Citation Nr: 1758092 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 13-03 672A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for right hip, right knee, and left wrist disorders, claimed as gout and rheumatoid arthritis, including as secondary to hypertension. 2. Entitlement to an increased rating for hypertension, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from January 1980 to August 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In May 2015, the Veteran testified at a hearing before the undersigned and a transcript of that hearing has been associated with the claims file. In August 2015, the Board remanding the appeal for additional development. In a December 2015 rating decision, the RO granted the Veteran service connection for a heart disorder (hypertensive heart disease). Similarly, in a July 2017 rating decision the RO granted the Veteran service connection for a psychiatric disorder (schizophrenia). Therefore these issues are no longer before the Board. The Board also finds that it does not have jurisdiction over a claim for a higher rating for hypertensive heart disease because the Veteran did not appeal the December 2015 rating decision. Lastly, the Board finds that the issues on appeal no longer include an extraschedular rating for hypertension nor a claim for total rating based on individual unemployability because the Veteran does not claim that his hypertension acting alone causes unemployment and he is already in receipt of a 100 percent schedular rating for his psychiatric disorder throughout the appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The preponderance of the evidence shows that right hip, right knee, and left wrist disorders, claimed as gout and rheumatoid arthritis, are not related to service nor caused or aggravated by a service-connected disability. 2. The preponderance of the evidence showed that the Veteran's hypertension is not manifested by at least diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more at any time during the pendency of the appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for right hip, right knee, and left wrist disorders, claimed as gout and rheumatoid arthritis, have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for a rating in excess of 10 percent for hypertension have not been met at any time during the pendency of the appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.104, Diagnostic Code 7101 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Service Connection Claim The Veteran and his representative claim, in substance, that the appellant has right hip, right knee, and left wrist disorders, claimed as gout and rheumatoid arthritis, due to his military service and/or his service-connected hypertension. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. Compensation is payable when service-connected disability has aggravated a non-service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Where 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.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The post-service record document the Veteran's complaints and/or treatment for right hip, right knee, and left wrist disorders diagnosed as right knee degenerative joint disease and rheumatoid arthritis. See, e.g., Department of Corrections treatment records dated in July 2006, June 2007, and December 2007; VA treatment records dated in August 2008 and January 2015; and VA examinations dated in June 2017. Moreover, the Board finds that the Veteran and others are competent to report on the objective manifestations of these disorders, such as pain, lost motion, and swelling, because it comes to them via their own senses. See Davidson. However service treatment records, including the July 1983 separation examination, are negative for a right hip, right knee, and/or left wrist injury as well as symptoms, treatment, or a diagnosis of chronic right hip, right knee and/or left wrist disabilities to include gout and rheumatoid arthritis. In fact, at the July 1983 separation examination the Veteran specifically denied ever having a problem with changes in his legs, arthritis, bone/joint deformity, lameness, and a trick/locked knee and the examiner opined that his upper and lower extremities were normal. This medical opinion is not contradicted by any other medical evidence of record. See 38 C.F.R. § 3.303(a). The record also does not show the Veteran being diagnosed with arthritis in the first post-service year. See 38 C.F.R. §§ 3.307, 3.309. Similarly, the record does not show that the Veteran had a continued problem with of right hip, right knee, and/or left wrist disorders in and since service. In fact, as reported above, the July 1983 separation examination is negative for complaints, diagnoses, or treatment for right hip, right knee, and left wrist disorders as well gout and rheumatoid arthritis. Likewise the post-service record, including hospitalization discharge summaries dated in January 1993 and May 1993, emergency room visits dated in July 1994 and November 2000, as well as VA examinations dated in June 1993, July 1996, and January 2001, are also negative for a history, complaints, and/or a diagnosis of right knee degenerative joint disease until 2006 and right hip, right knee, and left wrist rheumatoid arthritis until 2008. See, e.g., Department of Corrections treatment records dated in July 2006, June 2007, and December 2007; VA treatment records dated in May 2008, June 2008, August 2008, and September 2008. Furthermore, the record is negative for competent and credible medical evidence showing a relationship between the Veteran's post-service right hip, right knee, and left wrist disorders and his military service. See 38 C.F.R. § 3.303(d); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). Lastly, the record is negative for competent and credible medical evidence showing his right hip, right knee, and left wrist disorders were caused or aggravated by his service-connected hypertension. See 38 C.F.R. § 3.310; Allen. In fact, at the post-remand VA examinations dated in June 2017 which was held for the express purpose of ascertaining the origins or etiology of the Veteran's disorders the examiner after a review of the record on appeal and an examination of the Veteran opined that they were was not due to his military service and were not secondary to his hypertension and these medical opinions are not contradicted by any other medical evidence of record. Lastly, the Board finds that the Veteran and other lay persons are not competent to provide this missing nexus opinions because they do not have the required medical expertise to provide answers to these complex medical questions. See Davidson. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for s right hip, right knee, and left wrist disorders to include gout and rheumatoid arthritis and the claim is denied on a direct and secondary basis. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.310. In reaching all the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert. The Rating Claim The Veteran asserts that he meets the criteria for an increased rating for hypertension. See Scott. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2017). When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical location and symptomatology are closely analogous. 38 C.F.R. § 4.20. Historically the Veteran's hypertension has been rated as 10 percent disabling under 38 C.F.R. § 4.104, Diagnostic Code 7101. Under 38 C.F.R. § 4.104, Diagnostic Code 7101, a higher 20 percent evaluation is only warranted for hypertension when it is manifested by diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. With the above criteria in mind, a review of the record on appeal, including the VA examinations, only show a couple of occasions when the Veteran's hypertension was manifested by diastolic pressure 110 or more and does not ever show his hypertension being manifested by systolic pressure 200 or more, much less it being "predominantly" more. In fact, at the time of the January 2011 VA examination his blood pressure was 170/110, 168/112, and 168/108. The examiner also noted that the Veteran brought in a history of his blood pressure readings and they showed that in early January he had readings ranging from 134/102 to 174/128 and in late January he had a reading of 148/106 and another one of 177/117. The examiner also noted that the Veteran's blood pressure reading in a VA treatment record from January 6, 2011, was 158/113 with a repeat of 142/102. Likewise, in the September 2011 addendum to the January 2011 VA examination it was noted that the Veteran's blood pressure reading in the last 8 months were as follows: January 6, 2011: 158/113 and 142/102; February 4, 2011: 134/86 and l36/94; February 17, 2011: 178/109 and 162/101; and Apr 4, 2011: 13l/84. Similarly, at the January 2015 VA examination his blood pressure was 144/94, 138/93, and 145/94. The examiner thereafter noted that from 2011 to the present the Veteran's average systolic pressures were 137 and his average diastolic pressures were 82. It was also opined that his hypertension was well controlled on medication. In June 2017, his blood pressure was 140/96, 128/87, and 137/88. Lastly, and as noted in part above, treatment records dated before and after the above VA examinations document the fact that the Veteran had, on occasion, both higher diastolic and systolic pressures than what was reported at these VA examinations. They also show, on occasion, his diastolic pressure being 110 or more. However, the do not ever show his systolic pressure 200 or more and the Board finds that they do not predominantly show his diastolic pressure being 110 or more because these higher diastolic pressures where only seen on a few occasions. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases). Accordingly, the Board finds that a rating in excess of 10 percent for hypertension is not warranted under 38 C.F.R. § 4.104, Diagnostic Code 7101. This is true throughout the period of time during which his claim has been pending and therefore consideration of staged ratings are not warranted. Hart, supra. ORDER Service connection for right hip, right knee, and left wrist disorders, claimed as gout and rheumatoid arthritis, is denied. A rating in excess of 10 percent for hypertension is denied at all times during the pendency of the appeal. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs