Citation Nr: 1113771 Decision Date: 04/07/11 Archive Date: 04/15/11 DOCKET NO. 09-28 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a back disorder. 3. Entitlement to service connection for a left knee disorder. 4. Entitlement to service connection for an eye disorder to include chronic conjunctivitis and myopia. 5. Entitlement to service connection for a kidney disorder. 6. Entitlement to service connection for a bilateral leg disorder. ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1973 to March 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. Hypertension is not shown to be etiologically related to service. 2. A back disorder is not shown to be etiologically related to service. 3. A left knee disorder is not shown to be etiologically related to service 4. A chronic eye disorder to include conjunctivitis and myopia is not shown to be etiologically related to service. 5. A kidney disorder is not shown to be etiologically related to service. 6. A bilateral leg disorder is not shown to be etiologically related to service. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by active service nor may hypertension be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2010). 2. A back disorder was not incurred in or aggravated by service, and arthritis of the spine may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. A left knee disorder was not incurred in or aggravated by service, and arthritis of the left knee may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. A chronic eye disorder, to include conjunctivitis and myopia, was not incurred or aggravated while on active duty. 38 U.S.C.A. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 5. A kidney disorder was not incurred in or aggravated by service, and nephritis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 6. A bilateral leg disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 pre-rating correspondence dated in December 2007 of the information and evidence needed to substantiate and complete his claims, to include information regarding how disability evaluations and effective dates are assigned. The Board notes that the Veteran has not been afforded VA examinations to determine the nature and etiology of his hypertension, and back, left knee, kidney and bilateral leg disorders. However, a VA examination or opinion is deemed necessary only if the evidence of record (a) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (b) establishes that the Veteran suffered an event, injury, or disease in service; (c) indicates that the claimed disability or symptoms may be associated with the Veteran's service or other service- connected disability, and (d) does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159; McClendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the requirement to examine the Veteran is not triggered as the evidence of record does not meet these initial evidentiary thresholds. VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claims, and as warranted by law, providing VA examinations. There is no evidence that any VA error in notifying or assisting the appellant reasonably affects the fairness of this adjudication. Hence, the case is ready for adjudication. Service Connection-Laws and Regulations Service connection may be established 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status may, but will not always, constitute competent medical evidence. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). For certain chronic diseases, such as hypertension, arthritis and nephritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a year following discharge from active duty. 38 C.F.R. § 3.307, 3.309. The Board has reviewed all the evidence in the Veteran's claims file. 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) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. Service Connection for Hypertension-Factual Background and Analysis The Veteran contends that job stress while on active duty led to his development of high blood pressure. He further stated that he was diagnosed with high blood pressure while in service. The Board finds, however, that the evidence preponderates against finding that the Veteran's hypertension is related to service. The Veteran's service treatment records are silent as to treatment for or diagnosis of hypertension or high blood pressure. The Veteran's blood pressure was noted as 116/70 in his report of medical examination for the purpose of enlistment and as 98/78 upon discharge. There is no demonstration of high blood pressure or hypertension within a year of the Veteran's discharge. VA medical center treatment records dated in September 1990 reveal a blood pressure reading of 130/90. October 1990 records note blood pressure of 110/70 and treatment notes dated in June 1991 note blood pressure of 128/78. An October 1993 VA treatment note specifically noted that the Veteran did not have a history of hypertension. VA medical center treatment record dated in April 1997 reported a history of hypertension and a report from private facility Carolina Kidney Care shows a diagnosis of hypertension in January 2005. The Veteran's treatment notes reported that the Veteran was overweight and that he had a high fat, high sodium diet. In this case, the claim of entitlement to service connection for hypertension must be denied. Service treatment records fail to show that the Veteran had hypertension or elevated high blood pressure readings in-service, and compensably disabling hypertension was not shown within a year of separation from active duty. In fact, the first note of hypertension is found decades after his service. Such a finding supports the conclusion that hypertension is unrelated to service. Further, there is no competent evidence showing a link between the Veteran's hypertension and his service. The Board notes the Veteran's assertions that the stress of his service caused his hypertension. As a lay person, the Veteran is competent to report on that which he has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Here, however, any question concerning the etiology of hypertension goes beyond a simple and observable cause-and-effect relationship. As such, the Veteran is not competent to render an opinion addressing the etiology of his hypertension. As the evidence fails to show an in-service incurrence of hypertension or competent evidence of a link between service and the Veteran's presently diagnosed hypertension, the claim must be denied. II. Service Connection for a Back Disorder-Factual Background and Analysis The Veteran asserts that he injured his back during training and that his present back disorder is related to service. For the reasons discussed below, the Board disagrees. Service treatment records are silent as to any injury to the back, treatment for or diagnosis of a back disorder. At separation from active duty in January 1975 clinical evaluation revealed a normal spine. VA treatment records first note back pain in September 1990 where the Veteran was diagnosed with low back pain, later treatment notes reported that a CAT scan could not be scheduled due to the Veteran's weight. An April 1992 VA medical center treatment record noted that the Veteran reported a history of a slipped disc, and it was noted that he performed physical work. A September 2005 treatment note from the Cape Fear Valley Medical center noted that the Veteran was a former heavyweight boxer. A January 2006 treatment note from the private facility Carolina Kidney care noted that the Veteran experienced lower back pain. The Veteran again reported a history of a slipped disc in 1990. The evidence preponderates against finding that the Veteran's present back disorder is related to service. In this case the record includes neither in-service evidence of a chronic back disorder or injury, nor medical evidence of a nexus between the Veteran's present back disorder and his service. Rather, the evidence appears to indicate that the Veteran injured his back in 1990, long after service. Such evidence goes against finding a continuity of symptoms since service separation. Finally, compensably disabling arthritis was not shown within a year of the appellant's separation from active duty. The Veteran's claim is therefore denied. III. Entitlement to Service Connection for a Left Knee Disorder The Veteran contends that he injured his left knee during service which has resulted in arthritis and a loss of left knee motion. The Board finds that the evidence preponderates against finding that the Veteran has a left knee disorder which was a result of his service. The service treatment records are silent as to any diagnosis of or treatment for a left knee disorder. In his December 1972 report of medical history, the Veteran reported a history of leg cramps, but he denied a "trick" or locked knee. The Veteran's lower extremities were clinically evaluated as normal at both his December 1972 enlistment and January 1975 separation examinations. The postservice treatment notes are largely silent as to any left knee disorder. A January 2006 treatment note from Carolina Kidney Care reported that the Veteran had back pain which radiated down to the left knee but hyper-reflexia was not noted in the knee jerk. Grossly the knee joint did not show any acute inflammation. The evidence notes that the Veteran reports left knee pain but the evidence does not include a diagnosis of a left knee disorder. Clinical demonstration of a current disability is prerequisite for service connection and there can be no valid claim for service connection in the absence of proof of a present disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the Veteran carries a diagnosis of osteoarthritis, the joint involved is not mentioned. Assuming, arguendo, however that the Veteran has arthritis of the knee, there is no evidence of compensably disabling arthritis within a year of his separation from active duty. Further, there is no medical opinion relating any current knee complaints with service and there is no demonstration of an in-service left knee injury. The lack of any treatment for or diagnosis of a knee disorder for years after service is also against the Veteran's assertion that he has had a left knee disorder since service. 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). As the elements required to grant service connection have not been met the claim of entitlement to service connection must be denied. IV. Service Connection for an Eye Disorder to Include Myopia and Chronic Conjunctivitis In May 1974 the Veteran was struck in the right eye. Physical examination revealed an injected conjunctiva, but 20/20 visual acuity. The Veteran's January 1975 separation examination report revealed normal eyes. His visual acuity was 20/25 in the right eye and 20/20 in the left eye. The Veteran asserts that during his tour of service, he experienced blurry vision and that this condition has increased since that time. He suggests that his present eye disorder is related to his in-service eye injury. Post service treatment notes reported in June 1991 that the Veteran had had problems with his eyes to include itching. A diagnosis of conjunctivitis, probably viral, was given. Later June and July 1991 treatment notes report resolving conjunctivitis. A July 1992 VA ophthalmology treatment note reported that the Veteran had allergic conjunctivitis. Another July 1992 VA treatment note found probable conjunctivitis with seasonal reoccurrence. VA treatment notes dated in October 1993 reported that the Veteran had a past medical history of right sided Bell's palsy, and an inability to close the right eye. In May 2008, the Veteran was afforded a VA examination. Upon examining the claims file, the examiner noted that the Veteran had a past history in 1974 of blunt right eye trauma with no residuals, and sometime in 1974 one episode of vernal conjunctivitis bilaterally as well as an episode of bell's palsy with complete recovery. The Veteran was not shown to have any symptoms upon examination, fundus was within normal limits in both eyes, peripheral vision was intact, and vision was otherwise normal. The diagnosis was constricted fields of vision, left eye greater than right eye. It was opined that this was a possible residual from the previous blunt trauma to the right eye. No reasons were provided for this conclusion. In October 2008, another VA examiner was asked to provide an opinion as to whether a chronic eye disability was found on examination and if so, whether it was at least as likely as not caused by the softball injury in service. After reviewing the records the examiner stated that the Veteran was struck in the eye in May 1974. Notably, after the injury an examination of binocular indirect was normal, which meant that the retina was healthy. There were no pathological findings noted other than a conjunctiva injection in the right eye. The October 2008 VA examiner noted the previous examiner's findings and that the right eye had a concentric constriction. The examiner opined that this did not occur from neurological damage which was most often functional in nature and that exceptions to this rule were not shown in the record. The examiner stated that he could therefore not lend significance to the enclosed visual fields. The examiner concluded that there was no chronic eye disability based on the part of the VA examiner's findings, and no evidence in the medical records of remnants from the right eye examination indicating an injury to the right eye. The examiner stated that any current complaints of the Veteran were not caused by or a result of the eye injury of record. Based on the foregoing evidence, the Board finds that the record preponderates against the claim of entitlement to service connection for an eye disorder. Initially, the Board observes that VA regulations provide that a refractive error is a congenital defect which is not subject to service connection. 38 C.F.R. § 3.303(c). Refractory errors of the eye include such eye disorders as myopia, presbyopia and astigmatism. Thus, as a matter of law, the Veteran cannot be service connected for myopia. The Veteran is shown to have experience occasional bouts of conjunctivitis postservice. The Board finds, however, that the evidence preponderates against finding that the Veteran has a chronic eye disorder which is due to service. As noted in some of the his treatment records, the Veteran's conjunctivitis appears to be seasonal and allergy-based, occurring around the same time of the year. Further, while the May 2008 VA examiner said the Veteran's eye injury "may have" resulted in his later symptoms, the October 2008 VA examiner provided a negative nexus opinion and provided his reasons for that opinion. Because the October 2008 VA examiner was able to review and consider the May 2008 VA examination, and because he provided his reasons behind his findings, the October 2008 VA examiner's opinion is the more probative opinion, and it weighs against the Veteran's claim for service connection. Indeed, the United States Court of Appeals for Veterans Claims has held that where a physician is unable to provide a definite causal connection, the opinion on that issue constitutes "what may be characterized as 'non-evidence.'" See Perman v. Brown, 5 Vet.App. 237, 241 (1993); (citing Sklar v. Brown, 5 Vet.App. 140, 145-46 (1993); Kates v. Brown, 5 Vet.App. 93, 95 (1993); Tirpak v. Derwinski, 2 Vet.App. 609, 610-11 (1992)); see also Dyess v. Derwinski, 1 Vet.App. 448, 453-54 (1991). The conditional language "may have" decreases the probative value of the May 2008 study. As noted above, a lay person is competent to report on that which he has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, however, because the question of the etiology of any current eye disorder goes beyond a simple and immediately observable cause-and-effect relationship, the Veteran is not competent to render an opinion addressing the etiology of his eye disorder. In this regard, while the Veteran has complained of blurry vision, objective evidence of a chronic eye disability since service simply has not been demonstrated. Repeated examinations have revealed normal eyes and, while complaints of conjunctivitis are noted, these episodes have been found to be acute and transitory rather than chronic and appear to an allergic reaction, and not due to service. The October 2008 VA opinion finding that an eye disorder is not due to service is found to be highly probative. Finally, the Board again notes that clinical demonstration of a current chronic disability is prerequisite for service connection and there can be no valid claim for service connection in the absence of proof of a present disability. Brammer. Thus, for the reasons stated above, the Veteran's claim of entitlement to an eye disorder must be denied. V. Entitlement to Service Connection for a Kidney Disorder-Factual Background and Analysis The Veteran's service treatment records are silent as to any treatment for or diagnosis of a kidney disorder. His genitourinary system was normal at both enlistment and separation. VA medical records show that the Veteran was first diagnosed with chronic renal disease in 1997. Since that time treatment records from the Carolina Kidney Care facility have shown end-stage renal disease with a kidney transplant in April 2006 and ongoing dialysis. At no time has a medical professional suggested that the Veteran's kidney conditions are in any way related to his service. While the Veteran has a kidney disorder, the evidence preponderates against finding either in-service incurrence of such a disorder or a nexus between service and any present kidney condition. As noted above, while the Veteran is able to speak to observable symptoms, he is not competent to render an opinion as to the cause of his kidney disorder. Layno. Further, the fact that over twenty years passed before the Veteran's first diagnosis goes against his claim that this disorder was due to service. Maxson. The claim of entitlement to service connection for a kidney disorder is denied. VI. Service Connection for a Bilateral Leg Disorder The Veteran asserts that during his service, while in physical training, he suffered a leg injury and has since experienced numbness. The Veteran contends that his pain is caused by post-traumatic arthritis due to an in-service injury. The service treatment records note that the Veteran reported having leg cramps prior to service. Physical examination, however, revealed no lower extremity disorder. Treatment records reveal that the Veteran sprained his ankle in tenth grade and that he had intermittent pain since. Notably, examination was essentially normal with only calluses on the foot. The Veteran's lower extremities were found to be normal at both his December 1972 enlistment and January 1975 separation examinations. A September 1990 treatment VA treatment note recorded the appellant's claim that he was numb from the left knee down. Deep tendon reflexes were absent below the knees. An October 1990 VA medical center treatment note reported that the Veteran had a two month history of pain and low back and leg paresthesias. The diagnosis was rule out herniated nucleus pulposus. Later that month it was noted that the Veteran had near complete resolution of pain but that Veteran still reported toe numbness. A January 2006 treatment note from Carolina Kidney Care noted that the Veteran had pain from the mid-left lateral flank down the front of his lower left leg. Grossly the hip joint did not show any acute inflammation. A history of a slipped disc in 1990 was noted, but a history of back surgery was denied. The impression was probable disc prolapse causing left nerve compression. A May 2006 treatment note reported that the Veteran had had an episode of severe sciatica which had resolved. A treatment noted from the private facility Nephrology Associates noted trace pre-tibial edema. May 2007 treatment notes from Carolina Kidney Care noted a diagnosis of osteoarthritis. The preponderance of the evidence is against finding entitlement to service connection for a bilateral leg disorder. The service treatment records note that the Veteran reported leg cramps and an ankle disorder prior to service, but he is entitled to the presumption of soundness due to findings at enlistment. Nevertheless, even with such a presumption there is no evidence that demonstrates the service incurrence of any lower extremity disorder. Moreover, the Veteran's discharge examination shows normal lower extremities. While the Veteran states that he was injured in basic training, there is no evidence of such an injury nor is there any evidence of a chronic leg disorder since service. To the contrary, chronic leg complaints are only shown years after service, and after he was discharged with normal legs on examination. Further, the claimed bilateral leg disorder is not shown by any of the medical evidence to be related to the Veteran's service. Additionally, the claimed bilateral leg disorder appears to be related to the Veteran's back disorder, which as noted above, is not related to service. As the evidence preponderates against finding either an in-service incurrence or aggravation of a disorder or a link between a present disorder and service, the Veteran's claim for service connection for a bilateral leg disability must be denied. In light of the evidence preponderating against the claims, the benefit of the doubt doctrine is not applicable and service connection cannot be granted. Gilbert v. Derwinski, 1 Vet.App. 49 (1990); 38 U.S.C.A. § 5107. Accordingly, the claims are denied. ORDER Entitlement to service connection for hypertension, and for back, left knee, eye, kidney, and bilateral leg disorders is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs