Citation Nr: 1331409	
Decision Date: 09/30/13    Archive Date: 10/02/13

DOCKET NO.  10-04 409	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUES

1.  Entitlement to service connection for residuals of a back injury.

2.  Entitlement to service connection for bilateral knee disability.  

3.  Entitlement to service connection for heart disease to include congestive heart disease, mitral valve regurgitation, and coronary artery disease.  

4.  Entitlement to service connection for hypertension.  

5.  Entitlement to service connection for thyroid disease.  

REPRESENTATION

Veteran represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

L. J. Wells-Green, Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from June 1974 to August 1975.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision in July 2009 of a Department of Veterans Affairs (VA) Regional Office (RO)  

In July 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is in the Veteran's file.  


FINDINGS OF FACT

1.  The current back disability with degenerative joint disease did not have onset in service, degenerative joint disease was not manifest to a compensable degree within the one-year period following separation from service; and the current back disability is unrelated to muscle strain in service and is otherwise unrelated to an injury, disease, or event in service. 

2.  The current bilateral knee disability, arthritis of the right knee and left knee pain, did not have onset in service and arthritis of the right knee was not manifest to a compensable degree within the one-year period following separation from service; right knee arthritis is otherwise unrelated to an injury, disease, or event in service; left knee pain alone without a diagnosed or identifiable underlying disability does not constitute a disability for the purpose of VA disability compensation. 



3.  Heart disease to include congestive heart disease, mitral valve regurgitation, and coronary artery disease did not have onset in service; heart disease to include congestive heart disease, mitral valve regurgitation, and coronary artery disease was not manifest to a compensable degree within the one-year period following separation from service; and heart disease to include congestive heart disease, mitral valve regurgitation, and coronary artery disease is not otherwise related to an injury, disease, or event in service.  

4.  Hypertension did not have onset in service, hypertension was not manifest to a compensable degree within the one-year period following separation from service; and hypertension is not otherwise related to an injury, disease, or event in service. 

5.  Thyroid disease did not have onset in service, thyroid disease was not manifest to a compensable degree within the one-year period following separation from service; and thyroid disease is not otherwise related to an injury, disease, or event in service. 


CONCLUSIONS OF LAW

1.  The criteria for service connection for the current back disability with degenerative changes have not been met.  38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).  

2.  The criteria for service connection for the current bilateral knee disability have not been met.  38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2013).  






3.  The criteria for service connection for heart disease to include congestive heart disease, mitral valve regurgitation, and coronary artery disease heart disease have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).  

4.  The criteria for service connection for hypertension have not been met.  38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).  

5.  The criteria for service connection for thyroid disease have not been met.  38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107(b) (West 2002); 38 C.F.R. § § 3.303 3.307, 3.309 (2013).  

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.  

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  






The VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473, 484 86 (2006).  

The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The RO provided pre-adjudication VCAA notice by letters in February 2009 and in May 2009.  The VCAA notice included the type of evidence needed to substantiate a claim of service connection, namely, evidence of current disability; evidence of an injury or disease in service or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service.

The Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies and that she could submit other records not in the custody of a Federal agency, such as private medical records, or with her authorization VA would obtain any non-Federal records on her behalf.  The VCAA notice included the general provisions for the effective date of a claim and for the degree of disability assignable. 

As for the content and for the timing of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim); and of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication notice).



Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The RO has obtained service treatment records, VA records, and private medical records, as well as records from the Social Security Administration.  

The Veteran was afforded a VA orthopedic examination in April 2010 on the claim of service connection for a back disability.  As the VA examiner reviewed the Veteran's history and as medical analysis was applied to the facts of the case to reach the conclusion reached in the opinion, the VA examination is adequate to decide the claim.  See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding a medical opinion is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). 

The Veteran was not afforded VA examinations on the claims of service connection for a bilateral knee disability, heart disease, hypertension, and thyroid disease, because the record does not establish that the claimed disabilities are due to an injury, disease, or event in service and the record does not show that the claimed disabilities may be associated with an established event, injury, or disease in service.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (describing the circumstances under 38 C.F.R. § 3.159 when a VA examination is required).

As there is no indication of the existence of additional evidence to substantiate the claims, no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist.





REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Principles and Theories of Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (wartime) and § 1131 (peacetime). 

Generally, to establish entitlement to VA disability compensation, that is, service connection, a Veteran must show: (1) a present disability; (2) an 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

In this case, several legal theories operate in conjunction with 38 U.S.C.A. §§ 1110 and 1131 as implemented in 38 C.F.R. § 3.303.  

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a).

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  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). 

For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for specifically listed chronic diseases, including degenerative joint disease as a type of arthritis, heart disease to include coronary artery disease, hypertension, and thyroid disease, if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.

Evidentiary Standards

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).   As the Veteran did not serve in combat, the combat provision of 38 U.S.C.A. § 1154(b) do not apply.

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).







When the evidence is admissible, the Board must then determine whether the evidence is credible.  "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996).  

If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b).

Facts 

The service treatment records, including the reports of entrance and separation  examinations, contain no complaint, finding, history, treatment, or diagnosis of a bilateral knee disability, of heart disease to include congestive heart disease, mitral valve regurgitation, and coronary artery disease, of hypertension, or of thyroid disease.  The service treatment records do show that in May 1975 the Veteran fell off a bike and she complained of soreness in the back.  The impression was mild muscle strain in the lumbar area. 

After service in October 2007, the Veteran was seen for low back pain, hypertension, and hypothyroidism. In January 2008 the Veteran complained of right knee pain after a vehicle accident.  X-rays were consistent with arthritic changes.  In April 2008 during hospitalization for chest pain the diagnosis was congestive heart failure due to mitral value regurgitation.  In March 2009, arthritis of the lower back was noted.  X-rays of the knees were negative.  In April 2009, the Veteran complained of back since January 2009.  There was no history of injury. 


On VA examination in April 2010, the diagnosis was arthritis of the lumbar spine.  The VA examiner stated that it was less likely than not that back pain since service caused arthritis. 

In July 2010, cardiac catheterization showed coronary artery disease, requiring bypass surgery in August 2010. 

In June 2011, the Veteran testified that she fell and injured her back and her knees during basic training, but did not seek treatment.  She denied any other injuries in service.  She stated that after service in 1975 and until 2008 she took pain pills for back and knee pains.  She testified that she first sought treatment for her back and knee pain in 2007 and has been diagnosed with arthritis of the back.  

The Veteran testified that she was not treated for heart disease, hypertension, or thyroid disease in service.  She stated that she first treated for hypertension in 1979 and she was first diagnosed with thyroid disease in 2007.  The Veteran testified that doctors have told her that her heart condition could be a result of service, but had not etiologically connected hypertension to service.  She stated that thyroid disease may have had its onset in service because she was vomiting in service.   

Analysis 

On the basis of the service treatment records alone, neither a bilateral knee disability, nor heart disease to include congestive heart disease and mitral valve regurgitation and coronary artery disease (hereafter referred to as heart disease), nor hypertension, nor thyroid disease was affirmatively shown to have had its onset during service.  Although muscle strain was noted in a single entry, degenerative joint disease of the lumbar spine was not affirmatively shown to have been present during service.  For these reasons, service connection for the claimed disabilities under 38 U.S.C.A. § 1110 and § 1131 and 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not warranted.


Although arthritis, heart disease, hypertension and thyroid disease are listed as chronic diseases under 38 C.F.R. § 3.309, the record does not establish that arthritis of the right knee, or heart disease, or hypertension, or thyroid disease was noted, that is, observed, during service, and the principles of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply and service connection under 38 C.F.R. § 3.303(b) (chronicity and continuity of symptomatology) is not established.  See Walker v. Shinseki, 708 F.3d (Fed. Cir. 2013) (The continuity of symptomatology avenue to service connection under regulation creating presumption of service connection for chronic diseases manifesting during service and then again at any later date is available only for chronic diseases enumerated in the only regulation listing named chronic diseases.  38 C.F.R. §§ 3.303(b), 3.309(a)).  

As for left knee pain, pain alone without a sufficient factual showing that the pain derives from an in-service disease or injury is not a disability for the purpose of VA compensation.  Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). 
In the absence of evidence of a diagnosed left knee disability, service connection is not warranted. 

As muscle strain in the area of the lumbar spine was noted in service, which is indicative of but not dispositive of a chronic disease, such as degenerative joint disease, which is a type of arthritis and as arthritis is a chronic disease listed in 38 C.F.R. § 3.309(a), the theories of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) apply.  See Walker, at 1339. 

For the showing of a chronic disease, such as degenerative joint disease, in service there is required a combination of manifestations sufficient to identify the disease and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b). 




The Veteran is competent to describe low back pain, which is in the realm of her personal experience.  38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness).

The Veteran as a lay person is also competent to identify a simple medical condition.  Jandreau, at 1377.  

The presence of degenerative joint disease is not a question that can be competently answered by the Veteran as a lay person based on mere personal observation, as the diagnosis of falls outside the realm of common knowledge of a lay person, that is, not capable of lay observation, without specialized education, training, or experience.  38 C.F.R. § 3.3159; Jandreau, at 1377.

Also degenerative joint disease or arthritis is not the type of condition under case law that has been found to be capable of lay observation and neither is heart disease, hypertension, nor thyroid disease.  See Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfeet are capable of lay observation); see McCartt v. West, 12 Vet. App. 164, 167 (1999) (a skin condition is capable of lay observation; see Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus is capable of lay observation); see Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis);  





See Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer).

Applying the guidance of current case law, degenerative joint disease or arthritis, heart disease, hypertension, and thyroid disease are analogous to an internal disease process, such as rheumatic fever , rather than either flatfeet, a skin condition, tinnitus, varicose veins, a dislocated shoulder, or a broken leg.  

For this reason, degenerative joint disease or arthritis, heart disease, hypertension, and thyroid disease are not the type of conditions under case law that have been found to be capable of lay observation.  As the claimed disabilities are not capable of lay observation under Jandreau and by case law, the disabilities are not simple medical conditions.  

And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to diagnose degenerative joint disease or arthritis, heart disease, hypertension, or thyroid disease.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Board may find that lay evidence to diagnose a disability is not competent evidence). 

On the question of the diagnosis of degenerative joint disease, which is not capable of lay observation under Jandreau or by case law, to the extent the Veteran's lay statements imply the presence of degenerative joint disease in service the Veteran's lay statements are not competent evidence, and the Veteran's lay statements are not admissible as evidence, that is, the Veteran's lay statements are not to be considered as competent evidence that degenerative joint disease as a chronic disease was present in service and the lay evidence cannot be considered as evidence favorable to claim based on chronicity.



Also a single entry of muscle strain in the lumbar area four months before the Veteran was discharged from service without further back complaint, finding, history, treatment, or diagnosis, including on separation examination in July 1975 lacks the combination of manifestations sufficient to identify degenerative joint disease or arthritis and insufficient observation to establish that arthritis as a chronic disease was present in service.

As the Veteran's lay statements are not competent evidence that degenerative joint disease was present in service and as the service treatment records lack the documentation to identify degenerative joint disease in service, chronicity of degenerative joint disease in service is not adequately supported by the evidence of record.  

Whereas here the fact of chronicity in service is not adequately supported, service connection can be established by continuity of symptomatology.  Continuity of symptomatology requires: (1) that the condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology noted in service; and (3) evidence of a nexus between the present disability and the post-service symptomatology.  Walker, at 1335-36, 40 (overruling in part Barr v. Nicholson, 21 Vet. App. 303, and Savage v. Gober, 10 Vet. App. 488, 497 (1997) to extent that 38 C.F.R. § 3.303(b) was applied to diseases not listed in 38 C.F.R. § 3.309(a), while addressing the elements of continuity of symptomatology).  

As previously explained muscle strain or lower back pain was noted in service, which is indicative of but not dispositive of a chronic disease, such as degenerative joint disease.  As for post-service continuity of the same symptomatology noted in service, the Veteran is competent to describe low back pain, which is within the realm of her personal experience. 





To the extent the Veteran asserts that she has had lower back pain since service the assertion is competent evidence of postservice continuity of symptomatology.  See Layno, at 469-71 (lay testimony is competent as to symptoms, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses).

As for evidence of a nexus between the claimed back disability and the post-service symptomatology, the Veteran asserts that her disability is related to low back pain since service, which is an expression of a causal relationship between the claimed disability and the continuity of low back pain that the Veteran avers.  As the statement is an inference based on facts, it is an opinion rather than a statement of fact.  

The Veteran as a lay person is competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

As previously explained, degenerative joint disease is not capable of lay observation, that is, it is not a simple medical condition under Jandreau or by case law and any inference based on what is not personally observable cannot be competent lay evidence.  And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between the claimed disability and the continuity of symptoms that the Veteran avers. 

For these reasons, the Veteran's lay opinion is not competent evidence of a causal relationship or nexus between the claimed disability and the postservice symptomatology.  






Since the Veteran's lay opinion is not competent evidence, the lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim based on continuity of symptomatology.  As the evidence is not admissible, the Board need not reach the credibility of the evidence. 

Although service connection for the claimed disabilities are not established under either 38 C.F.R. § 3.303(a) or by chronicity or by continuity of symptomatology under 38 C.F.R. § 3.303(b) on the basis of lay evidence, service connection may still be established based on an initial diagnosis after service, when all of the evidence, including that pertinent to service, shows that a disability was incurred in service.  38 C.F.R. § 3.303(d).

As neither degenerative joint disease (arthritis), heart disease, hypertension, nor thyroid disease is capable of lay observation, that is, a simple medical condition, under Jandreau or by case law, to the extent the Veteran's lay evidence is offered as proof of the presence of the claimed disabilities since service and before 1989 or an opinion on a causal relationship between the claimed disabilities and service, the so-called "nexus" requirement, the Veteran's lay evidence is not competent evidence, and the lay evidence is not admissible as evidence and cannot be considered as competent evidence favorable to the claim.

Except the Veteran as a lay person is competent to describe a contemporaneous medical diagnosis or symptoms that later support a diagnosis by a medical professional.  Jandreau, at 1377.  

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion.  38 C.F.R. § 3.159.





As for the Veteran reporting a contemporaneous medical diagnosis, the medical evidence shows that degenerative joint disease, right knee arthritis, heart disease, hypertension, and thyroid disease were not shown until 2007 although the Veteran testified that she has had hypertension since 1989.

In either event, the disabilities were manifest well beyond the one year presumptive period following separation from service in 1975 and presumptive service connection for the claimed disabilities as chronic diseases under 38 C.F.R. §§ 3.307 and 3.309. is not established.  

As for symptoms that later support a diagnosis by a medical professional, the Veteran has not submitted any evidence from a medical professional and there is no evidence of record that the claimed disabilities are attributable to an injury, disease, or event in service or otherwise related to an injury, disease, or event in service. 

As the record does not contain competent evidence, lay or medical, that links arthritis of the right knee, heart disease, hypertension, or thyroid disease to an injury, disease, or event in service, and in the absence of medical evidence suggesting such an association, but is too equivocal or lacking in specificity to support a decision on the merits, and in the absence of competent and credible evidence of continuity of symptomatology, there is no possible association with service, and VA is not required to further develop the claims by affording the Veteran a VA examination or by obtaining a VA medical opinion under the duty to assist.  38 U.S.C.A. § 5103A (d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The only competent medical evidence of record, addressing causation or a nexus to service, pertains to arthritis of the lumbar spine.  On VA examination, the VA examiner expressed the opinion that arthritis of the lumbar spine was less likely than not that due to back pain since service. 



The opinion of the VA examiner constitutes competent and persuasive medical evidence with respect to the onset of arthritis and a nexus to service, which opposes rather than supports the claim.  There is no medical evidence to the contrary.  

On the basis of the evidence of record, the Board concludes that the preponderance of the evidence is against the claims of service connection.  As the preponderance of the evidence is against the claims, the benefit-of-the doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b). 


ORDER

Service connection for degenerative joint disease of the lumbar spine, claimed as residuals of injury, is denied. 

Service connection for bilateral knee disability to include arthritis of the right knee is denied.  

Service connection for heart disease to include congestive heart disease, mitral valve regurgitation, and coronary artery disease is denied.  

Service connection for hypertension is denied.

Service connection for thyroid disease is denied.



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs