Citation Nr: 1337943 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 09-18 063 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a bilateral ankle disability. 3. Entitlement to service connection for a bilateral foot disability. 4. Entitlement to service connection for a cervical spine disability. 5. Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran had active service from August 1976 to July 1980. He had subsequent Army National Guard service, including active duty for training (ACDUTRA) from September 1986 to February 1987 and July to November 1988. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. FINDINGS OF FACT 1. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record that the Veteran's hypertension is related to active duty, ACDUTRA or inactive duty for training (INACDUTRA). 2. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record that the Veteran's bilateral ankle disability is related to active duty, ACDUTRA or INACDUTRA. 3. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record that the Veteran's bilateral foot disability is related to active duty, ACDUTRA or INACDUTRA. 4. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record that the Veteran's cervical spine disability is related to active duty, ACDUTRA or INACDUTRA. 5. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record that the Veteran's bilateral knee disability is related to active duty, ACDUTRA or IN CDUTRA. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). 2. A bilateral ankle disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 3. A bilateral foot disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 4. A cervical spine disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 5. A bilateral knee disability was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in an August 2006 letter. Accordingly, the duty to notify has been fulfilled. With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA and private medical records, and statements from the Veteran. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. The record contains the Veteran's service treatment records from his initial period of active duty. The Veteran's claim requested that VA obtain his service treatment records from 81RRC. The RO made unsuccessful attempts to do so, and formally found in an April 2007 VA memorandum that the Veteran's service treatment records were unavailable. However, additional Army National Guard service treatment records were subsequently associated with the record and it appears that all service treatment records have been obtained. VA has a duty to provide a VA examination expressing an opinion when the record lacks sufficient evidence to decide the veteran's claim, but contains evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. See 38 C.F.R. § 3.159(c)(4) (2008); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The record contains no VA examination report or medical opinion based on a review of the claims file. A September 2007 VA examination report was not based on a review of the Veteran's claims file, and provides no nexus opinions. It is relevant only to the extent that it reflects current findings and diagnoses. As discussed below, the evidence is negative for any current bilateral ankle disability. Thus, the first McLendon element is not satisfied with respect to the Veteran's ankle claim. The Veteran's service treatment records are negative for any active duty or ACDUTRA complaints, symptoms, findings or diagnoses related to hypertension. The Veteran's service treatment records are also negative for any injury or event in active duty, ACDUTRA or INACDUTRA related to the feet, cervical spine or knees. The Veteran has not alleged any specific injuries. Thus, the second McLendon element is not satisfied with respect to these claims. The Board also finds that there is no medical evidence indicating that any of the Veteran's current claimed disabilities may be etiologically associated with any established in-service event, injury, or disease. Thus, the third McLendon element is not satisfied with respect to any of the claims on appeal. The Board recognizes that the Court of Appeals for Veterans Claims (Court) in McLendon held that this element establishes a low threshold, and that a VA examination can be required based on medical evidence which suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits. However, even considering the low threshold established here, none of the medical evidence of record in this case contains any indication that any of the Veteran's claimed disabilities might be associated with any in-service event, injury, or disease. Therefore, a remand in order to obtain a supplemental opinion regarding this issue is not required under McLendon. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (finding that further development would serve no useful purpose when it would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Accordingly, the Board finds that VA's duty to assist has been met. 38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Legal Analysis With respect to the Veteran's claims, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran does not point to any specific events or injuries. He asserts that he parachuted from airplanes. However, his DD214s are negative for any indication of parachute duties or training. He states that his neck disability began in 1986, his knee disabilities began in 2003 and his feet and ankle disabilities began in 2005. In general, a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of INACDUTRA during which the individual concerned was disabled from an injury, but not disease, incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from a disease or injury incurred in, or aggravated, while performing ACDUTRA or from an injury, but not disease, incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110. Certain evidentiary presumptions, such as the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service, are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.304(b), 3.306, 3.307, 3.309. However, a claimant whose claim is based on a period of ACDUTRA or INACDUTRA cannot be entitled to the presumption of service connection for chronic diseases such as arthritis or hypertension manifest within one year of service. Smith v. Shinseki, 24 Vet. App. 40 (2010); see also 38 U.S.C.A. §§ 101(24)(B), 1101, 1112, 1137; 38 C.F.R. §§ 3.6(a), 3.307(a), 3.309. Thus, there is no basis to presume the in-service incurrence of hypertension or arthritis. In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). Hypertension For VA purposes, hypertension is defined as diastolic blood pressure that is predominantly 90 mm or greater, which is confirmed by readings taken two or more times on at least three different days. Isolated systolic hypertension is defined as systolic blood pressure that is predominately 160 mm or greater with a diastolic blood pressure of less than 90 mm, which is confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against service connection for hypertension on a presumptive or direct basis. The evidence does not show that the Veteran had hypertension within one year of separation from his period of active duty, and does not link the Veteran's current hypertension to any period of active duty or ACDUTRA. The Veteran's service treatment records are negative for any findings that were attributed to heart disease, or any diagnoses of hypertension during active duty or ACDUTRA. They show one diastolic blood pressure reading of 90, in January 1980. The Veteran's June 1980 separation examination showed blood pressure of 116/80 sitting, and 106/80 recumbent. These service treatment records reflect that medical personnel did not interpret any of the blood pressure readings as signs, symptoms or indications of hypertension. In fact, the record does not include any diagnosis of hypertension within one year of the Veteran's separation from active duty. Thus, service connection on a presumptive basis is not warranted. The post-service medical records are negative for hypertension for many years after any period of active duty or ACDUTRA. A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). A January 2005 private treatment report provides a past history of hypertension. A February 2006 INACDUTRA Physical Profile identifies a pertinent medical condition of hypertension. Additional treatment records also reflect diagnoses and treatment of hypertension. However, the record contains no medical evidence showing that the Veteran's current hypertension is related to any period of active duty or ACDUTRA. The Board acknowledges the Veteran's own assertions in support of his claim. He is competent to testify as to his observable symptoms during and after active duty. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this case, the Veteran does not contend that he observed symptoms of hypertension during or after any period of active duty or ACDUTRA. The Veteran's general contentions do not constitute medical evidence in support of his claim. Although lay persons are competent to provide opinions on some medical issues, the specific issues in this case (whether the Veteran developed hypertension within one year of any period of active duty, or whether his current hypertension is related to any period of active duty or ACDUTRA) fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As a result, the Veteran's assertions cannot constitute competent medical evidence in support of his claim. In sum, the evidence demonstrates that the Veteran is not entitled to service connection for hypertension. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Bilateral Ankle Disability Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against service connection for a bilateral ankle disability. The evidence does not show that the Veteran has a current ankle disability. The Veteran's service treatment records show that the Veteran injured his right ankle in June 1979. The report of his June 1980 separation report of medical history does not show that any pertinent physical examination was conducted. However, the Veteran's separation report of medical history reflects that he denied all pertinent complaints. A July 1999 INACDUTRA record shows that the Veteran injured his left ankle while running. The assessment was grade I-II ankle sprain. In January 1997, he complained of a sore right leg and ankle after twisting his foot. A private treatment report dated in May 2003 reflects that the Veteran was seen for a left ankle sprain. The Veteran's original claim stated that he incurred the bilateral ankle disability in 2005. However, the service treatment records do not show any corresponding ankle injuries. Regardless of the foregoing findings, the report of the September 2007 VA examination provides that the Veteran had full ankle plantar flexion without pain. Inversion and eversion were without pain. X-rays were normal. The pertinent diagnosis was normal ankles. The Board acknowledges the assertions by the Veteran in support of his claim. He is competent to testify as to his observable symptoms during and after active duty. Layno, supra. The Board finds that any such assertions are credible. However, the Veteran's contentions that he has a bilateral ankle disability do not constitute medical evidence in support of his claim. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case (whether the Veteran has a current diagnosable bilateral ankle disability) falls outside the realm of common knowledge of a lay person. See Kahana, supra; Jandreau, supra (lay persons not competent to diagnose cancer). As a result, the Veteran's assertions cannot constitute competent medical evidence in support of his claim. As such, the Board finds that the Veteran's assertions are outweighed by the September 2007 VA examination report and its diagnosis of normal ankle. The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Brown, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Accordingly, service connection for a bilateral ankle disorder is denied. In sum, the evidence demonstrates that the Veteran is not entitled to service connection for a bilateral ankle disability. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert, supra; Ortiz, supra. Bilateral Foot Disability, Cervical Strain and Mild Arthritis of Both Knees Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against service connection for a bilateral foot disability, cervical strain or mild arthritis of both knees. The evidence does not show that the Veteran incurred any of the claimed disabilities during active duty, ACDUTRA or INACDUTRA. The Veteran's original claim stated that he incurred the neck disability in 1986. However, the service treatment records from his period of active duty are negative for complaints, symptoms, findings or diagnoses related to the cervical spine. The report of his June 1980 separation report of medical history does not show that any pertinent physical examination was conducted. However, the Veteran's separation report of medical history reflects that he denied all relevant complaints. The Veteran's original claim also stated that his knee disabilities began in 2003 and his feet disabilities began in 2005. However, the service treatment records do not show any corresponding injuries during INACDUTRA. A January 1999 INACDUTRA report of medical history provides that examination of the Veteran's spine and neurological system was abnormal. It summarizes that the Veteran had limited rotation and extension of the cervical spine, status-post MVA, and paresthesias of upper extremities caused by mobilization of the cervical spine, lifting of weights or strenuous exercises. An October 2000 Initial Medical Review - Annual Medical Certificate notes that the Veteran had a current neck problem. It does not elaborate. A February 2005 Physical Profile notes that the Veteran had right knee pain and was on physical therapy. A January 2006 Physical Profile notes that the Veteran had chronic neck pain and was status-post arthroscopic surgery of the right knee. An August 2009 report of medical history reflects that the Veteran stated he had been a patient in a hospital for his knee, and had been advised to have surgery for his knee and neck. Turning to post-service medical records, the report of the September 2007 VA examination provides pertinent diagnoses of chronic cervical strain, mild arthritis both knees, and chronic strain both feet. The examiner provides no nexus opinion with regard to the Veteran's cervical spine and knees. The examiner states that he could not provide an opinion addressing the Veteran's foot complaints without speculation, explaining that the Veteran could not differentiate between symptoms of his feet and symptoms he related to his low back. Thus, the examiner fully explained why he was unable to provide the opinion. Jones v. Shinseki, 23 Vet. App. 382 (2011). The September 2007 VA examination report does not support the Veteran's claim. It does not relate the Veteran's current cervical spine, knee or feet conditions to any period of active duty, ACDUTRA or INACDUTRA. In this regard, the Board again points out that the Veteran's service treatment records are negative for any pertinent events or injuries, and the Veteran has not identified any particular events or injuries. Thus, any positive medical opinion that purported to be based on a review of the service treatment records would lack probative value, as it would not accurately reflect the record. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The Board acknowledges the Veteran's own assertions in support of his claim. He is competent to testify as to his observable symptoms during and after active duty. Layno, supra. However, the Veteran's contentions do not constitute medical evidence in support of his claim. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case (whether the claimed disabilities are related to active duty, ACDUTRA or INACDUTRA) falls outside the realm of common knowledge of a lay person. See Kahana, supra; Jandreau, supra (lay persons not competent to diagnose cancer). As a result, the Veteran's assertions cannot constitute competent medical evidence in support of his claim. The Veteran is competent to state that he observed the claimed symptoms during or after service. The Board finds him to be credible in this regard. However, the Veteran is not competent to attribute the coincidence of symptoms occurring during or after service as establishing the diagnosis and etiology of the claimed disabilities. In sum, the evidence demonstrates that the Veteran is not entitled to service connection for cervical spine strain, bilateral foot disability or mild arthritis of both knees. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See generally Gilbert, supra; Ortiz, supra. ORDER Service connection for hypertension is denied. Service connection for a bilateral ankle disability is denied. Service connection for a bilateral foot disability is denied. Service connection for a cervical spine disability is denied. Service connection for a bilateral knee disability is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs