Citation Nr: 21040733 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-13 176 DATE: July 6, 2021 ORDER Entitlement to service connection for a left hip disability, to include as due to exposure to an herbicide agent, is denied. Entitlement to service connection for gout, to include as due to exposure to an herbicide agent, is denied. Entitlement to service connection for a left shoulder disability, to include as due to exposure to an herbicide agent, is denied. Entitlement to service connection for a right shoulder disability, to include as due to exposure to an herbicide agent, is denied. The appeal to reopen service connection for a left knee disability is granted. Entitlement to service connection for a left knee disability, to include as due to exposure to an herbicide agent, is denied. The appeal to reopen service connection for arthralgia of multiple joints is granted. Entitlement to service connection for arthralgia of multiple joints, to include as due to exposure to an herbicide agent, is denied. Entitlement to special monthly pension based on housebound status from February 1, 2012 is denied. REMANDED Entitlement to a higher initial rating in excess of 30 percent for posttraumatic stress disorder is remanded. FINDINGS OF FACT 1. Currently diagnosed osteoarthritis of the left hip with a left hip replacement was not incurred in service and is not shown to be related to exposure to an herbicide agent in service. 2. Currently diagnosed gout was not incurred in service and is not shown to be related to exposure to an herbicide agent in service. 3. A currently diagnosed left shoulder osteoarthritis, impingement syndrome, and rotator cuff tear was not incurred in service and is not shown to be related to exposure to an herbicide agent in service. 4. A currently diagnosed right shoulder osteoarthritis was not incurred in service and is not shown to be related to exposure to an herbicide agent in service. 5. A March 1983 rating decision which denied service connection for a left knee disability and arthralgia of multiple joints is final. The Veteran has presented a new evidence to reopen service connection for a left knee disability and for arthralgia of multiple joints. 6. Currently diagnosed osteoarthritis of the left knee with a left total knee replacement was not incurred in service and is not shown to be related to exposure to an herbicide agent in service. 7. Arthralgia of multiple joints was not incurred in service and is not shown to be related to exposure to an herbicide agent in service. 8. From February 1, 2012, the Veteran did not have a single disability rated at 100 percent and additional disability or disabilities ratable at 60 percent or more and he is not permanently housebound. CONCLUSIONS OF LAW 1. The criteria for service connection for a left hip disability, to include as due to exposure to an herbicide agent, 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. 2. The criteria for service connection for gout, to include as due to exposure to an herbicide agent, 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 left shoulder disability, to include as due to exposure to an herbicide agent, 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. 4. The criteria for service connection for a right shoulder disability, to include as due to exposure to an herbicide agent, 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. 5. The evidence received after the March 1983 decision is new and material to reopen a claim for service connection for a left knee disability. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (a), 3.303, 20.1105. 6. The criteria for service connection for a left knee disability, to include as due to exposure to an herbicide agent, 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. 7. The evidence received after the March 1983 decision is new and material to reopen a claim for arthralgia of multiple joints. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (a), 3.303, 20.1105. 8. The criteria for service connection for arthralgia of multiple joints, to include as due to exposure to an herbicide agent, 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. 9. The criteria for special monthly pension based on housebound status from February 1, 2012 have not been met. 38 U.S.C. §§ 1502, 1521; 38 C.F.R. § 3.35(d). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to September 1968, to include Vietnam service. The matter comes on appeal from February 2013 and March 2013 decisions. The Board notes that the Veteran was previously represented by an attorney; however, in June 2018, the attorney submitted a motion to withdraw as representative because the attorney had not been able to contact the Veteran for some time. The motion shows that a copy of the withdrawal request was sent to the Veteran. The motion shows that there was good cause for the request, and as such, the Board grants the attorney's motion to withdraw as the Veteran's representative. The Board notes that the Veteran is incarcerated. He was scheduled for a January 2019 Board videoconference hearing. The record indicates that the hearing was postponed. In a March 2021 notice letter, the Veteran was informed that an optional video teleconference hearing could be held, so long as the facility at which he was incarcerated was capable of holding such a hearing and agreed to allow a hearing. The Veteran was asked whether he wished to elect a video teleconference hearing at his correctional facility. He was informed that if he did not want a hearing or failed to reply to the letter, a Veterans Law Judge would decide the appeal based on the evidence of record. The Veteran did not respond to the letter. Therefore, his hearing request has been withdrawn and the appeal will be decided on the evidence of record. 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). Pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure. As such, VA has determined that a statistically significant association exists between exposure to herbicides and subsequent development of the following conditions: chloracne or other acneform disease consistent with chloracne, non-Hodgkin's lymphoma, soft tissue sarcoma, Hodgkin's disease, porphyria cutanea tarda (PCT), multiple myeloma, acute and subacute peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson's disease, ischemic heart disease, and B-cell leukemias, such as hairy cell leukemia. See 38 C.F.R. § 3.309 (e). Ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke. Id at Note 3. The National Defense Authorization Act for Fiscal Year 2021 has added three disorders to the list of diseases presumptively associated with exposure to herbicide agents. Specifically, it amended 38 U.S.C. § 1116(a)(2) to include parkinsonism, bladder cancer, and hypothyroidism. The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii). VA regulations specify that the last date on which a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307 (a) (6)(iii). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27,630 (May 20, 2003). The Veteran contends that his bones and joints have deteriorated due to Agent Orange exposure in service. The Veteran's service personnel records show that he served in the Republic of Vietnam during the Vietnam Era. Thus, he is presumed to have been exposed to an herbicide agent in service. The finds as a preliminary matter that the claimed disabilities, to include gout, bilateral rotator cuff repairs with impingement syndrome, osteoarthritis of the left hip with left hip replacement, a total left knee replacement with arthritis in the knee, and arthralgia of multiple joints are not included in the indicated diseases associated with exposure to an herbicide agent. Thus, presumptive service connection is not warranted. See 38 C.F.R. § 3.309 (e). Even though presumptive service connection is not warranted, the Veteran is not precluded from establishing service connection for a diagnosed disability with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). 1. Entitlement to service connection for a left hip disability, to include as due to exposure to an herbicide agent A veteran is considered 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, unless clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). The preponderance of the evidence shows currently diagnosed osteoarthritis of the left hip with a post-service left hip replacement was not incurred in service and is not shown to be related to exposure to an herbicide agent in service. On a December 1965 enlistment examination report, the Veteran checked yes to the question of have you ever had any illness or injury than those already noted. He reported in the examination report that he had been in an automobile accident and had a dislocated hip. The Board finds that this notation, absent any identified disability or impairment related to the hip at the time, represents a history of pre-service injury. Thus, the Veteran was sound at service entrance with regard to the left hip and the question before the Board is whether a currently diagnosed left hip disability 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 diagnosis of left hip osteoarthritis with a left hip replacement shown by VA treatment records, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease, to include herbicide exposure in service. Service treatment records do not identify any left hip complaints or treatment in service. A chronic left hip disability was not shown until decades after the Veteran's September 1968 separation from service. February 1983 x-rays associated with VA treatment records, show that the hip joints were normal. March 2003 VA orthopedic clinic notes show that x-rays and MRI identified current degenerative changes in the left hip joint. The Veteran had noted a childhood history of a left hip dislocation with three months in a cast. He was diagnosed with advanced osteoarthritis of the left hip stemming from the childhood trauma of dislocation. December 2010 VA treatment records also note that the Veteran had left hip surgery at age 16, prior to service, with a left hip replacement. There is no evidence which relates the Veteran's currently diagnosed left hip disability to service, to include to exposure to an herbicide agent in service. For these reasons, the Board finds that service connection for a left hip disability is not warranted. 2. Entitlement to service connection for gout, to include as due to exposure to an herbicide agent VA treatment records identify a current diagnosis of gout which is asymptomatic. The preponderance of the evidence is against finding that gout began during active service, or is otherwise related to an in-service injury, event, or disease, to include herbicide exposure in service. Service treatment records do not identify any complaints or treatment that could be related to gout in service. VA treatment records show that gout was first diagnosed decades after service in 1989. The Veteran was diagnosed with tophaceous gout with gouty arthritis affecting the joints, to include the joints of the shoulders and left knee. The evidence of record does not relate the Veteran's gout to service, to include to exposure to an herbicide agent in service. Arthritis did not manifest within one year of service separation, and symptoms of arthritis were not chronic in service and continuous after service separation. For these reasons, the Board finds that service connection for gout is not warranted. 3. Entitlement to service connection for left shoulder and right shoulder disabilities, to include as due to exposure to an herbicide agent VA treatment records identify a current diagnosis left shoulder osteoarthritis, impingement syndrome, and rotator cuff tear with a rotator cuff repair in June 2006 and right shoulder osteoarthritis with a rotator cuff repair in April 2007. The preponderance of the evidence is against finding that a left or right shoulder disability began during active service, or is otherwise related to an in-service injury, event, or disease, to include herbicide exposure in service. Service treatment records do not identify any injuries, complaints, or treatment related to the left or right shoulder in service. Post-service, the Veteran was noted to have gouty arthritis affecting the shoulders in January 1990. A March 2001 treatment report identified the sudden onset of left shoulder pain two years prior while the Veteran was working as a barber. The Veteran had surgeries to the left and right shoulders in 2006 and 2007, respectively. The evidence of record does not relate the Veteran's bilateral shoulder disabilities to service, to include to exposure to an herbicide agent in service. The Veteran contends in his claim that his joints and bones are deteriorating due to Agent Orange exposure in service. However, there is no evidence of record which tends to identify a nexus between the Veteran's orthopedic disabilities and herbicide exposure in service. Arthritis did not manifest within one year of service separation, and symptoms of arthritis were not chronic in service and continuous after service separation. For these reasons, the Board finds that service connection for left and right shoulder disabilities is not warranted. 4. Whether new and material evidence has been submitted to reopen a claim for service connection for a left knee disability and arthralgia of multiple joints The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The RO previously denied service connection for a left knee disability and for arthralgia of multiple joints in a March 1983 rating decision because the arthritis in the left knee was not shown by the evidence of record. Arthralgia of multiple joints was shown by a VA examination but was not found to be service-connected. The Veteran did not appeal that decision or submit relevant evidence within one year of notice of the denial. Therefore, that decision became final. The Veteran contends in a February 2011 Application for Compensation and Pension, that due to Agent Orange exposure, his joints and bones are deteriorating. The Board finds that the Veteran has raised new evidence to include a new theory of entitlement with respect to the previously denied claims for service connection. See Shade, 24 Vet. App. at 118. Accordingly, the Board finds that new and material evidence has been received to reopen service connection for a left knee disability and arthralgia of multiple joints. See 38 C.F.R. § 3.156. As the RO has reopened and reviewed these on the merits in a March 2016 statement of the case, the Board finds no prejudice to the Veteran in adjudicating the claims on the merits. See Hickson v. Shinseki, 23 Vet. App. 394 (2010). 5. Entitlement to service connection for a left knee disability and for arthralgia of multiple joints, to include as due to exposure to an herbicide agent VA treatment records identify a current diagnosis left knee osteoarthritis, a left total knee replacement, and polyarthralgia. The preponderance of the evidence is against finding that left knee osteoarthritis with a total knee replacement or arthralgia of multiple joints began during active service, or is otherwise related to an in-service injury, event, or disease, to include herbicide exposure in service. Service treatment records do not identify any injuries, complaints, or treatment that could be related to the left knee or to arthralgias in service. Post service, the Veteran reported stiff joints at a February 1983 VA examination and was diagnosed with arthralgias in multiple joints. X-rays were ordered. The Veteran was noted to have gouty arthritis affecting the knee and multiple joints in a January 1990 orthopedic clinic evaluation for probable, chronic gout. The physician stated that more than likely, his chronic joint symptoms do represent chronic tophaceous gout with intermittent, acute exacerbations. July 2010 x-rays of the left knee showed osteoarthritis. The Veteran had a left total knee replacement in December 2010. VA treatment records show that the Veteran slipped and fell on the left knee in April 2011 and sustained fractures around the left knee. VA treatment records show that the Veteran continued to be positive for polyarthralgia. While the Veteran has a current left knee disability and polyarthralgia, the evidence of record does not relate the left knee disability or polyarthralgia to service, to include to exposure to an herbicide agent in service. Diagnoses relating to arthralgias of multiple joints and to the left knee were not identified until over a decade post service. The Board is cognizant of the Veteran's contention that his joints and bones are deteriorating due to Agent Orange exposure in service. However, there is no evidence of record which tends to identify a nexus between the Veteran's orthopedic disabilities and herbicide exposure in service. Arthritis did not manifest within one year of service separation, and symptoms of arthritis were not chronic in service and continuous after service separation. For these reasons, the Board finds that service connection for a left knee disability and arthralgia of multiple joints is not warranted. 6. Entitlement to special monthly pension based on housebound status from February 1, 2012 The Veteran was awarded special monthly pension based on housebound status from February 1, 2011 to January 31, 2012 following implantation of a hip prosthesis. Increased pension benefits may be payable if the veteran has a single permanent disability rated 100 percent disabling, and in addition has either additional disability or disabilities independently ratable at 60 percent or more or is permanently housebound by reason of a disability or disabilities. 38 U.S.C. § 1521(e); 38 C.F.R. § 3.35(d). A veteran is "permanently housebound" when he is substantially confined to his house (ward or clinical areas, if institutionalized) or immediate premises due to permanent disability or disabilities. 38 U.S.C. § 1502(c); 38 C.F.R. § 3.35(d)(2). The Board finds that from February 1, 2012, an award of special monthly pension is not warranted. A February 2013 rating decision shows that the Veteran was awarded special monthly pension based on the assignment a 100 percent rating for a non-service connected left hip replacement with implantation of a prosthesis, which was rated at 100 percent effective February 1, 2011, the date of this claim, to January 31, 2012, the last day of the month following the one-year period. In addition, he had other combined disabilities rated at 60 percent or greater. Thus, he met the 100 percent plus 60 percent criteria for special monthly pension under 38 U.S.C. § 1521(e). Diagnostic Code 5054, hip replacement (prosthesis) provides that a 100 percent rating is assigned for prosthetic replacement of the head of the femur or of the acetabulum for one year following implantation of the prosthesis. 38 C.F.R. § 4.71A. Thus, the Veteran's 100 percent rating under Diagnostic Code 5054 was limited by law to one year. From February 1, 2012, the Veteran's 100 percent rating was discontinued, and the nonservice-connected left hip was rated at 50 percent under Diagnostic Code 5054. A February 2013 Rating Code sheet identified ratings for the Veteran's service-connected and nonservice-connected disabilities. From February 1, 2012, the Veteran did not have a single disability rated at 100 percent with additional disability or disabilities ratable at 60 percent or more to warrant special monthly pension under 38 U.S.C. § 1521. The evidence of record does not otherwise show that the veteran is permanently housebound, i.e., substantially confined to his house, ward, or immediate premises due to his disabilities. For these reasons, the Board finds that from February 1, 2012, special monthly pension based on housebound status is not warranted. REASONS FOR REMAND Entitlement to a higher initial rating in excess of 30 percent for posttraumatic stress disorder is remanded The Veteran's last VA examination for PTSD was completed in December 2012. While VA treatment records do not identify regular treatment for PTSD, VA psychiatric treatment records dated in January 2014 show that the Veteran was hospitalized for suicide attempts. In light of the increase in symptoms shown in 2014, the Board finds that a remand is warranted in order for the Veteran be afforded an examination and/or medical opinion to assess the current severity of his PTSD. While VA's efforts to assist the Veteran have been complicated by his incarceration, the Board notes that VA's duty to assist applies equally to incarcerated and non-incarcerated Veterans. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The Board is aware of the practical difficulties of scheduling an examination at a correctional facility in light of the current COVID-19 pandemic and notes that the examination may be conducted via telehealth or similar service. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any outstanding psychiatric treatment records, to include records from the Virginia Department of Corrections or the Pocahontas State Correctional Center. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA examination by a psychologist or psychiatrist. If the Veteran remains confined, (1) attempt to arrange for an examination to be conducted via telehealth or similar service; (2) contact the correctional facility to request their medical personnel conduct an examination according to VA PTSD or mental disorders examination work sheets; or (3) arrange transportation of the claimant to a VA facility for examination or send a VA or fee-basis examiner to the correctional facility to conduct the examination. (Continued on the next page) Efforts to contact the correctional facility should be thoroughly documented. If the above attempts are unsuccessful, the Veteran should be notified in writing. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christine C. Kung 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.