Citation Nr: 18144664 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 15-27 352 DATE: October 25, 2018 ORDER Entitlement to service connection for hypertension is denied. REMANDED The issue of entitlement to service connection for right ear hearing loss is remanded. The issue of entitlement to service connection for left ear hearing loss is remanded. The issue of entitlement to a compensable disability rating for left thumb collateral ligament tear is remanded. The issue of entitlement to a compensable disability rating for left knee lateral collateral ligament injury is remanded. FINDING OF FACT The competent evidence of record does not demonstrate a diagnosis of hypertension proximate to the claim, or during the appeal period. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2002 to May 2006. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2018, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. During the March 2018 Board hearing, the Veteran raised the additional theory of entitlement to service connection for hypertension as secondary to service-connected posttraumatic stress disorder (PTSD). In Schroeder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000), the Federal Circuit held that VA has an obligation to explore all legal theories, including those unknown to the Veteran, by which the Veteran can obtain the benefit sought. Accordingly, the Veteran’s appeal as to service connection for hypertension would normally be expanded to include entitlement to service connection under the theory of secondary service connection, and remanded to the RO for adjudication under the theory of secondary service connection in the first instance. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). However, as outlined below, the record does not demonstrate a current diagnosis of hypertension. As such, the Board finds that there is no prejudice to the Veteran by the Board’s adjudication of the issue of entitlement to service connection for hypertension at this time without consideration under the theory of secondary service connection. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015), cert. denied, 137 S. Ct. 33 (2016) ("A veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution.") The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise currently reflect, that the disabilities at issue render him unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. 1. Entitlement to Service Connection for Hypertension The Veteran contends that he has hypertension that is directly related to his active service. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of 38 U.S.C. §§ 1110 and 1131 as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the evidence of record does not contain probative evidence of a diagnosis or demonstration of hypertension at any time proximate to, or during, the claim. Shortly after his separation from active service the Veteran was provided a VA examination in July 2006. During the July 2006 VA examination, the Veteran demonstrated blood pressure readings of 133/84, 127/78, and 130/76. The Veteran was not diagnosed with hypertension. During the pendency of the claim the Veteran was provided treatment at several different VAMCs. A January 2009 VA treatment record reflects that the Veteran had blood pressure readings of 126/82 and 127/80. The VA health technician stated that the Veteran has no history of hypertension. Thus, the most probative evidence fails to demonstrate that it is at least as likely as not that the Veteran has a current diagnosis of hypertension that had its onset during active service, or otherwise causally or etiologically related to his active service. As such, service connection for hypertension is not warranted. Degmetich, 104 F. 3d at 1333. The Board acknowledges that the Veteran was not afforded a VA examination relating directly to his claim for entitlement to service connection for hypertension. On these facts, however, an examination is not required. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A (d) (2); 38 C.F.R. § 3.159 (c) (4) (i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the claim does not meet these requirements for obtaining a VA medical opinion. Because the weight of the evidence demonstrates no indication of a current disability, no examination is required. Absent evidence that indicates that the Veteran has a current claimed disability that is related to an injury or symptoms in service, the Board finds that a VA examination or opinion is not necessary for disposition of the claim. Accordingly, the Board finds that VA’s duty to assist with respect to obtaining a VA examination or opinion with respect to the Veteran’s claim for entitlement to service connection for hypertension have been met. 38 C.F.R. § 3.159 (c) (4). The Board acknowledges the Veteran’s assertions that he has hypertension. However, he has not been shown to have the medical training and knowledge required to diagnose such condition. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37. Therefore, his assertions are not considered competent and do not weigh against the probative value of the medical treatment records, including the VA treatment records, which do not show a diagnosis of hypertension. As noted above, the threshold requirement for service connection is competent medical evidence of the existence of the claimed disability at some point during the course of the appeal or in proximity to the claim. See Degmetich, 104 F. 3d at 1332; Brammer, 3 Vet. App. at 225; see also McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). While the Veteran has this complaint, a complaint, or symptoms, is not a “disability” for VA purposes. The Board cannot grant service connection for a symptom. Although the Board recognizes the Veteran’s sincere belief in his claim, the most probative evidence of record does not show that he has, or has had, hypertension at any point during or in proximity to the appeal period. In the absence of proof of a current disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. In this case there is an absence of proof of hypertension during or in proximity to the appeal period. Without evidence of a current diagnosis of hypertension the Board need not address the other elements of service connection. The preponderance of the evidence is therefore against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA’s Duty to Notify and Assist With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). REASONS FOR REMAND 1. Entitlement to Service Connection for Right Ear Hearing Loss 2. Entitlement to Service Connection for Left Ear Hearing Loss The Veteran contends that he currently has bilateral hearing loss that is directly related to his active service. See March 2018 Board hearing transcript. The Veteran was provided a VA examination related to his claim for entitlement to service connection for bilateral hearing loss in March 2013. Upon examination, the Veteran did not demonstrate bilateral hearing loss “disability” for VA purposes pursuant to 38 C.F.R. § 3.385. However, during the March 2018 Board hearing, the Veteran stated that he had been recently provided an audiological examination. The most recent audiological results in the record are from the March 2013 VA examination. As such, the claim must be remanded in order to attempt to obtain the results of the recent audiological examination as such may demonstrate hearing loss “disability” for VA purposes pursuant to 38 C.F.R. § 3.385. 3. Entitlement to a Compensable Rating for Service-Connected Left Thumb Disability 4. Entitlement to a Compensable Rating for Service-Connected Left Knee Disability The Board finds that further development is necessary before a decision on the merits may be made regarding the issues of entitlement to a compensable disability rating for left thumb disability and entitlement to a compensable disability rating for left knee disability. The Veteran was last provided a VA examination relating to his left thumb and left knee disabilities in March 2013, over five years ago. During the March 2018 Board hearing the Veteran testified that his disabilities have increased in severity. See March 2018 Board hearing transcript. Specifically, the Veteran testified that his left knee has weakened and that his knee is not as flexible. As to his left thumb disability, the Veteran testified that he has difficulty gripping and that his left hand goes numb during normal activities. In light of the Veteran’s assertions, a new VA examination is required so that the current nature and severity of the Veteran’s service-connected disabilities may be determined. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). Additionally, the Board notes that the record for review may be incomplete. The most recent VA treatment records are from April 2013. VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA’s constructive possession. See 38 U.S.C. § 5103A (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, updated VA treatment records must be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records relevant to the matters being remanded, to include from April 2013. 2. Contact the Veteran and request that he complete and submit to VA a signed authorization for disclosure of medical records to VA for each private medical health care provider from whom he has received treatment for, and/or evaluation of, his hearing loss, and left thumb and left knee disabilities at issue on appeal. The Board is specifically interested in records relating to any audiological examinations. After receiving any completed authorization form(s), undertake all appropriate efforts to attempt to obtain the identified records. All development efforts with respect to this directive should be associated with the claims file. The Veteran is encouraged to submit directly to VA any outstanding, relevant medical records in his possession. 3. After the above development, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected left thumb disability. The record and a copy of this remand must be made available to and reviewed by the examiner. The examination must include all physical and diagnostic testing deemed necessary by the examiner in conjunction with this request. The examiner should report all manifestations related to the Veteran’s service-connected left thumb disability. The examiner must address the following: (a.) The examiner should record the results of range-of-motion testing, including with pain, on both active and passive motion and on weight-bearing and nonweight-bearing for the left thumb. If the examiner is unable to conduct any required testing or concludes that any required testing is not necessary in this case, the examiner should clearly explain why that is so. In recording the ranges of motion for the Veteran’s left thumb, the examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report. (b.) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use over time or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range-of-motion loss, if possible. If the Veteran indicates that he is not currently experiencing a flare-up at the time of the examination, the examiner should solicit sufficient information from the Veteran, and review of the medical record, to estimate any additional functional loss during flare-ups or on repeated use, if feasible. If it is not feasible to determine, even by estimation, the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. 4. After the first two remand directives, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected left knee disability. The record and a copy of this remand must be made available to and reviewed by the examiner. The examination must include all physical and diagnostic testing deemed necessary by the examiner in conjunction with this request. The examiner should report all manifestations related to the Veteran’s service-connected left knee disability. The examiner must address the following: (a.) The examiner should record the results of range-of-motion testing of the left knee, including with pain on both active and passive motion and on weight-bearing and nonweight-bearing. If the examiner is unable to conduct any required testing or concludes that any required testing is not necessary in this case, the examiner should clearly explain why that is so. In recording the ranges of motion for the Veteran’s left knee, the examiner should note whether there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report. (b.) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use over time or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range-of-motion loss, if possible. If the Veteran indicates that he is not currently experiencing a flare-up at the time of the examination, the examiner should solicit sufficient information from the Veteran, and review of the medical record, to estimate any additional functional loss during flare-ups or on repeated use, if feasible. If it is not feasible to determine, even by estimation, the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. 5. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection for bilateral hearing loss, and compensable ratings for the Veteran’s left thumb disability and left knee disability, may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel