Citation Nr: 22014394 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 15-35 905 DATE: March 12, 2022 ORDER Entitlement to service connection for a right knee disability, diagnosed as arthritis, status post total knee replacement, is granted. Entitlement to service connection for a seizure disorder, diagnosed as grand mal epilepsy, is granted. REMANDED Entitlement to service connection for hydrocephalus, claimed as memory issues and/or dementia, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 2, 2015, is remanded. FINDINGS OF FACT 1. The Veteran's right knee disability arose during combat service and has continued since. 2. The evidence persuasively favors that the Veteran's claimed seizure disorder is etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for establishing entitlement to service connection for a seizure disorder have been met. 38 U.S.C. §§ 1110, 1154, 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 United States Army from December 1963 to December 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in July 2019, it was remanded for additional development. Specifically, the RO was instructed to provide the Veteran with VA medical opinions which opined on the etiology of his claimed disabilities. Appropriate medical opinions were obtained. As such, the Board finds that the AOJ substantially complied with the directives in the July 2019 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a right knee disability Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Presumptive service connection on the basis of herbicide exposure is authorized for specified diseases. 38 U.S.C. § 1116; 38 C.F.R. § 3.309. When a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease is related to service, to include the in-service herbicide exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As to claims made by combat veterans, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. The combat presumption may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The combat presumption must be applied to two questions: (1) whether the claimed in-service injurious event occurred and (2) whether the claimed disability itself occurred while in service. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). In other words, the combat presumption relieves the veteran of having to establish that the injurious event suffered while in service led to disability following service, thereby permitting the veteran to have to show only that the injury or disease incurred in service was a chronic condition that persisted in the years following service. Id. at 999-1000. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the weight of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence against the claim must persuasively stand against a finding that the evidence is in "approximate balance" or "nearly equal" to the evidence that supports the claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Analysis The Veteran is seeking service connection for a right knee disability, which he claims was caused by jumping out of helicopters and combat activity in Vietnam. Further, the Veteran reported that his knee pain began in service, but he did not report it due to pride and peer pressure. The Board notes that the Veteran's DD Form 214 indicates that his military occupational specialty (MOS) was light weapons infantryman. Additionally, the Veteran received the Combat Infantry Badge and the Vietnam Service Medal, indicating combat service. As such, 38 U.S.C. § 1154(b) is applicable. As an initial matter, the Board finds that the Veteran has a current right knee condition, diagnosed as status post total right knee replacement. See September 2019 VA Knee Conditions examination. Additionally, the Veteran's VA and private treatment records document that he had knee pain and worsening knee arthritis prior to his knee replacement. Thus, the question for the Board is whether the current right knee disability is related to service. Although there is a negative VA nexus opinion, the Board assigns it little probative weight. The September 2019 VA examiner opined that the Veteran's right knee condition was less likely than not due to service, as the Veteran's service treatment records (STRs) were silent for complaints of knee pain. The examiner did not appear to consider the Veteran's lay statements about the onset of knee pain in service. This is insufficient rationale for a negative opinion, especially in light of the fact that his injuries occurred during combat. The record reflects that the Veteran's knee pain began in service and that he continued to have symptoms and treatment throughout the years. The Veteran served in combat and his contentions are consistent with the circumstances, conditions and hardships of that service. 38 U.S.C. § 1154(b). As such, VA must presume the occurrence of the in-service injuries. In addition, the medical evidence shows that the Veteran has been diagnosed with a right knee disability. He reports the onset of the condition during combat service. The Board finds that he is both competent to report this pain during and since serving in combat and that his account of having pain since that time is sufficiently credible. There are no medical opinions that suggest a different etiology for his right knee disability. Thus, the Board finds that there is insufficient evidence of record to rebut the combat presumption that his right knee disability became manifest during his combat service under Reeves. In light of his in-service experiences, the credible history of pain in and since service, and the current diagnoses, the Board finds that service connection is warranted. 2. Entitlement to service connection for a seizure disorder The Veteran contends that his claimed seizure disorder is the result of his active-duty service, to include as due to his conceded in-service herbicide exposure. The Board notes that a seizure disorder is not a condition presumptively related to Agent Orange exposure. However, the Appellant can still prove service-connection on a direct basis. See Combee, 34 F.3d 1039 (1994). The Board also notes that the Veteran has a current diagnosis of tonic-clonic seizures or grand mal epilepsy. See September 2019 VA Seizure Disorders examination. Therefore, the central issue that must be resolved is whether the Veteran's current disability originated in service or is otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran submitted a July 2019 statement from his treating neurologist, Dr. M.C., wherein Dr. M.C. noted that the Veteran's seizures "could be" possibly related to Agent Orange exposure. In July 2019 the Board remanded the Veteran's claim in order to obtain an examination on the etiology of the Veteran's seizures. In response to the Board remand, the Veteran was provided with a September 2019 VA Seizure Disorder examination. The examiner opined that the Veteran's diagnosed seizure disorder was at least as likely as not (a 50 percent probability or greater) etiologically related to the Veteran's Agent Orange exposure. The rationale provided was that due to the Veteran's history of stroke findings, encephalomalacia, gliosis, and late onset seizures, his seizures were at least as likely as not attributable to ischemic changes brought out by Vietnam era herbicide exposure. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). The Board has considered the evidence of record. The Board notes that the September 2019 VA examiner is a medical professional competent to opine as to the etiology of the Veteran's seizure disorder. There is no evidence that the examiner is not credible. Moreover, the examiner provided an analysis based upon both subjective and objective information to form an opinion based upon medical expertise. As such, the Board affords this examination significant probative weight. In light of the September 2019 VA medical opinion, the most probative evidence of the record establishes that the Veteran's seizure disorder was etiologically related to his active-duty service, to include his conceded in-service Agent Orange exposure. As such, service connection for the Veteran's seizure disorder is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for hydrocephalus, claimed as dementia/memory issues While the RO obtained a September 2019 medical opinion for the Veteran's claimed disability, the Board finds it to be inadequate. Specifically, the examiner in noting the July 2019 letter from Dr. M.C. stated, "no mention of hydrocephalus secondary to [Agent Orange] is seen in his letter." However, the Board notes that the July 2019 letter indicated that the Veteran's dementia could be related to his Agent Orange exposure. Further, the September 2019 examiner noted in her opinion that the Veteran's type of hydrocephalus is manifested by symptoms of dementia, though the examiner did not opine whether the Veteran's dementia at least as likely as not was related to the Veteran's Agent Orange exposure. Additionally, the Board notes that in his lay statements the Veteran seems to claim that his hydrocephalus (to include dementia/memory issues) is aggravated by his diagnosed PTSD. The Veteran is currently service connected for PTSD rated at 100 percent disabling. However, no opinion was proffered regarding whether the Veteran's service-connected psychiatric disability causes or aggravates the Veteran's claimed disability. As such, the Board finds that an additional medical opinion is necessary regarding the etiology of the Veteran's diagnosed hydrocephalus (to include dementia/memory issues) condition. 2. Entitlement to a TDIU prior to October 2, 2015 Finally, the Board notes the issue of entitlement to a TDIU rating for the period prior to October 2, 2015, must be held in abeyance at this time, because this issue is intrinsically intertwined with the above-noted remanded issues. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Additionally, the Board notes that entitlement to TDIU is inextricably intertwined with implementation of the Board's decision granting VA compensation for a seizure disorder and right knee condition and these grants could significantly impact a decision on the issue of entitlement to TDIU. The matters are REMANDED for the following action: 1. Afford the Veteran VA examination by an examiner, who has yet to examine the Veteran, with sufficient expertise to address the etiology of the Veteran's hydrocephalus to include dementia/memory issues. The electronic records should be made available to and reviewed by the examiner. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with regard to the following: - Whether the Veteran's hydrocephalus (to include dementia/memory issues) at least as likely as not (a 50 percent probability or greater): originated during his period of active service or is otherwise etiologically related to his active service. - Whether the Veteran's hydrocephalus (to include dementia/memory issues) at least as likely as not (a 50 percent probability or greater) is etiologically related to his conceded Agent Orange exposure. - Whether the Veteran's hydrocephalus (to include dementia/memory issues) at least as likely as not (a 50 percent probability or greater) is proximately due to, or aggravated by, his service-connected PTSD. The examiner should specifically consider the medical opinion the Veteran recently submitted in July 2019 surmising that the diagnosed dementia and seizures "could be possible to Agent Orange exposure" based on the experience of this Veteran's treating neurologist offering this equivocal opinion. The Board notes that aggravation need not be a permanent worsening of the disability. A temporary worsening of a disability may constitute aggravation. The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran's competent lay statements. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 2. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his representative with a copy of the readjudication and afford them an appropriate period to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.