Citation Nr: 1331371 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 09-18 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for arthritis of the shoulders. 3. Entitlement to service connection for arthritis of the elbows. 4. Entitlement to service connection for arthritis of the knees. 5. Entitlement to service connection for sinusitis with headaches. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from January 1979 to July 1983. This matter is on appeal from a July 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In the July 2006 notice of disagreement and May 2009 substantive appeal, the Veteran raised a claim for service connection for arthritis of the hands. However, that claim has not been addressed by the RO. Therefore, that claim is referred to the RO for appropriate action. FINDINGS OF FACT 1. Hypertension and arthritis of the elbows or knees were not shown in service or for many years thereafter, and are unrelated to active duty service. 2. Arthritis of the shoulders is not currently shown. 3. Sinusitis existed prior to service, was observed upon entry into service, and was not aggravated during service. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by service, cannot be presumed to have been incurred in service, and is not related to service. 38 U.S.C.A. §§ 1131, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2013). 2. Arthritis of the shoulders was not incurred in or aggravated by service, cannot be presumed to have been incurred in service, is not related to service, and is not currently shown. 38 U.S.C.A. §§ 1131, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2013). 3. Arthritis of the elbows was not incurred in or aggravated by service, cannot be presumed to have been incurred in service, and is not related to service. 38 U.S.C.A. §§ 1131, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2013). 4. Arthritis of the knees was not incurred in or aggravated by service, cannot be presumed to have been incurred in service, and is not related to service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2013). 5. Sinusitis pre-existed entrance into active duty service and was not aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA Duty to Notify and Assist 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service-connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded should be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, neither the Veteran nor her representative has alleged prejudice with respect to notice, and none is found by the Board. Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The duty to notify was satisfied by a letter sent to the Veteran in April 2005 that fully addressed all notice elements and was sent prior to the initial RO decision. The letter informed the Veteran of what evidence was required to substantiate the claims and of her and VA's respective duties for obtaining evidence. It also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, and notice of the type of evidence necessary to establish an effective date. Therefore, adequate notice was provided to the Veteran. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). VA has a duty to assist a veteran in the development of a claim. That duty includes assisting in the procurement of service medical records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service medical records and VA outpatient treatment records. Further, the Veteran submitted treatment records from a private facility and her own statements in support of her claim. The Board acknowledges that a VA medical opinion was not obtained regarding any of the issues on appeal. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration: (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 the veteran's 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) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). In deciding whether to remand the issue for a medical opinion, the Board notes that a VA medical examination is not required as a matter of course in virtually every veteran's disability case involving a nexus issue. Where only a conclusory generalized statement is provided by the veteran, an examination may not be required. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Here, the Board finds that the Veteran's disabilities were not shown in service or for many years after service. Without indication that the disabilities are related to service, a VA examiner would be substantially unable to provide a meaningful opinion. Therefore, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection In this appeal, the Veteran is claiming entitlement to service connection for hypertension, sinusitis and arthritis in the knees, elbows and shoulders. In her July 2006 statement, she specifically asserted that she was diagnosed with high blood pressure in 1979, during service, and was taking blood pressure control pills periodically. She also notes that she routinely experienced sinus symptoms while in service and has since received medication for sinusitis. Finally, she asserts that her active duty specialty as a postal clerk required her to perform a large amount of heavy lifting, which has resulted in disorders in the knees, elbows, and shoulders. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995). In some cases, in-service incurrence and a causal relationship to service can may be established through a demonstration of continuity of symptomatology for certain specific chronic disorders. 38 C.F.R. § 3.303(b) (2013); Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). However, service-connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered to be chronic, such as arthritis and hypertension. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disability. 38 C.F.R. § 3.303(a) (2012). Moreover, service connection will be presumed for any disorder that is considered chronic, such as hypertension or arthritis, if manifest to a compensable degree within one year after discharge from service. 38 C.F.R. §§ 3.307, 3.309 (2013). Service connection may only be granted for a current disability. When a claimed disability is not shown, there may be no grant of service connection. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. 38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability or death benefits. 38 U.S.C.A. § 1154(a) (West 2002); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay 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 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, service connection is not warranted for any of the claimed disabilities. First, regarding the Veteran's complaints of hypertension and arthritis of the elbows, knees, and shoulders, the service medical records that are available do not show treatment for, or a diagnosis related to hypertension or arthritis of the elbows, knees, or shoulders while in service. The Veteran was evaluated for elevated blood pressure while in service. However, for VA purposes, hypertension is defined as a systolic blood pressure of 160, a diastolic blood pressure of 90, or a combination of both. 38 C.F.R. § 4.104, Diagnostic Code 7101 (West 2002). Those levels were not shown at any time during service. On the one occasion where the Veteran was evaluated for elevated blood pressures in June 1979, her blood pressure measured only 120/80. The evaluating physician specifically attributed that to oral contraceptives she was taking. It was believed at that time that a change in contraceptives would correct the issue, and subsequent blood pressure measurements throughout the remainder of her active duty service appear to confirm that. The highest blood pressure she exhibited at any point since that time during service was not until April 1981, where it was measured as 126/81. Importantly, her blood pressure at her separation examination was 102/66. That separation examination did not show any disabilities of the knees, shoulders or elbows, or hypertension. Her sinuses, nose, upper extremities, heart, and vascular system were all found to be normal on separation examination. In a report of medical history completed by the Veteran in conjunction with her separation examination, she denied having, or having had, high blood pressure. Therefore, despite evaluation for heightened blood pressure in service, hypertension was not shown during service. The treating physicians found no diagnosis of hypertension and found only a response to medication that was alleviated by changing medication. Moreover, or arthritis to the elbows, knees, and shoulders was not shown at any point during active duty service. Next, the post-service evidence does not show symptoms related to hypertension or arthritis of the elbows, knees, and shoulders for many years after the Veteran left active duty service. Regarding her hypertension, it is somewhat unclear when she was initially diagnosed with hypertension. While the record indicates that she exhibited elevated blood pressures as early as January 1992, an actual diagnosis of hypertension was not rendered. Nevertheless, the record establishes that she was taking blood pressure medication as early as February 1995, and the Board may infer that she had been diagnosed with hypertension by then. However, even if the Board were to presume that she was diagnosed with hypertension in January 1992, that was still approximately nine years after she left active duty. As for her claims related to arthritis in the elbows, knees, and shoulders, the first indication of any of those joint disorders was not until July 1992, when the Veteran complained of elbow pain that was diagnosed as "acute arthritis." Another evaluation in December 2002 observed that she was "getting arthritis" in the left elbow. However, those observations are contradicted by an April 2002 X-ray that observed that her elbows were normal. The first indication of a knee disorder was not until February 2006, where an MRI revealed advanced patellofemoral disease. Another evaluation that same month revealed some narrowing of the medial joint line space, leading to a diagnosis of internal derangement of the left knee with a probable tear of the posterior horn of the medial meniscus. However, the Board again emphasizes that the first indication of her observed elbow and knee disorders were not for 9 and 26 years, respectively, after she left active duty. Therefore, the clinical evidence does not indicate that these disorders persisted continuously since active duty. At the separation examination from service, her upper extremities and lower extremities were clinically evaluated as normal. In a report of medical history completed by the Veteran in conjunction with her separation examination, she denied having, or having had, cramps in the legs; painful or trick shoulder or elbow; trick or locked knee; arthritis, rheumatism, or bursitis; and bone, joint, or other deformity. As an additional matter, the evidence does not indicate that arthritic disorders to any of the Veteran's joints were manifest to a compensable level in the year following her release from active duty. Accordingly, service connection is also not warranted on a presumptive basis. 38 C.F.R. § 3.307, 3.309 (2013). The Board recognizes the Veteran's statements asserting continuity of symptoms, and is required to assess the credibility and probative weight of all relevant evidence, including the credibility of the Veteran's statements. McClain v. Nicholson, 21 Vet. App. 319 (2007). Competency of testimony differs from its weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact. Credibility 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 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). Although interest may affect the credibility of testimony, it does not affect competency to testify. Cartright v. Derwinski, 2 Vet. App. 24 (1991). The Veteran is competent in some cases to self-diagnose some disorders despite her status as a lay person. However, she is not competent diagnose arthritis or hypertension, as those are disorders that may not be diagnosed by unique and readily identifiable features, and thus require a determination that is medical in nature. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Nevertheless, the Veteran's lay testimony is competent to establish the presence of observable symptomatology, if credible. Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Based on the evidence, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not credible. In making that determination, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of her active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Specifically, while the Veteran asserts that she has had hypertension since active duty service, the clinical records do not support that assertion. To the contrary, the clinical records suggest that her blood pressures were artificially elevated due to her use of contraceptives. Moreover, she has not asserted experiencing any symptoms related to hypertension beyond the mere assertion that she exhibited elevated blood pressures since that time. A blood pressure indicative of hypertension was not shown for many years after she left service. The Board also cannot ignore the significance of the fact that she did not file her claim for service connection for hypertension until 2005, approximately 22 years after she left active duty. A veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim. Shaw v. Principi, 3 Vet. App. 365 (1992). As for her assertions of continuous symptomatology of disorders of the knees and elbows, the Veteran's statements of continuous symptoms are contradicted by other evidence in the claims file. Specifically, at an evaluation in January 1991, she claimed to be in good health. Moreover, the X-rays of her knees, elbows, and shoulders in April 2002 were normal, which casts doubt on her assertions that arthritis of the knees or elbows preceded that time. Therefore, the Board finds that continuity is not established for her elbow and knee complaints, based on the clinical evidence of record or the Veteran's statements. As for the Veteran's shoulder complaints, the evidence of record does not show that a diagnosable disorder was ever identified based on her complaints. An X-ray of the shoulders in April 2002 was normal. Moreover, while she complained of pain in the "arm joints" at a private evaluation in February 2006, arthritis of the shoulders was not clinically identified. In view of this evidence, the Board concludes that a diagnosable shoulder disorder is not clinically shown. Moreover, the mere assertion of symptoms alone cannot be compensable without an in-service disease or injury to which any asserted symptoms can be connected by competent evidence. Sanchez-Benitez v. West, 25 F.3d 1356 (Fed. Cir. 2001). Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorders to active duty, despite her contentions to the contrary. Significantly, none of the competent evidence of record indicates a relationship between any claimed disability and active duty, nor has any treating professional indicated such a relationship. Regarding the Veteran's claim related to sinusitis, "mild" sinusitis was observed at the time of her enlistment physical examination in December 1978. A Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111, 1132 (West 2002 & Supp. 2013); 38 C.F.R. § 3.304(b) (2013). The fact that the Veteran's sinusitis was observed upon entry into active duty means that sinusitis was a disorder noted at examination and entrance to service. However, the Board must consider whether the pre-existing sinusitis was aggravated by active service where there is an increase in disability during active service, unless clear and unmistakable evidence shows that any increase in disability was due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2013). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened. The evidence must show a lasting worsening of the condition. Jensen v. Brown, 4 Vet. App. 304 (1993). A review of the service medical records does not indicate that the Veteran's sinusitis has permanently increased in severity. For example, the first instance during active duty where she was specifically evaluated for sinus symptoms was in November 1981, when she complained of "sinus difficulty" and received medication. No sinus symptoms were observed at her physical examination when she left active duty and sinuses were clinically evaluated as normal. In a report of medical history completed by the Veteran in conjunction with her separation examination, she denied having, or having had, frequent or severe headaches; ear, nose, or throat trouble; chronic or frequent colds; and sinusitis. Therefore, despite the fact that some sinusitis symptoms were observed, the mere presence of sinusitis symptoms in service is insufficient to establish that her pre-existing disorder worsened in severity. To the contrary, her separation physical examination suggests that her mild sinusitis had improved because symptoms were not present at separation and her sinuses were evaluated as normal. The Board has considered the statements made by the Veteran relating her claimed disorders to her active service. Lay 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran is not competent to provide testimony regarding the nature or etiology of arthritis, hypertension, or sinusitis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Because those disabilities are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Furthermore, determining the etiology of those disabilities is a medical determination. Therefore, the uncorroborated statements regarding the claimed diagnosis and etiology of the Veteran's claimed disorders lack competency. Accordingly, the Board concludes that the preponderance of the evidence is against the claims for service connection for hypertension, sinusitis, and arthritis of the shoulders, elbows, and knees. Therefore, the appeal is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hypertension is denied. Service connection for arthritis of the shoulders is denied. Service connection for arthritis of the elbows is denied. Service connection for arthritis of the knees is denied. Service connection for sinusitis with headaches is denied. ______________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs