Citation Nr: 1756875 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 12-09 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for a right knee disorder (claimed as residuals right knee injury). 3. Entitlement to an evaluation in excess of 10 percent for hypertension. REPRESENTATION Appellant represented by: Adam Neidenberg, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Matthew Miller, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1979 to November 1987. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2015, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In a December 2015 decision, the Board reopened the Veteran's claims for service connection for an acquired psychiatric disorder and right knee disorder and remanded those issues, as well the claim for an increased evaluation for hypertension for additional evidentiary development. The matters have since returned to the Board for further consideration. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Any future consideration of this appellant's case should take into account the existence of these records. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's acquired psychiatric disorder, diagnosed as bipolar disorder, is attributable to active service. 2. A right knee disorder was not manifest in service and it is not otherwise attributable to active service. Any arthritis was first shown years after service. 3. At no time during the appeal period has the Veteran's hypertension been manifested by diastolic pressure of predominantly 110 or more, or systolic pressure of predominantly 200 or more. His blood pressure is controlled with medication. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1131, 1132, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 2. The criteria for entitlement to service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The criteria for an evaluation in excess of 10 percent for hypertension are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.104, Diagnostic Code 7101 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012) sets forth VA's duties to notify and assist a claimant with the evidentiary development of a claim for compensation or other benefits. See also 38 C.F.R. §§ 3.102, 3.159 and 3.326 (2017). VCAA notice must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. The Veteran has been provided satisfactory and timely VCAA notice in advance of the rating decision on appeal. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. The Veteran's statements in support of the claim are of record, including testimony provided at the hearing before the undersigned Veterans Law Judge. The Board hearing focused on the elements necessary to substantiate his claim and the Veteran, through his testimony and his representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. Thus, the material issues on appeal were fully developed in accordance with 38 C.F.R. § 3.103(c) (2017). Pursuant to the Board's December 2015 remand, the Agency of Original Jurisdiction (AOJ) attempted to retrieve outstanding records and provided the Veteran with VA examinations and opinions which were responsive to the questions asked of the examiner. A supplemental statement of the case was later issued in September 2016. Based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's December 2015 remand. Stegall v. West, 11 Vet. App. 268 (1998). Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Legal Principles - Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Arthritis, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. Alternatively, a nexus to service may be presumed where there is continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Acquired Psychiatric Disorder The Veteran seeks entitlement to service connection for an acquired psychiatric disorder. As indicated above, the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder was reopened in December 2015. The Veteran's service treatment records are silent as to any treatment for psychiatric problems or symptoms. The Board observes that there are an extensive amount of post-service records documenting the Veteran's treatment for psychiatric complaints. He is also prescribed medication for his condition. According to a February 1989 psychiatric examination, the Veteran presented because of depression and difficulty functioning. The doctor reported that the Veteran's symptoms may have predated his discharge from service. However, the Board notes that this is not confirmed by a review the Veteran's service treatment records. The diagnoses given at that time were Sub Chronic Paranoid Schizophrenia and Schizotypal Personality Disorder. The Veteran underwent a private examination with Dr. A. Selbst, M.D. in November 2010. Dr. A. Selbst diagnosed the Veteran with depression with bipolar disease. After a review of the Veteran's claims file, he opined that the Veteran's symptoms onset during military service and that they have grown worse over time. In April 2015, the Veteran testified that he was under significant stress during service and was involved in search and recovery operations and a burial detail. He stated that he had a significant episode in 1988, soon after his discharge, where he threw all of his medals and his uniform into the garbage and he was later admitted to the psychiatric ward. He indicated that he still seeks treatment for his symptoms and does not deal well with stressful situations. Pursuant to the Board's December 2015 remand, the Veteran was afforded a VA examination in May 2016. The examiner diagnosed the Veteran with bipolar disorder. The Veteran reported that he was discouraged from seeking mental health treatment while in service. He also reported that he had difficulty concentrating in service and that others did not want to work with him because he was irritable, jumpy, and depressed. The examiner provided a summarized history of the Veteran's prior mental health treatment and noted that the Veteran first sought treatment around 1988, with substantial treatment since that time. The examiner dismissed the November 2010 private report, noting that Dr. A. Selbst was not a psychologist. The examiner determined that the Veteran's bipolar disorder was less likely than not (less than 50 percent probability) incurred in or caused by service. The examiner explained that the Veteran's service treatment records are silent as to any mental health complaints and concluded that military service does not cause bipolar disorder. The examiner also provided the following remarks regarding the Veteran's treatment around 1988 or 1989: There is no independent verification that Veteran had mental health treatment/complaints 1 year post discharge. Furthermore, although psychiatrist in 1989 stated that mental health complaints may have started in the service, the [service treatment records] do not substantiate such a statement/claim. With the information available to current examiner, it appears that current diagnosis of Bipolar I Disorder is less likely than not related to his military service nor aggravated by the service. The Veteran underwent a second private examination in April 2017 with Dr. J. Polsky, a licensed psychologist. Dr. J. Polsky provided a thorough and complete history of the Veteran's mental health treatment to date and also diagnosed the Veteran with bipolar disorder. Dr. J. Polsky stated that the May 2016 VA examiner's opinion should be disregarded as the examination was inaccurate and did not consider a majority of the lay evidence. She then provided the following remarks: Given the service records showing an onset of mental health symptoms for [the Veteran] since 1994, given the medical records indicating the severity and chronicity of [the Veteran's] psychological symptoms until the present, and given the lack of any indication that [the Veteran] had a mental health disorder prior to joining the military, the evidence in the record indicates that it is at least as likely as not that [the Veteran's] military service has caused his current psychiatric diagnosis of Bipolar Disorder. Records indicated that psychological symptoms were noticed for him as early as 1994. This disorder, which began in service, has persisted until the present day, as evidenced by the medical records demonstrating a continuity of symptomatology. After carefully considering the Veteran's contentions and reviewing the evidence of record, the Board finds that the preponderance of the most probative evidence supports the grant of service connection for an acquired psychiatric disorder, presently diagnosed as bipolar disorder. When evaluating medical opinions it is the province of the Board to weigh the evidence and decide where to give credit and where to withhold the same, and in so doing, to also accept certain medical opinions over others. See Evans v. West, 12 Vet. App. 22, 30 (1999). The Board cannot make its own independent medical determinations, and there must be plausible reasons for favoring one opinion over another. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail and whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444 (2000). An evaluation of the probative value of a medical opinion or diagnosis is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusions reached. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When confronted with conflicting medical opinions, the Board must weigh each and favor one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board must also determine which of the competing medical opinions is more probative of the medical question at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). Here, the Board places substantial probative value on the April 2017 report from Dr. J. Polsky, as she indicated a complete review of the Veteran's electronic claims file and provided a thorough summary of the Veteran's treatment history. While the May 2016 VA examiner determined that the Veteran's bipolar disorder is not attributable service, the rationale was less probative. Pursuant to the benefit-of-the-doubt rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107. Here, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran's bipolar disorder was incurred in service. As such, the criteria for service connection are met and the claim is granted. Right Knee Disorder The Veteran seeks entitlement to service connection for a right knee disorder. Essentially, he contends that he injured his right knee in service after a fall. The Veteran's service treatments records reflect that he fell approximately six to eight feet in March 1983 and was seen for complaints that included pain in the area of the right popliteal fossa. The Board notes that the Veteran has received some VA treatment for his right knee pain and also uses a brace when needed. The Veteran underwent a private examination with Dr. A. Selbst, M.D. in November 2010. Dr. A. Selbst noted that the Veteran injured his right knee in 1983 when a ladder collapsed and that he later received sutures for a laceration. He stated that the Veteran began to notice pain in his knees around 1988, and that the Veteran eventually had two knee arthroscopies for a torn meniscus, loose bodies, and patella shaving in 1995 and 2006. Dr. A Selbst provided a diagnosis of arthritic syndrome, right knee and opined that this disorder is at least as likely as not a direct result of military service. In April 2015, the Veteran testified that he first injured his knee in 1983 after a ladder collapsed, causing him to fall onto the flight deck. He stated that he continued to experience knee pain since the incident and suggested that the knee injury eventually lead to his subsequent arthroscopies. Pursuant to the Board's December 2015 remand, the Veteran was afforded a VA examination in May 2016. The examiner diagnosed the Veteran with right knee meniscal tear, dated 1995, right knee joint osteoarthritis, dated 2000, and degenerative right knee arthritis, dated 1995. The examiner determined that the Veteran's claimed right knee disorder was less likely than not (less than 50 percent probability) incurred in or caused by military service. The examiner provided the following remarks: There is no evidence of a right knee injury in service. Yes, [the Veteran] did have an accident in service in 1983, but there was only a reference to a laceration. There was never any evidence of a structural right knee problem either during or after the accident in service. Without any evidence of a right knee condition during service, it is not possible to establish a nexus. After weighing the evidence, the Board concludes that the more probative evidence is against the Veteran's claim. First, the Board notes that there is no evidence showing that the Veteran's right knee arthritis was compensably disabling within one year of separation from service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In fact, it appears that the earliest date that the Veteran was diagnosed with arthritis of the right knee was in 1995 and presumably in regards to his initial arthroscopy. This diagnosis is over 5 years after the Veteran was discharged from service. Thus, there is no evidence of a continuity of symptomatology since service, nor is there other showing that the arthritis is related to service. Walker, 708 F.3d at 1338-40. As indicated above, when confronted with conflicting medical opinions, the Board must analyze and weigh each opinion. Here, Dr. A. Selbst's positive nexus opinion is afforded less probative value than that of the May 2016 VA examiner. While both Dr. A. Selbst and the VA examiner reviewed the Veteran's claims file, the May 2016 VA examiner clarified that the Veteran's in service right knee injury resulted in a laceration and did not cause any structural problems. In light of the above, the Board determines that a preponderance of the evidence shows that the Veteran's bilateral knee disability was not incurred in or aggravated by service. Again, the Board finds the reasoning of the VA examiner highly probative as he indicated a detailed review of the evidence, provided fully supported rationale consistent with the evidence, and considered the Veteran's claims regarding his right knee disorder and onset. In sum, the most probative evidence of record is against showing that the Veteran's right knee disorder is related to service. In making this decision the Board notes that the Veteran is competent to report knee problems and the circumstances surrounding such. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of the Veteran's right knee disorder, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). For the above reasons, the Veteran's claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C.A. § 5107. Legal Principles - Increased Evaluations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). While it is necessary to consider the complete medical history of the Veteran's condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding the Veteran's increased evaluation claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. Evaluation in Excess of 10 percent for Hypertension The Veteran seeks entitlement to an evaluation in excess of 10 percent for hypertension. Under the provisions of Diagnostic Code 7101, a 10 percent rating is warranted when the diastolic pressure is predominantly 100 or more, or systolic pressure is predominantly 160 or more, or for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101. A 20 percent rating contemplates diastolic pressure of predominantly 110 or more, or systolic pressure predominantly 200 or more. Id. A 40 percent rating is assigned when the diastolic pressure is predominantly 120 or more. Id. The highest rating of 60 percent rating is warranted when the diastolic pressure is predominantly 130 or more. Id. The Board observes that the Veteran's current 10 percent evaluation for hypertension has been in effect since March 19, 1993 and that he is prescribed medication to treat his hypertension. The Veteran's claim for an increased evaluation was received in September 2010. According to Dr. A. Selbst's November 2010 report, the Veteran's blood pressure was 124 (systolic) / 82 (diastolic). The Veteran was afforded a VA examination in May 2011 which revealed stable hypertension. The Veteran's blood pressure readings were 141/87, 149/103, and 169/111. X-rays showed that her heart size was normal and there was no history of hypertensive cardiovascular disease or any other hypertensive related disease. The Veteran's VA treatment records include numerous blood pressure readings as well. For instance, in January 2015, the Veteran's blood pressure was 133/86. In July 2014, his readings were 122/80. In January 2014, they were 131/83. In July 2013, the readings were 112/70. In January 2013, they were 126/100 and 124/87. Readings from October 2012 were 100/78 and readings from July 2012 were 105/69, 128/75, and 130/74. Readings from May 2012 were 153/90 and January 2012 readings were 134/98. A November 2011 reading was 136/99 and a June 2011 reading was 114/75. Some February 2011 readings were 141/87 and 135/85. A December 2010 reading was 128/84. Pursuant to the Board's December 2015 remand, the Veteran's was afforded a new VA examination in May 2016. The examiner reported that the Veteran's blood pressure readings were reviewed and most were within normal limits. He stated that there "have been a couple with mildly elevated systolics." The Veteran's average blood pressure reading was 153/83. The Board has taken the Veteran's lay statements into account. The Veteran is competent to report his own observations with regard to the symptomatology of his hypertension. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the rating criteria for hypertension focus entirely on diastolic and systolic blood pressure and nothing in the Veteran's lay statements indicates that his hypertension meets the criteria for an evaluation in excess of 10 percent. Based on the evidence of record, the criteria for an evaluation higher than 10 percent based on diastolic pressure of predominantly 110 or more, or systolic pressure predominantly 200 or more are consequently not met. 38 C.F.R. § 4.104, Diagnostic Code 7101. ORDER Entitlement to service connection for an acquired psychiatric disorder is granted. Entitlement to service connection for a right knee disorder (claimed as residuals right knee injury) is denied. Entitlement to an evaluation in excess of 10 percent for hypertension is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs