judge_norm: L M BARNARD

condition: heart

text:
Citation Nr: 24022000
Decision Date: 06/05/24	Archive Date: 06/05/24

DOCKET NO. 15-18 537
DATE: June 5, 2024

ORDER

Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is denied.

Entitlement to service connection for a heart condition, to include as due to herbicide exposure, is denied.

Entitlement to service connection for glaucoma, to include as due to herbicide exposure and/or as secondary to diabetes mellitus, type II, is denied.

Entitlement to service connection for bilateral feet peripheral neuropathy, to include as due to herbicide exposure and/or as secondary to diabetes mellitus, type II, is denied.

FINDINGS OF FACT

1.  The Veteran did not serve in the Republic of the Vietnam during his active service, and exposure to herbicides during his active-duty service is not otherwise shown, to include his service in Korea.

2.  Diabetes mellitus, type II, is not shown to be causally or etiologically related to any disease, injury, or incident during service, to include alleged exposure to herbicide agents, and did not manifest within one year of service discharge.

3.  A heart condition is not shown to be causally or etiologically related to any disease, injury, or incident during service, to include alleged exposure to herbicide agents, and did not manifest within one year of service discharge.

4.  Glaucoma is not shown to be causally or etiologically related to any disease, injury, or incident during service, to include alleged exposure to herbicide agents, did not manifest within one year of service discharge, and was not caused or aggravated by any of the Veteran's service-connected disabilities.

5.  Bilateral feet peripheral neuropathy is not shown to be causally or etiologically related to any disease, injury, or incident during service, to include alleged exposure to herbicide agents, did not manifest within one year of service discharge, and was not caused or aggravated by any of the Veteran's service-connected disabilities.

CONCLUSIONS OF LAW

1.  The criteria for service connection for diabetes mellitus, type II, to include as due to herbicide exposure, have not been met.  38 U.S.C. �� 1110, 1112, 1117, 1131, 1137, 5107; 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309.

2.  The criteria for service connection for a heart condition, to include as due to herbicide exposure, have not been met. 38 U.S.C. �� 1110, 1112, 1117, 1131, 1137, 5107; 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309.

3.  The criteria for service connection for glaucoma, to include as due to herbicide exposure and/or as secondary to diabetes mellitus, type II, have not been met.  38 U.S.C. �� 1101, 1110, 1112, 1154, 5107; 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309, 3.310.

4.  The criteria for service connection for bilateral feet peripheral neuropathy, to include as due to herbicide exposure and/or as secondary to diabetes mellitus, type II, have not been met. 38 U.S.C. �� 1101, 1110, 1112, 1154, 5107; 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from January 1969 to March 1971.  The Veteran passed away in March 2018, and the Appellant is his surviving son.

The Board must discuss all theories of entitlement raised by the Veteran/Appellant or by the evidence of record.  Robinson v. Mansfield, 21 Vet. App. 545 (2008).

Accordingly, the Board has recharacterized the claims as indicated above to afford the Appellant the broadest possible scope of review.  See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009).

In March and September 2023, the Board remanded the claims on appeal for further development and adjudication.  The Board finds that there was substantial compliance with its March and September 2023 remand directives.  A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order.  Stegall v. West, 11 Vet. App. 268 (1998).  Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required.  See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999).

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. �� 1110, 1131; 38 C.F.R. � 3.303 (a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. � 3.303 (d).

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  Id.; also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C. �� 1101, 1112, 1137; 38 C.F.R. �� 3.307, 3.309.

Alternatively, when a disease at 38 C.F.R. � 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service.  See 38 C.F.R. � 3.303 (b).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. � 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service.  38 U.S.C. � 1116 (f).

In addition, a Veteran who during active military service between September 1, 1967 and August 31, 1971, served in a unit that operated in or near the Korean Demilitarized Zone (DMZ) in an area in which herbicides are known to have been applied during that period, as determined by the Department of Defense (DOD), shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to the contrary.  38 C.F.R. � 3.307 (a)(6).  A list of service units that have been recognized by the DOD as having served in areas along the Korean DMZ may be found in a table in the VBA Live Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 3, Block b (change date December 31, 2019).

If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected even though there is no record of such disease during service.  38 C.F.R. � 3.309 (e).  The diseases listed at 38 C.F.R. � 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 early-onset 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).

Notwithstanding the foregoing presumption, a veteran is not precluded from establishing service connection with proof of direct causation.  38 U.S.C. � 1113 (b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. � 3.310 (a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  Furthermore, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability.  38 C.F.R. � 3.310 (b).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. � 5107; 38 C.F.R. � 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Entitlement to service connection for diabetes mellitus, type II, and a heart condition, as due to herbicide exposure, are denied; Entitlement to service connection for glaucoma and bilateral feet peripheral neuropathy, as due to herbicide exposure and/or as secondary to diabetes mellitus, type II, are denied.

The Appellant contends that prior to his death, the Veteran suffered from diabetes mellitus, a heart condition, glaucoma, and bilateral feet peripheral neuropathy as a result of his active-duty service.  Specifically, the Appellant alleges that the Veteran was exposed to herbicide agents during his service in South Korea and that such caused the Veteran's diabetes and heart condition.  Furthermore, the Appellant alleges that the Veteran's diabetes caused or aggravated the Veteran's glaucoma and bilateral feet peripheral neuropathy.

As an initial matter, the Board observes that the Veteran was diagnosed with diabetes mellitus type II, a heart condition, glaucoma, and bilateral feet peripheral neuropathy.  However, the evidence does not show, and the Appellant has not contended, that such had their onset during service, manifested within one year of service, or were otherwise directly related to service.  In fact, the Veteran's service treatment records are silent for any complaints, treatment or diagnoses of diabetes mellitus, a heart condition, glaucoma, and/or bilateral feet peripheral neuropathy or related symptoms, and such were not diagnosed for many years after the Veteran's discharge.  See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008).  Therefore, presumptive service connection and service connection based on continuity of symptomatology is not warranted.  Rather, the Appellant alleges that the Veteran's diabetes mellitus and heart condition were presumptively related to his alleged in-service exposure to herbicide agents, and that his glaucoma and bilateral feet peripheral neuropathy were secondary to his diabetes.

In regard to presumptive service connection based on Agent Orange exposure, as previously noted the Appellant contends that the Veteran was exposed to herbicide agents during his service.  The Board notes that the Veteran served for approximately 2 years from January 1969 to March 1971 in the United States Army during the Vietnam Era.  However, there is no indication, and neither the Appellant nor the Veteran prior to his death have contended, that the Veteran set foot in the Republic of Vietnam.  Furthermore, there is no indication that the Veteran served aboard a "brown water" vessel during his active duty.

The Veteran's DD 214 and his personnel records do not reflect that he served in the Republic of Vietnam, the inland waters of Vietnam, or the waters off Vietnam.  Therefore, the Board finds that the Veteran does not have the requisite service in Vietnam to recognize presumptive exposure to herbicide agents.  However, as previously noted the allegation is that the Veteran was exposed to herbicide agents during his time in South Korea.

Again, the Board notes that the Veteran's DD 214 does confirm that the Veteran was stationed in South Korea and that he served between January 1969 and March 1981.  Therefore, the Veteran was present in Korea during the applicable time period that herbicides were used in accordance with the updated 38 C.F.R. � 38 C.F.R. � 3.307(a)(6)(iv).  However, the Board finds that the evidence does not support the Appellant's contention that the Veteran was exposed to herbicides, specifically Agent Orange during his time in South Korea.  Rather inquiries into whether the Veteran's unit history, personnel history, and history of the bases to which he was assigned failed to confirm the use of or exposure to Agent Orange.  See Records Research Center Responses in June 2021, May 2022, April 2023, and January 2024.  The Records Research Center noted a review of the entirety of the Veteran's service and found that the "[r]ecords do not mention the use or storage of herbicides.  In addition, the records do not mention or document any specific duties performed by the Veterans unit along the DMZ."  Furthermore, the Veteran's unit is not among those listed by the DOD as definitely stationed along the DMZ in or near an area in which herbicides are known to have been applied during that period.  See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Topic 10, Block p.

Consequently, as the Veteran did not serve in the Republic of Vietnam, he is not presumed to have been exposed to herbicide agents.  Furthermore, there is no evidence that the Veteran or his unit were stationed at or near the DMZ, and the evidence has not demonstrated that the Veteran was otherwise exposed to herbicide agents.  Therefore, presumptive service connection based on Agent Orange exposure is not warranted.

Finally, while presumptive service connection is not warranted, direct service connection is not barred.  However, there is no credible evidence that the Veteran was otherwise exposed to herbicides, and therefore no way to show that the Veteran's diabetes mellitus, type II, heart condition, glaucoma, and/or bilateral feet peripheral neuropathy were directly related to any such exposure.  See Combee, 34 F.3d at 1042.  Furthermore, there is no indication of any symptoms or allegations of diabetes mellitus, a heart condition, glaucoma, and/or bilateral feet peripheral neuropathy in the Veteran's service records. In addition, there are no such allegations or diagnoses post-service until, at the earliest, 2013.  Consequently, the Board finds that VA is under no obligation to provide the Appellant with an examination in connection with these claims.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Therefore, no examinations were conducted, and none are of record in regard to the claims for service connection for diabetes mellitus, a heart condition, glaucoma, and/or bilateral feet peripheral neuropathy.  As essential elements of direct service connection are missing, direct service connection is not warranted.

As for secondary service connection, as service connection is not in effect for diabetes mellitus, the Board finds that under the law, the Appellant lacks legal grounds to establish entitlement to service connection for glaucoma and/or bilateral feet peripheral neuropathy on a secondary basis.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  In Sabonis, the Court held that in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law.  Insofar as service connection is not in effect for the disability claimed by the Appellant to have proximally caused the Veteran's glaucoma and bilateral feet peripheral neuropathy, service connection on a secondary basis is not applicable under the law.

The Board has also considered the Appellant and Veteran's statements that the Veteran's diabetes, heart condition, glaucoma and bilateral feet peripheral neuropathy are related to the Veteran's service, to include alleged herbicide exposure, and/or a service-connected disability.  In this regard, a layperson is competent to report on that of which he or she has personal knowledge.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as a fall leading to a broken leg.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007).

However, the question of causation or aggravation of disabilities such as diabetes, a heart condition, glaucoma, and bilateral feet peripheral neuropathy involves medical subjects concerning internal physical processes extending beyond an immediately observable cause-and-effect relationship.  In this regard, such opinions require specialized knowledge of several internal bodily systems.  There is no indication that the Appellant or Veteran possess such specialized knowledge.  As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Appellant and Veteran's opinions regarding the etiology of the claimed disabilities are non-probative evidence.  See Jandreau, supra; Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).

Moreover, the Appellant and Veteran have offered only conclusory statements regarding the relationship between the Veteran's disabilities and his service. Therefore, the Board affords these opinions, little, if any, probative weight.

The Board finds that the Veteran's diabetes mellitus, heart condition, glaucoma and bilateral feet peripheral neuropathy were not shown to be causally or etiologically related to any disease, injury, or incident during service, to include any alleged herbicide exposure, and did not manifest within one year of service discharge.  Furthermore, the Veteran's glaucoma and bilateral feet peripheral neuropathy were not caused or aggravated by a service-connected disability.  Therefore, service connection for diabetes mellitus, type II, a heart condition, glaucoma, and bilateral feet peripheral neuropathy is not warranted.

In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the evidence of record is against the Appellant's claims, that doctrine is not applicable in the instant appeal, and his claims must be denied.  38 U.S.C. � 5107; 38 C.F.R. � 3.102; Gilbert, supra.

L. M. BARNARD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Unger, 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.


series: legacy

judge_norm: J T HUTCHESON

judge_role: Veterans Law Judge

disposition: remanded

condition: cancer

text:
Citation Nr: 24023000
Decision Date: 06/12/24	Archive Date: 06/12/24

DOCKET NO. 17-61 431
DATE: June 12, 2024

REMANDED

Entitlement to service connection for hepatocellular carcinoma with liver cirrhosis and metastatic disease is remanded.

REASONS FOR REMAND

The Veteran had active service from July 1979 to March 1981.  The Veteran died in December 2017.  In January 2019, the Veteran's surviving spouse was substituted as the Appellant in this appeal.

Entitlement to service connection for hepatocellular carcinoma with liver cirrhosis and metastatic disease is remanded.

The Appellant contends that service connection for the Veteran's hepatocellular carcinoma with liver cirrhosis and metastatic disease is warranted as the claimed disability originated as the result of the Veteran's in-service Toxic Exposure Risk Activities (TERAs), including exposure to polychlorinated biphenyls (PCBs) at Fort McLellan, Alabama, and exposures to chemicals while performing his military duties as a helicopter repairman.

A disability examination and medical opinion will be requested for certain non presumptive conditions involving a TERA.  When a veteran submits a claim for compensation; has evidence of a disability; has evidence of participation in a TERA; and such evidence is not sufficient to establish service connection for the disability, then the veteran can claim participation in a TERA explicitly or implicitly through service in a location presumed associated with toxic exposure, or records showing participation in a TERA; or, if Department of Veterans Affairs (VA) has conceded exposure in a prior claim, or the file has a claim attributable to toxic exposure.  Other ways to claim or establish participation in a TERA include, when a veteran's military occupational specialty is associated with toxic exposure; when medical records suggest exposure to a toxic substance, chemical, or airborne hazard such as Veterans Health Administration (VHA) exposure screening; or, with any other relevant evidence of record to include garrison exposures.  38 U.S.C. � 1168(a).

The Veteran served at Fort McClellan, Alabama as a helicopter repairman.  The Veteran was presumed to have been exposed to PCBs while stationed at Fort McClellan and solvents and chemicals serving as a helicopter repairman.  As such, the provisions of 38 U.S.C. � 1168(a) require a VA examination regarding whether the Veteran's hepatocellular carcinoma with liver cirrhosis and metastatic disease was etiologically related to his conceded participation in TERAs.

VA's Public Health section of its website titled "Potential Exposure at Fort McClellan" noted that those serving at Fort McClellan could have been exposed to radioactive compounds, chemical warfare agents, and airborne polychlorinated biphenyls (PCBs).  The PCBs were released from the Monsanto plant in the neighboring town.  The plant operated from 1929 to 1971 and a 2015 publication from the Agency for Toxic Substances and Disease Registry (ATSDR) concluded that the concentration of the PCBs in the area were "not expected to result in an increased cancer risk or other harmful health effects in people living in the neighborhoods outside the perimeter of the former PCB manufacturing facility."

A July 2016 treatment record from the Stephenson Cancer Center conveys the Veteran presented with abdominal pain, fever, weight loss, hepatitis C, and liver cirrhosis and was diagnosed with well-differentiated hepatocellular carcinoma.

In a February 2017 written statement, the Veteran reported that he could "smell chemicals in the air" while completing his daily activities as a helicopter repairman.

A May 2017 evaluation from K. Speight, APRN-CNP, conveys the Veteran's "cancer may be related to his military time at Fort McClellan."  A November 2017 evaluation from the nurse practitioner states that the Veteran was diagnosed with terminal hepatocellular carcinoma with metastasis and "he was exposed to carcinogens while stationed at Fort McClellan per patient report and military records."

An August 2023 evaluation conducted for VA states that the Veteran was diagnosed with hepatocellular carcinoma with liver cirrhosis and metastatic disease.  The examiner concluded that the diagnosed carcinoma was "less likely than not incurred in or caused by the claimed in-service injury, event, or illness."  The examiner noted the Veteran's in-service exposure to PCBs while stationed at Fort McClellan.  The examiner concluded that the "Veteran has several nonservice connected risk factors that are more likely than not the cause of his hepatocellular carcinoma."

A November 2023 examination conducted for VA reflects the examiner concluded that the diagnosed hepatocellular carcinoma with liver cirrhosis and metastatic disease was "less likely than not caused by the indicated toxic exposure risk activities after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic combined effect of all toxic exposure risk activities of the Veteran."  The examiner noted the Veteran's exposure to PCBs at Fort McClellan and found no "indication of a relationship between the development of hepatocellular carcinoma with liver cirrhosis and metastatic disease and the TERA.

VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991).  When VA obtains an examination or opinion, the examination or opinion must be adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  The August 2023 and November 2023 VA evaluations do not fully address whether the hepatocellular carcinoma was related to the Veteran's conceded participation in a TERA during active service; his total TERA exposure; and the synergistic, combined effect of all toxic exposure risk activity.  The VA examiners failed to address the Veteran's TERA exposure as to serving as a helicopter repairman and his reported exposure to chemicals while performing his military duties.  Considering such deficiencies, the Board concludes that further VA evaluation is needed.

The matter is REMANDED for the following action:

Refer the Veteran's records to a medical doctor to assist in determining the relationship of the Veteran's hepatocellular carcinoma to active service.  The examiner must review the record should note that in the report.  A rationale for all opinions should be provided.  The examiner should:

Opine whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the diagnosed hepatocellular carcinoma had its onset during active service or is related to any incident of service, including conceded toxic exposure risk activities (TERAs); the examiner must address the total potential exposure through all applicable military deployments, and the synergistic, combined effect of all TERAs, to include the Veteran's exposure to PCBs at Fort

McClellan, Alabama and his exposure to chemicals while performing his military duties as a helicopter repairman.

J. T. HUTCHESON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K.R. Kardian, 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.


judge_norm: S F KEANE

disposition: denied

condition: skin

condition: knee

disposition: granted

condition: hypertension

benefit: tdiu

benefit: smc

text:
Citation Nr: 24024000
Decision Date: 06/18/24	Archive Date: 06/18/24

DOCKET NO. 19-26 384
DATE: June 18, 2024

ORDER

Service connection for a skin condition is denied.

Service connection for a left-knee condition is denied.

Service connection for a right-knee is denied.

Service connection for hypertension on a direct basis is granted.

Total disability individual unemployability (TDIU) is denied.

Special monthly compensation (SMC) based on the need for regular aid attendance or housebound status is denied.

FINDINGS OF FACT

1. The Veteran's skin condition was not etiologically related to service and also not proximately caused by a service-connected disability.

2. The Veteran's left-knee condition was not etiologically related to service and also not proximately caused by a service-connected disability.

3. The Veteran's right-knee condition was not etiologically related to service and also not proximately caused by a service-connected disability.

4. On a direct basis, the Veteran's hypertension was etiologically related to service.

5. The functional impact of the Veteran's service-connected disabilities did not prevent him from securing and following gainful employment.

6. The Veteran was not so helpless as to need regular aid and attendance due to his service-connected disabilities; the Veteran never had a single service-connected disability rated at 100 percent; and the Veteran was not substantially confined to his home.

CONCLUSIONS OF LAW

1. The criteria for service connection for a skin condition have not been met. 38 U.S.C. �� 1110, 5107; 38 C.F.R. �� 3.102, 3.303, 3.304, 3.310.

2. The criteria for service connection for a left-knee condition have not been met. 38 U.S.C. �� 1110, 5107; 38 C.F.R. �� 3.102, 3.303, 3.304, 3.309, 3.310.

3. 3. The criteria for service connection for a right-knee condition have not been met. 38 U.S.C. �� 1110, 5107; 38 C.F.R. �� 3.102, 3.303, 3.304, 3.309, 3.310.

4. The criteria for direct service connection for hypertension have been met. 38 U.S.C. �� 1110, 5107; 38 C.F.R. �� 3.102, 3.303, 3.304.

5. The criteria for a finding of TDIU have not been met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 3.340, 3.341, 4.3, 4.16.

6. The criteria for SMC based on the need for regular aid and attendance or housebound status have not been met. 38 U.S.C. � 1114; 38 C.F.R. �� 3.350, 3.352.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1971 to September 1991, including in the Republic of Vietnam and the Southwest Asia theater of operations. The Veteran died in March 2018. The Veteran's surviving spouse has been substituted as the Appellant.

The Board of Veterans' Appeals (the Board) previously remanded the issues on appeal for additional development in a June 2023 Board Decision. The Department of Veteran's Affairs (VA) Regional Office (RO) having substantially complied with these remand directives, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998).

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; 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).

In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998).

1. Service connection for skin condition.

The first element of service connection, a present diagnosis, is not in dispute. The Veteran had psoriasis and dermatitis. Accordingly, the first element is met.

The evidence concerning the second element of service connection, an in-service event or incurrence, is mixed. The Veteran is presumed to have been exposed to herbicides during service. However, this exposure is only relevant if herbicide exposure is causally related to the Veteran's skin conditions.

The third element of service connection, medical nexus, weighs against the claim. In January 2024, a clinician provided an addendum opinion. Neither the Appellant nor the record has raised a reason for the Board to doubt the competency or credibility of the clinician. The clinician notes that the Veteran separated from the military in 1991 and was not diagnosed with a skin condition until 2012- twenty years after his separation. Moreover, the clinician also considered the "total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran." The clinician then opined: "there is no known, established pathophysiologic (direct cause/effect) relationship between Agent Orange exposure and the development of the aforementioned [skin] conditions." In other words, herbicide exposure does not cause skin conditions like psoriasis or dermatitis-meaning that there is no medical nexus between the Veteran's in-service exposure and his skin conditions.

The Board also considered the Veteran's theory of secondary causation. As noted in the June 2023 Board decision, the Veteran raised the theory that his herbicide exposure led to rheumatism or psoriatic arthritis which may have in turn proximately caused his psoriasis. However, the Veteran was never service connected for rheumatism or psoriatic arthritis. The RO denied service connections for rheumatism in the August 2017; that denial decision became final in August 2018. The Veteran never made a claim for psoriatic arthritis. Accordingly, he could not now be granted secondary service connection for a skin condition relying on either of these two non-service-connected conditions. Moreover, the clinician's negative toxic exposure risk activities opinion is very broad. The evidence overwhelmingly supports that herbicide exposure does not cause the Veteran's skin conditions-whether directly or indirectly.

Considering the foregoing, the Board finds that the persuasive weight of the evidence shows that the Veteran's skin condition was not etiologically related to his service nor proximately caused by a service-connected disability. As the evidence of record persuasively weighs against service connection for a skin condition, the benefit-of-the-doubt rule does not apply. 38 U.S.C. � 5107(b); 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021). Accordingly, service connection for a skin condition must be denied.

2. Service connection for left-knee condition.

The first element of service connection, a present diagnosis, is not in dispute. The Veteran had left-knee arthritis. Accordingly, the first element is met.

The second element of service connection, an in-service event or occurrence, weighs against the claim. Veteran served on active duty from 1971 to 1991. He did not have any in-service diagnosis of any left-knee issues. Moreover, his medical examination at separation did not note any lower extremity joint issues.

This third element of service connection, medical nexus, weighs against the claim. In January 2024, a clinician provided an addendum opinion. Neither the Appellant nor the record has raised a reason for the Board to doubt the competency or credibility of the clinician.

The clinician opined that the Veteran's left-knee condition was not related to service. The clinician supported this opinion by explaining that the Veteran had no lower extremity joint issues noted in his separations examination and that degenerative changes in his left knee were not noted until nearly 25 years after his separation from the military.

The Board also considered the Veteran's theory of secondary causation. As noted in the June 2023 Board decision, the Veteran raised the theory that his herbicide exposure led to rheumatism or psoriatic arthritis which may have in turn proximately caused his left-knee arthritis. However, the Veteran was never service connected for rheumatism or psoriatic arthritis. Accordingly, he could not now be granted secondary service connection for left-knee arthritis relying on these conditions. Moreover, the clinician explained that the Veteran's left-knee arthritis was "musculoskeletal in nature and not due to TERA [toxic exposure risk activities]."

Considering the foregoing, the Board finds that the persuasive weight of the evidence shows that the Veteran's left-knee condition is not etiologically related to his service. As the evidence of record persuasively weighs against service connection for a left-knee condition, the benefit-of-the-doubt rule does not apply. 38 U.S.C. � 5107(b); 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021). Accordingly, service connection for a left-knee condition must be denied.

3. Service connection for right-knee condition.

The first element of service connection, a present diagnosis, is not in dispute. The Veteran had right-knee arthritis. Accordingly, the first element is met.

The evidence concerning the second element of service connection, an in-service event or occurrence, is mixed. The Veteran had in-service treatment for his right knee. However, an in-service x-ray of his right knee from 1978 showed that his knee was normal. Moreover, the in-service medical attention that the Veteran received for his right knee was limited. Finally, the Veteran's separation examination showed no lower extremity joint issues.

This third element of service connection, medical nexus, weighs against the claim. In January 2024, a clinician provided an addendum opinion. Neither the Appellant nor the record has raised a reason for the Board to doubt the competency or credibility of the clinician.

The clinician opined that the Veteran's right-knee arthritis is not related to his service. The clinician noted that the Veteran's in-service treatment was for acute and non-chronic right-knee pains. Further, the clinician noted that the Veteran's right knee was healthy at separation. Moreover, the clinician observed that the Veteran's arthritis was not detected until 2014-almost 25 years after his separation from the military.

The Board also considered the Veteran's theory of secondary causation. As noted in the June 2023 Board decision, the Veteran raised the theory that his herbicide exposure led to rheumatism or psoriatic arthritis which may have in turn proximately caused his right-knee arthritis. However, the Veteran was never service connected for rheumatism or psoriatic arthritis. Accordingly, he could not now be granted secondary service connection for right-knee arthritis relying on these conditions. Moreover, the clinician explained that the Veteran's right-knee arthritis was "musculoskeletal in nature and not due to TERA [toxic exposure risk activities]."

Considering the foregoing, the Board finds that the persuasive weight of the evidence shows that the Veteran's right-knee condition is not etiologically related to his service. As the evidence of record persuasively weighs against service connection for a right-knee condition, the benefit-of-the-doubt rule does not apply. 38 U.S.C. � 5107(b); 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021). Accordingly, service connection for a right-knee condition must be denied.

4. Direct service connection for hypertension.

The Board previously granted service connection for hypertension on a presumptive basis pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act). Here, the Board considers whether service connection might be granted via another basis.

The first element of service connection, a present diagnosis, is not in dispute. The Veteran had hypertension. Accordingly, the first element is met.

Evidence concerning the second element of service connection, an in-service event or occurrence, is mixed. As the Board observed in its June 2023 Decision, "the Veteran reported a history of borderline hypertension in the early 1980s, with hypertension diagnosed in approximately 1991 or 1992." However, in the August 2017 compensation and pension examination, the examiner noted that the Veteran was being treated for hypertension as early as 2004-but that the records available for review did not go back farther. On balance, the evidence supports a finding that an in-service event or occurrence-medically elevated blood pressure-existed during or within one year of separation.

This third element of service connection, medical nexus, weighs in favor of the claim. In January 2024, a clinician provided an addendum opinion. Neither the Appellant nor the record has raised a reason for the Board to doubt the competency or credibility of the clinician. After considering the Veteran's toxic exposure risk activities, the clinician opined in favor of medical nexus stating that agent orange is known to cause hypertension and that the Veteran's hypertension was more likely than not causally due to his military service.

Considering the foregoing, the Board finds that the persuasive weight of the evidence is in at least approximate balance. Accordingly, the benefit-of-the-doubt rule applies. Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021). A grant of service connection for hypertension on a direct basis must follow.

5. Finding of TDIU.

A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. � 4.16(a). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. �� 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993).

Consistent with the prior Board remand, the RO obtained a February 2024 medical addendum opinion to discuss the functional impact of the Veteran's service-connected disabilities. Neither the Appellant nor the record has raised a reason for the Board to doubt the competency or credibility of the clinician.

The clinician explained that with "morbid obesity compounding musculoskeletal issues and deconditioning, [the] [V]eteran would benefit from more sedentary work." Moreover, the written opinion for the Veteran's aid and attendance or housebound examination explains that although the Veteran used a cane, he was still able to ambulate.

When the Veteran filed for TDIU, with his December 2016 VA form 21-8940, he included that his occupational history was of an environmental hygienist and that that occupation required him to move, bend, lift and walk for extended periods of time. While the Veteran's physical disabilities may have prevented him continuing as an environmental hygienist, there is no indication that the Veteran could not have secured and followed sedentary work.

The Board further finds that the Veteran would have been physically capable of performing occupational tasks in the sedentary range. For the purposes of this adjudication, the Board defines "sedentary work" consistent with the SSA definition as "lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools" and involving occasional walking and standing and frequent sitting. See 20 C.F.R. � 404.1567 (a). The limitation to the sedentary range of work is suitable for all of the Veteran's service-connected disabilities. Reduced lifting and carrying adequately takes into account the Veteran's heart condition and challenges with overexertion. The reduced standing, walking and lifting is also suitable for the Veteran's skeletomuscular disabilities.

Considering the foregoing, the Board finds that the persuasive weight of the evidence shows that the Veteran's service-connected disabilities did not prevent him from securing and following meaningful employment. As the evidence of record persuasively weighs against a finding of TDIU, the benefit-of-the-doubt rule does not apply. Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021). Accordingly, TDIU must be denied.

6. Entitlement to SMC based on the need for regular aid attendance or housebound status.

SMC is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities. See Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011).

Aid and attendance is regulated by � 1114(l), which provides five distinct ways for a veteran, "as the result of service-connected disability," to qualify for this rate of SMC: (1) anatomical loss or loss of use of both feet; (2) anatomical loss or loss of use of one hand and one foot; (3) blindness in both eyes with 5/200 visual acuity or less; (4) being permanently bedridden; or (5) having "such significant disabilities as to be in need of regular aid and attendance." 38 U.S.C. � 1114 (l).

The following basic considerations are critical in determining the need for the regular aid and attendance of another person: inability of the Veteran to dress or undress him or herself, or to keep him or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed him or herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. � 3.352 (a). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others.

It is not required that all of the disabling conditions enumerated in 38 C.F.R. � 3.352 (a) be found to exist to establish eligibility for aid and attendance, but such eligibility requires at least one of the enumerated factors be present. See Turco v. Brown, 9 Vet. App. 222, 224-25 (1996).

SMC at the rate provided under 38 U.S.C. � 1114(s) is payable when a veteran is permanently housebound by reason of service-connected disability. 38 U.S.C. � 1114(s); 38 C.F.R. � 3.350(i). This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises, or if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime.

Consistent with the prior Board remand, the RO obtained a February 2024 medical addendum opinion to assess the Veteran's medical need for SMC, including aid and attendance or SMC at the housebound rate. Neither the Appellant nor the record has raised a reason for the Board to doubt the competency or credibility of the clinician.

The clinician noted that, "no objective findings found on exam in records of inability to perform activities of daily living for self-care." Although the Veteran was noted as using a cane, he was still able to ambulate. Moreover, specific family concerns were addressed and considered. For example, the Veteran's daughter mentioned her concern for potential hygiene issues, but the clinician noted medical providers assessing that there was "no indication that [the] [V]eteran was unable to do these [hygiene tasks] himself." Similarly, apart from using a cane, there was to medically indicate that the Veteran was substantially confined to his home. Further, the Veteran has never had a single service-connected disability rated as 100 percent. Accordingly, because the Veteran was neither substantially confined to his home nor had a single total disability, the Veteran does not qualify for SMC at the house bound rate. See 38 C.F.R. � 3.350(i).

(Continued on the next page)

?

Further, the evidence does not show that the Veteran met any of the basic criteria for SMC for aid and attendance, as contemplated by 38 C.F.R. � 3.352(a). The evidence showed that the Veteran was able to perform all basic activities of daily living. Without at least one criterion met, the Veteran cannot be said to be so helpless as to be in need of regular aid and attendance. See Turco v. Brown, 9 Vet. App. 222, 224-25 (1996). Finally, the Veteran was not blind and had not suffered the anatomical loss of any extremity. Accordingly, the Veteran was not eligible for SMC for aid and attendance.

Considering the foregoing, the Board finds that the persuasive weight of the evidence shows that the Veteran was not eligible for SMC. As the evidence of record persuasively weighs against finding SMC eligibility, the benefit-of-the-doubt rule does not apply. Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021). Therefore, a grant of SMC must be denied.

S. F. Keane

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Drum, Ryan S.

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.


judge_norm: K PARAKKAL

condition: psychiatric

text:
Citation Nr: 24025000
Decision Date: 07/02/24	Archive Date: 07/02/24

DOCKET NO. 16-39 690
DATE: July 2, 2024

REMANDED

Entitlement to service connection for an acquired psychiatric disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty from July 1979 to August 1979.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified before the Board in April 2022.  A copy of the hearing transcript is associated with the claims file.

This matter was previously before the Board and remanded for additional development in August 2022 and October 2023.

1. Entitlement to service connection for an acquired psychiatric disability is remanded.

The Board is not able to make a fully informed decision regarding the issue of entitlement to service connection for an acquired psychiatric disability.

The matter was most recently before the Board and remanded for a new examination and medical opinion in October 2023.  An examination was scheduled for December 7, 2023; however, the Veteran cancelled the examination and advised that he could not travel to the location.  The RO noted that the Veteran's VA facility is not currently accepting examination requests for mental disorders.  VA treatment records show that the Veteran telephoned the VA on December 1, 2023 regarding his transportation difficulties and problems with his sister.  The Board finds that the Veteran provided good cause for not attending the December 7, 2023 examination and remand is warranted to afford the Veteran another opportunity.  If the Veteran is unable to attend the scheduled examination, please utilize the Acceptable Clinical Evidence (ACE) process to obtain a medical opinion.

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA examination to determine the nature and etiology of any acquired psychiatric disability.  Utilize the Acceptable Clinical Evidence (ACE) process to obtain a medical opinion if the Veteran is unable to attend the examination.  The examiner should review the claims file and address the following:

(a.) Identify all diagnosed acquired psychiatric disabilities that are currently present (or present at any time since May 29, 2015). If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why.

(b.) For each diagnosed acquired psychiatric disability, the examiner should opine whether it is at least as likely as not (an approximate balance of positive and negative evidence, i.e., nearly equal) that the current acquired psychiatric disability manifested during or is otherwise related to the Veteran's period of active service.

In formulating an opinion, the examiner must consider and address the Veteran's August 2015 Statement in Support of Claim that counseling reports during service indicated that an acquired psychiatric disability was present, the Veteran's statements included with the October 2015 Notice of Disagreement, and the April 2022 hearing testimony.

The examiner is advised that the Veteran is competent to report in-service events, his symptoms and history.  Such reports must be specifically acknowledged and considered in formulating any opinions.  Lay statements of record cannot be disregarded solely due to lack of contemporaneous medical evidence.

A thorough rationale, to include reference to relevant evidence of record as appropriate, should be provided for all opinions expressed.  If the examiner is unable to provide a requested opinion, a supporting rationale must be given concerning why the opinion cannot be provided.

K. Parakkal

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B Jackson, M.

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.


text:
Citation Nr: 24026000
Decision Date: 07/11/24	Archive Date: 07/11/24

DOCKET NO. 19-16 482
DATE: July 11, 2024

ORDER

A rating in excess of 50 percent for service-connected acquired psychiatric disorder is denied.

FINDING OF FACT

1. The Veteran's service-connected acquired psychiatric disorder manifests with functional impairment no worse than occupational and social impairment with reduced reliability and productivity.

CONCLUSION OF LAW

1. The criteria for a rating in excess of 50 percent for the Veteran's service-connected acquired psychiatric disorder have not been met. 38 U.S.C. �� 1110, 5107; 38 C.F.R. �� 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9434-9413.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 2007 to June 2008.

The Board of Veterans' Appeals (the Board) previously remanded the issue on appeal for additional development in a July 2023 Board Decision. The Department of Veteran's Affairs (VA) Regional Office (RO) having substantially complied with these remand directives, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998).

The Veteran was granted service connection for anxiety effective June 30, 2008. At that time, the RO assigned an initial 10 percent rating. Effective October 1, 2013, the RO increased the Veteran's disability rating to 50 percent. Via a September 2018 rating decision, the RO reduced the Veteran's rating to 30 percent, effective August 14, 2018. In July 2023, the Board found that the Veteran's symptoms had not shown sustained material improvement; the Board restored the Veteran's 50 percent rating and remanded the issue of a rating in excess of 50 percent. This decision follows.

1. Rating for service-connected acquired psychiatric disorder.

I. Legal criteria.

When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. � 4.7.

Ratings for anxiety and depression are issued pursuant to the general rating formula for mental disorders. See 38 C.F.R. � 4.130.

A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.

A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.

II. Factual background and analysis.

Following the July 2023 Board decision, in February 2024, the Veteran underwent a compensation and pension examination to assess the current level of the severity of his psychiatric symptoms. Neither the Veteran nor the record has raised a reason for the Board to doubt the competency or credibility of the examiner. Accordingly, the Board will consider the probative weight of the examiner's opinion.

The February 2024 examiner's opinion is thorough. The opinion is supported by a rationale that is sufficient for the Board to consider and assign probative weight. There is nothing that is obviously incomplete, inconsistent or factually inaccurate. The opinion also makes appropriate reference to the Veteran's medical evidence. Accordingly, the Board assigns this medical opinion appropriate probative weight.

The examiner noted that the Veteran is married to his second wife of two years. The Veteran has a positive relationship with his wife. Moreover, the Veteran is noted as working as a supervisor. The Veteran indicated that he takes off from work approximately once per week due to his mental state. However, it appears that the Veteran is afforded time off from work under the Family and Medical Leave Act (FMLA). He has worked for the same employer for six years and has been in his current, supervisory position for three years.

The examiner noted that the Veteran's symptoms present as: depressed mood, anxiety, suspiciousness, panic attacks more than once per week, chronic sleep impairment, disturbances of motivation and mood as well as difficulty in establishing and maintaining effective work and social relationships. The Veteran was not noted as having suicidal or homicidal ideation. The Veteran attended the examination wearing casual attire and with appropriate hygiene.

The functional impact of the symptoms of the Veteran's psychiatric disorder most closely approximate occupational and social impairment with reduced reliability and productivity. Although the Veteran "does occasionally have conflict with others" at work, it appears that he is able to navigate that conflict appropriately. The Veteran has been with the same employer for six years and has been filling a supervisory role these past three years. When, approximately once per week the Veteran takes FMLA leave due to his mental state, it may result in reduced reliability and productivity. However, the Board cannot conclude that that results in occupational impairment, with deficiencies in most areas-as would be required for a higher rating.

The Veteran also has some social impairment. Whereas at the time of his August 2018 examination, the Veteran was living with his father and had then-recently begun dating, the Veteran has now been married to his second wife for two years. Although the 2024 examiner noted that the Veteran has, "difficulty in establishing and maintaining effective work and social relationships," this symptom is associated with a 50 percent rating.

Indeed, as contemplated by the rating criteria, the Veteran has no symptoms associated with a 70 percent or higher rating. Considering the foregoing, the Board finds that the persuasive weight of the evidence shows that the Veteran's service-connected acquired psychiatric disorder manifests with functional impairment no worse than occupational and social impairment with reduced reliability and productivity. As the evidence of record persuasively weighs against a rating in excess of 50 percent, the benefit-of-the-doubt rule does not apply. Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021). As such, a rating in excess of 50 percent must be denied.

S. F. Keane

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Drum, Ryan S.

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.


judge_norm: TBD TO BE DETERMINED

text:
Citation Nr: 24027000
Decision Date: 07/19/24	Archive Date: 07/19/24

DOCKET NO. 20-03 479
DATE: July 19, 2024

ORDER

Entitlement to service connection for right ventricular systolic dysfunction of anterior wall is granted.

FINDING OF FACT

The evidence of record is at least evenly balanced as to whether the Veteran's right ventricular systolic dysfunction of anterior wall had onset in service.

CONCLUSION OF LAW

The criteria for entitlement to service connection for the Veteran's right ventricular systolic dysfunction of anterior wall have been met.  38 U.S.C. �� 1110, 5107; 38 C.F.R. �� 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active-duty service in the United States Navy from August 1994 to April 2015.

This matter comes before the Board of Veterans' Appeals (Board) from and appeal of a November 2018 rating decision of the Department of Veterans Affairs.  In the rating decision, as to this matter, the Regional Office (RO) denied service connection for this disability.

In September 2023, the Board remanded this matter for additional evidentiary development.  Specifically, the Board directed that the RO obtain an addendum opinion from a clinician clarifying, as is possible given the evidence of record and medical consensus, as to whether the Veteran's right ventricular systolic dysfunction of anterior wall is a congenital disease or defect.  A VA physician rendered an addendum opinion in April 2024.  As the Board is granting the benefit sought by the Veteran in full, there is no reason to discuss the other remand directives and whether there has been substantial compliance.

Service connection for right ventricular systolic dysfunction of anterior wall is granted.

Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service.  38 U.S.C. � 1110; 38 C.F.R. � 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a relationship between the current disability and the in-service disease or injury.  Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018).  Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. � 3.303(d).

Pursuant to 38 C.F.R. � 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease, however remote, are service connected, unless clearly attributable to intercurrent causes.  Entitlement to service connection based on chronicity pursuant to 38 C.F.R. � 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. � 1101(3) or 38 C.F.R. � 3.309(a).  Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013).  Right ventricular systolic dysfunction of anterior wall is not an enumerated chronic disease.

Initially, the Board notes that the clinician who conducted the Veteran's March 31, 1994, enlistment examination indicated in the examination report that the Veteran's heart and vascular systems were normal.  Notably, an elbow scar was present, but the clinician did not indicate that the scar was symptomatic or had any residual complications.  Thus, this examination report contains no notation of preexistent conditions or anomalous findings, to include that of a right ventricular systolic dysfunction of anterior wall.  Consequently, the Veteran is presumed sound.  38 U.S.C. � 1111.

On an October 2018 VA heart conditions examination, a VA physician provided a diagnosis of right ventricular systolic dysfunction of anterior wall.  Thus, the current disability requirement has been met.

The Veteran is competent to report symptoms that he experienced during active-duty service and continuously thereafter.  Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007) (a veteran is competent to testify regarding observable symptoms); Buchanan v. Nicholson, 451 F. 3d 1331, 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence).  In lay statements and in comments to the above-noted VA clinician, the Veteran reports that a clinician told him that he may have had a heart attack based upon 2014 EKG readings.  The Veteran has also advanced that his "status as discerned from EKG" has been ongoing (as a medical expert never indicated that this status has changed, which the Veteran is competent to report).   To the extent that the Veteran heard that he had an anomalus EKG reading in 2014 (as indicated by a clinician), which a VA medical expert later diagnosed as a right ventricular systolic dysfunction of anterior wall, the Board finds that the Veteran's lay accounts are plausible, internally consistent, and credible with the places, types, and circumstances of service, and there is nothing of equal or greater probative weight in the evidence of record to contradict them.  See 38 U.S.C. � 1154(a); 38 C.F.R. � 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service records).

In the October 2018 VA examination report, the physician included the Veteran's lay account of the EKG finding and confirmed/diagnosed the anomaly (right ventricular systolic dysfunction of anterior wall).  Even though the clinician reported that he had reviewed the Veteran's claims file (presumably to include the Veteran's March 31, 1994, enlistment report of medical examination), the physician opined that this disability was "congenital".  Based upon this conclusion, the physician rendered a negative etiological opinion, supported by this notion of "congenital" (expanded in the rationale to "congenital structural defect") not being symptomatic and that an injury does not usually cause an apical hypokinesis of the right ventricle.  This opinion is of limited, if any, probative value, as the physician failed to provide a basis for concluding that the diagnosed disability was congenital (a congenital defect).  Stated more directly, the physician, who indicated that he reviewed the Veteran's service treatment records (STRs), including the Veteran's enlistment report of medical examination, did not provide any explanation as to how he reached this conclusion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record).

Pursuant to the Board's September 2023 remand, a different VA physician prepared an addendum opinion in April 2024.  This clinician rendered a negative etiological opinion after indicating that it was not possible to determine whether the heart disorder was a congenital disease or defect, with the following rationale that did not address the Veteran's credible lay accounts about the 2014 EKG reading:

The Veteran has been diagnosed with [a] right ventricular (RV) systolic dysfunction of anterior wall.  Veteran had Echo in 2018 which showed slight RV enlargement and mild right ventricular (RV) systolic dysfunction of anterior wall which was the first time this condition was noted. Therefore, there is not sufficient medical record to determine the cause for Veterans right ventricular enlargement.  It is not possible to determine if the cause of [the Veteran's heart] condition is congenital based on 'Family history of congenital heart disease or hypertension' listed in medical records.  It does not [specify] what kind of family history of congenital heart disease the Veteran has.  Further based on just family history it cannot be determined if [the Veteran's] cause of RV enlargement is due to congenital issues or not. Therefore, unable to determine if [the Veteran's] heart disorder is [either] a congenital defect or disease.  As seen by above timeline medical records are silent for any symptoms, diagnosis, or treatment of mild right ventricular systolic dysfunction of anterior wall/cardiac issue during enlistment as well as during separation and during his time as active duty.  Therefore, [the Veteran's heart disorder did not exist prior to service.  Since there was no pre-existing condition noted, there is no medical opinion related to aggravation to be made at this time.

Thus, the physician concluded that he could not determine whether the current disability is either a congenital defect or disease and the Veteran's diagnosed right ventricular systolic dysfunction of anterior wall did not preexist service and therefore the "silence" in the Veteran's separation report of medical examination supports a negative etiology.  The Veteran's competent, plausible, internally consistent, and credible account is absent from the rationale and this addendum opinion is therefore inadequate.  Buchanan, 451 F. 3d 1331 (a VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence").

To the extent that this grant of service connection is based upon plausible, consistent, and credible lay evidence rather than inadequate VA negative etiological opinion, "Nothing in the regulatory or statutory provisions [relating to evidence to be considered] requires both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself".  Id.

While the Board could remand for a yet another VA addendum opinion, such a remand could well be construed as an impermissible attempt to develop evidence with the exclusive intent of denying the Veteran's service connection claim, especially in light of the Veteran's credible lay accounts.  38 C.F.R. � 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim").

For the above reasons, the evidence is sufficient to decide this service connection claim, as it is at least evenly balanced as to whether the Veteran's right ventricular systolic dysfunction of the anterior wall had onset in service and is not a congenital disease or defect.  As the reasonable doubt created by this relative equipoise must be resolved in favor of the Veteran, entitlement to service connection for this disability is warranted.  38 U.S.C. � 5107(b); 38 C.F.R. � 3.102.

TBD To Be Determined

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. J. Komins, 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.


judge_norm: M TENNER

text:
Citation Nr: 24028000
Decision Date: 08/01/24	Archive Date: 08/01/24

DOCKET NO. 15-45 651
DATE: August 1, 2024

REMANDED

Entitlement to a disability rating in excess of 10 percent for chondromalacia of the left knee (left knee disability) is remanded.

Entitlement to a disability rating in excess of 10 percent for residuals of a meniscal tear of the right knee (right knee disability) is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from November 1996 until his honorable discharge in October 2001.

This appeal has been advanced on the Board's docket pursuant to 38?U.S.C. ��?5109B, 7112 and 38 C.F.R. � 20.902(d).

These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2013 and July 2014 rating decisions of the Regional Office of the Department of Veterans Affairs (VA).

This matter has a long, complex procedural history. By way of background, the Veteran initially filed a claim for service connection for a left knee disability in October 2006. His claim was ultimately granted in a September 2013 Board decision, which was effectuated in a December 2013 rating decision that assigned a 10 percent disability evaluation from October 4, 2006. The Veteran subsequently appealed this disability evaluation. While that claim for an increased rating was pending, he also filed a separate claim for an increased disability rating for a right knee disability, which had been evaluated at 10 percent disabling from October 21, 2001. This claim was denied in a July 2014 rating decision, which the Veteran also timely appealed. In a March 2019 decision, the Board denied his claims for increased disability ratings for both knees.

The Veteran appealed the March 2019 decision to the Court of Appeals for Veterans Claims (Court), which was vacated and remanded for further action. The Board remanded the claims multiple times and then in February 2021 denied the issues of entitlement to an increased rating for left and right knee disabilities but granted separate disability ratings for lateral instability for both knees.

In November 2020, the Board remanded the case to the Regional Office for further development. Specifically, the Board directed the Regional Office to obtain new VA examinations regarding the Veteran's bilateral knee disability.

Subsequently, the Veteran appealed the February 2021 decision to the Court. The parties entered into a Joint Motion for Partial Remand (JMPR). Pursuant to the terms of the JMPR, the parties agreed that the Board erred in its February 2021 decision by failing to comply with Bryant v. Wilkie when in February 2021, the Veteran requested additional time to submit evidence following receipt of the Board's January 2021 docketing notice letter. The Court determined that that the Board issued the decision on appeal in February 2021 without addressing the Veteran's request for additional time and that vacatur and remand was warranted for the Board to provide the Veteran with the process to which he was entitled.

In a July 2022 decision, the Board denied the Veteran's claim for increased rating which the Veteran timely appealed to the Court. In December 2023, the Court issued a memorandum decision vacating the prior July 2022 Board denial and remanding the claims to the Board. The Court affirmed the Board's denial of ratings above 10 percent for left knee lateral instability and above 20 percent for right knee recurrent instability. As such, those claims are not currently before the Board.

1. Entitlement to a disability rating in excess of 10 percent for chondromalacia of the left knee (left knee disability).

2. Entitlement to a disability rating in excess of 10 percent for residuals of a meniscal tear of the right knee (right knee disability).

The December 2023 Court decision found that the Board's prior denial was contradictory when it stated that flare-ups did not take place and that the Veteran reported "actions or events that made his disability worse." The Court also found that the Board did not explain why the Board did not accept the Veteran's reports of flare-ups.

The Court found that the Board decision was contradictory when it found that flare-ups did not take place and then referred to the Veteran's descriptions of the factors that aggravated or otherwise exacerbated his bilateral knee pain, including things "such as climbing up or down stairs, walking on uneven ground, and prolonged sitting, standing, or squatting motions, as well as alleviating factors, such as rest."

In addition to the rating criteria under the specific diagnostic codes (DC), when VA evaluates musculoskeletal disabilities under the Rating Schedule, it must determine whether or not the factors listed in 38 C.F.R. �� 4.40, 4.45, and 4.59 are properly accounted for within the applicable DC criteria.

Under section 4.40, VA must consider whether there is evidence of functional loss due to pain on movement and diminished excursion, strength, speed, coordination, and endurance, to include during flare-ups or after repetitive use. 38 C.F.R. � 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2001). Pain on movement, standing alone, is not sufficient to warrant a higher rating under section 4.40. Id. (reaffirming that pain must affect some aspect of "the normal working movements of the body... in order to constitute functional loss").

Section 4.45 expands upon the concept of functional loss, noting six factors that VA must consider when evaluating a disability, namely: (1) less or (2) more movement than is normal; (3) weakened movement; (4) excess fatigability; (5) incoordination; and (6) pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing, to include during flare-ups or after repetitive use. 38 C.F.R. � 4.45. Noticeably, the aspects of functional loss listed in section 4.40 closely parallel the factors listed in section 4.45. Section 4.45 applies to muscles, nerves, as well as the entire musculoskeletal system. DeLuca v. Brown, 8 Vet. App. 202, 207 (1995).

Under section 4.59, a veteran may be awarded the minimum compensable evaluation available under a given musculoskeletal DC, even if application of that DC would not support a compensable evaluation, where there is evidence of "actually painful, unstable, or malaligned joints." 38 C.F.R. � 4.59; Petitti v. McDonald, 27 Vet. App. 415, 427 (2015). Section 4.59 does not require medical evidence; it may be satisfied with lay and other non-medical evidence. Id. at 428. Thus, pain alone is compensable under section 4.59 for joint disabilities in general. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011).

In Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017), the Court held that a VA examiner "must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the [veteran himself]." Sharp, 29 Vet. App. at 32; see also DeLuca v. Brown, 8 Vet. App. 202, 206 07 (1995) (holding that a VA medical examination that fails to take into account the factors listed in 38 C.F.R. �� 4.40 and 4.45, including those experienced during flare ups, is inadequate for evaluation purposes).

The Veteran's most recent VA examination took place in December 2020. The examiner found that the Veteran did not report having any flare-ups and joint stability testing was not completed. However, in a December 2018 correspondence the Veteran's representative discussed the Veteran's assertions of past flare-ups, functional loss due to pain, and evidence of crepitus. The Board finds that the examiner must discuss the Veteran's description of the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups. Simply reporting that flare-ups have not been reported is inadequate.

The Board cannot decide the claim without a new VA examination. The Board may not make a medical determination without relying on independent medical evidence. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The Veteran has asserted that he has had flare-ups over the entire period on appeal and the most recent VA examination states that none took place. As a result, the claim must be remanded.

The matters are REMANDED for the following action:

1. Schedule the Veteran for a new VA examination to determine the severity of his bilateral knee disabilities. The entire claims file and a copy of this remand must be made available to the examiner for review.

The examiner is asked to:

a.	Opine on the severity of the Veteran's bilateral knee disabilities, to include obtaining information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veteran himself. Do not simply ask the Veteran if flare-ups have taken place.

The Board highlights the following, which is not intended to replace or substitute your thorough and complete review of the relevant evidentiary record:

"	The June 2024 statement from the Veteran, which stated in part that his three orthoscopic knee surgeries have "resulted in... constant pain with 'flare-ups' of excruciating pain and the inability of both knees to provide consistent support for my body."

"	The December 11, 2018, correspondence from the Veteran's representative discussing past flare ups, functional loss due to pain, and the nature of the Veteran's disabilities.

The examiner is reminded to consider the Veteran's lay statements regarding the nature and severity of his disability, as he is legally permitted to report his symptoms, past medical history, and experiences.

The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertions.

If the examiner relies on medical treatises, the examiner should identify and discuss the treatises.

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?

If the examiner determines that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). The examiner should identify what evidence is necessary to offer an opinion and why such evidence cannot be obtained.

M. Tenner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. A. Johnston, Associate 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.