Citation Nr: 21030762 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-04 749 DATE: May 19, 2021 ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a prostate disability is denied. REMANDED Entitlement to service connection for posttraumatic stress disorder is remanded. Entitlement to service connection for a psychiatric disorder other than posttraumatic stress disorder is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran had a right knee disability at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that the Veteran's benign prostate hypertrophy began during active service or is otherwise related to an in-service injury or disease to include exposure to Agent Orange. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a prostate disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1964 to January 1966. He died in September 2015. The appellant is his surviving spouse. The Board of Veterans' Appeals (Board) most recently remanded these claims in January 2020. They have returned for adjudication. 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 a right knee disability The Veteran's widow contends that the Veteran had a right knee disability secondary to his left knee disability. The question for the Board is whether the Veteran had a then-current disability that began during service, is at least as likely as not related to an in-service injury, event, or disease, or is secondary to another service-connected disability. The Board concludes that the Veteran did not have a then-current diagnosis of a right knee disability and did not have one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). VA most recently provided an opinion in August 2020. The opinion concluded that the Veteran did not have a right knee condition. It considered the Veteran's history, his medical records and his diagnostic testing. Because it was rendered by a medical professional after considering all the evidence, this opinion weighs strongly against service connection. In addition, for the period on appeal, the Veteran's medical records did not report signs, symptoms, diagnoses, or treatments for the right knee. The Veteran and his widow's statements contended that his right knee was secondary to his left, but they did not provide information about a functional impairment or observable disability of the right knee. These cannot support service connection. The medical records prior to the claim do include an April 2013 claim of pain in the right leg. There are a considerable number of detailed medical records after this entry, however, and it is reasonable to assume that if he continued to have leg pain it would have been noted with one of the other entries. To the extent that this entry suggests that the Veteran could have had a right knee condition, it is outweighed by the 2020 examiner's review of the file and determination of no disability. As the evidence indicates that the Veteran did not have a then-current disability at the time of the claim, service connection must be denied. 2. Entitlement to service connection for a prostate disability The Veteran contended that his prostate disability was due to Agent Orange exposure in Vietnam. A Veteran that had active service in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975 is presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). Certain disorders, if manifest to a degree of 10 percent or more, may be presumed to be service connected. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Notwithstanding the provisions of 38 U.S.C. § 1116 and 38 C.F.R. § 3.309(e), a claimant is not precluded from establishing service connection with proof of actual causation, that is proof of exposure to herbicide agents that actually causes a disability. See 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). "But in demonstrating actual exposure [to herbicide agents], as with other factual predicates to establishing service connection, the burden of producing evidence is on the veteran." Edmondson v. Shulkin, No. 2016-1591, 2017 U.S. App. LEXIS 11047, at *6 (Fed. Cir. June 22, 2017). The August 2020 VA examination opined that the Veteran did not have prostate cancer, but rather had benign prostrate hypertrophy (BPH). BPH is not an enumerated condition for presumptive service connection, and the examiner opined that the Veteran's BPH was not etiologically related to Agent Orange exposure. This weighs against service connection as it is an opinion by a medical professional after evaluating the Veteran's medical records. An earlier April 2018 VA examiner opined that the Veteran's BPH was also not directly related to service. The examiner considered the Veteran's rash on his penis during service but considered it unrelated as the rash resolved by the end of active service. Although this opinion was deficient as it related to Agent Orange, it still has weight against service connection with respect to this alternative method. Additional records in the claims folder did not support service connection. The Veteran's BPH was diagnosed many years after service and the records did not link the BPH to service. The Veteran wrote in October 2014 and stated that he believed his BPH was due to exposure to Agent Orange. The issue of etiology of conditions due to Agent Orange is medically complex and outside the competence of Veteran in this case, however, because the record does not show that he had the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiner. REASONS FOR REMAND 1. Entitlement to service connection for posttraumatic stress disorder is remanded. The Board previously remanded for an opinion as to whether the Veteran satisfied the DSM 5 criteria for PTSD. Although this evidence is important, the Veteran filed his claim in March 2014, several months before VA switched from DSM IV to DSM 5 and both diagnostic criteria must be considered. This is particularly relevant in this case as the appellant alleged that the Veteran was diagnosed "in accordance with DSM-IV" in her February 2016 correspondence. An opinion as to whether the Veteran had PTSD under the DSM-IV criteria is required. 2. Entitlement to service connection for a psychiatric disorder other than posttraumatic stress disorder is remanded. The Board previously remanded for an addendum opinion as the previous examiner did not consider the Veteran's reported symptoms prior to his 1981 treatment. Unfortunately, the addendum examination is inadequate for the same reason. The examiner failed to discuss the Veteran's report of hearing voices for at least 10 years prior and further failed to discuss the report in the 1981 treatment notes that the Veteran had experienced symptoms such as sleeping impairment and nightmares since service in 1966. An additional opinion is necessary to consider these symptoms. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran satisfied the DSM-IV criteria for PTSD. If not, a rationale must be provided setting forth the missing elements. Consideration must be made of all prior diagnoses of PTSD. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran had an acquired psychiatric disability other than PTSD, and if so whether that disability related to service. Consideration must be given specifically to the reported history before the 1981 evaluation including nightmares and sleep disturbances since 1966. A rationale for all requested opinions shall be provided. Reference to findings from identified studies is preferred over reference to medical literature in the abstract. If the examiner relies on his or her medical experience as a rationale, it is appropriate to identify specifics such as an estimate of the number of patients the examiner has seen with similar conditions, the time the examiner has been practicing in the field, or any relevant specialized education or training experiences that go beyond the examiner's degree or accreditation. If the examiner determines that an opinion cannot be rendered without result to mere speculation, then it should be clear in the examiner's remarks whether it cannot be determined from current medical authority or if an opinion could be rendered if additional facts were known. If additional facts are needed, the examiner shall state what facts, if known, would impact his or her ability to render an opinion and how. Simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Saindon, Paul 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.