Citation Nr: 1308601	
Decision Date: 03/14/13    Archive Date: 03/25/13

DOCKET NO.  09-37 047	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1.  Entitlement to service connection for hypertension.

2.  Entitlement to service connection for renal failure, to include as secondary to hypertension.

3.  Entitlement to service connection for gout, to include as secondary to renal failure

4.  Entitlement to an initial evaluation in excess of 10 percent for left knee degenerative joint disease.

5.  Entitlement to an evaluation in excess of 30 percent for right knee strain with Baker's cyst.




REPRESENTATION

Appellant represented by:	Heather Vanhoose, Attorney 


WITNESSES AT HEARING ON APPEAL

The appellant and his spouse


ATTORNEY FOR THE BOARD

C. M. Powell, Counsel


INTRODUCTION

The appellant served on active duty from July 1988 to May 1996.

This case comes before the Board of Veterans' Appeal (Board) on appeal from December 2008, March 2009, and June 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. 

In July 2012, the appellant had a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the claims file.

As will be discussed below, the Board has found that the Veteran withdrew his appeal for entitlement to an increased evaluation for left knee degenerative joint disease.  However, the Veteran and his representative raised the issue again at the July 2012 hearing, as well as entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU).  Therefore, the issues are referred to the RO for appropriate action.  

The issues of entitlement to service connection for renal failure and gout are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office


FINDINGS OF FACT

1.  On September 21, 2011, prior to the promulgation of a decision in the present appeal, the Veteran (through his attorney) withdrew his Substantive Appeal with respect to the issue of entitlement to an evaluation in excess of 30 percent for right knee strain with Baker's cyst.

2.  On September 21, 2011, prior to the promulgation of a decision in the present appeal, the Veteran (through his attorney) withdrew his Substantive Appeal with respect to the issue of entitlement to initial evaluation in excess of 10 percent for left knee degenerative joint disease.

3.  The Veteran's current hypertension is related to his military service.

 
CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a substantive appeal for entitlement to an evaluation in excess of 30 percent for right knee strain with Baker's cyst have been met.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2012). 

2.  The criteria for withdrawal of a substantive appeal for entitlement to entitlement to an evaluation in excess of 10 percent for left knee degenerative joint disease have been met.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2012). 

3.  Resolving reasonable doubt in favor of the Veteran, hypertension was incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1131(West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Withdrawal of Appeals

A substantive appeal may be withdrawn on the record or in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202 (2012).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204 (2012). 

In a letter received at the RO on September 21, 2011, the Veteran, through his attorney, indicated that he wanted to withdraw his appeal as to the issues of entitlement to an evaluation in excess of 10 percent for left knee degenerative joint disease and entitlement to an evaluation in excess of 30 percent for right knee strain with Baker's cyst.  Because the Veteran clearly indicated his intent to withdraw these issues on appeal, there remain no allegations of errors of fact or law for appellate consideration.  See 38 C.F.R. § 20.204 (2012).  Under 38 U.S.C.A. § 7105 (West 2002), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  Accordingly, the Board does not have jurisdiction to review the appeals of entitlement to an initial evaluation in excess of 10 percent for left knee degenerative joint disease and entitlement to an evaluation in excess of 30 percent for right knee strain with Baker's cyst, and they are dismissed.


II. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. (West 2002) and its implementing regulations define the obligations of VA with respect to its duties to notify and assist claimants.  However, in the decision below, the Board has granted the Veteran's claim for service connection for hypertension.  Therefore, the benefit sought on appeal has been granted in full. 
Accordingly, no harm or prejudice to the Veteran has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. 

II. Service Connection for Hypertension

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b).  Service connection may also be granted 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). 

Service connection for certain diseases, such as cardiovascular-renal disease, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 

In rendering a decision on appeal, 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 Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, supra, 1 Vet. App. At 57.

In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012).

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for hypertension.  His service treatment records show that his blood pressure was taken on numerous occasions.  During this time, his reported systolic blood pressure readings ranged from 102-162 mmHg and his diastolic blood pressure readings ranged from 62-102 mmHg.  His separation examination showed a blood pressure reading of 145/89 mmHg.

The evidence of record clearly shows that he has a current diagnosis of hypertension.  Thus, the remaining question is whether his current hypertension is related to elevated blood readings in service. 

With respect to the etiology of the Veteran's hypertension, a July 2010 VA examination report shows that the examiner opined that he could not resolve the medical issue without resorting to pure speculation.  In reaching this conclusion, the examiner stated:

I carefully reviewed the Veteran's service medical record.  The Veteran had several blood pressure readings when he was in active service.  All of the blood pressures were within normal levels, but a few of them had diastolic blood pressure of 80, and blood pressure was taken at the time of lower back pain, chest congestion as well as some other medical conditions.  Any kind of acute medical condition usually elevates the blood pressure.  Otherwise, the Veteran had normal blood pressure both systolic and diastolic.  The Veteran also has no definitive diagnosis of hypertension when he was in active service as well as its treatment.  The Veteran also has a long civilian life after he got out from service, and, at that time, he was diagnosed with hypertension back in 2002, and, subsequently, he was put on medication.  The Veteran has documented diagnosis in October as per CPRS problem list.  Therefore, it is not possible for a few elevated diastolic readings to make a definitive diagnosis of hypertension while he was in active service.

However, in September 2010, a private physician, Dr. J. M. D. (initials used to protect privacy), stated that it was as likely as not that the Veteran's in-service elevated blood pressure readings are related to his current hypertension.  In reaching this conclusion the examiner noted:

This gentleman has been previously denied for hypertension. The Hearing Officer felt that there was no evidence during military service that he ever had hypertension or that he was treated for it.  On a brief review of the records and looking at records from 1993 to 1996, he had the following blood pressures: 142/102, 146/89, 138/82, 162/98, 152/78, 133/75, 162/76, 129/77.

Based on the numbers he had hypertension on at least one of the occasions and according to modern definition of hypertension had the disease throughout that time.  These numbers were formerly thought to be borderline hypertension but now they are all considered hypertensive readings.

Based on the foregoing, the Board concludes that there is a reasonable doubt as to whether the Veteran's current hypertension is related to his period of service.  To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Accordingly, the Board concludes that service connection hypertension is warranted.



ORDER

The appeal for entitlement to an evaluation in excess of 30 percent for right knee strain with Baker's cyst is dismissed.

The appeal for entitlement to an evaluation in excess of 10 percent for left knee degenerative joint disease is dismissed.

Service connection for hypertension is granted.


REMAND

The law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159.  Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159.

In this case, the Veteran testified in July 2012 that he is in receipt of disability benefits from the Social Security Administration (SSA). The claims file does not contain a copy of the decision to grant benefits or the records upon which that decision was based.  Nor does it appear that any attempt was made to obtain such records.  Under 38 U.S.C.A. § 5107(a), VA's duty to assist specifically includes requesting information from other Federal departments or agencies.  Where there has been a determination that a veteran is entitled to SSA benefits, the records concerning that decision are often needed by the VA for evaluation of pending claims and must be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992).  Therefore, an attempt should be made to obtain and associate the Veteran's SSA records with the claims file. 

In addition, the Board finds that an additional medical opinion is necessary with respect to the claims for service connection for gout and renal failure.  A  medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease.  38 C.F.R. § 3.159(c)(4) (2012).  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The Veteran asserts that service connection is warranted for renal failure that is secondary to his service-connected hypertension.  He also asserts that service connection is warranted for gout that is secondary to renal failure.  Post-service treatment records show that the Veteran has been diagnosed with and treated for chronic renal failure, including a kidney transplant.  With respect to the etiology of such conditions, the Board observes that the two pertinent opinions of record are inadequate.  In this regard, the July 2010 VA examiner indicated that he could not resolve such issues without resorting to pure speculation because he could not provide an opinion regarding the Veteran's hypertension without resorting to pure speculation.  Likewise, although a private physician provided a favorable opinion in September 2010, he failed to provide a rationale for his conclusions.  Therefore, in light of the deficiency of the opinions of record, the Board finds that an additional VA examination and medical opinion are warranted to determine the nature and etiology of the Veteran's current gout and renal failure.  

Accordingly, the case is REMANDED for the following action:

1.  The RO should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his gout and renal failure.  After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file.

2.  The RO should obtain a copy of the decision to grant SSA benefits to the Veteran and the records upon which that decision was based and associate them with the claims file.  If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records.

3.  The Veteran should be afforded a VA examination to determine the nature and etiology of any current renal failure.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements.  

The examiner should state as to whether it is at least as likely as not that that the Veteran currently has renal failure that is related to his military service.  He or she should also opine as to whether it is at least as likely as not that the Veteran's current renal failure is either caused by or permanently aggravated by his service-connected hypertension. 

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) 

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review.

4.  The Veteran should be afforded a VA examination to determine the nature and etiology of any current gout that may be present.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements.  

The examiner should state as to whether it is at least as likely as not that that the Veteran currently has gout that is related to his military service.  He or she should also opine as to whether it is at least as likely as not that the Veteran's current gout is either caused by or permanently aggravated by his renal failure and service-connected hypertension. 

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) 

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review.

5.  After completing the above actions, the RO should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 

6.  When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence.  If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim 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. 2009).




____________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs