judge_norm: MICHAEL LANE

condition: kidney

condition: hip

text:
��Citation Nr: 21012000

Decision Date: 03/03/21	Archive Date: 03/03/21

DOCKET NO. 17-09 334

DATE: March 3, 2021

ORDER

Entitlement to service connection for residuals from adrenal gland tumor removal to include as due to environmental agent exposure from Project Shipboard Hazard and Defense (SHAD) is denied.

Entitlement to service connection for a left-hand disability to include as due to environmental agent exposure from Project SHAD is denied.

Entitlement to service connection for residuals from a right-hand disability to include as due to environmental agent exposure from Project SHAD is denied.

Entitlement to service connection for sleep apnea to include as due to environmental agent exposure from Project SHAD is denied.

REMANDED

Entitlement to service connection for right knee disability to include as due to environmental agent exposure from Project SHAD and/or due to a left knee disability, is remanded.

Entitlement to service connection for a left hip disability to include as due to environmental agent exposure from Project SHAD is remanded.

FINDINGS OF FACT

1. The preponderance of the evidence is against a finding that the Veteran s residuals from adrenal gland tumor removal is related to active duty service to include as due to environmental agent exposure from Project SHAD.

2. The preponderance of the evidence is against a finding that the Veteran s right-hand disability is related to active duty service to include as due to environmental agent exposure from Project SHAD.

3. The preponderance of the evidence is against a finding that the Veteran s left-hand disability is related to active duty service to include as due to environmental agent exposure from Project SHAD.

4. The preponderance of the evidence is against a finding that the Veteran s sleep apnea is related to active duty service to include as due to environmental agent exposure from Project SHAD.

CONCLUSIONS OF LAW

1. The criteria for service connection for residuals of adrenal gland removal to include as due to environmental agent exposure from Project SHAD, have not been met. 38 U.S.C. �� 1110, 1112, 1116, 1137; 38 C.F.R. � 3.303.

2. The criteria for service connection for a right-hand disability to include as due to environmental agent exposure from Project SHAD, have not been met. 38 U.S.C. �� 1110, 1112, 1116, 1137; 38 C.F.R. � 3.303.

3. The criteria for service connection for a left-hand disability to include as due to environmental agent exposure from Project SHAD, have not been met. 38 U.S.C. �� 1110, 1112, 1116, 1137; 38 C.F.R. � 3.303.

4. The criteria for service connection for sleep apnea to include as due to environmental agent exposure from Project SHAD, have not been met. 38 U.S.C. �� 1110, 1112, 1116, 1137; 38 C.F.R. � 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in active duty service with the Navy from May 1961 t to April 1965.

This matter is on appeal from a May 2016 rating decision. The Veteran was afforded an October 2018 hearing before the undersigned Judge. A transcript of the hearing has been associated with the claims record.

The Board remanded this appeal in March 2019 for additional development.

The Board notes that in the March 2019 Board decision, the Board remanded issues for further development to include entitlement to service connection for chronic obstructive pulmonary disease (COPD); skin cancer; left and right-hip disability; prostate cancer; right shoulder disability; left knee disability; right knee disability; hypertension; renal cancer; left and right-hand disabilities; sleep apnea; and residuals from adrenal gland tumor removal as all include as due to environmental agent exposure from Project SHAD.

During the pendency of the appeal, a March 2020 rating decision granted service connection for chronic renal disease of the left kidney and residuals of right kidney removal; residuals of skin cancer; right shoulder disability; right hip disability; prostate cancer; and COPD. In an October 2020 rating decision, service connection was granted for the left knee and for hypertension.

As such, the issues remaining on appeal with the Board are entitlement to service connection for a right knee disability to include as due to environmental agent exposure from Project SHAD and/or due to a left knee disability; a left hip disability to include as due to environmental agent exposure from Project SHAD; a right-hand disability to include as due to environmental agent exposure from Project SHAD; a left-hand disability to include as due to environmental agent exposure from Project SHAD; sleep apnea to include as due to environmental agent exposure from Project SHAD; and residuals from adrenal gland tumor removal to include as due to environmental agent exposure from Project SHAD.

This appeal has been advanced on the Board s docket pursuant to 38 C.F.R. � 20.900(c). 38 U.S.C. � 7107(a)(2).

Service Connection

Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. �� 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. � 3.303 (a), (d).

The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In relevant part, 38 U.S.C. � 1154 (a) requires that the VA give  due consideration  to  all pertinent medical and lay evidence  in evaluating a claim to disability. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. � 5107 (b); see Gilbert v. Derwinski, 1 Vet. App. 49

(1990); 38 C.F.R. � 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996).

As an initial matter, the Board notes the Veteran s assertions of participation in Project SHAD and therefore exposed to environmental agents from testing.

In this regard, the record contains a Department of Defense (DOD) fact sheet, which indicates that Project SHAD was part of the joint service chemical and biological warfare test program conducted during the 1960s.

Project SHAD was a series of tests conducted by the Department of Defense (DoD) from 1962 to 1973 to determine the potential risks to U.S. warships and American forces from chemical and biological warfare agents. https://www.publichealth.va.gov/exposures/shad/index.asp

There is no specific statute or regulation pertaining to the development of claims alleging participation in Project SHAD. The Veterans Health Care, Capital Asset, and Business Improvement Act of 2003, Public Law 108-170, provides participating Veterans with a thorough clinical evaluation and enhanced access to enrollment in the VA Health Care System, to include VA health care at no cost for any illness possibly related to their participation in that project. Veterans Health Administration (VHA) Directive 2004-016 (April 15, 2004) states that DoD has provided VA with declassified information concerning the test name, date, location, ship involved, names and service numbers of participating veterans, and identification of the exposure types. Information concerning the ships involved is published at http://www.va.gov/shad/. DoD estimates 6,000 veterans were involved and has provided VA with the names of approximately 5,000 veterans who participated in the tests. The Veterans Benefits Administration (VBA) has contacted those individuals.

Review of the record shows a July 2002 verification of the Veteran s participation in Project SHAD as abord the USS Granville for testing from January to April 1965. Accordingly, the Board finds that the evidence of record shows that the Veteran was exposed to environmental agents from Project SHAD during active service.

The Board also notes that the Veteran has made statements and testimony that he was exposed to radiation during his time in active duty service. Such assertions include a June 2008 testimony to the US House of Representatives Armed Services Committee and Subcommittee on Military Personnel, the Veteran testified that the ship he was assigned to was docked at a pier where a nuclear warhead was dumped; in an April 2011 statement the Veteran noted exposure to Project SHAD  in addition of radioactive plutonium close below our pier ; a May 2016 notice of disagreement (NOD) statement where the Veteran states they  forgot  that the   slip space [at Johnston Island] was just above the pump area of 2 warheads ; a September 2016 statement where the Veteran stated that the pier his ship was docked at was built over the top of an area where  two warheads had been splashed during testing from Johnston Island &  they  forgot  to let us know that was there ; and an October 2018 testimony where the Veteran testified that his ship was tied up  right above where they had dumped two warheads or RCMs and they were not done properly  but stated that there were no dosimeters.

With respect to the theory of in-service radiation exposure, the Board must focus, as an initial matter, on whether the evidence suggests that the Veteran had actual in service exposure to ionizing radiation. 38 U.S.C. � 1112 (c); 38 C.F.R. �� 3.309 (d), 3.311(b); Ramey v. Brown, 9 Vet. App. 40 (1996).

The Board finds that the VA regulations governing ionizing radiation exposure are not applicable in this case. 38 C.F.R. �� 3.309 (d), 3.311(b). The evidence of record regarding Project SHAD does not demonstrate that the Veteran was exposed to radiation of any kind during that testing. The Veteran s service and post-service medical records are negative for complaints or clinical findings of ionizing radiation exposure, nor do those records contain any evidence of diseases presumptively linked to ionizing radiation exposure. 38 C.F.R. � 3.309 (d). Moreover, the Veteran does not allege that he participated in any radiation-risk activities, as set forth in VA s governing regulatory provisions. 38 C.F.R. � 3.309 (d)(3)(iv). Furthermore, there is no evidence that he had onsite participation in any testing involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at certain sites specified by regulation. 38 C.F.R. � 3.309 (d)(3).

Additionally, the Board considers it significant that the Veteran has neither alleged nor been shown to have contracted one of the legally classified radiogenic diseases within five years or more of his active service. 38 C.F.R. � 3.311 (b)(2). He also has neither cited nor submitted competent evidence that supports an alternate finding of a radiogenic disease attributable to ionizing radiation exposure. 38 C.F.R. � 3.311 (b)(4).

Therefore, the Board finds that he does not qualify as an ionizing radiation-exposed Veteran under VA s regulatory provision. It follows that the Board need not further consider the specific guidelines governing ionizing radiation claims, which require VA to obtain a dose estimate from the Defense Threat Reduction Agency and to refer the Veteran s case to the Under Secretary for Benefits for an opinion as to whether his claimed disease resulted from in-service ionizing radiation exposure. 38 C.F.R. � 3.311. As it appears that the Veteran s service connection claims are predicated on his exposure to environmental agents from Project SHAD and not from alleged non-ionizing radiation exposure, the Board s inquiry with respect to such exposure is limited to a theory of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

Residuals from adrenal gland tumor removal

The Veteran asserts that his residuals from an adrenal gland tumor removal are related to his active duty service to include exposure to environmental agents from Project SHAD.

Review of the medical treatment shows in August 1985 the Veteran underwent a surgical procedure to remove a adrenal adenoma mass on the Veteran s right adrenal gland. In an October 2019 VA examination the examiner diagnosed the Veteran with an adrenal tumor. Accordingly, the Board finds the Veteran with a current disability.

As addressed above, the Board finds the Veteran was part of Project SHAD testing and therefore exposed to environmental agents. Review of the Veteran s service treatment records (STRs) do not show any complaints, treatments or diagnoses relating to the Veteran s adrenal glands.

In August 1985 the Veteran was seen with a history of difficulty controlling his hypertension. The treating provider noted that the Veteran was previously seen in 1978 with a finding that he was hypertensive, but  could not afford treatment &  until [the Veteran] found a job and insurance later that year.

The provider noted the Veteran was referred here for further workup of a  presumed aldosterone secreting mass.  Upon diagnostic testing, a right adrenal adenoma was diagnosed, and the Veteran underwent a procedure to remove the tumor. No complications were reported during the surgical procedure.

In April 1999 the Veteran stated he had an adrenal gland tumor removed in 1982. In September 1999 diagnostic testing found no recurrence of the adrenal gland tumor.

In March 2002 the Veteran stated that he was part of Project SHAD and exposed to chemical and biological warfare but was unsure what he was exposed to, listing agents such as  BCG, tularemia, and anthrax.

In the July 2002 claim for compensation the Veteran noted that his claimed issues were not treated in service and asserted they were the result of Project SHAD under project Shady Grove. The Veteran provided a fact sheet from the Office of the Special Assistant to the Under Secretary of Defense (Personnel and Readiness) on Project SHAD. The Fact sheet noted that crews who participated in Project SHAD were  not test subjects but test conductors& under actual test conditions, test conductors should have worn appropriate nuclear, biological and chemical (NBC) protect equipment and should have taken extensive safety precautions to prevent any adverse health effects from the testing.

The Veteran also included a list of agents used in the Project SHAD testing for project Shady Grove to include Bacillus globigii (BG), Coxiella burnetii (OU), and Pasteurella tularensis (UL).

In a January 2003 VA examination, the Veteran stated his residuals of his removal of an adrenal gland tumor was the result of possible exposure to chemical or biological agents during participation in Project SHAD. The Veteran reported exposure to various biological agents while cleaning area of the ship as well as exposure to various cleaning agents to include high concentrations of chlorine and trichothecene. The Veteran stated that the cleaning mop was stored in a garbage can  embalmed in ethylene bromide  and was  out in the biological storms.

The Veteran reported testing biological weapons, his primary job was with electronic repair, and other duties included ship piloting, assistant navigating, and cleaning.

The Veteran stated suffering from uncontrolled hypertension in the 1980s leading to a diagnosed adrenal gland tumor in 1982 that required surgery to remove. The Veteran further stated that during the surgery a nerve was severed resulting in a loss of feeling in the right flank. The examiner did not render an opinion regarding the etiology of the Veteran s claimed issue.

In an April 2004 SHAD registry examination, the Veteran reported that during his time with the project the air filters became wet and allowed contaminants to come in. The Veteran referenced a deposition from a Dr. Spendlove who testified that that all Project SHAD participants were to have gas masks and full body exposure suits; the Veteran stated that  these items were neither discussed nor available during testing.

 The Veteran stated that he had a hypertensive episode during service where he felt dizzy and stopped at a dispensary after drinking in a club; the Veteran was told that he had elevated blood pressure and advised to quit drinking, there was no followup from this visit. The Board notes that review of the Veteran s STRs do not have records of this reported event.

The treating provider noted the Veteran s family history was significant for cerebral vascular accidents (CVA) and lung cancer. The Veteran was assessed as a Project SHAD participant with adrenal adenoma post-participation but with no recurrence after resection and no opinion on the etiology of his adrenal adenoma in relation to his claimed exposure.

In June 2006 the Veteran submitted an article on Project SHAD. In January 2011 the Veteran submitted several articles on decontamination procedures for boats in Project SHAD, a supplement on the health effects of exposure to biological agents from Project SHAD, a May 2007 article on the long term effects on SHAD, and June 2008 testimony from the Veteran and another fellow service member to the Use House of Representatives Armed Services Committee.

In the Veteran s June 2008 testimony to the House Committee, the Veteran testified that he was  brought as a crew into a classroom setting and [trained] on exposure suits and gas masks.  The Veteran stated that a deposition from Dr. Spendlove testified that  gas masks and bio gear were not need as we were test conductors and were not subjects because we were behind the filters.  The Veteran noted that the filters were leaking and therefore rendered the filters ineffective.

The Veteran submitted statements in April 2011 that he participated in a biological weapons research test program for 2 years and was exposed to chemical decontaminants.

The Veteran was afforded a March 2012 VA examination. The examiner noted the Veteran s participation in Project SHAD and received treatment in 1985 to remove an adrenal adenoma.

The examiner found it was less likely than not that the Veteran s claimed condition was incurred in or caused by the claimed in-service event, illness or injury. The examiner noted that Project SHAD involved biological experiments carried out with airborne material with ships taking readings and measurements.

The examiner noted that agents used included  Coxiella burnetii, Francisella tularensis, and Staphylococcal Enterotoxin B& organophosphorus chemical warfare nerve agents including Sarin, VX, Tabun, and Soman.  The examiner found that stimulants were mostly used in testing to include methylacetoacetate or sulfur dioxide. The examiner also noted that sterilizing agents used include B-propiolactone, ethyl alcohol, Lysol, peracetic acid, potassium and sodium hydroxide, and bleach.

The examiner stated the Veteran had an adrenal adenoma removed in 1985 that was an  aldosterone-secreting type.  The examiner found that it was  unknown as to what causes adrenal tumors  and stated while systemic exposure to carcinogens had a  potential to cause cancers in organs and affect duplicate organs simultaneously,  the pocket guide on Project 112 and Project SHAD says that  no diagnosis stands out among Project 112/SHAD Veterans.   The examiner found review of medical literature was silent and concluded the Veteran s adrenal adenoma was not a result of his exposure to Project SHAD.

In May 2015 the Veteran was noted to be upset over copays and wanted the treating provider to  retroactively forgive copays for most of his problems which [the Veteran] believes are a result of Project SHAD.  In a separate May 2015 VA provider letter, the treating physician noted that  until there is a directive naming various medical conditions attributable to Project SHAD, I cannot declare them service-connected treatment.

In a September 2015 notice of disagreement (NOD) the Veteran stated that VA did not obtain all the records for Project SHAD and believed the records would show that his exposure to carcinogens let to the development of his health conditions.

In a February 2016 provider phone call, the Veteran wished to discuss Project SHAD and that he  should not pay co-pays ; the answering provider noted that the latest study in January 2016 found no noted adverse effects from Project SHAD.

In March 2016 the Veteran submitted a Project SHAD fact sheet that showed the types of agents used to include Bacillus globuli, fluorescent particles, Coxiella burnetii (OU), and Pasteurella tularensis (UL) and their associated health effects.

In an April 2016 VA medical opinion, the VA examiner reviewed the SHAD fact sheet and online medical literature. The examiner noted that  Bacillus globigii, now called B. subtilis, is non-pathogenic in humans& does not cause any known disease.  The examiner next found cadium in low level acute exposure was not known to cause disease and at higher dose exposures were associated with kidney toxicity and lung cancer; the examiner also noted that  chronic ingestion in animals led to increases in systolic blood pressure.

The examiner found Pasteurella tularensis causes tularemia which manifests with high fever, lesions and lymphadenopathy; more severe infections resulted in pneumonia, meningitis and peritonitis. However, the examiner noted while acute disease may be fatal, there were no known long-term sequalae. The examiner then noted that Xociella burnetti caused Q fever which was noted to be an  acute disease and most people recover  with symptoms of fever, headache, myalgias, and arthralgia, and cough. The examiner stated that complications were rare but severe, and chronic disease was most often seen in pregnant women, immunocompromised people and epeople with pre-existing aortic heart valve defects with the most common outcome in endocarditis and less common conditions in infections of the bone, liver or reproductive organs.

The examiner found it was less likely than not that the Veteran s claimed conditions were due to or caused by his claimed inservice injury, event or illness. The examiner opined that review of the SHAD fact sheet and online medical literature regarding exposure was relative to the Veteran s claimed conditions.

In a May 2016 NOD, the Veteran stated that records relating to biological exposure and medical records during Project SHAD remained classified. In a September 2016 statement the Veteran stated that the medical records were held separate from  normal  records and the first notice of the existence of biological and chemical warfare testing was in 2001 shortly after the 9/11 attacks.

In November 2018 the Veteran submitted the deposition made by Dr. Spendlove and review of literature on Project SHAD.

The Veteran was afforded an October 2019 VA examination. The Veteran stated that in 1984 or 1985 he had a  benign adrenal tumor on my right adrenal gland  that caused  massive high blood pressure  and was removed. The Veteran stated that the only symptom he had now was pain in the area where the surgery was. The Veteran did not mention or discuss Project SHAD.

The examiner found it was less likely than not that the Veteran s claimed condition was related to his inservice event, illness and injury. The examiner discussed several chemicals to include beta-Propiolactone and cadmium and its associated health effects. The examiner noted that the Veteran stated that in 1978 his high blood pressure was high and was diagnosed with a benign adrenal tumor in 1984 or 1985 that was removed. The examiner found that review of medical literature did not show the Veteran s exposure in Project SHAD caused adrenal tumors and therefore concluded that the Veteran s claimed condition was less likely that not incurred in or caused by his exposure to bacillus globigii, cadmium, Pasteurella tularensis, Coxiella burnetii, beta-propriolactone, formalin and calcium hypocholorite during Project SHAD.

The Board finds the April 2016 and October 2019 medical opinions highly probative of a negative nexus between the Veteran s current condition and service because they not only contain clear conclusions with supporting data, but also reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).

Moreover, neither the Veteran nor his representative has produced a medical opinion to contradict the conclusions of the April 2016 and October 2019 VA examiners. The Board notes the Veteran has been afforded many opportunities to present competent medical evidence in support of his claim. He has not done so. See 38 U.S.C. � 5107 (a) (it is the claimant s responsibility to support a claim for VA benefits). As such, there is no competent medical evidence to establish a nexus between the current residuals of adrenal gland tumor removal and any documented event or incident of service.

The Board acknowledges the Veteran s assertions that his residuals of adrenal gland tumor removal was related to his military service to include exposure to environmental agents from Project SHAD. Certainly, he is competent to describe experiencing symptoms in service and recurring thereafter. Indeed, treatment records corroborate at least to some extent the Veteran s history of symptoms.

Nevertheless, a lay person, the Veteran does not have the training or expertise to render a competent opinion which is more probative than the VA examiner s opinion on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). As such, the Board attaches greater probative weight to the VA examination opinions than to the Veteran s lay statements.

Furthermore, the Board notes that review of the claims record show inconsistencies in the Veteran s reported history and symptoms of his residuals of adrenal gland tumor removal. Such inconsistencies include the Veteran s April 2004 report that protective items such as gas masks and full body suits were never discussed or available during his time with Project SHAD conflicting with his June 2008 testimony to the House committee where he testified that he and his crew were brought into a classroom and educated on the use of exposure suits and gas masks; and the Veteran s April 2004 statement that the deposition of Dr. Spendlove stated that gas masks and exposure suits were required for test conductors like the Veteran conflicting with his June 2008 testimony to the House committee stating that Dr. Spendlove testified in his deposition that gas masks and exposures suits were not required for test conductors.

Given the inconsistencies of the statements made by the Veteran compared to the findings in the claims record, the Board affords the Veteran s statements less probative weight and outweighed by VA examinations of record performed by professionals.

Based on the above, the Board finds that the competent evidence on record is against a finding of service connection for the Veteran s residuals of adrenal gland tumor removal to include as due to exposure to environmental agents from Project SHAD.

The Veteran s STRs do not contain any complaints, treatments or diagnoses relating to an adrenal gland tumor or issue. The earliest medical treatment record relating to the Veteran s adrenal gland is in 1978 with complaints of hypertension that were found to be caused by an adrenal adenoma in 1985 requiring surgery to remove, many years after the Veteran s separation from service. Although the Veteran is found to be exposed to environmental agents from Project SHAD, the April 2016 and October 2019 VA examiners provided reasoned analysis of the case to support their opinion that the Veteran s current residuals of adrenal gland removal was not related to the Veteran s service to include exposure to environmental agents from Project SHAD.

The Board thus finds that the weight of the competent and probative evidence is against a finding of service connection for the Veteran s residuals of adrenal gland tumor removal. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. � 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

Left and right-hand disability and obstructive sleep apnea (OSA)

The Veteran asserts his left and right-hand disability and obstructive sleep apnea (OSA) are related to his active duty service to include exposure to environmental agents from Project SHAD.

Review of the medical treatment record shows complaints and treatments relating to left- and right-hand disabilities and OSA. In an October 2019 VA examination, the examiner diagnosed the Veteran with degenerative arthritis in both hands. A November 2009 and December 2009 sleep study diagnosed sleep apnea and an October 2019 VA examiner diagnosed the Veteran with OSA. As such, the Board finds the Veteran with a current disability.

As noted above, the Board finds the Veteran participated in Project SHAD and was exposed to environmental agents. Review of the Veteran s service treatment records (STRs) do not show any complaints, treatments or diagnoses relating to a left or right-hand disability or OSA. In the August 1965 separation examination, the Veteran did not report any musculoskeletal issues or sleeping issues and no such related diagnoses were made.

Review of the medical treatment record shows in May 2003 the Veteran complained of bilateral pain in his hands in the past 2 to 3 months. The treating provider stated that an April 2003 x-ray showed degenerative changes.

In June 2004 the Veteran reported pain in his right thumb for several years and noted suffering a fall 5 years ago onto his right hand. The treating provider found that an x-ray showed degenerative changes in the right thumb. The Veteran from February 2005 through October 2007 complained of pain in his thumbs and received treatment for arthritis in his thumbs.

In February 2006 the Veteran reported having sleep apnea but the treating provider noted the Veteran had not been afforded a formal sleep study to confirm this diagnosis.

In February 2008 the Veteran complained of osteoarthritis in his thumbs and trouble with his knees; the provider noted the Veteran  claims that this all started with a playground accident as a young child.

In September 2009 the treating provider noted that during recovery from knee surgery the staff reported concerns of sleep apnea based on observation of the Veteran. November and December 2009 sleep studies diagnosed OSA.

In February 2010 the Veteran was noted to undergo a surgical procedure for both the left and right thumbs. In July 2010 the Veteran reported stiffness and pain in his left finger for the past 2 to 3 months and an x-ray found degenerative changes in multiple fingers.

In June 2015 the Veteran filed a claim for arthritis and in July 2015 clarified his claimed issues to involve his hands, hips and knees.

Following a September 2015 rating decision that denied his claimed issues, the Veteran s notice of disagreement (NOD) stated the Veteran s belief that VA did not obtain all records related to Project SHAD and that those records would show exposure to  carcinogens that led to the development of health conditions to include arthritis of the hands, hips and knees, OSA&

The Veteran was afforded an October 2019 VA examination. In the examination for the Veteran s hands, the examiner diagnosed the Veteran with bilateral degenerative arthritis. The Veteran reported having surgery in 2012 mainly to treat pain in his thumbs. The Veteran stated his right thumb started bothering him in 2016.

In the examination for sleep apnea, the Veteran reported that in 2009 he began having trouble sleeping and woke up with shortness of breath and tired. The Veteran stated that a sleep study diagnosed with him with OSA and he had been receiving treatment since.

The examiner found it was less likely than not that the Veteran s left- and right-hand disabilities were incurred in on the result of the Veteran s active duty service to include environmental agent exposure from Project SHAD. The examiner discussed several chemicals and their health impacts from Project SHAD.

In particular, the examiner noted there was evidence regarding chronic cadmium exposure. The examiner noted upon review of medical literature shows that cadmium toxicity is associated with bone disease characterized by multiple fractures, a mixed pattern of osteoporosis, osteomalacia, and kidney damage. Other clinical manifestations include multiple fractures, vertebral compression, and shortening of stature.

The examiner noted the Veteran s complaints centered around pain in the base of his thumb to include findings of degenerative arthritis in both thumbs. The examiner stated while the Veteran was involved in Project SHAD and evidence of cadmium exposure causing toxicity of the kidney and bones, review of medical literature showed no direct evidence of such exposure causing degenerative arthritis. The examiner concluded that the Veteran s claimed condition was less likely than not incurred in or caused by his exposure to bacillus globigii, cadmium, Pasteurella tularensis, Coxiella burnetii, beta-propriolactone, formalin and calcium hypocholorite during Project SHAD.

Regarding the Veteran s OSA, the examiner found it was less likely than not that the Veteran s OSA was incurred in or related to an inservice event, injury or illness. The examiner noted that the Veteran was involved in Project SHAD, however review of medical literature does not show any evidence that such exposure can cause OSA. The examiner concluded that the Veteran s claimed condition was less likely than not incurred in or caused by his exposure to bacillus globigii, cadmium, Pasteurella tularensis, Coxiella burnetii, beta-propriolactone, formalin and calcium hypocholorite during Project SHAD.

The Board finds the October 2019 medical opinion probative of a negative nexus between the Veteran s current condition and service because they not only contain clear conclusions with supporting data, but also reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).

Moreover, neither the Veteran nor his representative has produced a medical opinion to contradict the conclusions of the October 2019 VA examiners. The Board notes the Veteran has been afforded many opportunities to present competent medical evidence in support of his claim. He has not done so. See 38 U.S.C. � 5107 (a) (it is the claimant s responsibility to support a claim for VA benefits). As such, there is no competent medical evidence to establish a nexus between the current left and right-hand disability, OSA, and any documented event or incident of service.

The Board acknowledges the Veteran s assertions that his left and right-hand disability and OSA was related to his military service to include exposure to environmental agents from Project SHAD. Certainly, he is competent to describe experiencing symptoms in service and recurring thereafter. Indeed, treatment records corroborate at least to some extent the Veteran s history of symptoms.

Nevertheless, a lay person, the Veteran does not have the training or expertise to render a competent opinion which is more probative than the VA examiner s opinion on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). As such, the Board attaches greater probative weight to the VA examination opinions than to the Veteran s lay statements.

Based on the above, the Board finds that the competent evidence on record is against a finding of service connection for the Veteran s left- and right-hand disabilities and OSA to include as due to exposure to environmental agents from Project SHAD.

The Veteran s STRs do not contain any complaints, treatments or diagnoses relating to a left- or right-hand disability or OSA. The earliest medical treatment record relating to the Veteran s claimed conditions was in 2003 for his hands and 2006 for OSA, many years after the Veteran s separation from service. The Veteran has submitted testimony and articles regarding Project SHAD and health effects but has not submitted statements or opinions on what chemicals or exposure resulted in his claimed disabilities. Although the Veteran is found to be exposed to environmental agents from Project SHAD, the October 2019 VA examiners provided reasoned analysis of the case to support their opinion that the Veteran s current residuals of adrenal gland removal was not related to the Veteran s service to include exposure to environmental agents from Project SHAD.

The Board thus finds that the weight of the competent and probative evidence is against a finding of service connection for the Veteran s left- and right-hand disability and OSA. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. � 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

REASONS FOR REMAND

The Board finds remand is warranted for additional development.

Right knee disability

The Veteran was afforded an October 2019 VA examination where he reported left knee pain in 1961 to 1962 after marching on curved road with pain  worsening over the years and then happening in the right knee.  The examiner noted the Veteran no longer has degenerative arthritis as both knees have been replaced and found it less likely than not that the Veteran s claimed knee disabilities were incurred in or due to exposure to environmental agents during Project SHAD. No opinion was made regarding the theory of secondary service connection.

In an August 2019 VA examination the examiner noted the Veteran asserted that his right knee went bad because of the left knee injury but  could not support a service-related condition in respect to [the Veteran s] knees.  The opinion did not discuss aggravation or identify a baseline.

The Board notes that an October 2020 rating decision granted service connection for a left knee disability. As the October 2019 VA examination did not address secondary service connection, the August 2019 VA opinion did not address aggravation or a baseline, and the October 2020 rating decision granted service connection for a left knee disability, the Board finds the opinions inadequate and remand warranted to obtain an addendum opinion.

Left hip disability

The Veteran was afforded an October 2019 VA examination. The examiner diagnosed the Veteran with osteopenia in both hips but found it less likely than not that the Veteran s left hip disability was related to his active duty service to include exposure to environmental agents from Project SHAD as examination findings to include x-ray testing did not find arthritis in the hip.

Review of the medical treatment record shows in May 2020 diagnostic testing found mild degenerative changes in the left hip. In a June 2020 addendum opinion, the examiner noted that it was  very reasonable & over a 6 month period the Veteran could have developed mild degenerative changes  or otherwise missed on the October 2019 examination; as such, the examiner opined the Veteran had developed arthritis in the left hip in May 2020.

However, the examiner did not provide an etiology opinion regarding the new diagnosis of degenerative arthritis in the left hip and whether it was related to the Veteran s active duty service to include exposure to environmental agents from Project SHAD and the new diagnosis for October 2019 opinion is factually incorrect as the Veteran now has arthritis in the left hip.

As such, the Board finds the opinions inadequate and remand warranted for addendum opinion.

The matters are REMANDED for the following action:

1. Obtain and associate with the claims file all updated and outstanding treatment records.

2. After all outstanding records have been associated with the claims file, obtain an addendum medical opinion. The record and a copy of this remand must be made available to the examiner.

If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. The VA examiner should opine as to the following:

(a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran s right knee disability is due to his service-connected left knee disability.

(b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran s right knee disability is aggravated by his service-connected left knee disability.

 Aggravation  is defined as any worsening beyond the natural progression of the disability. The examiner should establish a baseline level of disability prior to aggravation. If a baseline cannot be established, the examiner should explain why.

(c.) If the Veteran s right knee disability is NOT aggravated by his service-connected left knee disability, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran s right knee disability had its onset during, or is otherwise related to, the Veteran s active duty service to include exposure to environmental agent exposure from Project SHAD.

(d.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran s left hip disability had its onset during, or is otherwise related to, the Veteran s active duty service to include exposure to environmental agent exposure from Project SHAD.

3. In addressing any of the above opinions, the VA examiner should discuss the Veteran s assertions and statements to include statements made in the April 2018 Notice of Disagreement and the January 2021 testimony.

(a.) The examiner is to presume the Veteran has been exposed to environmental agents as part of Project SHAD.

(b.) The examiner is also advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran s reports, the examiner must provide a reason for doing so.

If the examiner rejects the Veteran s reports, the examiner must provide a reason for doing so.

(c.) The examiner should provide a complete and clearly stated rationale for any opinion provided.

(d.) If the VA examiner is unable to provide an opinion without resorting to speculation, he or she should explain whether the inability is due to the limits of the examiner s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided.

4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations.

If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond.

Thereafter, the case should be returned to the Board for appellate review.

MICHAEL LANE

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	J. Yang, Attorney-Advisor

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: A ISHIZAWAR

judge_role: Veterans Law Judge

disposition: denied

text: Service connection for the cause of the Veteran’s death is denied.

text:
��Citation Nr: 21013000

Decision Date: 03/08/21	Archive Date: 03/08/21

DOCKET NO. 16-36 434

DATE: March 8, 2021

ORDER

Service connection for the cause of the Veteran s death is denied.

FINDING OF FACT

1.The Veteran died in November 1978, due to probable cardiac asystole, due to increasing coronary insufficiency, due to coronary arteriosclerosis, with chronic obstructive lung disease listed as a condition contributing to the cause of death.

2.At the time of the Veteran's death, service connection had not been established for any disabilities.

3.The Veteran's fatal probable cardiac asystole, coronary insufficiency, coronary arteriosclerosis, and chronic obstructive lung disease did not manifest during service or within his first post-service year, and is not etiologically related to service, including the malaria he contracted in, and was treated for, in service.

CONCLUSION OF LAW

The criteria for service connection for the cause of the Veteran's death have not been met.  38 U.S.C. �� 1310, 5107(b); 38 C.F.R. �� 3.102, 3.312.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from November 1941 to August 1945.  He died in November 1978.  The appellant is his surviving spouse.

In July 2017, the appellant testified at a videoconference hearing at the Regional Office (RO) before the undersigned Veterans Law Judge.

In November 2017, the Board issued a decision that denied the claim for service connection for the cause of the Veteran s death.  The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court).  By August 2018 Order, the Court granted the parties Joint Motion for Partial Remand (JMPR), vacating the November 2017 Board decision in part and remanding the case to the Board for action consistent with the JMPR.  Thereafter, in June 2019, the Board issued a decision denying the claim.  The appellant appealed that decision to the Court.  By March 2020 Order, the Court granted the parties Joint Motion for Remand (JMR), thereby vacating the June 2019 Board decision, and remanding the case to the Board for action consistent with the JMR.  In December 2020, the Board remanded this matter for further development.

1. Entitlement to service connection for the cause of the Veteran's death

The appellant seeks service connection for the cause of the Veteran's death, based on a theory that his in-service malaria caused or substantially contributed to his death.  In a claim dated in October 2013, the appellant reported that the Veteran was diagnosed with malaria in service, and that the Veteran s family told her that they almost lost him during service due to malaria attacks.  She also indicated that after separation from service, the Veteran  continued to have attack (sic) which included fevers and night sweats which would soak [their] linens .

To prevail on the issue of entitlement to service connection for the cause of the Veteran's death, the evidence must show that a disability incurred or aggravated by service caused or contributed substantially or materially to cause the Veteran's death.  38 U.S.C. � 1310; 38 C.F.R. � 3.312.  The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto.  38 C.F.R. � 3.312(b).  A contributory cause of death is inherently one not related to the principal cause.  In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death.  It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection.  38 C.F.R. � 3.312(c).

Service treatment records (STRs) show the Veteran was treated for malaria in service.  In April 1943, his diagnosis was malarial fever, tertian, recurrent.  In October 1943, the diagnosis was malarial fever, tertian, recurrent, plasmodium vivax demonstrated, and an ECG at that time was assessed as normal.

A death certificate lists the Veteran s cause of death as probable cardiac asystole, due to increasing coronary insufficiency, due to coronary arteriosclerosis, with chronic obstructive lung disease as a condition contributing to the cause of death.

In a VA medical opinion obtained in May 2016, the VA examiner opined that it was less likely than not that the Veteran s in-service malaria caused or substantially and/or materially contributed to his death.  The examiner noted that medical records from Dr. O., the Hines and West Los Angeles VA Medical Centers (VAMCs), and the Providence Tarzana Regional Medical Center were not available for review, but that it was nonetheless less likely than not that the P. vivax malaria contracted by the Veteran in 1943 substantially or materially contributed to his death in 1978, from coronary disease complicated by chronic obstructive pulmonary disease (COPD), some 35 or more years after the initial infection.  The examiner acknowledged that malarial infections could cause death, but explained, according to Harrison s Textbook of Internal Medicine, that almost all deaths from malaria were caused by P. falciparum, and not P. vivax as in this Veteran s case, and that almost all deaths occurred in or around the acute infectious phase, and not 35 or more years later.  The examiner opined there was no evidence to support a chronic cardiac condition such as was seen in this Veteran as having been caused by a P. vivax malaria infection 35 or more years earlier.  The examiner also acknowledged that pulmonary complications such as adult respiratory distress syndrome (ARDS) could occur as result of malaria, but stated they were more likely in adults with severe falciparum malaria, not P. vivax as in this Veteran s case, and not 35 or more years later.  The examiner also recognized that episodes of relapse could occur in malaria, but indicated these relapses typically occurred within months.  The examiner observed that a relapse referred to reactivation of liver hypnozoites weeks to months after the initial treatment and thus represented failure of hypnozoiticidal treatment (if administered), while reinfection referred to new infection transmitted via mosquito exposure.  The examiner opined that if a recrudescence and/or relapse had occurred, it would be less likely than not that this would impact the Veteran s clinical status 35 or more years later.  The examiner further stated that if the Veteran were to have been re-infected with malaria around or near the time of his death in 1978, this would be unassociated to the non-falciparum malarial infection he acquired in 1943.

At the July 2017 Board hearing, when asked by her representative whether the Veteran continued to have  severe complications regarding his malaria disease that he suffered in service , the appellant responded  yes .  Further, when asked by her representative to explain some of the complications the Veteran suffered from, the appellant responded  night sweats, constant pain, where he would get up in the middle of the night  and that the Veteran  would cry from it .  She further stated,  it was that way every night .  The appellant also testified that the Veteran started seeing a private cardiologist a couple of years before he died, and when asked if the  cardiologist ever share[d] with him or you that the malaria he suffered from in service complicated his current diagnosis , she responded that the cardiologist  did say that it could be a result of it .  Finally, she testified that the Veteran never went to VA for treatment and only got private care, and that she had contacted the doctor to try to get the records, but he had passed away and the records were shredded.

The appellant submitted correspondence dated in September 2017 from a private physician, Dr. G.D.G., who opined that  [t]he attached papers establish that there is a link between malaria and cardiovascular and/or coronary artery/cardiac disease .  Dr. G.D.G. noted that on review of service medical records there was no evidence that the decedent had malaria while in service, and that the  evidence  appeared solely to be the comments of the VA physician presumably based on the decedent s verbal history, with no medical record of treatment or presence of condition.

The appellant also submitted an excerpt from the Journal of Infectious Diseases, titled  Lung Injury in Uncomplicated and Severe Falciparum Malaria: A Longitudinal Study in Papua, Indonesia .

In a July 2020 statement in support of claim (VA From 21-4138), the appellant s representative cited to the Center for Disease Control and Prevention (CDC) website regarding malaria, arguing that this evidence demonstrated the appellant s account of the Veteran s malaria symptoms years after service was supported by factual information.  The representative also provided excerpts from articles from the National Center for Biotechnology Information (NCBI), including "Evidence and Implications of Mortality Associated with Acute Plasmodium vivax Malaria" and "Are respiratory complications of Plasmodium vivax malaria an underestimated problem?".  The Board notes that neither of these sources address the situation where mortality or respiratory complications occurs over 30 years after treatment for malaria.

Finally, the representative submitted an excerpt from Science Daily titled  NIAID Doctor Successfully Treats Longest Case of Malaria Infection On Record , which discusses a mild case of malaria that smoldered in a 74 year old woman for decades before being correctly diagnosed and successfully treated.  The representative noted on this document that the Veteran  had 10 known recurrences or flare-ups on active duty  and stated that this was  proof that a malaria case can last 35+ years untreated .  The representative claimed that in light of this evidence, the May 2016 VA examiner  ignored relevant and available clinical research  and therefore the VA examiner s opinion  should not carry any more or less weight than the evidence provided by Dr. G.D.G. , and that at best a balance of evidence existed which would be in favor of the appellant.

In a December 2020 opinion a VA examiner opined, based on the body of current medical knowledge and the evidence of record, that it was less likely than not that the Veteran s in-service malaria either caused or contributed substantially or materially to the cause of his death.  For rationale, the examiner noted that the  medical record [was] silent for the Veteran s risk factors for atherosclerosis and COPD , and that a review of the medical literature revealed that P. vivax generally had an uncomplicated course when treated; that relapses were not uncommon but were understood to be limited to a handful of years at most (appellant s submitted case study notwithstanding); that cardiovascular disease and COPD were very common causes of death; and that the risk factors for cardiovascular disease were fairly well understood to include elevated LDL cholesterol, hypertension, smoking, insulin resistance/diabetes, obesity, lack of physical activity, older age, and family history.  The examiner indicated that  [i]n order to opine definitively on whether the Veteran s in-service malaria either caused or contributed substantially or materially to the cause of his death one would have to weigh this risk against the presence of other known risks for cardiovascular disease and COPD .  The examiner further indicated that  [i]n the absence of that data, I am left to opine on the likelihood that relapsing malaria substantially damaged the Veteran s heart and lungs without evidence of substantially damaging other organ systems more typically affected by untreated malaria to include the hematologic system, liver, kidneys and spleen .  The examiner found that if malaria was responsible for the Veteran s reported symptoms of night sweats and constant pain, that  multiple organ systems would surely be involved , and that the  chances of relapsing malaria causing such a pattern of damage [was] not only highly speculative but also highly unlikely .

Where the record contains both positive and negative evidence, it is the responsibility of the Board to weigh the credibility and probative value of the evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one opinion and reject others.  Evans v. West, 12 Vet. App. 22, 30 (1998).  The Board is mindful that it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another.  Id.  The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994).

After reviewing the record, the Board finds that the VA examiner s opinions from May 2016 and December 2020 are the most probative and persuasive opinions of record.  In that regard, these opinions included a review of the claims folder, which included the appellant s contentions, citations to specific relevant items in the claims folder and to pertinent external medical reference tools and literature, and supporting rationale.  The Board acknowledges that the 2020 VA examiner opined as to the likelihood that relapsing malaria substantially damaged the Veteran s heart and lungs, and indicated that in order to render a definitive opinion as to whether in-service malaria caused or contributed to the cause of his death, this risk would have to be weighed against the presence of other known risks for cardiovascular disease and COPD.  In that regard, the Board notes that a VA examiner is expected to give some assessment of probability, as opposed to a definitive statement of the cause of the disabilities.  As long as the examiner is able to state that a link between a disability and an in-service injury or disease is "less likely than not," or "at least as likely as not," he or she can and should give that opinion; there is no need to eliminate all lesser probabilities or ascertain greater probabilities. See Jones v. Shinseki, 23 Vet. App. 388, 391 (2010).  Moreover, this is not a situation where the information cited by the examiner   the Veteran s risk factors for cardiovascular disease and COPD   might be procurable through VA's duty to assist, as the record shows the RO attempted to, but was unable to obtain, any treatment records for the Veteran prior to his death.  Thus, the VA examiner s inability to provide a definitive opinion does not diminish the probative value of the opinion rendered.  The Board therefore concludes that because the 2016 and 2020 VA examiner s opinions are well-reasoned, and based on an objective, independent review of the relevant evidence, they are entitled to more probative weight.

On the other hand, the Board finds that the opinion from Dr. G.D.G. is basically conclusory and without supporting rationale.  While Dr. G.D.G. refers to  attached papers,  the only paper attached to his medical opinion was an excerpt from the Journal of Infectious Diseases, titled  Lung Injury in Uncomplicated and Severe Falciparum Malaria: A Longitudinal Study in Papua, Indonesia.   The Board finds that this excerpt alone does not address this Veteran s specific history, particularly as Dr. G.D.G. notes there was no evidence that the decedent had malaria while in service, and also does not explain how the attached excerpt provides support for the medical opinion.  The Board therefore concludes that the May 2016 and December 2020 VA examiners  opinions outweigh and are more persuasive than Dr. G.D.G. s opinion, and provide the most probative evidence of record with respect to the Veteran s diagnosed cause of death and the etiology of such.

As for the appellant s testimony regarding the Veteran s cardiologist stating that the Veteran s heart condition could be related to malaria, the JMPR observed that although the Board noted this testimony in its prior decision, it did not address whether it was competent or credible, or otherwise consider it in its analysis.  The Board has thus considered this testimony anew and finds that although the appellant is competent to relay what she was told by a cardiologist and the Board finds her credible as there is no reason to question her account of what the cardiologist told her, this nevertheless constitutes indirect evidence concerning what the cardiologist purportedly said and is much more general in nature than the VA medical opinions detailed above.  See Jandreau v. Nicholson, 492 F.3d 1372; see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the  authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence ).  Specifically, unlike the VA examiners  opinions, there is no explanation or rationale provided for the cardiologist s opinion.  Additionally, the Board notes that the cardiologist s opinion, if it was accurately and precisely told by the appellant, is too speculative to support the claim as the clinician apparently used the term  could , which also implies it could not be related.

The Board notes that the appellant indicated in an October 2013 statement that the Veteran s family told her they almost lost him during service due to malaria attacks, and that after service, he  continued to have attack (sic) which included fevers and night sweats which would soak [their] linens .  Additionally, she testified, in response to a question as to whether the Veteran continued to have severe complications regarding malaria after service, that he had  night sweats, constant pain, where he would get up in the middle of the night . . . he was in pain every night . . .  he would cry from it .  Also, when asked if the Veteran ever related to her it was  complications of his --his malaria that he suffered from in service , the appellant responded that he mentioned it was  a result of . . . the malaria that he had .  The Board finds her testimony as to witnessing the Veteran s night sweats and constant pain and speaking to him about these symptoms to be competent and credible.  The appellant s veracity in this regard is not in question.  Rather, what is in question is the appellant s conclusion, even though based on the Veteran s statements, that his night sweats and constant pain were complications and/or attacks of the malaria he was treated for inservice.  Determining the related complications and symptoms of malaria is a complex medical question which is outside the competence of a non-medical expert.  It does not appear the appellant (or the Veteran) have a background in medicine or a related field, such that either could be recognized as having medical expertise upon which to base an opinion.

Based on the May 2016 and December 2020 VA examiners  probative and persuasive opinions, the Board finds that the Veteran s cause of death is not related to malaria, which he contracted in and was treated for in service.  In light of the above, the evidence is not in equipoise; rather, the preponderance of the evidence is against a finding that the Veteran s cause of death was related to malaria.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Since the evidence is not in equipoise and instead is against the claim, the appellant is not afforded the benefit of the doubt.  The Board remains sympathetic to the appellant s loss of her husband but may not go beyond the factual and competent medical evidence presented in this claim to provide a favorable determination.

A. ISHIZAWAR

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	D. Casula

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: E I VELEZ

disposition: granted

condition: ptsd

disposition: remanded

benefit: tdiu

text:
��Citation Nr: 21014000

Decision Date: 03/11/21	Archive Date: 03/11/21

DOCKET NO. 18-11 648

DATE: March 11, 2021

ORDER

The claim of entitlement to an evaluation of 70 percent for posttraumatic stress disorder (PTSD) is granted.

REMANDED

The claim of entitlement to an evaluation in excess of 70 percent for PTSD is remanded.

The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

FINDING OF FACT

The Veteran s PTSD manifested in occupational and social impairment with deficiencies in most areas, due to symptoms such as suicidal and homicidal ideation.

CONCLUSION OF LAW

The criteria for entitlement to an evaluation of 70 percent for PTSD have been met.  38 U.S.C. �� 1155, 5107 (2012); 38 C.F.R. �� 3.102, 4.3, 4.7, 4.130, Diagnostic Code (Code) 9411 (2020).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from April 2003 to April 2009.

In February 2021, the Veteran testified at a video teleconference hearing before the undersigned Veterans Law Judge.

Service connection for PTSD was granted upon rating decision in April 2011.  A 30 percent rating was assigned.  This appeal ensued following a December 2016 rating decision wherein the 30 percent rating was increased to 50 percent, effective October 8, 2015, the date that the Veteran s intent to file was received.

Entitlement to an evaluation in excess of 50 percent for PTSD.

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability.  Separate diagnostic codes (DCs) identify the various disabilities.  38 U.S.C. � 1155 (2012); 38 C.F.R. � Part 4 (2020).

When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. � 4.7 (2020).  After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran.  38 U.S.C. � 5107 (2012); 38 C.F.R. �� 3.102, 4.3 (2021).  When all of the evidence is assembled, 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 a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

The Veteran s PTSD is currently rated at 50 percent under the General Rating Formula for Mental Disorders (General Formula).  A 70 percent evaluation is warranted where there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood). This may be 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.  38 C.F.R. � 4.130, Code 9411 (2020).

Suicidal ideation alone, that is, a veteran s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas, and thus may be sufficient to warrant a 70 percent rating.  Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017).

During his February 2021 Board hearing, the Veteran reported suicidal ideations throughout the appeal period (the last 5-6 years).  He also had homicidal thoughts and exhibited aggressive behaviour such as throwing rocks at cars who were making bad turns.  He was easily infuriated by the  stupid  behaviour of others.  The severity of his intermittent rages was also noted by multiple lay statements of record as submitted by friends and family.  As a result, the Board finds that the Veteran s PTSD has manifested in occupational and social impairment with deficiencies in most areas, and entitlement to a 70 percent evaluation is warranted.

REASONS FOR REMAND

1.  The claim of entitlement to an evaluation in excess of 70 percent for PTSD is remanded.

The Veteran s most recent VA examination for his PTSD occurred in November 2016.  Since that time, he has indicated that his disability has worsened.  See February 2021 Board hearing.  Because it has been over 4 years since the last VA examination, remand for a contemporaneous examination is required to assess the current severity of his service-connected disability.  See Green v. Derwinski, 1 Vet. App. 121 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).

2.  The claim of entitlement to TDIU is remanded.

Because the TDIU and PTSD claims are inextricably intertwined, TDIU must be remanded concurrently.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).

The matters are REMANDED for the following action:

1.  The Agency of Original Jurisdiction (AOJ) should obtain all updated relevant treatment records (private and VA) and associate them with the claim file.

2.  After the development in the first instruction is completed, the AOJ should arrange for an examination of the Veteran to assess the current severity of his service-connected PTSD.  The examiner must review the entire record (including this remand) in conjunction with the examination and note such review was conducted.  The examiner should provide a full description of the disability and report all signs and symptoms associated with the Veteran s disability.

(Continued on next page)

3.  If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures.

E. I. VELEZ

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	T. Hal Smith, 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 L KENNEDY

text:
��Citation Nr: 21015000

Decision Date: 03/16/21	Archive Date: 03/16/21

DOCKET NO. 11-01 326

DATE: March 16, 2021

ORDER

Entitlement to an initial compensable rating for service-connected bilateral hearing loss is denied.

For the period prior to January 23, 2009, entitlement to a total disability rating based on individual unemployability as due to service-connected disabilities (TDIU) is denied.

FINDINGS OF FACT

1. Throughout the period on appeal, the Veteran had, at worst, Level II hearing in both his left and right ears.

2. Prior to January 23, 2009, the Veteran did not meet the schedular requirements for a TDIU and his service-connected disabilities are not shown to have rendered the Veteran unable to secure or follow a substantially gainful occupation.

CONCLUSIONS OF LAW

1. The criteria for an initial compensable rating for service-connected hearing loss are not met. 38 U.S.C. � 1155; 38 C.F.R. � 4.85, Diagnostic Code 6100.

2. The criteria for a TDIU for the period prior to January 23, 2009 are not met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 3.102, 3.340, 3.341, 4.3, 4.15, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the United States Army from March 1969 to October 1970, and from February 1981 to August 1985.

This appeal comes to the Board of Veterans  Appeals (Board) from Department of Veterans Affairs (VA) February 2009 and an October 2019 rating decisions of the Agency of Original Jurisdiction (AOJ).

In May 2015, as well as in June 2018, the Board remanded the case to the AOJ for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the two remands, the Board finds that the AOJ conducted additional development as directed, and that there has been substantial compliance with the remand directives.

In January 2015 the Veteran appeared before the undersigned Veterans Law Judge. A transcript of that hearing has been reviewed by the Board, and has been associated with the claims file.

1. Entitlement to an initial compensable rating for service-connected bilateral hearing loss

The Veteran claims that his service-connected bilateral hearing loss warrants an initial compensable rating.

Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C. � 1155; 38 C.F.R. � 4.1. An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran s ability to engage in ordinary activities, including employment. 38 C.F.R. � 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. � 4.7. Otherwise, the lower rating will be assigned. Id.

Evaluations of defective hearing range from noncompensable to 100 percent. The basic method of rating hearing loss involves audiological test results of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. Puretone threshold average is the sum of puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. To evaluate the degree of disability of service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. See 38 C.F.R. � 4.85, Diagnostic Code 6100.

The current rating criteria include an alternate method of rating exceptional patterns of hearing as defined in 38 C.F.R. � 4.86 (puretone threshold of 55 decibels or more at 1000, 2000, 3000, and 4000 Hertz; puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz). As discussed in detail below, the Veteran s audiological examinations do not show exceptional patterns of hearing loss.

Throughout the appeal period, the Veteran underwent several audiometric examinations. In January 2008, the Veteran was seen for one such examination, and the results are as follows:

			HERTZ

	1000	2000	3000	4000	AVG	CNC

Right	15	45	55	60	43.75	88%

Left	20	35	60	55	42.5	88%

Applying the results of the examination to Table VI, the Veteran had Level II hearing in both of his ears. Using Table VII, a combination of Level II and II hearing corresponds to a 0 percent disability rating.

Shortly thereafter, the Veteran was seen for another VA audiometric examination in February 2009. The results were as follows:

			HERTZ

	1000	2000	3000	4000	AVG	CNC

Right	15	45	60	60	45	88%

Left	20	30	60	65	43.75	88%

As with the January 2008 examination, the applying the results to Table VI the Veteran has Level II hearing in both ears, which equates to a 0 percent rating when applied to Table VII.

The Veteran s next audiometric examination was performed by a VA examiner in

December 2012. The results were as follows:

			HERTZ

	1000	2000	3000	4000	AVG	CNC

Right	10	50	65	70	48.75	88%

Left	20	35	65	70	47.5	84%

As with the prior audiometric examinations the Veteran had Level II hearing in both of his ears. Using Table VII, a combination of Level II and II hearing corresponds to a 0 percent disability rating.

The Veteran s most recent audiometric examination was performed by a VA examiner in May 2017, pursuant to a Board remand. The results were as follows:

			HERTZ

	1000	2000	3000	4000	AVG	CNC

Right	10	55	60	60	46	96%

Left	15	35	60	60	44	96%

The scores in both ears equate to Level I hearing according to Table VI. When applied to Table VII, the dual Level I hearing findings equate to a 0 percent disability rating.

At his Board hearing, the Veteran stated that he has issues hearing in the higher registers. This interferes with his driving, his ability to hear his wife and other people, and activities of daily living such as watching TV. The Veteran uses hearing aids.

The Board acknowledges the Veteran s contentions and notes that he is competent to report his hearing difficulties. Jandreau v. Nicholson, 492 F.3d 1372 (2007). However, the disability ratings assigned for hearing loss are not contingent on whether the Veteran requires treatment such as hearing aids, but rather focuses on the functional impact of the Veteran s condition. This functional impact is taken into consideration with the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017).

Notwithstanding, a higher rating is not warranted based solely on lay statements. In this regard, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board notes that the VA audiological examination reports describe the effects of the Veteran s hearing impairments on his daily life, consistent with the requirements of Martinak v. Nicholson, 21 Vet. App. 447 (2007).

While the Veteran contends that his bilateral hearing loss warrants a higher rating, the rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. As noted above, the functional impact that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Further, while the Board has also considered referring the issue to the Director of Compensation Service for possible extraschedular evaluation, there is no evidence that presents an unusual or exceptional disability picture, and thus referral is not warranted. See Doucette, 28 Vet. App. at 369 (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss).

The preponderance of the evidence is against the claim in this instance, and the Board finds that an initial compensable rating for bilateral hearing loss disability is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt provision does not apply. Ortiz v. Principi, 274 F.3d 1361 (2001).

2. For the period prior to January 23, 2009, entitlement to a TDIU

The Veteran contends that his service-connected disabilities entitle him to a TDIU prior to January 23, 2009.

A total disability rating may be granted where the schedular rating is less than 100 percent and the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. �� 3.340, 3.341, 4.16(a).

If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. Id. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. Id.

Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). See also Faust v. West, 13 Vet. App. 342 (2000). Marginal employment generally shall be deemed to exist when a veteran s earned annual income does not exceed the poverty threshold for one person. 38 C.F.R. � 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019), the United States Court of Appeals for Veterans Claims (Court) explained that substantially gainful employment contains economic and noneconomic components. The economic component means  an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,  while the noneconomic component requires consideration of a veteran s ability to secure or follow that type of employment. Id.

The ultimate determination of whether a Veteran is capable of substantial gainful employment rests with the VA adjudicator, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (citing 38 U.S.C. � 5103A (d)(1)) (the VA adjudicator has the ultimate responsibility for a TDIU determination and VA is not required in every case to obtain a single medical opinion regarding the combined impact of all service-connected disabilities).

In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes the Veteran s case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. �� 4.1, 4.15; Van Hoose, 4 Vet. App. at 363. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Beaty v. Brown, 6 Vet. App. 532, 538 (1994).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. � 5107; 38 C.F.R. � 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

January 23, 2009 is the earliest date at which the Veteran meets the threshold schedular requirements for a TDIU. At that time, he was assigned a 70 percent combined disability rating based on the following disabilities: posttraumatic stress disorder (PTSD), 30 percent (later increased to 50 percent effective August 23, 2010); degenerative disc disease (DDD) of the lumbar spine, 40 percent (later reduced to 20 percent as of November 20, 2009); right plantar fasciitis, 10 percent (later increased to 20 percent effective May 2017); left plantar fasciitis, 10 percent (later increased to 20 percent effective May 2017); tinnitus, 10 percent; left varicocele with bilateral epididymal cysts, 10 percent; left corneal scar, bilateral hearing loss, and right corneal scar, all with non-compensable, or zero percent ratings.

Effective June 22, 2007, the Veteran s combined rating was 40 percent with the higher single rating of 10 percent; effective August 14, 2008, the combined disability evaluation was 50 percent with the highest single rating 20 percent.  Effective January 22, 2009, the highest combined disability rating assigned was 60 percent; at the time, the highest-rated single disability rating assigned was 40 percent for his PTSD. As the Veteran does not meet the threshold schedular requirements for a TDIU prior to January 23, 2009, entitlement to a TDIU on a schedular basis must be denied.

Prior to January 23, 2009, the Veteran s service-connected disabilities included: degenerative disc disease of the lumbar spine (10 percent from June 22, 2007; 20 percent from August 14, 2008; and 40 percent from January 22, 2009); right plantar fasciitis (10 percent from June 22, 2007); left plantar fasciitis (10 percent from June 22, 2007); left varicocele with bilateral epididymal cysts (10 percent from June 22, 2007); left corneal scar (0 percent from June 22, 2007); and bilateral hearing loss (0 percent from June 22, 2007).

What is left for the Board to determine is whether referral of the Veteran s claims to the Director, Compensation Services for extraschedular consideration is appropriate.

At his January 2015 Board hearing, the Veteran stated that he has a high school education, and his work experience is that of manual labor. He has worked as a carpenter and as a lawn mower mechanic. According to the Veteran, he last worked in 2000. The Board notes that in a July 2008 VA Form 21-527 Employment Statement, the Veteran claims he last worked around August 2004, which is the date he claims he became totally disabled. At his hearing, the Veteran stated that he  didn t want  to continue working at the lawn mower repair shop, and stated that his PTSD  had a lot to do with it,  and that he  wanted to get out of the system.  The Veteran stated has not worked since leaving the repair shop, but he did admit to no looking for any kind of work. It is unclear whether, prior to January 23, 2009, the Veteran merely did not want to work, or was prevented from working due to his service-connected disabilities.

Overall, the record does not reflect that the Veteran s service-connected disabilities combined to prevent the Veteran from obtaining or retaining gainful employment prior to January 23, 2009.  Further, it is notable that the Veteran s statements regarding his employment history are inconsistent.  To the extent that the Veteran has reported that his PTSD had a lot to do with his decision to stop working, the Board notes further that the Veteran had not established service connection for PTSD until January 23, 2009 so that disability is not for consideration as to the Veteran unemployability prior to January 23, 2009 as it was not a service-connected disability prior to that date. From a review of the available medical and other relevant evidence of record, the Board finds that the Veteran s disabilities for which service connection was established prior to January 23, 2009 are sufficiently contemplated by the schedular ratings that were then assigned.  See, e.g. January 2008 VA examination; 2008 VA treatment records. As such, referral for extraschedular consideration prior to January 23, 2009 is not warranted.

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. � 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

S. L. Kennedy

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	M. Neville, 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.


judge_norm: M TENNER

condition: knee

text:
��Citation Nr: 21016000

Decision Date: 03/19/21	Archive Date: 03/19/21

DOCKET NO. 15-18 801A

DATE: March 19, 2021

REMANDED

An initial disability rating for degenerative joint disease, right knee, rated as 10 percent disabling prior to June 26, 2014, and 20 percent thereafter is remanded.

An initial disability rating for degenerative joint disease, left knee , rated as 10 percent disabling prior to June 26, 2014, and 20 percent thereafter is remanded.

Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded.

REFERRED

Service connection for an acquired psychiatric disability, to include depressive disorder, as secondary to service-connected bilateral knee disabilities was reasonably raised by the Veteran in his December 2020 correspondence with VA, and his VA medical records indicate psychiatric treatment and a diagnosis of depressive disorder. Therefore, this issue is referred to the agency of original jurisdiction for appropriate action, to include providing information to the Veteran on how to file a claim and/or perfect an appeal. 38 C.F.R. � 20.904(b); see Bailey v. Wilkie, Vet. App., No. 19-2661, 2021 U.S. App. Vet. Claims LEXIS 13, 2021 WL 45679 (Jan. 6, 2021) ( VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability. ).

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from June 1975 until his honorable discharge in October 1975.

This case comes before the Board of Veterans  Appeals (Board) on appeal from a September 2013 rating decision by the Decatur, Georgia, Regional Office (RO) of the United States Department of Veterans Affairs (VA).

In January 2020, the Board remanded the case to the RO for further development, to include obtaining outstanding VA medical records as of February 2017 and to obtain a new VA medical examination as to the Veteran s service-connected bilateral knee disabilities. While the RO accomplished these directives, the Board finds that remand is again necessary to comply with VA s duties to notify and assist.

Duties to Notify and Assist

VA has a duty to notify and a duty to assist claimants in developing their claims. 38 U.S.C. � 5103A; 38 C.F.R. � 3.159.

As part of VA s duty to notify,  [i]f VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records.  38 U.S.C. � 5103A(b)(2); 38 C.F.R. � 3.159(e)(2). Once VA is put on notice of the existence of specific treatment records, section 3.159(e)(2) requires VA to request that the claimant provide a release for those records and, if the claimant does not do so, VA must request that the claimant obtain those specific records and provide them to VA. See Wise v. Shinseki, 26 Vet. App. 517, 529 (2014).

As part of VA s duty to assist, VA is required to attempt to obtain VA medical records  without consideration of their relevance.  Sullivan v. McDonald, 815 F.3d 786, 792 (Fed. Cir. 2016); see Turner v. Shulkin, 29 Vet. App. 207, 218 (2018), abrogated by Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020).

VA s duty to assist also includes obtaining relevant records not in the custody of a Federal department or agency, such as private medical care providers. 38 U.S.C. � 5103A(b)(1); 38 C.F.R. � 3.159(c)(1).

First, in a February 15, 2017, correspondence with VA, the Veteran indicated he was treated at Emory University Orthopaedic Center in Atlanta, Georgia, for his knees. A January 13, 2017, VA pain consult note indicates the Veteran received such treatment. The Board finds that the Veteran was not asked to authorize release of these treatment records, and they are not of record at this time. As they appear relevant to the Veteran s claims, VA must attempt to obtain them.

Second, in a September 10, 2019, correspondence with VA, the Veteran stated that he was receiving physical therapy and water therapy for both of his knees. On January 27, 2021, the Veteran submitted a private physical therapy record from Apex Therapy with an evaluation date of October 27, 2020. The medical record documented the Veteran s flexion and extension of his bilateral knees. The Board finds no evidence the RO made any attempts to notify the Veteran that these records were relevant or that reasonable attempts were made to obtain these records. The Board finds that the Veteran s physical therapy records are reasonably relevant to his claim and attempts should be made to obtain them.

Third, the Veteran submitted VA medical records from Lee County VA Clinic from October 2016 through January 2019. VA only made efforts to obtain the Veteran s records from Lee County VA Clinic between July 2020 and November 2020. Thus, all records from the clinic must be sought.

Finally, the Veteran submitted a November 2020 VA radiology report as to his knees. The Veteran s VA medical records associated with his claims file do not contain this radiology report. Instead, there is a reference within his VA medical records that the report was available by CD. See November 20, 2020 VA Addendum Note. VA has a duty to obtain all of the Veteran s VA medical records, even when he submits them on his own because there may be additional documents.

Accordingly, the matters are REMANDED for the following actions:

1. Obtain any of the Veteran s outstanding VA medical records and associate them with the claims file, to include:

(a.) All medical records from Lee County VA Clinic;

(b.) All medical records associated with the Veteran s November 20, 2020 MRI study. The RO is directed to the November 20, 2020, VA Addendum by Dr. Suchodolski that notes a CD exists relating to the Veteran s MRI;

(c.) Any and all outstanding VA medical records.

2. Send appropriate correspondence to the Veteran asking him to identify and authorize release of any relevant medical records from:

(a.) Emory University Medical Center in Atlanta, Georgia;

(b.) Emory Orthopaedics & Spine Center in Atlanta, Georgia;

(c.) Apex Therapy;

(d.) Any other private treatment received for his service-connected knees or in relation to his claim for TDIU.

(Continued on the next page)

Reasonable attempts must be made to obtain relevant private medical records, and the RO should document all attempts and responses. 38 U.S.C. � 5013A(b)(2)(B); 38 C.F.R. � 3.159(c)(1).

M. Tenner

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	J. F. Sawka, 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.