Citation Nr: 1009397 Decision Date: 03/12/10 Archive Date: 03/17/10 DOCKET NO. 08-11 520 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection a right thumb disorder. 3. Entitlement to service connection for a left groin disorder. 4. Entitlement to service connection for a psychiatric disorder, including posttraumatic stress disorder. 5. Entitlement to service connection for a left knee disorder. 6. Entitlement to service connection for a heart disorder. ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran served on active duty from October 1986 to April 1990 and from February 4, 1991, to February 19, 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Roanoke, Virginia, Department of Veterans Affairs (VA) Regional Office (RO), which denied the claims on the title page. The issues of entitlement to service connection for a left knee disorder, and a heart disorder 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. FINDINGS OF FACT 1. There were no in-service complaints or findings pertaining to hypertension during either period of service, there is no competent evidence that hypertension was manifested to a compensable degree within one year following discharge from either period of service, there is no competent evidence of a continuity of hypertension symptomatology post service, and there is no competent evidence linking hypertension to either period of service. 2. There were no in-service complaints or findings pertaining to a right thumb disease or injury during either period of service, there is no competent evidence of a continuity of thumb symptomatology post service, and there is no competent evidence linking a right thumb disorder to either period of service. 3. A pulled left groin strain was shown during the Veteran's second period of service, but there is no competent evidence of a current disability. 4. There were no in-service complaints or findings pertaining to a psychiatric disorder, there is no independent corroborating evidence of in-service stressor(s), and no competent evidence of a current diagnosis of posttraumatic stress disorder or any other psychiatric disorder. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by either period of service and may not be presumed to have been incurred during either period of service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R.. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009). 2. A right thumb disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. A left groin disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R.. §§ 3.102, 3.159, 3.303. 4. A psychiatric disorder, to include posttraumatic stress disorder, was not incurred in or aggravated by service, and a psychosis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R.. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in correspondence dated in November 2006 of the information and evidence needed to substantiate and complete a claim for service connection, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. VA also informed the Veteran of how disability evaluations and effective dates are assigned. VA has fulfilled its duty to assist the claimant, including obtaining service treatment records. The Veteran has submitted private medical records. The Board notes that in the November 2006 letter, the RO requested that the Veteran complete a VA Form 21-0781, "Statement In Support Of Claim For Service Connection for Post-Traumatic Stress Disorder." The Veteran never returned the document, and the RO informed him in both the July 2007 rating decision and the February 2008 statement of the case of his failure to submit the requested information. The Board finds the Veteran has been given ample opportunity to provide that information. VA has not provided the Veteran with an examination in connection with the claims being decided. For the claims being decided, however, medical examinations are not required. In this regard, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; and (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), citing 38 U.S.C. § 5103A(d)(2); Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003); 38 C.F.R. § 3.159(c)(4)(i). In McLendon, the United States Court of Appeals for Veterans Claims (Court) addressed each of the above elements and how the Board must apply the facts of the case to the law regarding when an examination was necessary, with which the Board has complied. Regarding the claims of entitlement to service connection for a left groin disorder and a psychiatric disorder, to include posttraumatic stress disorder, there is neither competent evidence of current disabilities nor competent evidence of chronic symptoms of either a left groin disorder or a psychiatric disorder, to include posttraumatic stress disorder, at any time during the appeal by either medical professionals or the Veteran himself. Thus, element (1) has not been met. Without competent evidence of a current disability VA is not required to provide an examination or medical opinion in connection with these two claims. As to the claims of entitlement to service connection for hypertension and a right thumb disorder, there is competent evidence of diagnoses of hypertension and of right thenar eminence strain. Thus, element (1)-competent evidence of a current disability-has been met. However, where the evidence is lacking is in elements (2) and (3)-establishing an in-service event and establishing that the current disability may be related to the in-service event. The Board will address element (2) first. The Veteran claims that hypertension began in 1988, during his first period of service. See VA Form 21-526, Veteran's Application for Compensation or Pension, received October 2006, on page 7. The service treatment records, however, show no elevated blood pressure readings during either period of service. Thus, the Veteran's allegations of in-service hypertension are rejected since no in-service blood pressure reading meets the criteria for hypertension. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2009) (Hypertension for VA purposes means that the diastolic blood pressure is predominantly 90 or more or systolic blood pressure is predominantly 160 or more. Hypertension must be confirmed by readings taken two or more times on three different days.). Additionally, no medical professional diagnosed the Veteran with hypertension in-service. A March 1990 report of medical examination shows that his blood pressure was 114/68. In a report of medical history completed by the Veteran at that time, he denied any history of high or low blood pressure. Thus, the appellant's March 1990 statement which he made contemporaneously with his first period of service contradicts his current statements, made 16 years after discharge from service. Accordingly, to the extent that the Veteran claims in-service hypertension, the Board rejects his current allegations as not credible and accords the statement the appellant made in 1990 more probative value since it was offered contemporaneously with service. Statements made contemporaneously with the time period in question tend to be credible, and the appellant's own statement at that time is entirely consistent with the blood pressure readings shown in the service treatment records. As to the claim of entitlement to service connection for a right thumb disorder, the Veteran has indicated that this disability had its onset on February 7, 1991, during his second period of service. See VA Form 21-526, Veteran's Application for Compensation or Pension, received October 2006 on page 7. There is no separation examination from that period of service, but there is a service treatment record dated February 7, 1991. That record shows the Veteran complained of left knee discomfort with walking or running and left groin strain. There is nothing in that record to indicate that the Veteran had injured his thumb. Thus, to the extent that the Veteran is now claiming he injured his thumb at that time, the Board rejects his current allegation as not credible since there was no report of any thumb problems at that time. The absence of evidence in support of an alleged fact clearly is an evidentiary circumstance that weighs against the existence of the alleged fact. The Veteran had the sense to report knee and groin pain. Therefore, the Board finds that if the Veteran had chronic right thumb pain, he would have reported that fact as well. Instead, the medical record is silent for any right thumb pain or injury. Accordingly, the Board finds that element (2), establishing an in-service event has not been met. See McLendon, 20 Vet. App. at 82. Moreover, even if the Board conceded that the Veteran sustained a right thumb injury or experienced right thumb pain in service, the appellant has made no attempt to provide evidence of a continuity of symptomatology. For example, his application for benefits shows that the first time he was treated for a right thumb disorder after service was August 2005-14 years following his discharge from his second period of service. He has not alleged that his right thumb has bothered him since 1991. In fact, the submissions from the Veteran to VA provide, at best, minimal information. Additionally, in the August 2005 medical record that shows a diagnosis of right thenar eminence pain, the examiner attributed such diagnosis to the Veteran's report of biking six miles for the prior three weeks. Thus, the cause of his right thumb pain was attributable to a post-service incident that occurred well over 10 years after service. Therefore, neither the Veteran nor a medical professional has provided evidence of a nexus to service. The Board finds that element (3) has not been met either via the Veteran or a medical professional. Because elements (2) and/or (3) have not been met as to the claims involving hypertension and a right thumb disorder, the Board need not reach element (4)-whether there is sufficient competent medical evidence to decide the claim. Hence, an examination was not necessary to make a decision on these claims for service connection. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Analysis The Board has reviewed all the evidence in the Veteran's claims file, which includes his written contentions, service treatment records, and private medical records. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, such as hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. To prevail on the issue of service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the claims of entitlement to service connection for hypertension, a right thumb disorder, a left groin disorder, and a psychiatric disorder, including posttraumatic stress disorder. The reasons follow. As to the Veteran's claim for service connection for hypertension, the service treatment records are silent for symptoms or a diagnosis of hypertension. At entrance in March 1986, the appellant's blood pressure was 178/68. Blood pressure readings in April, June and October 1987 were each within normal limits. A March 1990 report of medical examination recorded his blood pressure as 114/68. In a March 1990 report of medical history the appellant denied any history of ever having high or low blood pressure. Thus, there was no evidence of hypertension during the Veteran's first period of service. See 38 C.F.R. § 4.71a, Diagnostic Code 7101, Note (1). The Veteran's second period of service occurred less than one year after the Veteran's first period. A February 1991 service treatment record shows that the Veteran's blood pressure was 120/60. This is the only blood pressure reading from the Veteran's second period of service. This document is both evidence against a finding hypertension was compensably disabling within one year following discharge from the first period of service, and evidence against a finding that hypertension had its onset during the Veteran's second period of service. See id. The first documented showing of a diagnosis of hypertension is in a December 2003 private medical record, which is more than 12 years after the Veteran's final term of active duty, which is additional evidence against the claim. See Maxson v. West, 12 Vet. App. 453 (1999) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). There is no competent evidence of record establishing a nexus between the post service diagnosis of hypertension and either of the Veteran's periods of services. In the Veteran's application for compensation benefits, he indicated that hypertension began in 1988. The service treatment records preponderate against that assertion. The Veteran is not competent to state he was diagnosed with hypertension. To the extent that his claim implies that he was told he had hypertension back then, the Board rejects such implication as not credible because the service treatment records contradict both his current allegations and the statement he made at service discharge in 1990 when he denied any history of high blood pressure. As to the claim of entitlement to service connection for a right thumb disorder, the Veteran has not provided any information for why he believes that the post service diagnosis of right thenar eminence pain is attributable to service. He has not alleged a disease or injury in service. The only assertion he has presented to VA is that the right thumb disorder had its onset in February 1991, which is during the Veteran's second period of service. There are two February 1991 service treatment records but neither addresses anything associated with the right thumb. Thus, to the extent that the Veteran claims he incurred some sort of right thumb injury at the same time he injured his left knee and left groin, the Board rejects such allegation as not credible. The facts provided in the February 1991 service treatment record do not discuss a right thumb disability, and the Board finds that the right thumb was not injured at that time. It is not reasonable to conclude that the Veteran would report pain in only two areas (groin and knee) if he was actually experiencing pain in three areas. The absence of evidence in support of an alleged fact is an evidentiary circumstance that weighs against the existence of the alleged fact. Additionally, the Veteran has not provided any evidence of a continuity of symptomatology involving a right thumb disorder. In a VA Form 21-526, he essentially admits that he did not receive treatment for the right thumb until August 2005, a period of more than 14 years. Maxson. Even then, when the Veteran was seen in August 2005, the examiner diagnosed right thenar eminence pain and attributed it to a strain from biking for the prior three weeks. This is further evidence against a nexus between the post service diagnosis of right thenar eminence pain and service. As to the claim of entitlement to service connection for a left groin disorder, a February 1991 service treatment record from the Veteran's second period of service shows that the Veteran was diagnosed with a left groin strain. He was sent to orthopedics, wherein he was diagnosed with pulled adductor. Thus, an in-service injury is shown, and the Veteran is competent to report such injury. However, the post service medical records do not show any current disability associated with the left groin. The Veteran has not attempted to provide lay evidence of a current disability or evidence of a continuity of symptomatology since the February 1991 groin strain. For example, in his notice of disagreement, he stated that all of his medical disorders were "received or aggravated" during service and to consult his service treatment records. In his substantive appeal, he again requested that VA look at his service treatment records. It is possible that the Veteran does not fully understand the requirement for service connection. Just because a disease or injury is shown in service does not mean that such will automatically be service connected. There needs to be evidence of a current disability, and a current disability involving the left groin is not shown by the record. The same analysis can be applied to the Veteran's claim of entitlement to service connection for a psychiatric disorder. There is no competent evidence of a current psychiatric disorder, to include a diagnosis of posttraumatic stress disorder. In the November 2006 letter to the Veteran, the RO requested the claimant to provide evidence necessary to establish service connection for posttraumatic stress disorder, to include facts necessary to verify any claimed in-service stressor. The Veteran has not responded. In statements to VA, he has made no mention of what happened in service that caused either a posttraumatic stress disorder or any other psychiatric disorder. Moreover, the appellant has not even attempted to describe any psychiatric symptoms he experiences or has experienced either during service or currently. On this particular claim, there is a complete lack of evidence of an in-service incident, a current disability, and any evidence between service and the time the Veteran filed his current claim for service connection. Therefore, as to the claims of entitlement to service connection for a left groin disorder and a psychiatric disorder, to include posttraumatic stress disorder, service connection is denied because of the lack of any competent evidence of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of a present disability there can be no valid claim); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (service connection may not be granted unless a current disability exists). As noted above, the Veteran has not provided enough lay statements to establish a current disability. In light of the evidence preponderating against the claims of entitlement to service connection for hypertension, a right thumb disorder, a left groin disorder, and a psychiatric disorder, including posttraumatic stress disorder, the benefit of the doubt doctrine is not applicable, and service connection cannot be granted. 38 U.S.C.A. § 5107(b). Accordingly, the claims are denied. ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection a right thumb disorder is denied. Entitlement to service connection for a left groin disorder is denied. Entitlement to service connection for a psychiatric disorder, including posttraumatic stress disorder, is denied. REMAND As to the remaining claims of entitlement to service connection for a left knee disorder and a heart disorder, the Board finds that the Veteran is entitled to VA examinations in connection with these claims. During the Veteran's first period of service, he was seen with complaints of left knee pain in April 1987, which had lasted longer than three weeks. He was diagnosed with patella bursitis. The Veteran was seen for left knee pain during his second period of service. In February 1991, he was diagnosed with patellofemoral joint syndrome after reporting complaints of pain with increased activity. An August 2005 private medical record shows that the Veteran has been diagnosed with possible left meniscal damage. Because a current left knee disorder may be associated with the Veteran's service, and because there is insufficient competent medical evidence on file for VA to make a decision on the claim further development is in order. McLendon, 20 Vet. App. at 81. As to the heart disorder, the service entrance examination from the Veteran's first period of service, dated March 1986, shows that he was diagnosed with "mild aortic stenosis." He underwent additional testing. An April 1986 electrocardiographic study was within normal limits. A May 1986 record shows that Archer Baskerville, M.D., entered an impression of a heart murmur, which was "probably a pulmonic flow murmur." The examiner stated that he doubted it was congenital heart disease. A May 1986 medical record from Dr. Baskerville that echocardiography revealed a normal aortic root and left atrial internal diameters, a normal aortic valve, a normal mitral valve, normal pulmonic and tricuspid valves, a non- dilated, non-hypertrophied left ventricle with excellent function and wall motion, a non-dilated right ventricle and right atrium, and absent pericardial effusion. The appellant's ejection fraction was 67 percent. A July 1988 report noted that the appellant had been diagnosed with a heart murmur in March 1986, and that he had been initially disqualified for enlistment due to aortic stenosis. This report stated that the appellant was allowed to enlist after extensive studies revealed no cardiac abnormalities. The remainder of the service treatment records from the first period of service are silent for any heart complaints or diagnoses. The March 1990 report of medical examination shows that clinical evaluation of the heart was normal. An electrocardiogram was not, however, conducted. The Veteran's second period of service began on February 4, 1991. A February 13, 1991, service treatment record shows that the Veteran was seen for complaints of chest pain during physical training. It was noted that the appellant had aortic stenosis which was "long known." An electrocardiographic study done at that time shows an "abnormal" finding. It was recommended that the Veteran be discharged for "good of service." The impression was left ventricular hypertrophy. He was discharged as of February 19, 1991. A December 2003 private medical record shows that the Veteran reported having an irregular heart beat in service. The examiner noted that the plan was for the Veteran to undergo an electrocardiogram. Whether the Veteran underwent such test is unknown. Hence, further development is in order. While the December 2003 private medical record shows a diagnosis of an irregular heart beat, which is not necessarily a disability, the Board finds that an examination is necessary to make a decision on this claim. Clearly the Veteran had some issues with his heart, as he underwent heart evaluations during both periods of service, and it appears he was discharged from his second period of service as a result of his heart. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran authorize in writing VA to attempt to obtain all private treatment records, including test results, associated with his claimed left knee and heart disorders. The Veteran may submit this evidence himself as well. If the Veteran has received treatment from any VA facility for the left knee and/or heart disorders, he should inform the RO/AMC so that it may obtain this evidence. 2. Thereafter, the RO should schedule the Veteran for a VA cardiovascular examination. The claims folder, including the service treatment records, is to be made available to the cardiologist for review in conjunction with the examination. Any testing deemed necessary by the cardiologist should be conducted. Based on a review of the claims folder and the results of the examination, the cardiologist must state whether the Veteran has any current cardiovascular disability, other than hypertension. The examiner is to then opine whether it is at least as likely as not that the current cardiovascular disorder was permanently aggravated during the Veteran's second period of service in February 1991. The examining physician must provide detailed reasons for all rendered opinions. In preparing the opinion the examining physician must note the following terms: * "It is due to" means 100 percent assurance of relationship. * "It is at least as likely as not" means 50 percent or more. * "It is not at least as likely as not" means less than a 50 percent chance. * "It is not due to" means 100 percent assurance of non relationship. If the examiner is unable to provide an opinion that fact must be stated and the reasons why an opinion cannot be provided explained. That is, the examining physician must specifically explain why the causation of any diagnosed heart disorder is unknowable. VA examiner must append a copy of their curriculum vitae to the examination report. 3. The RO should also schedule the Veteran for a VA joints examination. The claims folder, including the service treatment records, is to be made available to the examiner for review in conjunction with the examination. Based on a review of the claims folder and the results of the examination, the examiner must state whether the Veteran has a current left knee disability. The examiner is asked to opine whether it is at least as likely as not that the current left knee disability was incurred during either or both periods of the Veteran's service (the Veteran's periods of service are October 1986 to April 1990, and from February 4 to 19, 1991. The examining physician should provide detailed reasons for all rendered opinions. In preparing the opinion the examining physician must note the following terms: * "It is due to" means 100 percent assurance of relationship. * "It is at least as likely as not" means 50 percent or more. * "It is not at least as likely as not" means less than a 50 percent chance. * "It is not due to" means 100 percent assurance of non relationship. If the examiner is unable to provide an opinion that fact must be stated and the reasons why an opinion cannot be provided explained. That is, the examining physician must specifically explain why the causation of any diagnosed left knee disorder is unknowable. VA examiner must append a copy of their curriculum vitae to the examination report. 4. The RO/AMC must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2009). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. Thereafter, the RO/AMC should readjudicate the claims of entitlement to service connection for left knee and heart disorders. As to the heart disorder, the application of the presumption of soundness must be addressed as to both periods of service. If any benefit is not granted, the Veteran and his representative, if any, should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). ________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs