Citation Nr: 1803459 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 12-01 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a left knee disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran served on active duty from May 1977 to April 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran originally requested a hearing before the Board. In July 2012, the Veteran withdrew that request in writing. 38 C.F.R. 20.704(e) (2017). In June 2014 and February 2017, the Board remanded these claims for additional development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran's left knee disability was not incurred in military service. 2. The Veteran's hypertension was not incurred in military service CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for establishing service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service Connection for a Left Knee Disability Post-service VA treatment records in the claims file do not reflect any left knee complaints or diagnosis until 2012 when a VA X-ray demonstrated tricompartmental osteoarthritis. Thus, the remaining question is whether the left knee osteoarthritis is related to the Veteran's military service. The Veteran's service treatment records reflect that in May 1978, the Veteran complained of left knee pain in the medial aspect of the upper tibial area. In September 1978, an X-ray of the left knee was normal except for evidence of old posttraumatic changes in the anterior tibial tubercle compatible with old Osgood Schlatter's disease. The Veteran sought treatment in January 1982 for traumatic synovitis of the left knee. In November 1982, the Veteran was treated for traumatic synovitis after reporting he twisted his left knee playing basketball. In February 1991, the Veteran was treated for hyperextension of the left knee. The 1998 retirement examination revealed a normal lower extremities and musculoskeletal system. At the time the Veteran denied having bone, joint or other deformity, as well as "trick" or locked knees. Arthritis is not shown to be present during service or in the year following separation from service, thus, in-service incurrence cannot be presumed. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). The August 2014 VA examiner was asked to address any relationship between the in-service knee complaints and the current knee disability. The examiner concluded that it was less likely than not that the current left knee arthritis was related to the knee complaints during service. The examiner explained that although the Veteran sought treatment for left knee pain on more than one occasion in service, the January 1998 retirement physical did not have a clinical finding regarding the left knee. The Veteran did not seek treatment after service for left knee condition until February 2012 and an X-ray showed the veteran had tricompartmental osteoarthrosis of the left knee. Therefore there is a greater than 20 year gap between the symptoms of knee pain in the service and the documentation of the current condition. There is no medical evidence in significant conflict with the opinions of the VA examiner. A veteran is competent to describe symptoms that he is able to perceive through the use of his senses and to give evidence about what he has experienced. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). In that regard, the Veteran has reported experiencing knee pain since service. However, the Veteran is not shown to possess any medical expertise; thus, his opinion as to the existence of a left knee disability or as to the etiology of a left knee disability is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current left knee disability requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). In any event, the Board finds the medical opinion more probative than the Veteran's lay statements as the opinion was offered by a medical professional after examination of the Veteran and consideration of the history of the disability including the Veteran's reports of knee pain, and as the opinion is supported by a clear rationale. In summary, the preponderance of the evidence is against a finding that the Veteran has a current left knee disability that was incurred during service. Thus, the claim for service connection is denied. Service Connection for Hypertension The Veteran essentially contends that he developed hypertension as a result of his active service. VA regulations provide that the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. The Board notes that there is no dispute the Veteran currently has hypertension. Thus, the remaining question is whether the hypertension is related to his military service. The Veteran's service treatment records reflect some elevated blood pressure readings, such as 139/93 in January 1998 (retirement examination) and 157/95 in February 1998, and many blood pressure readings where diastolic pressure is below 90 and systolic blood pressure is below160, such as a March 1998 reading of 128/70. Hypertension was not diagnosed during service, and during his retirement examination the Veteran denied having had high blood pressure. Hypertension, as a cardiovascular-renal disease, is not shown to be present during service or in the year following separation from service, thus, in-service incurrence cannot be presumed. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). A November 2000 VA nursing note indicates a history of hypertension. An August 2009 VA treatment record reflects that the Veteran, as a new patient at the VA medical center, had already been diagnosed with hypertension. He reported that he had not taken his hypertension medication for one year because he did not feel it was necessary. Because his blood pressure was elevated, medication was restarted. The note did not indicate when the Veteran was initially diagnosed with hypertension. The August 2014 VA examiner was asked to address any relationship between the hypertension and service. He noted the Veteran left the service in April 1998. His review of post service records show a nurse's note giving the Veteran a diagnosis of unspecified essential hypertension in November 2000. The Board's review of the same note shows a past medical history of hypertension and a blood pressure reading of 130/102. The examiner concluded that it was less likely than not that the current hypertension was related to service, including the elevated blood pressure readings such as the February 1998 reading. The examiner explained that the Veteran reported to him that he was never seen or treated for hypertension while in the service. Noting the VA definition for the term hypertension, as set forth above, no service records were found indicating the Veteran met VA criteria for hypertension while on active duty. Also there is a silence in the medical records from 2000 until August 2009 when the Veteran was treated by a provider for hypertension. There is no medical evidence in significant conflict with the opinions of the VA examiner. A veteran is competent to describe symptoms that he is able to perceive through the use of his senses and to give evidence about what he has experienced. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is not shown to possess any medical expertise; thus, he is not competent to diagnose hypertension or opine as to its etiology. The Board finds the medical opinion more probative than the Veteran's lay statements as the opinion was offered by a medical professional after examination of the Veteran and consideration of the history of the disability including the Veteran's lay statement, and as the opinion is supported by a clear rationale. In this case, while the Veteran had an occasional elevated blood pressure reading during service, he was not diagnosed with hypertension during service and the blood pressure readings during service do not show diastolic blood pressure predominately 90 or more or systolic blood pressure predominately 160 or more or otherwise meet the definition of hypertension as prescribed in the relevant regulation. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Thus, the evidence is against a finding of in-service incurrence. The first indication of hypertension is the nurse's note in November 2000, which is more than one year after the Veteran's retirement from service; thus, in-service incurrence cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). The only medical opinion to address the etiology of the Veteran's hypertension is adverse to the claim. In summary, the preponderance of the evidence is against a finding that the Veteran has hypertension that was as a result of his military service. Thus, the claim for service connection is denied. ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for hypertension is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs