Citation Nr: 1340694 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 08-04 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a bilateral ankle disability. 2. Entitlement to service connection for a bilateral knee disability. 3. Entitlement to service connection for generalized arthritis. 4. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to March 1972 and from February 1984 to April 1984. The Veteran also served with the United States Army Reserve from February 1982 to October 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In March 2010 and August 2013 the Board remanded the case for further action by the originating agency. The case has now returned to the Board for further appellate action. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of the electronic record. The issue of entitlement to service connection for a bilateral ankle disability is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The Veteran's bilateral knee disability, diagnosed as bilateral osteoarthritis and a right medial meniscus tear, is not etiologically related to an incident of active military service. 2. The Veteran does not have generalized arthritis. 3. The Veteran's hypertension is not etiologically related to an incident of active military service. CONCLUSIONS OF LAW 1. Bilateral knee osteoarthritis and a right medial meniscus tear was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.6, 3.303 (2013). 2. Generalized arthritis was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101, 1110, 1131; 38 C.F.R. §§ 3.6, 3.303. 3. Hypertension was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101, 1110, 1131; 38 C.F.R. §§ 3.6, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that service connection is warranted for the disabilities on appeal as they were incurred in or first diagnosed during periods of active duty for training (ACDUTRA). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). 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) and (24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) duty in which the individual concerned was disabled from injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1131. ACDUTRA includes full time duty performed by members of the National Guard of any state or the reservists. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state. 38 C.F.R. § 3.6(d). When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)(holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). As a preliminary matter, the Board notes that the analysis below is limited to consideration of whether service connection for the claimed disabilities is warranted as directly due to the Veteran's periods of active military service. Although certain evidentiary presumptions are provided by law to assist veterans in establishing service connection for a disability, these presumptions do not apply to the current claims. Specifically, the presumption pertaining to chronic diseases (such as arthritis and cardiovascular-renal disease) that manifest to a compensable degree within one year of discharge from active service are not applicable to ACDUTRA or INACDUTRA service. See 38 C.F.R. §§ 3.307 and 3.309; Smith v. Shinseki, 24 Vet. App. 40, 45 (2010); see also Acciola v. Peake, 22 Vet. App. 320 (2008). The Board also notes that generally a veteran who served during wartime service after December 31, 1946, is presumed to be in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. §§ 1111, 1137. The presumption of soundness applies to all who served on active duty for their period of service on active duty. For periods of ACDUTRA or INACDUTRA, however, the presumption operates differently and typically does not apply. See Smith, supra. In this case, the Veteran had a period of active duty service from September 1969 to March 1972. Thereafter, he entered the Army reserves with various periods of ACDUTRA and INACDUTRA and a second period of active duty service from February 1984 to April 1984. Reserve records verify a period of ACDUTRA from June 17, 1995 to June 30, 1995, when the Veteran reported for annual training and incurred a bilateral ankle injury. The characterization of the rest of the Veteran's reserve service is not verified. For veterans who have achieved "veteran" status through a prior period of service and claim a disability incurred only during a later period of ACDUTRA, the presumption of soundness applies only when the veteran has been "examined, accepted, and enrolled for service" and where that examination revealed no "defects, infirmities, or disorders." Smith at 45-46. The Veteran does have a prior period of active service, namely his service from 1969 to 1972. Reserve service records include a January 1982 examination at the time of the Veteran's enlistment into reserve serve and an October 1983 physical for active duty (performed just prior to the Veteran's February 1984 activation to active service). In addition, the report of a June 4, 1995 physical examination is of record. This examination was performed just prior to the verified period of ACDUTRA from June 17, 1995 to June 30, 1995. Thus, the presumption of soundness attaches to the June 1995 period of ACDUTRA. However, the January 1982, October 1983, and June 1995 examinations cannot be used to establish a presumption of soundness for a later period of ACDUTRA. See generally id. As the Veteran was not provided an examination on entrance to any other period of ACDUTRA, the presumption of soundness does not attach except to the periods discussed above. Bilateral Knees The Veteran contends that service connection is warranted for bilateral knee disabilities as they were incurred during service with the Army Reserves. In a February 2006 statement, he reported that his knees developed degenerative changes over time due to physical training during periods of ACDUTRA. Similarly, the Veteran stated in his February 2008 substantive appeal that he injured his knees during runs with his reserve unit. He is a registered nurse, and personally treated his knees without seeking other medical treatment. The record establishes the presence of a current disability. The Veteran underwent a right knee arthroscopy in May 1996 at a private facility to repair a right medial meniscus tear. A February 2005 private MRI of the knees also demonstrated bilateral osteoarthritis of the knees and small joint effusions. The Veteran has reported experiencing knee pain throughout the claim period, and the Board therefore finds that bilateral knee disabilities, diagnosed as osteoarthritis and a medial meniscus tear of the right knee, are demonstrated. The Board must now determine whether the Veteran's disability was incurred or aggravated during a period of active service to allow for a grant of service connection. As discussed above, the Veteran served on active duty with the Army from September 1969 to March 1972 and was activated for a period of active reserve service from February 1984 to April 1984. Service records also verify a period of ACDUTRA from June 17, 1995 to June 30, 1995. Service records dated during these periods are entirely negative for evidence of knee injuries or disabilities. A February 1972 examination for separation from active duty was normal, and the Veteran's knees were also normal at the January 1982 examination for enlistment to the Army reserves. Additional examinations conducted in October 1983, March 1984, March 1985, and January 1990 all demonstrated normal lower extremities and the Veteran did not report experiencing any arthritis or a "trick" or locked knee on the accompanying reports of medical history. In fact, the earliest evidence of knee abnormalities dates from May 1996, after his verified periods of active military service, when the Veteran underwent a right knee arthroscopy with a private doctor. Following the May 1996 right knee surgery, the Veteran was placed on a physical profile to limit the use of his right knee. The only other service record documenting knee problems is the report of a July 2000 periodic examination, when a history of a right meniscus tear in 1997 was noted. Again, the Veteran did not report experiencing a trick or locked knee. Several years later, in July 2003, he was diagnosed with early degenerative knee arthritis by a private doctor and a February 2005 MRI confirmed the presence of bilateral osteoarthritis. Although the record clearly establishes a current bilateral knee disability, there is simply no evidence indicating that the condition was incurred during a period of active military service. As noted above, service records during the verified periods of active service are negative for complaints or findings related to the knee. Private treatment records document a right knee meniscal tear and surgery in May 1996 and arthritis of the knees in May 2003, but service treatment and personnel records do not establish the Veteran was serving on active duty at those times. In fact, service records do not show active service during any time the Veteran received treatment for a knee condition. A chronological statement of retirement points shows the Veteran accrued some active duty points each year during his reserve service, but the dates and reasons for the assignment of the points is not specified. Additionally, records from the Defense Finance and Accounting Services (DFAS) do not include any indication that the Veteran was on active military service during the relevant periods. In sum, there is no objective evidence documenting that the Veteran's bilateral knee disability was incurred or aggravated during a period of active military service. The Board has considered the statements of the Veteran regarding the onset and cause of his knee conditions, but cannot conclude that his statements provide objective verification of his duty status. Therefore, the claim for service connection for bilateral knee disabilities is denied. Generalized Arthritis The Veteran contends that service connection is warranted for generalized arthritis of the joints. As a preliminary matter, the Board notes that arthritis of the bilateral ankles and knees is the subject of other claims also on appeal. Thus, the Board will limit its consideration of the Veteran's general arthritis claim to joints other than the ankles and knees. Service connection requires competent evidence showing the existence of a present disability. Shedden, 381 F.3d at 1163, 1167. With respect to the Veteran's contentions that service connection is warranted for generalized arthritis, the Board finds that evidence of record is against a finding that there is a current disease or disability. Service records dating from the Veteran's active duty and reserve service are entirely negative for evidence of arthritis in any joints other than the ankles or knees. Physical examination of the joints was normal at the February 1972 separation examination and the January 1982 reserve enlistment examination. The Veteran also did not report a history or problems with arthritis on reports of medical history dated in October 1983, March 1984, and January 1990. While later examinations and medical records showed some findings of arthritis, these findings were limited to the ankles and knees. The post-service medical records also do not document complaints or diagnoses of arthritis in any joints other than the ankles and knees. The Board acknowledges that lay testimony, such as the statements from the Veteran regarding the presence of generalized arthritis, is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Nonetheless, when the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In this case, the Veteran has not made any specific statements in support of his claim for service connection. Aside from vague statements that he has generalized arthritis and that service connection is warranted for the disability, he has not specified which parts of the body are affected or identified any symptoms or treatment for the condition. Whether lay evidence is competent and sufficient to establish a diagnosis in a particular case is a fact issue to be addressed by the Board. Jandreau at 1377. The Board acknowledges that the Veteran is a registered nurse and has some medical training, but his vague statements regarding the claimed condition is not sufficient to establish its presence as current disability for the purpose of awarding service connection. Absent competent evidence of a current disability as defined by VA, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C.A. § 5107(b) (West 2002). Hypertension The Veteran contends that service connection is warranted for hypertension as it was first diagnosed during a period of ACDUTRA. In December 2005 and February 2008 statements, the Veteran reported that hypertension was initially diagnosed in 1980 during a period of ACDUTRA at "summer camp." The Veteran also stated in February 2006 that hypertension was first identified in the late 1980s at an Army clinic in Fort Bliss, Texas during a period of active reserve service. The record clearly establishes the presence of a current disability. Private treatment records from July 2000 and January 2001 document diagnoses of hypertension and the Veteran has reported receiving treatment for the disability throughout the claims period. The Board therefore finds that a current disability is demonstrated. Service treatment records document normal blood pressure at the February 1972 separation examination from the Veteran's period of active service with the Army. The January 1982 reserve enlistment examination and October 1983 active duty examination are also negative for findings or complaints indicative of hypertension. During an April 1987 cardiac consultation, the examining doctor specifically noted that the Veteran did not have hypertension. A January 1990 reserve promotion examination recorded slightly elevated blood pressure measured at 144/90, but no diagnosis of hypertension was rendered. In fact, the earliest evidence of hypertension dates from a June 1995 reserve examination when a history of blood pressure medication for the past three to five years was noted. A July 2000 periodic examination report also documents a diagnosis of hypertension in 1988. The Veteran contends that hypertension was first diagnosed during a period of ACDUTRA in 1980 or in the late 1980s. Although service treatment records do not document the exact date hypertension was first identified, the July 2000 periodic examination notes that hypertension was diagnosed in 1988. The June 1995 examination report also notes a three to five history of blood pressure medication, indicating treatment for the disability began in 1990 or later. While the exact date of the onset of the Veteran's hypertension cannot be determined, it is clear that the condition was first identified sometime between 1988 and 1992. The Board must now determine whether the Veteran served a period of ACDUTRA or other active military service between 1988 and 1992. As discussed above, personnel records verify periods of active duty from September 1969 to March 1972 and from February 1984 to April 1984. A period of ACDUTRA is also verified from June 17, 1995 to June 30, 1995. Medical records show that the Veteran did not have hypertension at the time of two periods of active duty, and by June 1995 (when he had verified ACDUTRA) he had been receiving treatment for hypertension for several years. A chronological statement of retirement points shows that the Veteran accumulated some active duty points during each year between 1988 and 1992, but never more than 30 points in the year. Additionally, the dates and reason for the accumulation of active duty points is not specified anywhere in the Veteran's personnel records. The Veteran's DFAS records also do not indicate any payment or designation for active service during the relevant period. In short, the Veteran's service personnel and treatment records are entirely negative for evidence of active service when hypertension was first diagnosed. The Board has also considered the statements of the Veteran contending that he was on active military service when hypertension was diagnosed. The Veteran has stated generally that hypertension was first identified in 1980 while he was at reserve summer camp or in the late 1980s when it was diagnosed at a clinic at Fort Bliss. Although the Veteran is competent to report when hypertension was diagnosed by a medical professional, the Board cannot conclude that this vague and conflicting statements represent objective verification of his duty status. His statements are outweighed by the objective evidence indicating that he was not on active service when hypertension was first identified. As there is no objective evidence verifying that the Veteran was on active military service when hypertension was diagnosed, service connection is not possible and the claim must be denied. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 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; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in January 2006 and March 2006 letters. The Veteran also received notice regarding the disability-rating and effective-date elements of the claims in the March 2006 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records from various facilities including St. Mary's Health Center and St. Louis University Hospital. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for getting an examination under the VCAA is low. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board acknowledges that the Veteran has not been afforded VA examinations or medical opinions in response to his claims but has determined that no such examinations or opinions are required. Regarding the claim for generalized arthritis, the record does not contain competent evidence of signs or symptoms of a current disability. The Veteran is a registered nurse and has some medical training, but he has not provided any specific statements in support of the claim for arthritis, to include identifying the joints affected by the claimed disorder. With respect to the bilateral knee and hypertension claims, there is no objective evidence of an association between the conditions and a verified period of active military service. Although the Veteran is competent to report injuries incurred during service (such as stress to his knees from running), he is not competent to provide objective confirmation of his duty status at the time of such injuries. Therefore, VA examinations or medical opinions are not required by the duty to assist. The Board also finds that VA has complied with the March 2010 and August 2013 remand orders of the Board. In response to the Board's remands, records from the DFAS pertaining to the Veteran's reserve service were obtained and added to the virtual claims file. The case was then readjudicated by the agency of original jurisdiction (AOJ) in September 2013 with consideration of the DFAS records. Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to service connection for a bilateral knee disability is denied. Entitlement to service connection for generalized arthritis is denied. Entitlement to service connection for hypertension is denied. REMAND The Board finds that a remand is necessary to develop additional evidence with respect to the claim for entitlement to service connection for a bilateral ankle disability. Specifically, a VA examination and medical examination are required to determine whether the Veteran's ankle arthritis was incurred or aggravated during a verified period of ACDUTRA in June 1995. Service records verify that the Veteran entered a period of ACDUTRA from June 17, 1995 to June 30, 1995. A June 1995 examination performed before the start of the active service did not document any ankle abnormalities, though earlier medical records contain findings related to the bilateral ankles. In May 1983, the Veteran was seen at a military emergency department for a left ankle injury incurred while playing basketball. Ankle pain was diagnosed. In July 1990, an X-ray performed at the Lutheran Medical Center documented minor degenerative changes of the left ankle. The Veteran was also placed on a physical profile in October 1990 for arthritis of the ankles and was prohibited from running and marching over one half mile. During his period of ACDUTRA in June 1995, the Veteran was seen for chronic ankle arthritis exacerbated by increased activity. Thus, bilateral ankle arthritis was diagnosed prior to the Veteran's June 1995 ACDUTRA and an additional injury was documented during this period of active service. As noted above, the presumption of soundness applies to the Veteran's period of ACDUTRA in June 1995 as the record contains an examination dated just prior to the start of service that did not document any "defects, infirmities, or disorders." Smith at 45-4638; U.S.C.A. §§ 1111, 1131. As the record contains evidence of a pre-existing disability (i.e. arthritis of the bilateral ankles) and a condition was not noted on the Veteran's June 1995 examination, a VA examination is necessary to determine whether the presumption of soundness is rebutted in this case. See 38 U.S.C.A. § 1111 (the presumption of soundness can be rebutted if clear and unmistakable evidence demonstrates that the disease or injury existed prior to service and was not aggravated by such service). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an appropriate VA examination to determine the nature and etiology of the claimed bilateral ankle disabilities. The Veteran's claims file must be made available to the examiner for review in connection with the examination. The examiner should physically examine the Veteran and review the complete claims file, to include the available service treatment records, and offer an opinion addressing whether any bilateral ankle disabilities: a) Clearly and unmistakably (obvious and manifest) existed prior to the Veteran's period of ACDUTRA from June 17, 1995 to June 30, 1995; b) And if so, whether any pre-existing ankle disabilities clearly and unmistakably (obvious and manifest) did not undergo an increase in severity during the period of ACDUTRA beyond the natural progress of the disease. A July 1990 X-ray demonstrated minor degenerative changes of the left ankle and an October 1990 physical profile limited the Veteran's running and marching due to arthritis of the ankles. During the period of ACDUTRA in June 1995, the Veteran was seen for chronic arthritis of the ankles exacerbated by increased activity. The injury was incurred in the line of duty. The Veteran sought treatment with a private physician for continued ankle treatment in November 2000. c) If the examiner determines that a bilateral ankle disability did not clearly and unmistakably exist prior to service or was not clearly and unmistakably not aggravated during service, the examiner should then opine as to whether it is whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the ankle disability is etiologically related to any incident of ACDUTRA, to include the documented June 1995 ankle injury due to walking over hard rocks. The bases for all opinions expressed should also be provided and must include reference to specific evidence contained in the claims file. 2. Readjudicate the claim on appeal. If the benefits sought on appeal are not fully granted, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs