Citation Nr: 1801430 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-09 509 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for cervical spine disability. 2. Entitlement to service connection for right ankle disability. 3. Entitlement to service connection for left ankle disability. 4. Entitlement to service connection for rheumatoid arthritis. 5. Entitlement to service connection for swelling of underarms and neck. 6. Entitlement to service connection for hypertension. 7. Entitlement to an evaluation in excess of 10 percent for right knee disability. 8. Entitlement to an evaluation in excess of 10 percent for left knee disability. 9. Entitlement to a total evaluation based on individual unemployability due to service connected disability (TDIU). REPRESENTATION Veteran represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from October 1989 to October 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The issues of entitlement to service connection for left ankle disability, increased evaluations for the knees, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Cervical spine disability is not attributable to service. 2. Right ankle disability is not attributable to service. 3. Rheumatoid arthritis is not attributable to service. 4. Swelling under the arms and of the neck is not a disability within the meaning of the applicable legislation; and an underlying disability for the Veteran's symptoms of swelling is not shown. 5. Hypertension is not attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for cervical spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for right ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for rheumatoid arthritis are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for swelling under the arms and of the neck are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 5. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Neither the Veteran, nor his attorney, has alleged prejudice or any issues with the duty to notify or the duty to assist. The Federal Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Service Connection The Veteran seeks service connection for cervical spine disability, right ankle disability, rheumatoid arthritis, swelling under the arms and of the neck, and hypertension. In August 2011, the Veteran submitted a claim of entitlement to service connection for swelling of joints and hypertension; he noted swelling in his knees, ankles, under the arms and of the neck. See VA Form 21-0820 (August 2011). In November and December 2011, the Veteran reported that he had problems with joint pain, rheumatoid arthritis, and hypertension. See VA Forms 21-4138 (November 2011) and (December 2011). In July 2014, VA received a claim of entitlement to service connection for cervical spine disability and rheumatoid arthritis. See VA Form 21-526EZ (June 2014). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also 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), citing Gilbert, 1 Vet. App. at 54. Legal Criteria Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Arthritis and hypertension shall be considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period of war or following peacetime service on or after January 1, 1947. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Facts & Analysis Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the claims of entitlement to service connection for cervical spine disability, right ankle disability, rheumatoid arthritis, swelling under the arms and of the neck, and hypertension. A chronic disability of the cervical spine and right ankle is not shown in service; rheumatoid arthritis is not shown in service; a disability manifested by swelling under the arms and/or neck is not shown in service; and hypertension is not shown in service. Arthritis (including rheumatoid arthritis) and hypertension are not shown within the initial post separation year. Lastly, none of the claimed disabilities adjudicated herein are shown to be attributable to service. The Veteran had active military service from October 1989 to October 1994. Service treatment records (STRs) reflect no complaints or findings for abnormal pathology of the cervical spine, right ankle, or areas involving under the arms and/or the neck. STRs also reflect no findings for rheumatoid arthritis or hypertension. Service records show that the Veteran declined to undergo a service separation examination. The Veteran filed an original VA disability claim in October 1994, only reporting disability of the knees at that time. See VA Form 21-526 (October 1994). VA treatment records reflect that, in April 2003, the Veteran was assessed with hypertension. A March 2007 note shows that the Veteran had hypertension and was instructed on the seriousness of uncontrolled hypertension. Another March 2007 note shows "borderline htn [hypertension], no treatment at this time." A June 2010 note shows that the Veteran had self-reported to Vet Center that he had hypertension. An October 2011 note shows hypertension; the Veteran was out of medication. In March 2016, the Veteran reported that he was diagnosed with hypertension in his 20s but was never treated. See Medical Treatment Record - Government Facility (August 2016). A March 2007 VA treatment note shows that the Veteran's neck was supple with full range of motion. A March 2007 cervical spine x-ray study (after a fall) showed probably muscle spasm. A September 2007 note shows that the Veteran reported a spider bite to his neck. A May 2010 note shows that the Veteran had rheumatoid arthritis of the legs, knees, arms, neck, hands, and feet. VA treatment records show complaints of swelling in the lower extremities. See Medical Treatment Record - Government Facility (August 2016). An April 2010 VA treatment record reflects that, by history, the Veteran was followed by a private physician for rheumatoid arthritis. A November 2010 treatment note shows rheumatoid arthritis per patient. See Medical Treatment Record - Government Facility (August 2016). Private treatment records dated in January 2010 reflect that the Veteran presented with "pain in his hands, neck, and knees, tingling sensation in his left arm and stiffness all day." The Veteran reported that these symptoms had been ongoing since 1992. He stated that his parents had rheumatoid arthritis. He denied a history of severe trauma. The assessment was osteoarthritis, inflammatory polyarthritis, arthralgias, weakness and fatigue, scoliosis, and inflammatory oligo-arthritis. Private treatment records dated in February 2010 show that the Veteran was seen by the arthritis and rheumatology clinic. Objective examination of the head/neck, cardiovascular system, and spine was normal. The Veteran reported no complaints involving his cervical spine, right ankle, swelling under the arms and/or the neck. The Veteran was evaluated for knee and back pain and noted to have sciatica, scoliosis, degenerative joint disease, inflammation, and arthralgia treated with Mobic and prednisone. See Medical Treatment Record - Non-Government Facility (June 2010) and (January 2012). Private treatment records dated in December 2011 reflect, by history, hypertension and other disorders. The Veteran complained of fatigue, joint pain with swelling and stiffness. A blood pressure reading showed 141/93. The assessment was hypertension, degenerative joint disease, back pain, and musculoskeletal pain. Report of VA examination dated in June 2010 reflects a diagnosis for rheumatoid arthritis by history. Report of VA ankle examination dated in January 2013 reflects no diagnosis for any right ankle disability. Records from the Social Security Administration (SSA) reflect that, on medical evaluation dated February 2009, the Veteran alleged hypertension. SSA records further show that he was treated with steroids for rheumatoid arthritis. SSA records indicate that benefits were awarded based on disability from rheumatoid arthritis and inflammatory arthropathies (osteoarthritis). See Medical Treatment Record - Furnished by SSA (April 2015). The medical evidence shows no indication that the Veteran's claimed disabilities has their onset in service or are attributable to disease or injury incurred or aggravated in service. The Veteran is competent to report his symptoms, the onset of those symptoms, and treatment. See Layno, supra. However, he is not competent to opine that his current problems are attributable to service as he lacks the requisite medical expertise and the etiology is beyond the ken of a layman. See Jandreau v. Nicholson, 492 F.3d. 1372 (2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (although it is error to categorically reject a non-expert opinion as to etiology, or nexus, not all questions of nexus are subject to non-expert opinion; whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case). Therefore, his medical opinion has no probative value. The Board observes that the Veteran has not espoused any particular theory of entitlement with regard to the claims here. However, to the extent that he suggests continuity of problems since service, the Board finds that his theory is not credible given that STRs reflect no notation for arthritis or hypertension, coupled with the many years intervening service and the first documented complaints and/or findings for abnormal pathology. Therefore, the theory of continuity symptoms has no probative value. Also, the Board has considered the claim for swelling under the arms and of the neck. To the extent that the Veteran has swelling as claimed, an underlying disability is not shown. Swelling alone without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). On balance, the weight of the evidence is against the claims. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra (1990). Accordingly, the claims are denied. ORDER Service connection for cervical spine disability is denied. Service connection for right ankle disability is denied. Service connection for rheumatoid arthritis is denied. Service connection for swelling of underarms and neck is denied. Service connection for hypertension is denied. REMAND Left Ankle STRs document a left ankle injury in September 1993, assessed as moderate left ankle sprain. On follow-up in October 1993, the Veteran complained of weakness and inversion. The assessment was left ankle, chronic strain. A 5 day profile was given. However, STRs reflect no ongoing complaints or findings referable to the left ankle between October 1993 and service separation in October 1994, and the Veteran had no permanent profile based on left ankle problems. The Veteran's service records show that he declined to undergo a service separation examination. A VA medical opinion dated in January 2013 reflects that the Veteran's left ankle condition is less likely than not attributable to service (including the claimed in-service injury). The rationale was as follows: Although the Veteran acquired an [sic] left ankle sprain he had not further sequela, consistent treatment, or complaint of his ankle in the military, on exit examination, nor within the presumptive period after service. His ankle resolved without sequela or residuals. This is confirmed by radiographs of his ankle on 1-22-13, which who normal report via radiologist specialist. The Board finds that the medical opinion is inadequate because the rationale is not predicated on accurate information. Specifically, the Veteran had no "exit examination." Therefore, to ensure VA has satisfied its duty to assist, another VA medical opinion is necessary to decide this claim. 38 C.F.R. § 3.159(c). Knees & TDIU In view of a recent decision of the Court of Appeals for Veterans Claims (Court), remand of the knee claims is necessary. In Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016), the Court held that to be adequate a VA examination of the joints must, wherever possible, include joint testing for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In this case, the most recent report of VA knee amination dated in June 2010 does not reflect the necessary testing or findings. Therefore, remand is necessary for a new VA examination. Also, additional development of the TDIU claim is necessary, which addresses the functional impact of the Veteran's service-connected bilateral knee disability and unspecified depressive disorder on his ability to perform the mental and physical acts required for substantially gainful employment. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain all pertinent updated treatment records and associate these with the claims file to the extent possible. 2. The Veteran should be scheduled for a VA examination of the knees to ascertain the severity of his service-connected bilateral knee disabilities using the most recent Disability Benefits Questionnaire for the Knees and Lower Leg Conditions. The claims file must be reviewed and the review noted in the report. All symptoms should be identified along with their frequency, duration, and severity. All clinical findings should be reported in detail to include the functional impact. To the extent possible, the examiner should indicate the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing for each knee. If the examiner is unable to provide the information, he or she should clearly explain why that is so. For TDIU purposes, the following is requested. (a) The examiner should obtain a history from the Veteran on his day-to-day activities to include hobbies, housework, yardwork, community involvement, and driving. (b) The examiner should ask the Veteran to describe in his own words the functional impact of his knee disorders on his ability to engage in substantially gainful work. The Veteran's response should be recorded in the report. (c) Considering the Veteran self-report, coupled with the current examination findings and review of any pertinent records (to include the November 2011 psychological evaluation by Dr. Fink, the July 2014 medical opinion by Dr. Henderson-Galligan, and the October 2016 vocational assessment by S. Barnes), the examiner should indicate the objective functional effects of the Veteran's service connected knee disorders on his ability to perform the physical and mental acts required for employment. (i) With regard to physical acts, the examiner should address functions of the upper and lower extremities to include the ability to sit, stand, walk, bend, carry, lift, grasp, pull and push. The examiner should indicate whether the Veteran can lift, carry, push, or pull objects weighing up to 10 pounds and, if not, why. Please, do not state generically that the Veteran has "difficulty with prolonged standing, sitting, and walking," but rather provide specific details, as appropriate, that identify the frequency, duration, and/or severity of any limitation arising from the service-connected disorders. (ii) With regard to mental acts, the examiner should indicate whether the Veteran displays objective signs of sleep impairment and, if so, whether this is due to service connected knee disorders. (iii) The examiner should indicate the effect, if any, of the Veteran's medications and/or treatment for the knees on his ability to perform the physical and mental acts required for employment. (iv) The examiner should indicate whether the Veteran has had any medical restrictions imposed on his activities due to service-connected knee disorders. The examiner should refrain from commenting on whether the Veteran is employable. 3. For TDIU purposes, the Veteran should be scheduled for a VA psychiatric examination to ascertain the severity of his service-connected unspecified depressive disorder using the most recent Disability Benefits Questionnaire for Mental Disorders (other than PTSD). (a) The examiner should obtain a history from the Veteran on his day-to-day activities to include hobbies, housework, yardwork, community involvement, and driving. (b) The examiner should ask the Veteran to describe in his own words the functional impact of his mental disorder on his ability to engage in substantially gainful work. The Veteran's response should be recorded in the report. (c) Considering the Veteran self-report, coupled with the current examination findings and review of any pertinent records (to include the November 2011 psychological evaluation by Dr. Fink, the July 2014 medical opinion by Dr. Henderson-Galligan, and the October 2016 vocational assessment by S. Barnes), the examiner should indicate the objective functional effects of the Veteran's service connected mental disorder on his ability to perform the mental acts required for employment. (i) With regard to mental acts, the examiner should address functions of the mind to include concentration, focus, attention, and memory. The examiner should indicate whether the Veteran displays objective signs of sleep impairment and, if so, whether this is due to service connected mental disorder and/or bilateral knee disability. (ii) The examiner should indicate the effect, if any, of the Veteran's medications and/or treatment for his mental and/or knee disorders on his ability to perform the mental acts required for employment. (iii) The examiner should indicate whether the Veteran has had any medical restrictions imposed on his activities due to service-connected mental disorder. The examiner should refrain from commenting on whether the Veteran is employable. 4. After ensuring any other necessary development has been completed, the AOJ should readjudicate the claims. If the benefits sought are not granted, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the case is returned to the Board. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran and his representative have the right to submit additional evidence and argument on the matter or matters 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. §§ 5109B, 7112 (2012). ______________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs