Citation Nr: 18144045 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 15-10 383A DATE: October 23, 2018 ORDER Entitlement to service connection for diabetes mellitus type II is granted. Entitlement to service connection for hypertension is granted. Entitlement to service connection for a bilateral knee disability is granted. FINDING OF FACT 1. The preponderance of the evidence reflects that the Veteran’s diabetes mellitus, type II was incurred in service. 2. The preponderance of the evidence reflects that the Veteran’s hypertension was incurred in service and/or manifested to a compensable degree within one year of separation from service. 3. The preponderance of the evidence reflects that the Veteran’s bilateral knee disability was incurred in service. CONCLUSION OF LAW 1. The criteria for establishing service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for establishing service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The criteria for establishing service connection for a bilateral knee disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1983 to May 1984; August 1984 to May 1988; September 1990 to June 1991; April 1999 to December 1999; and October 2005 to October 2008. The Veteran also had additional service with the California National Guard. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a decision of October 2009, issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied the Veteran’s claims. Regarding the matter of entitlement to service connection for a bilateral knee condition, the Veteran’s claim was initially denied in October 1993, after the RO found no objective evidence of a chronic bilateral knee condition. The Board in a July 1997 decision remanded the issue for further development, including a VA examination and instructed the RO to readjudicate the claim, and issue a Supplemental Statement of the Case and return the matter to the Board, should there be a negative outcome. This never occurred. Instead, in a November 1998 rating decision, the Veteran was again denied service connection for his bilateral knee disability. Subsequent rating decisions of March 2004, May 2005 and October 2009 again denied the claim, but characterized it as a petition to reopen a previously denied claim based on submission of new and material evidence. Because the case was never readjudicated in an SSOC and then returned to the Board for further appellate review, there is no final Board decision for the underlying appeal. Therefore, the underlying October 1993 rating decision did not become final. As a result, the issue has been characterized as one of entitlement to service connection, and not as a petition to reopen a previously denied claim. This is important because it will impact the effective date assigned by the RO when it implements the Board’s grant of service connection. In March 1996, the Veteran appeared before a Veterans Law Judge (VLJ) to provide testimony regarding his bilateral knee condition. A transcript is of record. The VLJ who presided over the matter has since left the Board. Generally, when a VLJ who presided over a hearing leaves the Board, a letter is sent to the Veteran alerting him that he has the right to request another optional Board hearing. In this case, as the benefit sought is herein granted in full, the Board finds that there is no prejudice to the Veteran that he was not informed of his right to a new hearing. Regarding VA’s duty to assist, the current record as it stands contains a September 2009 dated Memorandum of Formal Findings addressing the lack of the Veteran’s records for the period of service from September 1990 to June 1991 and October 2005 to October 2008. However, the Board finds that the record does contain some records, correlating to these periods. Additionally, there is evidence of record indicating that the Veteran arrived in theatre in February 2003 and departed from theater in April 2004. These records too are missing. As the record appears incomplete, due to no fault of the Veteran, there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). It is noted, however, that the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). SERVICE CONNECTION Under applicable law, 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 preexisting such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Alternatively, the nexus requirement may be satisfied by evidence that a disease subject to presumptive service connection (hypertension and diabetes mellitus) manifested itself to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. Reasonable doubt is resolved in favor of the Veteran when there is an approximate balance of positive and negative evidence. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). 1. Entitlement to service connection for diabetes mellitus, type II and hypertension is granted. The Veteran contends that he has diabetes mellitus, type II and hypertension that were incurred in service. A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304 (2017). To rebut the presumption of soundness the burden is on VA to satisfy a two-prong test by showing by clear and unmistakable evidence that the Veteran’s disability both existed before service and was not aggravated during service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation to prevail under the aggravation prong of the presumption of soundness. Rather, the burden is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). Here, the record shows that the Veteran underwent a Pre-Deployment Health Provider Review in July 2005 and the final medical disposition was: “No medical issues. Deployable without limitations.” In early August 2005, the Veteran also had an Army National Guard Enlistment examination. The Veteran had his blood pressure taken twice. The first reading revealed systolic and diastolic pressures of 146/82, and the second, 134/80. The examiner noted that the Veteran had significant or disqualifying defects of questionable IFG/DM2 (impaired fasting glucose and diabetes mellitus), dysglycemia, abnormal EKG and was overweight. Nonetheless, the Veteran was found qualified for service and suggested a nuclear stress test, aspirin daily, diet, weight loss and to return within one week. The Veteran’s health records show that in late August 2005, he reported to the Internal Medicine Clinic for a follow-up visit to check his glucose levels. The Veteran’s recorded blood pressure reading was 161/86. The examiner noted diabetes mellitus, type II and nutrition and prescribed Metformin 500 mg, Lisinopril 20 mg and Simvastatin 40 mg for one week. He also requested a lab work-up for Hg A1C and left frontoposterior (FFT). In September 2005, the Veteran was sent for a nutrition consult. Subsequent service treatment (STRs) entry, dated in November 2005, indicate that the Veteran was pre-diabetic and was taking Metformin, Simvastatin, Lisinopril, and aspirin daily. STR entry, dated in January 2008, indicates that the Veteran reported having been diagnosed with diabetes, “approximately one year ago [and it was] ‘under control’ with meds.” The Board finds that based on the above, the record fails to show that there was clear and unmistakable evidence that the Veteran had diagnoses of diabetes mellitus, type II and hypertension before the start of his service in October 2005. Therefore, the in-service incurrence element is met. The evidence of record also shows that the Veteran reported onset of diabetes mellitus, Type II in 2007. STR entry dated in January 2008 notes that the Veteran reported being diagnosed with diabetes “approximately one year ago,” while serving on active duty. The Veteran was afforded a VA examination in May 2009. He reported that his diabetes mellitus, type II, started in 2007. The examiner diagnosed diabetes mellitus, type II. During a September 2011 VA examination, the Veteran reported having been diagnosed with diabetes mellitus, at 40 years old, by the VA/Army. The examiner opined that it is at least as likely as not that the Veteran’s diabetes mellitus, type II was caused as a result of military service. She explained that the Veteran reported “that his diabetes mellitus started six years ago when he was 40. He is now 46. That means that it was diagnosed in 2005 which is outside his military service.” The Board finds this September 2011 VA examination inadequate and affords it low probative value. The examiner primarily relied on the Veteran’s statements of when he believed his diabetes mellitus started rather than addressing the medical evidence of record in her rationale. The Veteran has provided credible and competent lay statements that his diabetes mellitus, type II had its onset in 2007. Additionally, the evidence shows that in July 2005, the Veteran was found to have “No medical issues. Deployable without limitations.” Further, in early August 2005, during an Army National Guard Enlistment examination, the examiner found significant or disqualifying defects and put a question mark next to IFG/DM2 after noting that the Veteran had dysglycemia, abnormal EKG and was overweight. Nonetheless, he was deemed qualified for service. Moreover, the evidence of record shows that although the Veteran was prescribed Metformin 500 mg in August 2005, no clear diagnosis of diabetes mellitus was rendered. In fact, a November 2005 notation of record, indicates that the Veteran was pre-diabetic. Considering the evidence presented above, the Board finds that the preponderance of evidence is in favor of service connection for diabetes mellitus, type II. The appeal is, herein, granted. Regarding the claim for hypertension, the Veteran contends that it was incurred in service. The Veteran was afforded a VA examination in September 2011. The examiner opined that it was at least as likely as not that the Veteran’s hypertension was caused or a result of military service. The examiner noted that the medical records of May 2009 and June 2009 document hypertension, within months of his leaving service. The Board finds that the positive nexus opinion provided by the September 2011 VA examiner was formed after a thorough review of the Veteran’s available military service and post-service treatment records, and was supported by a thorough rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board, therefore, accords this VA opinion the most probative weight in a finding that the Veteran’s hypertension was incurred in service. As there is no evidence of record to contradict the finding of the VA examiner, the Board finds that the preponderance of the evidence is in favor of service connection for hypertension. 38 U.S.C. § 5107 (b) (2012). The appeal is, therefore, granted. 2. Entitlement to service connection for a bilateral knee disability is granted. The Veteran has a current diagnosis of degenerative joint disease (DJD) of the bilateral knees. Thus, the first element of a service connection claim is met. Shedden, 381 F.3d at 1166-67. The Veteran has provided competent and credible lay statements, as well as Board testimony, that his bilateral knee disability started in service, after falling from a truck during Operation Desert Storm. Ever since then, he has been having pain in his back and his knees. Thus, the second element of a service connection claim, the in-service occurrence, is satisfied. Id. As for the nexus requirement, the Veteran underwent a VA examination in January 1993. The examiner diagnosed the Veteran with “Status post-injury to both knees,” after finding normal bilateral knees, except for the pain of the right knee anteromedially, with right McMurray test. In September 2008, the Veteran underwent another VA examination. The examiner diagnosed bilateral knee strain and noted “[t]he objective factors are [an] abnormal exam and X-ray... calcification of tendon is a sign of chronic strain; no additional diagnosis indicated.” In May 2009, the Veteran underwent yet another VA examination. The examiner found that the Veteran had “mild joint space narrowing of the femorotibial joint medially that was causing increased subjective pain.” In August 2009, another VA examiner diagnosed the Veteran with a bilateral knee condition secondary to mild chondromalacia. None of the above-mentioned VA examiners proffered a nexus opinion. In July and September 2011, during additional VA examinations, the examiners opined that they could not provide a diagnosis of the Veteran’s knee disability, for there was no pathology to render a diagnosis. The Board notes that if there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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) (2017). The Board finds the preponderance of the evidence shows the Veteran’s bilateral knee disability is related to his in-service knee problems. The Veteran has continuously held that his bilateral knee disability began in service and he has experienced the continuity of symptoms since then. Service treatment records (STRs), as well as post-service treatment records, show that the Veteran has made numerous and continuous complaints of bilateral knee pain. STR dated in July 2008, for instance, noted that “the Veteran has a history of chronic knee pain.” Further, numerous buddy statements are of record, some dating back to 2004 and references first-hand knowledge of the Veteran’s debilitating knee pain, while others recount his complaints thereof. (Continued on the next page)   The Board finds the Veteran’s lay statements, his March 1996 Board testimony regarding the onset and continuity of his bilateral knee disability, and the supporting buddy statements, to be both competent and credible. Thus, a grant based on the continuity of symptomatology is warranted for bilateral knee disability. Accordingly, the Board finds that the preponderance of the evidence is in favor of service connection for bilateral knee disability. 38 U.S.C. § 5107 (b) (2017). The appeal is, therefore, granted. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Stevens, Associate Counsel