Citation Nr: 18132367
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-35 085A
DATE:	September 6, 2018
ORDER
Entitlement to service connection for mild osteoarthritis, left knee is granted.
Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied.
REMANDED
Entitlement to service connection for an left ear disease is remanded.
Entitlement to a compensable rating for carpometacarpal thumb arthritis of the right hand is remanded.
FINDINGS OF FACT
1. The competent medical evidence demonstrates that the Veteran’s left knee osteoarthritis was incurred during active service and has continued until the present. 
2. The probative evidence of record does not demonstrate that the Veteran’s COPD was related to her military service.
CONCLUSIONS OF LAW
1. The criteria for service connection for osteoarthritis of the left knee have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 
2. The criteria for service connection for COPD have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from April 1973 to March 1975 and from April 2009 to April 2011. 
Service Connection
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).
Service connection will be presumed for certain chronic diseases, including arthritis, if manifest within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b).
In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991).

1. Entitlement to service connection for mild osteoarthritis, left knee
The Veteran asserts that her currently diagnosed left knee osteoarthritis originated during active service. The Veteran reported experiencing continuous symptoms of left knee pain since service separation. Initially, the Board finds that the Veteran is currently diagnosed with mild osteoarthritis (OA) of the left knee. See September 2012 VA examination. 
Next, the Board finds that the Veteran injured her left knee during active duty. A review of the Veteran’s service treatment record, dated May 2009, shows that the Veteran reported left knee pain. The Veteran expressed that she was doing pushups and landed on her knee. An x-ray revealed that the Veteran had mild tri-compartment degenerative joint disease and the soft tissue was unremarkable.
In a June 2009 treatment note, the Veteran was noted to have mild osteoarthritis of the left knee with pain, due to the recent fall. 
In a July 2009 treatment note, the Veteran reported left knee pain. The examiner noted that the Veteran will continue to use a knee brace and will continue with a no running profile. 
A VA Compensation and Pension examination was completed in June 2011. The Veteran was diagnosed with degenerative arthritis of the left knee. 
A second VA examination was completed in September 2012. The examiner opined that the Veteran’s left knee condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided a rationale stating that osteoarthritis is a multifactorial disease with a genetic component and that there is no literature that shows normal activity causing OA.  The examiner noted that the Veteran’s claims file was not available for review at the time of the examination.  Therefore, an addendum opinion was requested to have the claims file reviewed in conjunction with the opinion.
In the addendum December 2012 opinion, the examiner reviewed the Veteran’s claims file and the results of the September 2012 examination noted above. The examiner confirmed the diagnosis of left knee mild osteoarthritis. 
After considering the evidence of record, the Board finds that the competent medical evidence demonstrates that the Veteran’s left knee osteoarthritis was incurred during active service and has continued until the present. Therefore, the Board finds that service connection is presumed for her left knee disability. 
2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD)
The Veteran asserts that her COPD is related to her active service. Specifically, the Veteran expressed that her sudden onset of COPD was not solely due to smoking but due to her apartment heating system. The Veteran expressed that she was lived in a possibly contaminated area and military housing would not move her to another apartment. 
The Veteran’s occupational specialty in the armed forces as reflected on her DD-214 is medical surgical nurse.
With respect to the first element of service connection, the Veteran has a current diagnosis of COPD. See July 2011 VA examination. 
With respect to the second element of service connection, a review of the Veteran’s service treatment records revealed that in December 2010, the Veteran had a chest x-ray that showed COPD with mild bronchitic thickening. In a January 2011 treatment note, the Veteran was noted to have a 30 plus year history of cigarette smoking.
With respect to the third element of service connection, the Veteran was afforded a VA examination in July 2011 in which the Veteran was noted to have a diagnosis of COPD and that the Veteran indicated that she was trying to cut down on smoking.
In a February 2012 addendum opinion, the examiner opined that the Veteran’s COPD was unlikely to have been caused by any event in service. The examiner indicated that COPD is a chronic process, manifesting after many years of smoking. The examiner noted that the Veteran was smoking 1 pack of cigarettes per day for 30 years, which is the main risk factor for her developing COPD.  Direct service connection for a disability attributable to the use of tobacco products is not available.
The Board finds the February 2012 VA examiner’s opinion to be the most probative evidence of record in determining whether a nexus exists between the Veteran’s current COPD and her active military service. The examiner reviewed the entire claims file, examined the Veteran in July 2011, made careful observations, and drew conclusions where appropriate with reasoned medical explanations of his conclusions and opinions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).
The Board acknowledges that the Veteran, who is a nurse, asserted that her COPD was due to her apartment heating system.  The Veteran has not provided any medical reasoning why a causal link exists. Thus, to the extent the Veteran’s assertion is an opinion as to a link between her COPD and the harmful air contamination in her apartment heating system, the Board finds it not to be probative as to a causal relationship as there is no specificity of opinion or rationale provided.
As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine cannot be applied. 38 U.S.C. § 5107(b); Gilbert v. Derwinksi, 1 Vet. App. 49, 53-56 (1990). Thus, service connection for COPD is not warranted. 

 
REASONS FOR REMAND
1. Entitlement to service connection for an left ear disease is remanded.
A review of the Veteran’s service treatment records dated April 8, 2011 shows that the Veteran was diagnosed with Eustachian Tube Dysfunction (ETD). 
A review of the record also reflects that some of the Veteran’s service treatment records are unavailable. Specifically, in April 2009, the VA issued a formal finding of Unavailability of Service Treatment Records for the Veteran’s first period of active duty service from April 1973 to March 1975. Thus, there is no way to tell if any ear disease was “noted” on her entrance examination in April 1973. Regarding the Veteran’s second period of active duty service in April 2009, the Board notes that the service treatment records are absent of any entrance examination for the Veteran. Therefore, because there is no entrance examination from the Veteran’s first period of active duty service and second period of active duty service, the Veteran is presumed sound upon entrance for both periods of service.
The burden therefore falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress of the” preexisting condition. 38 U.S.C. § 1153. 
As such, the burden is on VA to show that the disability clearly and unmistakable pre-existed service. As the record contains a June 2006 private treatment note that diagnosed the Veteran with chronic ETD and the June 2006 examiner indicated that the Veteran had a history of ETD, middle ear disease, and otomastoiditis on the left side, the Board finds that the Veteran’s ETD clearly and unmistakably preexisted service. 
The Board notes that VA must show not only that a condition clearly and unmistakably pre-existed service, but also that the pre-existing disease or injury was clearly and unmistakably not aggravated by service to deny service connection. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).
The Board acknowledges that the Veteran has been provided a VA examination in May 2012 and September 2012, along with an addendum opinion in April 2015.  However, the Board finds these examinations to be inadequate. 
In the May 2012 VA examination, the Veteran expressed that she first started having problems with her ear in 2001. She stated that she continued having ear problems and required bilateral vent tubes in 2003. When the Veteran’s vent tubes came out, she began having ear problems again and had another vent tube placed in 2005. That vent tube was then removed and the perforation did not heal for 8 to 9 months. 
The examiner reported that the fact that the Veteran has never had any vent tube placement or eustachian tube dysfunction documented until 2001 is consistent with ETD being a problem that developed while she was in active duty or within the Reserves. The examiner opined that ETD “did not exist prior to her service and as far as being aggravated by her service, [the examiner] thinks it was initiated during her service.” 
The examiner also expressed that the Veteran’s service is “at least as likely as not to have caused the condition, or the condition is at least as likely as not to have developed, regardless of her service.” 
A VA examiner in September 2012 expressed that according to the available information, the Veteran’s ETD was not aggravated beyond its natural progression by doing push-ups in service. 
In an April 2015 VA opinion, the examiner expressed that the Veteran has ETD. The examiner noted that the Veteran began experiencing ear pain, requiring multiple set of tubes, during national guard/reserve service. The examiner indicated that these symptoms have persisted until current and that the Veteran has been diagnosed with ETD. Thus, the examiner opined that it is at least as likely as not that the current ETD is related to symptoms that began in military service.  As discussed above, however, the record reflects that the disability began between the two periods of active service.
An addendum opinion is required to better clarify whether the evidence of record clearly and unmistakably show that the Veteran’s ear disease was not aggravated during service.
2. Entitlement to a compensable rating for carpometacarpal thumb arthritis of the right hand is remanded.
The Board finds that the November 2014 VA addendum opinion regarding the Veteran’s flare ups is inadequate.  In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court held that when a VA examiner is asked to opine as to additional functional loss during flare-ups of a musculoskeletal disability, and the examiner states that he or she is unable to offer such an opinion without resorting to speculation, such opinion must be based on all procurable and assembled medical evidence, to include eliciting relevant information from the veteran as to the flare-i.e. the frequency, duration, characteristics, severity, or functional loss, and such opinion cannot be based on the insufficient knowledge of the specific examiner.  As the VA examiner failed to properly address the Veteran’s reports of flare-ups, an additional VA examination must be provided on remand.
The matters are REMANDED for the following action:
1. Obtain updated VA treatment records. 
2. After directive #1 is completed, obtain a VA medical opinion (addendum) as to whether the Veteran’s left ETD clearly and unmistakably was not aggravated by service beyond its natural progression during service (the period of service from April 2009 to April 2011). 
The examiner should answer the following questions:
Whether it is clear and unmistakable (obvious, manifest, and undebatable) that any pre-existing left ETD WAS NOT aggravated (i.e., worsened) during the Veteran’s April 2009 to April 2011 period of active service. 
Whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progression of the disease. Please provide a complete explanation for the opinion.
The requested opinion must be (i) clearly articulated with the correct standard being used and (ii) supported by a clear and comprehensive rationale.
3. After directive #1 is completed, schedule the Veteran for a VA examination to determine the current severity of her carpometacarpal thumb arthritis of the right hand. 

 
Nathaniel J. Doan
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M.D., Associate Counsel 

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