Citation Nr: 21041911 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 11-31 533 DATE: July 10, 2021 ORDER Service connection for a left knee disability is denied. Service connection for prostate cancer is denied. Service connection for a respiratory disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a left knee disability that is related to active military service or events therein. 2. The preponderance of the evidence is against finding that the Veteran has prostate cancer that is related to active military service or events therein. 3. The preponderance of the evidence is against finding that the Veteran has a respiratory disability. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a left knee disability have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2020). 2. The criteria for establishing service connection for prostate cancer have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for establishing service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from June 1978 to May 1982. These matters are on appeal from a December 2009 rating decision. In October 2013, the Veteran testified at a hearing before a Veterans Law Judge. A transcript is of record. In February 2017, the Veteran was notified that the Veterans Law Judge who held the October 2013 hearing is no longer available to participate in the decision. He was provided the opportunity to appear at another Board hearing and instructed that, if he did not respond within 30 days, the Board would assume that he did not want another hearing and proceed accordingly. Because the Veteran responded that he did not wish to appear at another Board hearing, the Board will consider the claims on the evidence of record. These matters were previously remanded by the Board in September 2014 for an attempt to obtain additional records and to afford the Veteran additional VA examinations. The Agency of Original Jurisdiction (AOJ) has done so. These matters were remanded again by the Board in September 2017 for another attempt to obtain additional records and to afford the Veteran additional VA medical opinions. The AOJ has done so. The January 2020 VA examinations are adequate because they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because they describe his left knee, prostate, and respiratory disabilities in detail sufficient to allow the Board to make fully informed determinations. There was therefore substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The presumption of service connection applies to anyone who served on active duty for 90 days of active, continuous service. 38 C.F.R. § 3.307(a)(1); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Post-service development of arthritis to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Left Knee Disability The Veteran contends that he has a left knee disability that is etiologically related to his active duty service. A March 1979 service treatment record notes the Veteran's report of blunt trauma to his left knee sustained when he struck his knee against the side of the ship. The treatment provider diagnosed a contusion. A May 1980 service treatment record notes the Veteran's report of left knee pain and swelling for two days. The treatment provider diagnosed knee pain of unknown etiology, "perhaps mild chondromalacia." During the Veteran's May 1982 separation examination, the examiner found his lower extremities to be normal. May 2009 and November 2009 VA treatment records include x-ray reports noting a normal left knee. During a November 2009 VA treatment appointment, the Veteran reported left knee pain and giving out; he was given a knee brace. In his November 2011 substantive appeal (VA Form 9), the Veteran reported having "arthritis in both legs" and needing to wear "medical stockings" but having continued pain. The Veteran was afforded a VA examination in May 2013. The Veteran reported onset of knee pain in service with injuries from "banging" it on the ship. He reported constant pain. The clinician diagnosed patellofemoral syndrome and noted that imaging did not document degenerative or traumatic arthritis. An x-ray report in connection with this examination noted unremarkable knee appearance. The clinician opined that it was less likely than not that the Veteran's left knee disability was incurred in or caused by active duty service because there was "[n]o documentation for chronic bilateral knee condition in SMR." This rationale is inadequate for rating purposes and the medical opinion is therefore of limited, if any, probative value. However, the Board notes the clinician's findings with regard to the Veteran's current disability. During the October 2013 hearing, the Veteran testified that he frequently "banged" his knee against parts of the ship, especially when the ship rolled or dipped, and that he would go to sick call, be given pain medication, and leave. He contended that he could see "dents from the metal" of the ships on his knee. The Veteran was afforded an additional VA examination in October 2014. The clinician did not diagnose any left knee condition and opined that it was less likely than not that the Veteran's left knee disability was incurred in or caused by active duty service, but again based this opinion on a lack of documentation of a chronic condition in service treatment records. This rationale is again inadequate for rating purposes and the medical opinion is therefore also of limited, if any, probative value. The Veteran was afforded an additional VA examination in January 2020. The clinician diagnosed a left knee strain. The clinician opined that it was less likely than not that the Veteran's left knee disability was incurred in or caused by active duty service because his knee strain "is from damage to the soft tissues of the knee and typically resolves without functional limitations." The clinician added that the Veteran's "bumping his knee" "may have caused the knee pain during his service," but treatment records did not note continuation and "the radiographs do not show any old injury, dislocation, deformity, degenerative or traumatic arthritis." The Veteran is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, however, although the Veteran is competent to report his subjective symptoms of knee pain and his observation of the contour of his knee, the Veteran is not competent to provide an opinion as to the etiology of his left knee disability. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran is not shown to possess any pertinent expertise or medical training that would make him competent to render an opinion on the etiology of any current left knee disability or to express an opinion about when his symptoms first warranted any medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide a medical diagnosis). Thus, the lay statements that the Veteran's left knee pain had its onset during active duty service or that his knee is dented as a result of impacts with metal surfaces during active duty service are not competent evidence. Rather, the medical findings and opinions of trained medical professionals, including multiple opinions that the Veteran does not have arthritis of the left knee and multiple x-ray reports finding no sign of prior injury to the left knee, warrant greater probative weight than the lay contentions in this case. No treatment provider or examiner has found an etiological relationship between the Veteran's left knee disability and his active duty service. The January 2020 VA examiner's rationale that the radiographs "do not show any old injury, dislocation, deformity, degenerative or traumatic arthritis" is compelling. Furthermore, the Board has also considered whether service connection for a left knee disability is warranted on a presumptive basis as a chronic disease. Despite the Veteran's contention of "arthritis in both legs," there is no medical evidence of arthritis of the left knee. Because the preponderance of the evidence is thus against finding that the Veteran has a left knee disability that is etiologically related to his active duty service, including as based on onset of arthritis within one year of separation from active duty, entitlement to service connection for a left knee disability is denied. 2. Prostate Cancer The Veteran contends that he has prostate cancer as a result of exposure to lead paint and asbestos during his active duty service. In its September 2014 decision, the Board conceded that the Veteran was exposed to asbestos and paint fumes in service. The Veteran's service treatment records contain no mention of prostate cancer. In a September 2009 statement, the Veteran reported that he had been diagnosed with prostate cancer earlier that month. VA treatment records from September 2009 also note this diagnosis. In his January 2011 Notice of Disagreement (NOD), the Veteran contended that "several doctors here at VA hospital" had said that his prostate cancer was "related to exposure from asbestos." However, during the October 2013 hearing, the Veteran clarified that treatment providers had told him research showed prostate cancer could be due to lead paint exposure but they declined to provide an opinion because they were VA employees. The Veteran testified that he had asked them for an opinion multiple times and they "just didn't give [him] a yes or no answer." The Veteran was afforded a VA examination in October 2014. The clinician opined that it was less likely than not that the Veteran's prostate cancer was incurred in or caused by active duty service because, of five studies considering a link between ingested asbestos and prostate cancer, three found no association and some found a "slightly elevated rate of prostate cancer diagnoses," but "none has illustrated a concrete correlation." The Veteran was afforded an additional VA examination in January 2020. The clinician opined that it was less likely than not that the Veteran's prostate cancer was incurred in or caused by active duty service because there was "no recent literature with conflicting data" with regard to causation by asbestos exposure and review of medical literature "did not provide evidence of an increased risk due to lead or paint." The Veteran is competent to report on matters observed or within his personal knowledge. See Layno, 6 Vet. App. at 470. In this case, however, although the Veteran is competent to report his subjective symptoms of prostate cancer and the circumstances of his exposure, the Veteran is not competent to provide an opinion as to the etiology of his prostate cancer. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. Kahana, 24 Vet. App. 428. The Veteran is not shown to possess any pertinent expertise or medical training that would make him competent to render an opinion on the etiology of prostate cancer or to express an opinion about when his symptoms first warranted any medical diagnosis. Jandreau, 492 F.3d at 1376-77. Thus, the lay statements that the Veteran's prostate cancer is due to exposure to asbestos or lead paint are not competent evidence. Rather, the medical findings and opinions of trained medical professionals warrant greater probative weight than the lay contentions in this case. No treatment provider or examiner has found an etiological relationship between the Veteran's prostate cancer and his active duty service. (The Board notes the Veteran's contention that treatment providers had expressed such an opinion, but he later clarified that they declined to provide opinions beyond stating that a nexus to service was possible, which does not rise to the level of an opinion that a nexus to service is at least as likely as not.) The October 2014 and January 2020 VA examiners' rationales are thorough and compelling. Because the preponderance of the evidence is thus against finding that the Veteran has prostate cancer that is etiologically related to his active duty service, entitlement to service connection for prostate cancer is denied. 3. Respiratory The Veteran contends that he has a respiratory disability as a result of exposure to lead paint and asbestos during his active duty service. In its September 2014 decision, the Board conceded that the Veteran was exposed to asbestos and paint fumes in service. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110 (2012). Thus, the threshold question that must be addressed here (as with any claim seeking service connection) is whether the Veteran had the disability for which service connection is sought at any time during the period on appeal. In the absence of proof of a disability during that period, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). VA received the Veteran's claim for service connection in August 2009. VA treatment records from December 2004 note possible chronic obstructive pulmonary disease (COPD), but they do not include a diagnosis of COPD and they predate the period on appeal by five years. They are therefore not evidence of a current disability. A September 2010 VA treatment record includes an x-ray report noting mild to moderate right lower lobe pneumonia. An x-ray report from one week later notes improved aeration of the right lower lobe. A February 2011 VA treatment record notes a cough productive of dark grey sputum and a possible diagnosis of acute bronchitis. In his January 2011 NOD, the Veteran contended that "several doctors here at VA hospital" had said that his breathing symptoms were "related to exposure from asbestos." However, during the October 2013 hearing, the Veteran clarified that treatment providers had told him research showed COPD could be due to lead paint exposure but they declined to provide an opinion because they were VA employees. The Veteran testified that he had asked them for an opinion multiple times and they "just didn't give [him] a yes or no answer." The Veteran was afforded a VA examination in October 2014. The Veteran reported difficulty breathing, but the clinician opined that this was a "cardiac not respiratory condition" and that the Veteran's symptoms did not warrant a diagnosis of any respiratory disability. The Veteran did not appear for pulmonary function tests (PFTs) in connection with this examination, but explained in February 2015 that he did not have transportation at the time. The Veteran was afforded an additional VA examination in January 2020. This time, PFTs were performed and were normal, as were the examination and x-ray findings. The clinician opined that the Veteran's shortness of breath "is likely due to his [coronary artery disease]" and that his "current clinical notes do not document a respiratory disorder, and there is not current pathology to make a diagnosis of a respiratory disorder." VA treatment records from January 2020 and February 2020 include a pharmacist's notes that the Veteran's shortness of breath "is possibly due to COPD," but this appears in a section of the record documenting the Veteran's reports and therefore also likely constitutes the Veteran's report of his symptoms and not a diagnosis of COPD by the pharmacist. The record contains no probative medical evidence of a respiratory disability during the period on appeal. The Veteran is competent to report on matters observed or within his personal knowledge. See Layno, 6 Vet. App. at 470. The Board must determine on a case-by-case basis whether a particular medical issue is within the competence of a lay person. Kahana, 24 Vet. App. 428. The Veteran in this case is not shown to possess any pertinent medical training or expertise that would make him competent to diagnose himself with COPD or any other respiratory disability. Jandreau, 492 F.3d at 1376-77. Thus, to the extent that the Veteran's lay statements express an opinion that his current respiratory symptoms warrant a diagnosis of COPD or any other respiratory disability, they are not competent medical opinions and they cannot be assigned any probative weight. The January 2020 VA examiner's opinion that the Veteran's symptoms do not meet the diagnostic criteria for any respiratory disability, which was supported by a thorough rationale and detailed examination findings of normal functioning, is of greater probative value than the Veteran's lay contentions. The Board notes that both VA examiners found that the Veteran's shortness of breath is a manifestation of his heart disability. VA denied service connection for congestive heart failure in a May 2013 rating decision, the Veteran has not appealed that decision, and the issue of service connection for a heart disability is therefore not currently before the Board. (Continued on the next page) The record does not contain any competent, probative evidence that the Veteran has been diagnosed with or treated for a chronic respiratory disability by any examiner or treatment provider during the period on appeal. As the evidence does not establish that the Veteran had a chronic respiratory disability during the period on appeal, the Board finds that service connection is not warranted. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,"); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (holding that the Board must address recent pre-claim evidence in assessing whether a current disability exists, for purposes of service connection, at the time the claim was filed or during its pendency). DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.