Citation Nr: 21040503 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 14-07 063A DATE: July 5, 2021 ORDER Service connection for headaches is granted. Service connection for a right knee disability is denied. Service connection for a right leg disability is denied. REMANDED Service connection for chest pain is remanded. Service connection for sleep apnea is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran has experienced continuity of symptomatology related to headaches since his separation from service. 2. The Veteran's right knee disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 3. The preponderance of the evidence of record is against finding that the Veteran has had a right leg disability at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a right leg disability have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, had service from December 1968 to January 1982. In April 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. The Board previously considered this appeal in April 2019, and remanded these issues for additional development. After the development was completed, the case returned to the Board for further appellate review. The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence in the record; not every item of evidence has the same probative value. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert, 1 Vet. App. at 53. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. 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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. Once established, a secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). A claim for secondary service connection requires competent medical evidence linking the asserted secondary disorder to a service-connected disability. See Velez v. West, 11 Vet. App. 148, 158 (1998); Wallin v. West, 11 Vet. App. 509, 512 (1998). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated on a secondary basis for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997. In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board has an inherent fact-finding ability. Id. at 1076. The United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). 1. Service connection for headaches. The Veteran contends that his headaches are related to service. The Veteran has a current diagnosis of cluster headaches as evidenced by the March 2020 VA examination. Service treatment records show the Veteran complained of headaches on multiple occasions during active service. While no treatment records exist from during the applicable presumptive period, the Board finds that the Veteran continued to experience the same symptoms from January 1982 to the present. The Veteran is competent to report that he experienced symptoms of headaches during that period but did not seek treatment because the symptoms were infrequent and would last for variable periods. His statements, reports, and testimony are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, which shows that these symptoms were attributable to the Veteran's headaches. Based on the foregoing, and resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for headaches is warranted and the claim is granted. 2. Service connection for a right knee disability. The Veteran asserts that his right knee disability is related to service. Alternatively, he believes his service-connected foot disabilities caused or aggravated his right knee disability. The Veteran has a current diagnosis of right knee degenerative joint disease (a form of arthritis) as evidenced by the October 2010 VA examination. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA treatment records show the Veteran was not diagnosed with right knee DJD until decades after his separation from service and decades outside of the applicable presumptive period. While the Veteran is competent to report experiencing symptoms of right knee pain since service, the Board finds the reports of continuity of symptomatology not credible. The Veteran's reports are internally inconsistent with his reports in contemporaneous treatment records, which show that he denied experiencing right knee pain from the end of April 1977 to approximately 2006 and initially reported the onset of right knee pain as 2006, outside of the presumptive period. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Further, to the extent the Veteran asserts that the reported symptoms were manifestations of right knee arthritis, he is not competent to make this determination as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Service connection for right knee degenerative joint disease may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's right knee disability and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The March 2020 VA examiner opined that the Veteran's right knee disability is not at least as likely as not related to an in-service injury, event, or disease, including the single April 1977 treatment for right knee pain indicating "an acute and transitory condition which resolved." The rationale was that, in addition to the acute and transitory condition treated in April 1977, the Veteran's separation examination was normal for the lower extremities and there was no continuity of treatment for the right knee. The Board notes that the Veteran also did not endorse any knee issues on his separation report of medical history. The VA examiner also opined that the Veteran's right knee disability was not secondary to any service-connected disabilities because the degenerative changes in the right knee were only found on the most recent VA examination, thus negating proximate causation or aggravation beyond the natural progression of the disease. The Veteran also told the VA examiner "he saw an orthopedic doctor who suggested an arthroscope of the right knee, but at the date he was scheduled for the arthroscope 'it was like a miracle,' his knee pain resolved, declined the arthroscope and has not had problems with it since." Lastly, the Veteran denied any current right knee condition at this VA examination. While the Veteran believes his right knee disability is related to an in-service injury, event, or disease, including April 1977 treatment for right knee pain, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. After a full review of the record, the weight of the evidence demonstrates that a right knee disability did not have its onset in service, was not manifest to a compensable degree within one year of separation from service, and is not otherwise related to service or a service-connected disability for the reasons discussed above. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Service connection for a right leg disability. The Veteran contends that he has a right leg disability related to 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 the Veteran does not have a current diagnosis of a right leg disability and has not had 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). The October 2010 and March 2020 VA examiners evaluated the Veteran and determined that, while he experienced subjective symptoms of right leg pain, he did not have a diagnosis of a right leg disability. The Veteran's right leg pain does not qualify as a disability under Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) because the March 2020 VA examiner found it does not reach the level of a functional impairment of earning capacity. Id. at 1367-69. The March 2020 VA examiner noted the Veteran was treated in 1973 for right leg pain and he complained of some mid-calf pain that became worse in the mid-1980s; however, the Veteran denied any leg or calf pain during the VA examination and physical examination did not show any right leg or calf disability. Further, despite treatment from December 1999 to the present, VA and private treatment records do not contain a diagnosis of right leg disability. While the Veteran believes he has a current diagnosis of a right leg disability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. After a full review of the record, the weight of the evidence demonstrates that the Veteran does not have a current diagnosis for a right leg disability for the reasons discussed above. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service connection for chest pain is remanded. 2. Service connection for sleep apnea is remanded. The Board notes that the 2020 VA examination opinions regarding the issues of service connection for chest pain and sleep apnea are inadequate to the extent the VA examiner's opinions relied solely on the absence of documentation in service treatment records. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination is inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide a negative opinion). Once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Without further clarification, the Board is without medical expertise to determine the nature and etiology of the claimed disabilities. Colvin v. Derwinski, 1 Vet. App. 171 (1991). In light of the above, the Board finds that new VA examination opinions must be obtained for chest pain and sleep apnea. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. The Board notes that the issue of entitlement to a total disability rating based on individual unemployability cannot be adjudicated until the service connection issues are addressed because they are intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his chest pain, which was noted by the March 2020 VA examiner to involve symptoms consistent with costochondritis. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the disability at least as likely as not related to service? Provide a rationale to support the opinion. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's sleep apnea is at least as likely as not related to service. (Continued on the next page) Provide a rationale to support the opinion. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Connally, 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.