Citation Nr: 21027373 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 18-42 610A DATE: May 5, 2021 ORDER Service connection for left knee replacement is denied. Service connection for right knee replacement (previously claimed as degenerative joint disease) is denied. Service connection for degenerative arthritis, left ankle is denied. Service connection for status post medial displacement calcaneal osteotomy (claimed as bilateral ankle condition) is denied. Service connection for a back disability is denied. Service connection for chronic obstructive pulmonary disease (COPD) is denied. FINDINGS OF FACT 1. A June 1968 pre-induction medical examination report noted the presence of an exostosis of the left medial condyle. 2. The evidence does not support a finding that the disability was aggravated by active service. 3. The Veteran's right knee replacement is not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease. 4. The Veteran's degenerative arthritis, left ankle is not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease. 5. The Veteran's status post medial displacement calcaneal osteotomy is not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease. 6. The Veteran's back disability is not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease. 7. The preponderance of the evidence is against finding that COPD 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 left knee replacement have not been met. 38 U.C.S.A. §§ 1110, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 2. The criteria for service connection for right knee replacement are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for degenerative arthritis, left ankle are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for status post medial displacement calcaneal osteotomy are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria for service connection for COPD are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to October 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2020, the Veteran filed a Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182) in an attempt to have his case decided under the framework of the Appeals Modernization Act (AMA). The AMA applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019. See 38 C.F.R. §§ 3.2400, 19.2. In this case, the Veteran disagreed with the findings of the December 2017 rating decision. As the decision predates February 19, 2019, it is not eligible for review under the AMA. Service connection for left knee replacement is denied. The Veteran seeks service connection for a left knee disability. For the reasons that follow, the Board finds that service connection is not warranted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). Claimants are presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that the injury or disease in question existed prior to service and was not aggravated therein. 38 U.S.C. § 1137; 38 C.F.R. § 3.304 (b). Only such conditions as recorded on examination reports are to be considered as noted. 38 C.F.R. § 3.304 (b); Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (The presumption of soundness only attaches where there has been an induction examination in which the later-complained-of disability was not detected) (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991)). In instances where the presumption of soundness does not attach and the disability in question is determined to be a pre-existing condition, service connection may be awarded where the disability is shown to have been aggravated by active service. 38 C.F.R. § 3.306 (a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306 (b). Temporary or intermittent flare-ups during service of a pre-existing condition are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, has worsened. Crowe, 7 Vet. App. at 247-48. The Veteran's June 1968 pre-induction medical examination report indicates a lower extremity abnormality and exostosis of the left femur. Thus, the left knee disability was "noted" upon entrance into service, and the presumption of soundness does not attach, and it does not need to be rebutted. 38 C.F.R. § 3.304; see VAOPGCPREC 3-2003, 69 Fed. Reg. 25178 (2004). In addition to the pre-induction examination, the service treatment records include a May 1968 left knee and hip x-ray in which a bony protrusion was noted. It is accompanied by a handwritten note in which a doctor stated that the exostosis of the left medial condyle would make the Veteran unfit for military duty. In May 1969, the Veteran complained of left knee pain. He was scheduled for elective removal of the exostosis (osteochondroma). Excision was performed in March 1970. He was placed on crutches and instructed to avoid weightbearing. There was no further follow up for the remaining seven months of service. No disability was noted on his October 1970 separation examination. The Veteran completed a Report of Medical History in which he denied having a "trick" or locked knee. He also denied having swollen or painful joints; a tumor, growth, or cyst; arthritis or rheumatism; and a bone, joint, or other deformity. Post-service treatment records do not provide any indication that the Veteran's pre-existing disability was aggravated in service. The earliest post service records in the claims file are dated July 1991. At that time, the Veteran reported pain in his right knee. He stated that he twisted it while playing with his children on Friday. He stated that it did not bother him until Sunday, when it started giving him a little trouble. He stated that he had no history of locking, popping, or giving way, and that he had no swelling or previous problems with the knee. He was assessed with mild tendonitis, and he was prescribed crutches. A follow up report dated ten days later reflects that the knee looked benign. The next relevant treatment report is dated July 1992. This time the Veteran reported left knee pain that developed on Saturday. The pain was spontaneous. He stated that he had had no problems with it since he sought medical treatment a year ago. He stated that he did nothing out of the ordinary. X-rays revealed an osteochondroma on the medial femoral condyle. He was assessed with tendonitis secondary to the osteochondroma. There was no indication that the Veteran's pre-service disability was aggravated during service. The Veteran underwent a VA examination in October 2017. The examiner opined that the Veteran's current left knee disability was less likely than not incurred in or caused by service. The examiner noted that the Veteran had a preexisting disability, but that it had resolved at the time of the Veteran's discharge from service. She stated that the Veteran currently has a chronic disability, but it began well after he was discharged from service. Where a disability or disease is noted at the time of enlistment, a Veteran is not presumed sound as to that disability. A Veteran's preexisting injury or disease, however, will be presumed to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306 (b). "The clear-and-unmistakable-evidence standard is an 'onerous' one... and requires that the no-aggravation result be 'undebatable.'" Cotant v. Principi, 17 Vet. App. 116, 131 (2003). The Veteran bears the initial burden of establishing that a worsening of a disability or disease occurred in service. If the Veteran is successful, the presumption of aggravation attaches, and the burden shifts to the VA to demonstrate by clear and unmistakable evidence that any worsening is attributable to the natural progression of the disability. In this case, the Veteran has not met his burden of establishing that a worsening of the disability occurred in service. Although it is noted that the Veteran reported left knee pain on one occasion during service, he underwent an elective procedure to resolve the disability by having the exostosis (osteochondroma) removed. His separation examination yielded normal findings; and the Veteran denied any symptomatology (to include having a "trick" or locked knee; having swollen or painful joints; a tumor, growth, or cyst; arthritis or rheumatism; and a bone, joint, or other deformity). Pursuant to 38 C.F.R. § 3.306 (b)(1), usual effects of medical and surgical treatment in service, including postoperative scars, will not be considered service connected unless the preexisting condition is otherwise aggravated by service. Based on the evidence of record, the Board finds that the Veteran's preexisting disability did not increase in severity during service. A lay person is competent to report circumstances of which he has first-hand knowledge. 38 C.F.R. § 3.159 (a)(2). However, when assessing credibility of lay evidence, the Board must consider factors including, but not limited to erroneous recollection, internal consistency, and consistency with other evidence. See Caluza v. Brown, 7 Vet. App. 498 (1995). The Board acknowledges the Veteran's March 2021 Board hearing testimony that he injured the left knee while serving in the DMZ; and the Board recognizes that his preexisting disability became symptomatic during service. However, evidence of aggravation is contradicted by the objective findings of his October 1970 separation examination report which show no left knee disorder and the Veteran's own contemporaneous denials of symptomatology as exhibited on his Report of Medical History that he completed at discharge. The preponderance of the evidence is against a showing that the Veteran's preexisting knee disability was aggravated by active service; there is no doubt to be resolved; service connection for left knee replacement is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Service connection for right knee replacement, degenerative arthritis of the left ankle, status post medial displacement calcaneal osteotomy (claimed as bilateral ankle condition), and a back disability is denied. At the Veteran's March 2021 Board hearing, he stated that his sole contention was that his right knee disability was secondary to his left knee. Likewise, he acknowledged that he did not incur a disability to his back or ankles during service. Instead, he testified that his doctors have told him that "everything goes with the left knee." He also contended that his ankle disabilities could be related to his right knee disability. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or was aggravated beyond its natural progress by a service-connected disability. Insofar as service connection for a left knee disability is denied, service connection for a disability secondary to a left knee disability must be denied. To the extent that the Veteran contended that his ankle disabilities could be related to a right knee disability, the Board notes that the Veteran's right knee disability is not service-connected. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt doctrine does not apply, and the claims for service connection for right knee replacement, degenerative arthritis of the left ankle, status post medial displacement calcaneal osteotomy (claimed as bilateral ankle condition), and a back disability must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for COPD is denied. Service treatment records are negative for diagnosis or notations of COPD, including upon an October 1970 discharge examination report. The discharge examination showed the Veteran's lungs and chest were within normal limits. A current diagnosis of COPD is shown in the VA treatment records. In March 2006, he was noted to have three risk factors for COPD, including a history of smoking for 20+ years. A May 2013 treatment report reflects that he has been smoking one pack of cigarettes per day for 40 years. Although a current diagnosis has been established, there is no evidence of this condition in service or shortly thereafter, and no competent and probative evidence linking the current COPD to service. See 38 C.F.R. § 3.303 (a), 3.303(d). The Veteran has testified that his COPD may be related to exposure to Agent Orange. Applicable law also provides that a Veteran who, during active service, served during a certain time period in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during service. 38 U.S.C. § 1116; see also Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). Regulations further provide, in pertinent part, that if a Veteran was exposed to an herbicide agent (such as Agent Orange) during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; multiple myeloma; non- Hodgkin's lymphoma; early onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); Type II diabetes mellitus, and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). However, the Veteran's DD 214 specifically states that he did not have any service in Vietnam. The Veteran testified that he served in Korea. He stated that when he got there, he did not know anything about Agent Orange, "but I know it was over there." He then stated that he found out about it when he got home. When asked if he ever came in direct contact with Agent Orange, he stated "I couldn't tell you if I saw it or not...Did I say I saw it over there? Well, I didn't mean that. I mean that is what I was told was over there. But I saw all the bushes and trees were gone." The lack of service in Vietnam does not allow for a presumptive finding of exposure to herbicides under § 3.307(a)(6). The Veteran has not otherwise described when, where, or how he may have been exposed to Agent Orange. Accordingly, his statement regarding possible exposure to Agent Orange is of no probative value. The evidence does not show that he was exposed to Agent Orange and the regulatory provisions related to such exposure are therefore not applicable to this claim. See 38 C.F.R. § 3.309 (e). At any rate, the Board notes that even if he had been exposed to Agent Orange, he could not avail himself of the presumption of service connection for COPD based on exposure to Agent Orange. The presumption is not warranted because COPD is not one of the chronic diseases listed under 38 C.F.R. § 3.309 (e), as being associated with exposure to Agent Orange. VA has determined that presumption of service connection based on exposure to Agent Orange is not warranted for any condition other than those conditions found to have a positive association between the condition and exposure to Agent Orange. Consequently, even if the Veteran had been exposed to Agent Orange, he would need a nexus opinion linking COPD to Agent Orange. The Veteran underwent a VA examination in October 2017. He reported that he now has emphysema or COPD, as well as nodules on his lungs. He reported that he has shortness of breath and that he coughs a lot. The examiner opined that the Veteran's COPD is less likely than not related to service. The rationale for the opinion was the fact that the Veteran had no respiratory problems during service. The Board notes that the opinion did not specifically address a link to Agent Orange. However, given that the Board has found no such exposure to Agent Orange, no such opinion is needed. In the absence of any competent, credible evidence of a possible association with service, VA is not required to further develop the claim by affording the Veteran another VA examination or by obtaining another medical opinion. He has not reported that COPD symptoms had onset during service or and there is no indication that COPD may otherwise be related to service. Therefore, a VA examination or opinion is not necessary. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). As the preponderance of the evidence is against the claim; the benefit of doubt doctrine is not for application. Service connection is not warranted. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Prem, 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.