Citation Nr: 1317802 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 09-27 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for residuals of a collarbone fracture. 3. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Jeany Mark, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Ogilvie, Counsel INTRODUCTION The Appellant served on active duty for training (ACDUTRA) from January 1973 to May 1973 and had subsequent periods of ACDUTRA and inactive duty for training (INACDUTRA) through 1995. National Guard personnel records document that as of May 20, 1995, the Appellant was assigned to the U.S. Army Reserve Control Group (Retired). These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In February 2011, the Appellant testified at a personal hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing is of record. At the hearing, the Appellant submitted additional evidence with a waiver of RO initial consideration of such evidence. In September 2011, the Board denied the issues on appeal. The Appellant appealed the Board decision to the United States Court of Appeals for Veterans Claims (Veterans Court). In September 2012, the Veterans Court granted the Joint Motion for Remand filed by representatives for both parties, vacating the Board's decision, and remanding the claim to the Board for further proceedings consistent with the Joint Motion. During the February 2011 hearing, the Appellant testified that he was struck by lightning during service and has since experienced significant anxiety during lightning storms. Board Hearing Tr. at 5. Therefore, the record reasonably raises the issue of entitlement to an acquired psychiatric disorder. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. In April 2013, the Appellant's attorney submitted additional medical evidence directly to the Board, with a waiver of initial RO consideration of the evidence. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2012). The issues of entitlement to service connection for a left knee disability and for residuals of a collarbone fracture are REMANDED to the AOJ via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Appellant if further action on his part is required. FINDINGS OF FACT 1. The Appellant alleges that his hypertension began while serving on ACDUTRA in June 1989 after suffering injury from a lightning strike. 2. The Appellant served on a period of ACDUTRA from June 16, 1989 to July 1, 1989, but had already been diagnosed with hypertension prior to this period. 3. The Appellant has neither established that his pre-existing hypertension increased in disability due to the lightning strike during ACDUTRA nor that such an increase was beyond the natural progress of his hypertension. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 101(22), (23), (24), 1110, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For service-connection claims, this notice must address the downstream elements of disability ratings and effective dates. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Appellant in October 2008 that fully addressed all required notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Appellant of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The notice also informed him of disability rating and effective date criteria. VA has a duty to assist a claimant in the development of the claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In October 2008, the RO requested the Appellant's service treatment records. On October 20, 2008 the RO received two envelopes containing the Appellant's original service treatment records. In November 2008, the RO received additional copies of these records along with National Guard administrative records. These records appear complete. In making this determination that his complete records have been associated with the claims file, the Board has given due consideration to the Appellant's relevant testimony that he had difficulty obtaining copies of his service treatment records. Board Hearing Tr. at 17-18, 21. He testified that he had requested his records from VA, and was provided with the records of a different individual but not his own records. Id. at 17-18. He also testified that he thought he requested records from the National Personnel Records Center (NPRC) in St. Louis, Missouri and was provided with some but not all of his records and was told that some of the records had been lost or destroyed. Id. The Appellant's difficulties in obtaining a copy of his treatment records are not an indication that VA has less than complete service treatment records. He also testified that he had not requested a copy of the service treatment records that are in VA's possession. The undersigned informed the Appellant that he could file a Freedom of Information Act request with VA for a copy of the service treatment records in VA's possession. Board Hearing Tr. at 21. The Appellant did not file such a request during the pendency of his original appeal before the Board. However, in January 2013, subsequent to the September 2012 Joint Motion for Remand, the Appellant's attorney submitted a request for all of the Appellant's service records that contain notations of the incidents alleged by the Appellant. In April 2013, the Board responded to this request by sending the requested records. Furthermore, here, the Appellant never had any period of active duty service. Relevant sections of the VA Adjudication Procedure Manual and Manual Rewrite (M21-MR) indicate that the Army sends service treatment records belonging to reservists with prior active duty service to VA's Record Management Center (RMC). Id. Service treatment records belonging to an individual in the National Guard or Reserves who has never been on active duty, however, are never sent to the RMC. Id. This supports the Board's finding that there are no outstanding service treatment records available. The RO has obtained all private treatment records identified by the Appellant for which he has provided authorization for release to VA. Those records are associated with the claims file. In determining whether the duty to assist requires that VA provide a medical examination or obtain a medical opinion with respect to a claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Veterans Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Appellant's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no requirement that "an indication that the disability or symptoms may be associated with the claimant's service" be shown by competent evidence. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (explaining that 38 U.S.C.A. § 5103A(d)(1) has three different evidentiary standards, competent evidence of a current disability or symptoms of such, sufficient medical evidence for the Secretary to decide the claim, and lay or medical evidence that indicates that the disability or symptoms may be associated with the veteran's service). VA has not afforded the Appellant a medical examination or obtained a medical opinion with regard to the claim of entitlement to service connection for hypertension. Here, there is no competent evidence of record showing that hypertension was incurred during a period of service. As will be explained in detail below, the evidence that has been presented does not rise to the threshold of indicating an association between the Appellant's hypertension and his reported lightning incident during service. The record reflects that during a period of ACDUTRA in June 1989 the Appellant reported being "in a fox hold (sic) when lighting (sic) struck nearby." DA Form 2173, Statement of Medical Examination and Duty Status, June 1989. DA Form 2173 determined that the Appellant was struck by lightning in the line of duty. The Appellant's remark that since the lightning event "it seems like things have been going wrong for me" is a statement too vague to satisfy the requirement of evidence of an association between any lightning event (including being near a lightning strike) during service and his hypertension. See Board Hearing Tr. at 10. First, his statements are not of the character described by the Veterans Court in McLendon-medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. In this regard he reports a faster heartbeat and anxiety which are not the same thing as hypertension-a permanent increase in blood pressure measurements. See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). The Board notes that the Appellant's statement that "it seems like things have been going wrong with me" since the lightning event could apply to any condition. In making this determination, the Board notes that the Appellant's statements are similar to those of the appellant in Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010), a case in which the United States Court of Appeals for the Federal Circuit (Federal Circuit) explained that there is no requirement that an indication of an association between a claimed disability or symptoms and the claimant's service may be associated with the claimant's service be shown by medical or competent evidence. In Waters, the Federal Circuit stated as follows: At oral argument Waters contended that his conclusory generalized statement that his service illness caused his present medical problems was enough to entitle him to a medical examination under the standard of subsection B. Since all veterans could make such a statement, this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran's disability case. If Congress had intended that requirement, presumably it would have explicitly so provided. We reject Waters' theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues. Id. at 1278-79. The facts of the instant case are analogous to those noted by the Federal Circuit in Waters. In Waters, the Federal Circuit concluded that the Appellant's generalized statement that his schizophrenia aggravated his hypertension was not sufficient to trigger VA's duty to seek a medical opinion on the issue. Here, the Board concludes that the Appellant's generalized inference that his being struck by lightning (or being near a lightning strike) caused or aggravated his hypertension is not sufficient evidence to trigger VA's duty to seek a medical opinion on the issue. In neither case do the assertions rise to the level, low that it may be, of an indication of an association between the in-service event or disease and hypertension. The Board also notes that the record contains opinions by two private physicians, dated in October 2009 and April 2013. As discussed in detail below, however, these opinions have absolutely no bearing on the legal issue of whether the Appellant's hypertension began or was aggravated by a period of ACDUTRA. As such, this evidence does not meet the McLendon threshold for VA to provide the Appellant with an examination for his hypertension. The Appellant was provided an opportunity to set forth his contentions on the claim herein decided during the February 2011 hearing before the undersigned. The Veterans Court has held that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a Veterans Law Judge has a duty to explain fully the issues and to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The record reflects that at the February 2011 hearing the undersigned explained the issue, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. Neither the Appellant nor his attorney has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. Neither the Appellant nor his attorney has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Appellant is required to fulfill VA's duty to assist under the VCAA. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). All necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Preliminary Matters As noted in the Introduction, in September 2012, the Appellant's claim was remanded to the Board via a Joint Motion. In the Joint Motion for Remand, the parties agreed that remand was warranted because the Board failed to make findings as to when the Appellant served on ACDUTRA or INACDUTRA, and during which period of ACDUTRA or INACDUTRA the Appellant is alleging his disability occurred. As discussed above, the Board finds that there are no outstanding records of relevance to the Appellant's claims. Determining every period of the Appellant's ACDUTRA and INACDUTRA for the period between May 1973 and May 1995-a period of 22 years-is an exercise in futility as the Appellant has asserted that his hypertension was due to an event that occurred during a specific time period. The record is complete for all relevant information pertaining to this claim of service connection for hypertension. In accordance with the directives of the Joint Motion, the Board has clearly set out in the Findings of Fact listed above when the Appellant served on ACDUTRA, as it pertains to the claim for service connection for hypertension. The Board finds that further development of the hypertension claim is unnecessary. In this regard, the Appellant's claims file does not contain any medical records documenting the original diagnosis of hypertension, and he has not identified any outstanding records that pertain to this issue. The Appellant has only argued that his hypertension began during a period of ACDUTRA in June 1989 when he was struck by lightning. The Board acknowledges, as confirmed by a line of duty determination from this incident, that the Appellant was serving on ACDUTRA at this time. As discussed in more detail below, however, the evidence does not indicate whatsoever that the Appellant's hypertension was caused by this incident or during this period of ACDUTRA. In fact, in March 1989-three months prior to this period of ACDUTRA-the Appellant was afforded a periodic examination where he was found to have pre-existing hypertension that was already under treatment. On a Report of Medical History dated in March 1989, the Appellant marked that he had high blood pressure, and a physician noted that he was under a physician's care for hypertension and being treated with medication. Thus, the Appellant already had a pre-existing diagnosis of hypertension at the time of the June 1989 ACDUTRA period when the lightning injury occurred. Without knowing when exactly the Appellant was diagnosed with hypertension, determining every period of his ACDUTRA and INACDUTRA is a futile effort. The record clearly indicates that the Appellant served on ACDUTRA in June 1989. Shortly prior to that time period, on a periodic examination, he was noted to have pre-existing hypertension that was being treated by a physician. The Appellant has not suggested that his diagnosis of hypertension occurred during a period of training other than ACDUTRA in June 1989. He also has not identified any outstanding private records relevant to this claim that would document a pattern of elevated blood pressure readings or the original diagnosis of hypertension. While the Appellant could argue that the lightning incident that occurred during the June 1989 period of ACDUTRA aggravated his pre-existing hypertension, he has the burden to prove both elements of aggravation: 1) that there was an increase in disability as to a pre-existing injury or disease, and 2) such an increase was beyond the natural progress of that injury or disease. See 38 U.S.C.A. §§ 101(24), 1153; see also Donnellan v. Shinseki, 24 Vet. App. 167, 173-75 (2010). In the instant case, the Appellant has not addressed either element of the assertion that his pre-existing hypertension was aggravated by an injury incurred during his June 1989 period of ACDUTRA. Thus, the Board finds that without the Appellant submitting or identifying his original diagnosis of hypertension or a pattern of elevated blood pressure readings to indicate that hypertension may have begun at a certain time, there is simply no reason to determine every period of the Appellant's ACDUTRA or INACDUTRA for this issue. In the Findings of Fact set forth above, the Board has clearly indicated which period of ACDUTRA the Appellant is alleging that his hypertension began. The Board has even expanded its consideration to address possible beneficial arguments that the Appellant has not even presented (i.e., aggravation), and explained why determining the exact periods of the Appellant's ACDUTRA or INACDUTRA will not affect the claim in any way. For these reasons, the Board finds that further development pursuant to the Joint Motion for Remand is not warranted for the Appellant's claim for hypertension. The Board accordingly finds that remand to determine the Appellant's periods of ACDUTRA and INACDUTRA during his 22-year National Guard service will not produce evidence relevant to this claim. As such, the Board will proceed with adjudicating the merits of this issue in its decision below. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). III. Service Connection for Hypertension Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C.A. §§ 101(22), (23), (24), 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The term "active military, naval, or air service" includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(21), (23), (24); see also 38 C.F.R. § 3.6 (defining active duty, ACDUTRA, and INACDUTRA). Only "veterans" are entitled to VA compensation under 38 U.S.C.A. §§ 1110 and 1131. To establish status as a "veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Similarly, to achieve "veteran" status and be eligible for service connection for disability claimed during INACDUTRA, the record must establish that he was disabled from an injury (but not disease) incurred or aggravated during INACDUTRA. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Claims based on a period of ACDUTRA or INACDUTRA, are never entitled to the presumption of service connection outlined in 38 C.F.R. § 3.307 and § 3.309 nor are they entitled to the presumption of aggravation. Smith v. Shinseki, 24 Vet. App. 40, 46-48 (2010). Appellants who established "veteran" status for a prior period of service may be entitled to the presumption of soundness for a subsequent period of service under certain conditions. Id. at 45-46. For claims based on aggravation of a pre-existing condition during a period of ACDUTRA or INACDUTRA, the appellant must show that the condition worsened beyond its natural progression during the period of training and that the worsening was caused by the training. Id. at 48. When addressing a claim on the merits, the Board has an obligation to evaluate the credibility of evidence and to assign probative weight to competent evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (explaining that competency has to do with whether the evidence may be considered by the trier of fact); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). As to some of the factors that go into making credibility determinations both the Veterans Court and the Federal Circuit have provided guidance. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (stating that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (stating that "[t]he credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character"). Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). "While the lack of contemporaneous medical records may be a fact that the Board may consider and weigh against a veteran's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible." Id. at 1336. As to non-expert or lay opinions with regard to diagnoses or a relationship of a condition to service ("nexus"), whether such opinions are competent evidence depends on the question at issue and the particular facts of the case. Although it is error to categorically reject a non-expert nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. In Davidson, the Federal Circuit drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. In that earlier decision, the Federal Circuit stated as follows: "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n.4. Also of note is that the Veterans Court has explained that non-expert witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Taking Davidson, Jandreau, and Layno together leads the Board to the conclusion that the complexity of the particular question and whether or not a nexus opinion could be rendered based on personal observation are the factors that should be considered when determining whether a non-expert nexus opinion or diagnosis is competent evidence. Private treatment records reflect the Appellant is being treated for hypertension; therefore, the record reflects he has a current disability of hypertension. What remains to be shown is that hypertension was incurred in or aggravated by his ACDUTRA or INACDUTRA service. In his August 2008 application for disability compensation, the Appellant stated that his high blood pressure began in March 1989 and that he was treated from that date until the present by Dr. McDaniel. The Appellant testified in February 2011 that he was struck by lightning in June 1989 while at Fort Chaffee. Board Hearing Tr. at 4. Specifically, he reported that he was in a foxhole and lightning struck two large poles over the foxholes, he jumped up out of the foxhole and ended up in the dispensary the next morning and was told that he "had been lightning struck." Id. He also testified as follows: When I got lightning struck, they said I ran for 2 miles. I didn't know nothing about it, and, ever since then, it seems like things have been going wrong with me. Like when it starts lightning, I can't even just - - just stand it. I never have been frightened of lightning or nothing like that. Now I just want to run in the closet. Id. at 10. He testified that prior to that time he had not had problems with anxiety or a rapid heartbeat but since then he has had problems with his blood pressure and anxiety. Id. at 4-5. He stated that when it starts to lightning he becomes upset and his heart beats faster. Id. at 5. This is the only relationship that he has alleged between hypertension and his military service. Of record is a DA Form 2173 dated in June 1989 documenting that on June 26, 1989, at Fort Chaffee, Arkansas, the Appellant was treated on an outpatient basis for an injury described as "Struck by lightening (sic)." The form states that this injury was not likely to result in a claim against the government for future medical care and that it occurred on "AT 89." Details are listed as "patient was struck by lightening (sic) while at Ft. Chaffee for AT 89." It indicates that the training was active duty for training which began on June 16, 1989 and ended on July 1, 1989. The document indicates that the Appellant was not absent for duty. Remarks, clearly provided by the Appellant, were "I was in a fox hold (sic) when lighting (sic) struck nearby." The earliest evidence that the Appellant had any problems involving his blood pressure is found in June 1984 service treatment records. On that date he reported that he became dizzy after being out on the ranges all day and that he had only had two or three canteens full of water all day. He had a headache and was nauseated. There is also an individual sick slip that indicates in a remarks section "Dizziness - States blood pressure problems." He was assessed with heat injury, told to stay in quarters for 12 hours and to have no direct sunlight for two days. He was given intravenous fluids of one liter and prescribed Indocin. His blood pressure was measured as 124 mm Hg. systolic and 68 mm. Hg. diastolic. Although this report includes the Appellant's reports of blood pressure problems there is nothing in the report to indicate that he had hypertension at that time or that the heat injury resulted in any permanent disability. His blood pressure readings at that time did not show that he had hypertension. 38 C.F.R. § 4.104, Diagnostic Code 7101 (stating that hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater). The earliest report that he had hypertension predates the June 1989 lightning report. A March 1989 Report of Medical Examination includes in a summary of defects and diagnoses, that the Appellant had hypertension and was at that time under treatment. In the associated Report of Medical History, the Appellant indicated that he either then had or had previously had high or low blood pressure. As noted, the Appellant's service has only included ACDUTRA and INACDUTRA. He has not served on active duty, and has not established any service-connected disability. Thus, neither the presumption of soundness nor the presumption of aggravation is applicable to the Appellant's case. See Paulson v. Brown, 7 Vet. App. 66, 470 (1995); Smith v. Shinseki, 24 Vet. App. 40, 48 (2010). Here, the March 1989 report of medical examination clearly shows that the Appellant had hypertension prior to the lightning strike event. Thus, in order to establish aggravation of a preexisting condition during a period of ACDUTRA, the Appellant has the burden of showing both that he experienced a permanent increase in disability during his period of ACDUTRA, and that such permanent increase was beyond the natural progress of that disability. See Donnellan v. Shinseki, 24 Vet. App. 167, 173-75 (2010). There are numerous post-service private treatment records documenting that the Appellant has hypertension. None of those records refer to a lightning strike as having anything to do with his hypertension. In a writing received in October 2009, Dr. McDaniel stated that the Appellant had been followed at her office since "he was in the National Guard in 1975." Dr. McDaniel reported that the Appellant "has hypertension." She stated that the Appellant needed help with treatment and financially. She also stated that "these problems were all present when [the Appellant] was in [the] National Guard." On its face, this statement from Dr. McDaniel is not evidence tending to show that the Appellant's hypertension permanently increased in severity beyond the natural progress of the condition during a period of ACDUTRA. Furthermore, this statement does not indicate that the disability arose during a period of training. A disability that arises while someone was a member of the National Guard, but outside an actual period of training, is not considered to have resulted from service. Rather, the disability must have been permanently aggravated by disease or injury during a period or periods of ACDUTRA or injury during a period or periods of INACDUTRA. See 38 U.S.C.A. § 101(22), (24) (West 2002); 38 C.F.R. § 3.6 (2012). Therefore, the opinion is not evidence favorable to such a finding and has no probative weight on the pertinent medical question. In an April 2013 statement by private internist Dr. A.A., the physician noted that the Appellant's hypertension was documented in March 1989 on his periodic medical examination. She also noted that his blood pressure was normal in January 1984. Thus, it was her medical opinion that the Appellant's hypertension developed while in service. As rationale, she explained that there was documentation of normal blood pressure without treatment for hypertension and a few years later there was documentation of hypertension. Similar to Dr. McDaniel's statement, on its face, the April 2013 opinion is not evidence tending to show that the Appellant's hypertension permanently increased in severity beyond the natural progress of the condition during a period of ACDUTRA. Furthermore, this statement does not indicate that the Appellant's hypertension arose during a period of training. Thus, the opinion is not evidence favorable to such a finding and holds no probative weight on this question. In his claim, the Appellant indicated that his hypertension had its onset in March 1989 and his treatment records document his report at that time that he was already being treated for hypertension. The only link that the Appellant has asserted between his hypertension and service is the lightning strike near the Appellant's foxhole location. There is no report from a medical professional that this event aggravated the Appellant's pre-existing hypertension beyond the natural progress of the disability. The Board has considered the Appellant's statements of the effect of a lightning strike on his hypertension and concludes that they are not competent evidence. He has not demonstrated that he has expertise in medical matters. The question of whether a lightning strike causes hypertension or causes an increase in the severity of hypertension is a question the answer to which is beyond the competence of a layperson. Although the Appellant reports that he has an increase in anxiety with attendant physiological changes, whether either the initial event or the increase in anxiety and attendant physiological changes caused any permanent increase in his hypertension is not something that is observable by a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the Appellant's statements that he believes the lighting event of June 1989 has aggravated his hypertension are not competent evidence. As noted, the Appellant's service has only included ACDUTRA and INACDUTRA. He has not served on active duty, and has not established any service-connected disability. Thus, neither the presumption of soundness nor the presumption of aggravation is applicable to the Appellant's case. See Paulson v. Brown, 7 Vet. App. 66, 470 (1995); Smith v. Shinseki, 24 Vet. App. 40, 48 (2010). Here, the March 1989 report of medical examination clearly shows that the Appellant had hypertension prior to the lightning strike event. Thus, in order to establish aggravation of a preexisting condition during a period of ACDUTRA, the Appellant has the burden of showing both that he experienced a permanent increase in disability during his period of ACDUTRA, and that such permanent increase was beyond the natural progress of that disability. See Donnellan v. Shinseki, 24 Vet. App. 167, 173-75 (2010). The preponderance of the evidence shows that the Appellant had a preexisting diagnosis of hypertension prior to the ACDUTRA period when the June 1989 lightning event occurred. The Appellant has not established by competent evidence that the lightning event caused any permanent increase in the severity of hypertension beyond the natural progress of that condition. As explained above, the Appellant has the burden of showing both that he experienced a permanent increase in disability during his period of ACDUTRA, and that such permanent increase was beyond the natural progress of that disability. See Donnellan v. Shinseki, 24 Vet. App. 167, 173-75 (2010). He has not presented evidence that meets this burden. The Board therefore concludes that the evidence is against a grant of service connection for hypertension and it must deny his appeal as to this issue. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hypertension is denied. REMAND The Appellant also seeks service connection for residuals of a collarbone fracture and a left knee disability. Before the Board can adjudicate these claims on the merits, additional development is required. I. Fractured collarbone claim In his August 2008 application for disability compensation, the Appellant stated that he suffered a cracked collarbone in June 1975, that he had been treated for this condition from June 1975 to the present and that this treatment was by Dr. McDaniel and at the Fort Sill medical unit. The Appellant testified in February 2011 that in the 1990s, his training at Fort Sill, Oklahoma involved jumping off of a building with the use of a rope (repelling) and that during this training another soldier accidently hit him in the chest with the butt end of his weapon. Board Hearing Tr. at 6. He testified that he fell, hit the building, grabbed onto the rope, and was pulled up by another soldier. Id. He testified that "[w]hen he pulled me up, I'm hurting and that's when they found I had a fractured collarbone." Id. He testified that this condition was aggravated in later training by the carrying of gear, such as a full pack, on his back during marches as well as other military training. Id. at 6-7. There is no mention of any injury of the Appellant's collarbone or any fall during training in any of the service documentation. Private treatment records dated in 2011 from Dr. McDaniel note that she treated the Appellant for this injury in 1975. The extent of this injury, however, remains unclear. In September 1979, May 1985, March 1989, and April 1995 Reports of Medical History, the Appellant indicated that he did not then have nor had ever had broken bones, bone, joint, or other deformity, or arthritis, rheumatism or bursitis. Reports of Medical Examination from those dates indicate normal upper extremities and normal spine and other musculoskeletal system. Reports of Medical Examination also indicate normal upper extremities and normal spine and other musculoskeletal system. There is no mention in any of these documents of a fractured or otherwise injured collarbone. Nor is there any mention in private treatment records that the Appellant had ever fractured or otherwise injured his collarbone during service. Thus, the extent of the Appellant's injury during ACDUTRA training remains unclear. Similarly, the Appellant has not been afforded a VA examination to determine whether he suffers from any current residuals related to this injury. The Appellant has also never been afforded an X-ray of his clavicle. The newly-submitted medical evidence (dated in April 2013) does not contain any documentation of any residual disability from a collarbone injury. In McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), the Veterans Court made clear that VA 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 manifested during an applicable presumptive period for which the claimant qualifies, and (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, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. In April 2013, the Appellant's attorney sent in private records from Dr. McDaniel. A February 2011 record diagnosed the Appellant with recurrent shoulder pain due to his old collarbone fracture. While pain, alone, is not a disability upon which service connection may be granted, see Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), this statement implies that the Appellant may have a current disability. Thus, there is competent evidence of the possible existence of a current disability, which satisfies the first McLendon element. Dr. McDaniel has also reported that she treated the Appellant when he injured his collarbone in 1975. This statement satisfies the second McLendon element. Dr. McDaniel's statement that the Appellant had recurrent shoulder pain due to his old fracture in 1975 indicates that the Appellant's current disability, if any, may be related to his in-service injury; however, there is insufficient competent medical evidence on file for VA to make a decision on the claim, thereby satisfying the remaining McLendon elements and triggering VA's duty to obtain an examination. II. Left Knee In his application for disability compensation, received in August 2008, the Appellant stated that his left knee disability began in June 1975, that he was treated for the condition from June 1975 to March 1976, and that this treatment was at an infantry aid station and by private physicians, Doctors McDaniel, McCarty, and Faulkner in Arkansas. The Appellant testified in February 2011 that he injured his left knee in an accident involving a helicopter and a machine gun. Board Hearing Tr. at 7-8. DA Form 2173, Statement of Medical Examination and Duty Status, documents that at 1300 hours on June 24, 1975 the Appellant complained of a knot coming up on his left leg, he was in field training at that time and that "[n]o accident occurred." The nature and extent of the injury is listed as "Hematoma pie, tibial area, knot came up on leg (Left)." He was seen on an outpatient basis at the 2/153 Infantry Aid Station at Fort Chaffee. It was noted that the injury was incurred in the line of duty during a period of ACDUTRA. Private treatment records include a March 1976 letter from Dr. McCarty, who stated that he treated the Appellant between June 1975 and July 1975 for complaints of left leg pain. Dr. McCarty stated that the Appellant had a pulled muscle of the left leg with hematoma formation, he was much improved as of June 30, 1975, and was discharged from the physician's care on July 7, 1975. Service treatment records also document a June 1985 injury where the Appellant stepped in a hole and twisted his ankle. He also complained of pain behind his knee. Subsequent Reports of Medical Examination document that the Appellant had a normal clinical evaluation of his lower extremities and spine and other musculoskeletal system. In associated Reports of Medical History, the Appellant consistently indicated that he did not then have nor had ever had "trick" or locked knee, bone, joint or other deformity, or arthritis, rheumatism, or bursitis. Notes from February 2008 document that W. Barr, M.D. treated the Appellant for pain of both knees. The Appellant had reported that his left knee started "popping" about 6 months earlier. He reported that he had hurt his left knee years earlier when he was in the infantry. He was assessed as suffering from arthritis and probable degenerative tear of the medial meniscus. In November 2008 treatment notes, Dr. Barr listed the Appellant's complaint as left knee pain and stated that "[h]e originally hurt that knee at Camp Robinson which is over in Fort Smith and then he has hurt it off and on since that time." In July 2009 treatment notes, Dr. Barr recorded the Appellant's report of an injury during service in the National Guard and his report that this is when his knee problems all started. In September 2009, Dr. Barr provided a diagnosis of arthritis of the left knee and probably a torn degenerative medial meniscus. He did not provide a statement of etiology. In a September 2009 writing, Dr. McDaniel stated that the Appellant has had left knee problems since 1975 when he was seen by Dr. McDaniel. In April 2010 the Appellant underwent a VA examination of his left knee, where he was diagnosed with moderate osteoarthritis of the left knee. After an examination and review of the claims file, the examiner stated that it is less likely than not that the Appellant's left knee condition is related to his injury from 1975. He explained that the Appellant was seen for the knee at the end of June 1975, diagnosed with a pulled muscle and a hematoma formation above the left knee, was seen on June 30, 1975 and an improvement was noted, and was seen again on July 7, 1975 and at that time discharged from the clinic. He stated that for these reasons, the Appellant's current left knee condition is less likely than not related to his leg injury during service. The examiner explained that the Appellant's current condition is more likely related to the natural aging and degenerative process. In an April 2013 letter, a private internist opined that the Appellant's injury in 1975, as well as a documented June 1985 injury where the Appellant stepped in a hole and twisted his lower left leg, resulted in his current left knee disability. She disagreed with the VA examiner's statement that the Appellant's left knee disability was due to the natural aging process because she felt that there would be problems with the right knee as well. The physician, however, did not explain how an in-service hematoma in the left leg qualified as an injury that could cause osteoarthritis. She also did not accurately discuss the evidence of record, which indicated that the Appellant twisted his ankle and simply had pain in the back of his left knee in June 1975. There is no indication from the service treatment records that the Appellant twisted his left knee. She also failed to discuss the multiple Reports of Medical History, subsequent to June 1985, where the Appellant, in his own statements, marked that his knees were normal. Therefore, the Board finds that the April 2013 opinion is insufficient for evaluation purposes. Unfortunately, there also remains an outstanding question that has not yet been resolved. The applicable laws and regulations regarding Reserve and National Guard service permit service connection for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or injury incurred or aggravated while performing INACDUTRA. See 38 U.S.C.A. § 101(22), (24) (West 2002); 38 C.F.R. § 3.6 (2012). In the April 2010 VA examination, the examiner noted that the Appellant's left knee disability, while unrelated to his ACDUTRA hematoma in June 1975, was due to the natural aging and degenerative process. The Appellant has testified that outside of his National Guard service, he has not performed any duties that were strenuous on his knees. See Board Hearing Tr. at 3-4 (noting that he worked for the city and drove a truck, and that it was highly unusual to be involved in the kind of activity that he performed during training). Thus, there remains a possibility that the Appellant's left knee osteoarthritis, related to the natural aging and degenerative process, may have been caused by the repetitive, strenuous duties performed during ACDUTRA and INACDUTRA. (Note, although the Appellant has not identified any specific injury that occurred during training-other than the hematoma and the June 1985 pain behind the knee after twisting his ankle previously mentioned-the Board considers the alleged repeated strains on the knee that occurred during training to be "injuries" for purposes of this claim.). In reviewing service-connection claims where a VA examination has been performed, the Board must make a determination as to whether the examination report is adequate to make a decision on the claim notwithstanding the fact that the Board may not have found the examination necessary in the first place. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 52 (2007). Here, as the April 2010 VA opinion did not address the alleged repeated strains on the knee that occurred during training the Board finds the VA opinion for the Appellant's left knee to be inadequate. Additionally, although the April 2013 opinion is inadequate to evaluate the claim, it raises questions regarding the VA examiner's conclusions. Therefore, on remand, the Appellant should be afforded a VA evaluation to determine the nature and etiology of his left knee osteoarthritis. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Appellant for an examination to determine the nature and etiology of any residuals of a collarbone fracture. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. Any required tests should be performed, if deemed necessary by the examiner. An X-ray, however, must be performed. After a full examination, the examiner should provide an opinion on the following question: Is it at least as likely as not (i.e., is there a 50 percent chance or greater) that a current disability was caused by a collarbone injury sustained during training in 1975? Please discuss the X-ray findings and whether this demonstrates evidence of an old fracture of the clavicle. A complete rationale must be provided for each opinion rendered. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 2. Schedule the Appellant for an evaluation to determine the nature and etiology of his left knee disability. The claims file should be made available to and be reviewed by the examiner in conjunction with the evaluation. Any required tests should be performed, if deemed necessary by the examiner. After a full evaluation, the examiner should provide an opinion on the following questions: (a.) Is it at least as likely as not (i.e., is there a 50 percent chance or greater) that the Appellant's left knee osteoarthritis was caused by injuries that occurred during training in June 1975 and June 1985? Please comment on the April 2010 VA opinion and April 2013 private opinion in answering this question. (b.) Is it at least as likely as not (i.e., is there a 50 percent chance or greater) that the Appellant's left knee osteoarthritis was caused by Infantry training performed continuously from January 1973 to May 1973, and approximately two weeks per year and one weekend per month from May 1973 to May 1995-a period of 22 years? A complete rationale must be provided for each opinion rendered. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide the Appellant and his attorney with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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. 2012). ______________________________________________ M. SORISIO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs