Citation Nr: 18143697 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 14-17 517 DATE: October 23, 2018 ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for hypertension is denied. FINDINGS OF FACT 1. A left knee disability, including degenerative joint disease of the left knee, was not manifested in service or within one year following the Veteran’s separation from service, and the preponderance of the evidence is against find that his current left knee disability is etiologically related to his service. 2. A right knee disability, including degenerative joint disease of the right knee, was not manifested in service or within one year following the Veteran’s separation from service, and the preponderance of the evidence is against find that his current right knee disability is etiologically related to his service. 3. The most probative competent and credible evidence does not relate the Veteran’s obstructive sleep apnea to his service. 4. Hypertension was not manifested in service or within one year following the Veteran’s separation from service, and the preponderance of the evidence is against find that his current hypertension is etiologically related to his service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1131, 1154(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1131, 1154(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1131, 1154(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1131, 1154(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1963 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. During the pendency of the appeal, jurisdiction was transferred to the VARO in Philadelphia, Pennsylvania, from where it was certified to the Board. Although the Veteran's substantive appeal was untimely, the RO accepted it as timely because, as noted in a May 2014 statement, the Veteran's attorney noted that a copy of the SOC was not received immediately. In his December 2013 substantive appeal, the Veteran requested a Board video-conference hearing before a Veterans Law Judge. In August 2014, the Veteran was sent a letter informing him that a hearing had been scheduled for September 2014; however, the Veteran failed to appear. As he has provided neither good cause for his failing to appear, nor has requested rescheduling of the hearing, the request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704 (d) (2017). In November 2015, the Board, among other actions, remanded the issues on the title page for further evidentiary and procedural development. The Board’s November 2015 remand directives have been substantially completed by the Agency of Original Jurisdiction (AOJ), and the issues on appeal have been returned to the Board. Preliminary Note In a March 2018 rating decision, the AOJ adjudicated several claims filed by the Veteran, and he expressed timely disagreement with all of the issues denied in the rating decision, to include some issues currently under the Board’s jurisdiction. In an August 2018 rating decision, the AOJ issued another rating decision which continued the denials of the March 2018 and noted that the prior readjudication of the issues before the Board in the March 2018 rating decision constituted Clear and Unmistakable Error (CUE). The AOJ has not issued a statement to the case (SOC) with respect to the matters denied by the AOJ in the March 2018 and August 2018 rating decisions. However, the electronic Veterans Appeals Control and Locator System (VACOLS) notes receipt of the notice of disagreement as to the denials of these claims. As VACOLS indicates additional action is pending at the AOJ, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where such a notice of disagreement had not been recognized. As VACOLS reflects that the notice of disagreement has been recognized and that additional action(s) is/are pending, Manlincon is not applicable at this time, and the Board will not take jurisdiction of these issues. Further, the Board notes that the erroneous readjudication of the issues currently before the Board in March 2018 rating decision amounts to harmless error. Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Entitlement to direct service connection requires evidence of three elements: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, like arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker, 708 F.3d 1331. Arthritis and hypertension are considered chronic diseases under 38 C.F.R. § 3.309(a). The determination as to whether these requirements are met is based on analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The competence, credibility, and probative (relative) weight of evidence, including lay evidence must be assessed. See generally 38 U.S.C. § 1154(a). Lay evidence can be considered competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for a left knee disability 2. Entitlement to service connection for a right knee disability 3. Entitlement to service connection for obstructive sleep apnea 4. Entitlement to service connection for hypertension Because analysis of the appellant’s claims involves application to identical law to similar facts, the Board will address them together for the sake of economy. The evidence of record, to include private and VA treatment records and reports of March 2017 and April 2017 VA examinations, reflects current diagnoses of osteoarthritis of both knees, essential hypertension, and obstructive sleep apnea. As such, element (1), evidence of a current diagnosed disability, has been demonstrated with respect to all issues. The Veteran’s service treatment records reflect that he was treated for a right knee contusion in August 1966 after being involved in a Jeep accident. The Veteran’s service treatment records are devoid of any other instances of complaints of, or treatment for, symptoms relating to the Veteran’s knees, hypertension, and/or sleep problems. However, the Veteran has competently and credibly stated that he has experienced bilateral knee pain since the August 1966 Jeep accident and that he further injured his knees while completing jumps as a parachutist, albeit without seeking treatment. He further asserts that his experienced hypersomnolence during his service, causing him to be late for duty on several occasions, and he was made to ingest salt pills during basic training, allegedly causing his hypertension. The Board finds these assertions to be competent and credible. In light of above, the Board finds that there is ample evidence suggesting that the Veteran experienced in-service instances and/or symptoms sufficient to fulfill element (2) for all issues. Concerning evidence of a nexus between the Veteran’s disabilities and an in-service disease or injury, however, the Board notes that the most probative competent and credible evidence is unfavorable to the Veteran’s appeal. In the examination report of the March 2017 VA examination, a VA medical professional discussed the interplay between the Veteran’s in-service ingestion of salt pills and his current diagnosis of essential hypertension and his in-service knee trauma, to include the August 1966 Jeep accident and his experiences as a parachutist, and the diagnoses of osteoarthritis in both of his knees. The examiner opined that the Veteran’s hypertension and osteoarthritis of the knees were less likely as not the result of any incident of his service. In providing this opinion, the examiner recounted the Veteran’s pertinent in-service and post-service medical history relating to his knees and essential hypertension, accurately citing evidence from the file. The examiner specifically stated that the Veteran’s in-service right knee contusion was acute and did not contribute to his eventual arthritis diagnosis. In sum, the examiner opined that these disabilities were more likely the result of nonservice-related factors, to include the Veteran’s “age, morbid obesity, and poor eating habits.” In the examination report of the April 2017 VA examination, a VA medical professional recounted the Veteran’s reports of in-service somnolence and oversleeping and noted the initial diagnosis of obstructive sleep apnea with prescribed treatment with a continuous airway pressure (CPAP) machine in 2006. The examiner opined that the Veteran’s obstructive sleep apnea was less likely as not the result of any incident of his service. In providing this opinion, the examiner recounted pertinent in-service and post-service medical history accurately citing evidence from the file. Ultimately, the examiner opined that this disability was more likely the result of nonservice-related factors, to include the Veteran’s age, morbid obesity, and cigarette smoking and neck circumference. The Board finds that the March 2017 and April 2017 opinions are highly probative concerning the etiology of the Veteran’s knee disabilities, hypertension, and obstructive sleep apnea because they were rendered after a thorough review of the record, and are consistent with and cite to specific evidence in the record. Bloom v. West, 13 Vet. App. 185, 187 (1999). The only nexus evidence of record which is favorable to the claims comes from the Veteran. The Board acknowledges that competent medical evidence is not necessarily required where the determinative issue in a case involves medical causation or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009). However, the Veteran’s disabilities are not conditions that can be causally-related to military service without medical expertise. Davidson, 581 F.3d 1313; see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concluding that certain disabilities are not conditions capable of lay diagnosis). Thus, the Board concludes that, although the Veteran is competent to report symptoms, his statements as to the origin of his disabilities do not constitute competent evidence. For chronic disabilities listed under 38 C.F.R. § 3.309(a), such as arthritis and hypertension, an alternative method of establishing the second and third element is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, there is no evidence showing arthritis in either knee or hypertension within a year of separation. In addition, at the time of his discharge examination in June 1966, the Veteran specifically denied having high or low blood pressure, or a “trick” or locked knee. Again, while the Veteran is considered to be competent and credible to report bilateral knee pain, he does not have the requisite medical training or expertise to attribute this pain to a diagnosis of arthritis. Further, the most probative competent and credible evidence does not show frequent and persistent symptoms of the Veteran’s disabilities since service. In addition, at the time of his discharge examination in June 1966, the Veteran specifically denied having high or low blood pressure, or a “trick” or locked knee. As noted by the March 2017 and April 2017 VA examiner, there is also an extensive time gap between the Veteran’s October 1966 separation from service and his initial diagnoses for these disabilities – right knee in 2012, left knee in 2013, hypertension in the 1990’s, and obstructive sleep apnea in 2006. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding, in an aggravation context, that the Board may consider a prolonged period without medical complaint when deciding a claim). Thus, entitlement to service connection for these disabilities based on frequent and persistent symptoms must be denied. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (2013). Based on the unfavorable nexus evidence, the probative weight of the evidence against a finding of frequent and persistent symptomatology, and the lack of evidence of a chronic disease within the initial post-service year, the criteria for service connection for osteoarthritis of the knees, hypertension, and obstructive sleep apnea are not met, as the preponderance of the evidence is against the claims. There is no doubt to be resolved, and service connection is not warranted. 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).] Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott W. Dale, Counsel