Citation Nr: 0814334 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 04-23 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral knee condition. 2. Entitlement to service connection for a low back condition. 3. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David Ganz, Associate Counsel INTRODUCTION The veteran had active military service from January 1968 to November 1969 and service in the Army National Guard from February 1978 to November 1986. This matter comes to the Board of Veterans' Appeals (Board) from a January 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied entitlement to service connection for a back injury with degenerative disc disease and degenerative joint disease, a bilateral knee condition, and hypertension. The veteran testified at a Board video-conference hearing at the RO before a Veteran's Law Judge in March 2008. A transcript of the hearing is of record. The veteran originally claimed service connection for his spinal disc. However, the veteran has filed a separate claim for his claimed cervical spine condition, and his VA-Form 9 and testimony during his March 2008 hearing indicate that the claim on appeal is for a low back condition. Hence, the issue has been re-characterized to comport with the evidence of record. The RO addressed the new and material evidence issue in the rating decision on appeal. Specifically, the RO did not reopen the claims on the grounds that evidence submitted by the veteran was not new and material. In a July 2007 supplemental statement of the case, the RO reconsidered the claims following the veteran's submission of additional service medical records. The issues of entitlement to service connection for bilateral knee and low back conditions are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The competent and probative medical evidence of record shows that hypertension was manifested to a degree of 10 percent or more within one year of the veteran's discharge from active service. CONCLUSION OF LAW The criteria for service connection for hypertension have been met. 38 U.S.C.A §§ 1101, 1110, 1112, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 4.104(a), Diagnostic Code 7101 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance The veteran's claim for service connection for hypertension has been considered with respect to VA's duties to notify and assist. Given the favorable outcome, no conceivable prejudice to the veteran could result from this adjudication. See Bernard v. Brown, 4 Vet. App. 384. 393 (1993). Reconsideration of the claim for service connection for hypertension The RO originally denied entitlement to service connection for hypertension in an August 1970 rating decision on the basis that hypertension was not found on a hospital report dated May 18, 1970. The veteran filed a claim to reopen the claim for service connection for hypertension in June 2003. Evidence submitted since the August 1970 and August 2000 rating decisions includes service medical records (SMRs) dated in July 1983. Accordingly, reconsideration of the claim for service consideration for hypertension is warranted. 38 C.F.R. § 3.156(c). Service Connection for Hypertension The veteran seeks service connection for hypertension, which he claims that he is presently suffering from as a result of his military service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). Certain chronic diseases, such as cardiovascular-renal disease (including hypertension), may be presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (2007). When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The record shows that the veteran presently has hypertension. A private medical report dated in January 2005, notes that the veteran has hypertension. VA medical records dated in July 2005 note that the veteran has hypertension. Neither of the these records indicate whether the veteran currently takes medication, or undergoes any other form of treatment for his current hypertensive condition. The SMRs do not show that the veteran was diagnosed with hypertension during active service. Personnel records show that the veteran had active service in the Army from January 17, 1968 to November 22, 1969. In March 1970, which was within one year of his discharge from service, the veteran was diagnosed with hypertension during a VA examination in El Paso, Texas. The veteran's diastolic blood pressure blood pressure in his left arm was noted as 100. The evidence shows that the veteran was diagnosed with hypertension within one year of discharge from service. According to the applicable rating criteria for hypertension, diastolic pressure predominately 100 or more, or; systolic pressure predominately 160 or more warrants a 10 percent evaluation. 38 C.F.R. § 4.104(a), Diagnostic Code (DC) 7101 (2007). In this regard, the March 1970 VA examination report reflects that the veteran's diastolic blood pressure was measured at 100. Thus, based on these findings, solely for the purpose of establishing entitlement to the presumption, the Board finds that the veteran's hypertension had manifested to degree of 10 percent or more within one year of his discharge from service. Although a finding was made during a VA hospital visit in August 1970 that the veteran did not, at that time, have hypertension, the earlier diagnosis triggered the presumption and that, coupled with the current diagnosis, meets the criteria for service connection. ORDER Entitlement to service connection for hypertension is granted, subject to the rules and payment of monetary benefits. REMAND As previously discussed, the veteran has submitted service medical records not previously associated with the claims file at the time of the final denial of his service connection claims for low back and bilateral knee conditions and those claims must now be reconsidered. At his hearing the veteran testified that he hurt his knee while serving in Vietnam when he was moving a 55-gallon drum of diesel fuel that slipped and trapped him against a truck. Following this accident the veteran was examined at sick call, and was told nothing was wrong with his knee. The veteran also testified that he was involved in an automobile accident while in Vietnam. He testified that his back popped and that he received medication and was x-rayed following the accident. Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). Private and VA medical treatment records dated from 2000 to the present indicate that the veteran currently has been diagnosed with, and treated for, various conditions related to his knees and low back. VA treatment records dated in December 2000 note that the veteran has degenerative disc disease at L4-5S1 and a herniated disc at L5-S1. A September 2004 VA treatment record notes arthritis in both of the veteran's knees. A Social Security Administration decision found that the veteran had DDD of his lumbar spine and cervical, thoracic, and lumbar strains. A March 2005 VA treatment record report indicates that the veteran had arthritic changes in his right knee based on x-ray testing, but that the right knee is structurally intact. VA treatment records dated in May 2005 notes DJD, and that the veteran reported right knee pain and swelling. Service medical records (SMRs) do not indicate that the veteran had any complaints of, or treatment for, any type of injury to his knees or back during his active service from January 1968 to November 1969. However, SMRs do note that in July 1982 the veteran was diagnosed with a musculoskeletal strain of his right knee that resulted from his banging it against the dashboard. Likewise, SMRs note that in October 1982 the veteran sought treatment for a sore right knee that developed a bump from an accident that occurred in June 1982. In March 1970, the veteran was given a VA examination for his claimed bilateral knee condition. The veteran reported that he injured his right knee overseas. The examiner opined that the veteran had an essentially unremarkable right knee. No opinion was expressed concerning whether the veteran's claimed in-service injury was related to any current disability he may then have had. The current record contains competent evidence of a current bilateral knee and low back conditions, SMRs from 1982 indicating injuries while the veteran was in the Army National Guard, and the veteran's credible testimony concerning in-service injuries to his back and knees. However, there is insufficient medical evidence for the Board to decide the veteran's claim. Therefore, a VA medical examination must be provided. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); See also U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (c) (2007). The appellant is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2007). Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for a VA medical examination to determine the nature and etiology of any current low back and knee disabilities. The examiner should conduct a thorough examination of the veteran's low back and the knees and diagnosis any disabilities found. As to each disability identified, the examiner should provide an opinion as to whether it is at least as likely as not that the disability is related to, or first manifested during, military service, including service in the Army National Guard. A complete rationale must be provided for all opinions. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner should note the veteran's credible testimony concerning injuries to his back and knees he suffered in Vietnam, and the medical reports of record, including SMRs dated in July and October 1982 indicating treatment for a knee injury resulting from an accident, and private medical reports dated in April and June 2003 that note that the veteran suffered injuries from a motor vehicle accident in March 2003, while working as a truck driver in the private sector. A rationale for all medical opinions must be provided. 2. Thereafter, if necessary, any additional development deemed appropriate should be accomplished. The claims should then be readjudicated. If either of the claims remain denied, the RO should issue a supplemental statement of the case (SSOC) containing notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal, and allow an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs