury, event, or disease. There is no reference to back pain in the Veteran's STRs. The Veteran denied back trouble of any kind in the October 1970 report of medical history. In the October 2019 VA examination, the Veteran reported that his back pain had its onset in the 2000s. This history is consistent with the medical record, which indicates that he first sought treatment for low back pain in February 2007, at which point he reported low back pain of one week's duration. There are three negative medical opinions of record, including a January 2021 VA medical opinion that accurately summarized the Veteran's medical history as to the low back and concluded that it is less likely than not that the Veteran's low back disability is related to service. The rationale is that there was no chronic condition in service, no medical evidence, no chronicity of care, and no nexus linking military service to the Veteran's current condition. 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, 22 Vet. App. at 304. As to the contention that the Veteran's low back disability is due to the bilateral knee disabilities, the Board is denying service connection for the bilateral knee disabilities in this decision. Therefore, the knee disabilities cannot be the basis of secondary service connection. As such, remand to cure any inadequacies as to opinions regarding whether the Veteran's back disability was proximately due to or aggravated by his knees would result in additional delay with no possible benefit flowing to the Veteran, and is inappropriate. Soyini v. Principi, 1 Vet. App. 540, 546 (1991). As with the knee disabilities, the Board acknowledges the Veteran's belief that his low back disability is related to service, but finds that he does not have the medical training to provide an opinion on this medically complex issue. Jandreau, 492 F.3d at 1372; Kahana, 24 Vet. App. at 428. Consequently, the Board gives more probative weight to the medical opinions of record. As the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Budd, 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.