Citation Nr: 18144798 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 12-11 187 DATE: October 25, 2018 ORDER Entitlement to service connection for hypertension is denied. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the lumbar spine is denied. FINDINGS OF FACT 1. The Veteran’s hypertension is neither proximately due to nor aggravated beyond its natural progression by his service-connected disabilities, and is not otherwise related to an in-service injury, event, or disease. 2. Throughout the relevant rating period, the Veteran’s degenerative arthritis of the lumbar spine has been manifested by pain and by forward flexion limited to greater than 60 degrees but not greater than 85 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the lumbar spine are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.59, 4.71a, Diagnostic Code 5424. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1996 to November 2001 and from February 2008 to January 2009. In May 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Veteran has also completed an appeal as to the issues of entitlement to an initial rating in excess of 20 percent for chronic fatigue syndrome from June 5, 2013, and entitlement to an effective date earlier than December 4, 2012, for the grant of service connection for chronic fatigue syndrome. In his substantive appeal as to those issues, he requested a Board hearing by live videoconference. His appeal of those issues is currently awaiting scheduling of the requested Board hearing and will be the subject of a separate Board decision in the future. In September 2018, the Veteran submitted a timely notice of disagreement as to the initial disability rating and effective date assigned for the grant of service connection for allergic rhinitis in a June 2018 rating decision. The Agency of Original Jurisdiction (AOJ) has not yet acknowledged that notice of disagreement. However, given the recency of the notice of disagreement, the Board finds that acceptance of jurisdiction of the issues discussed in it simply to remand them for a statement of the case under the holding of Manlincon v. West, 12 Vet. App. 238 (1999), would only result in the AOJ accomplishing actions which will likely soon be undertaken without such action, and is therefore not warranted. The Board remanded these issues in February 2015, December 2015, September 2016, and June 2018. In relevant part, the February 2015 Board remand directed the AOJ to request the Veteran’s service treatment records from his second period of active service, schedule the Veteran for a VA examination to determine the nature and severity of his degenerative arthritis of the lumbar spine, and schedule the Veteran for a Board hearing. The December 2015 remand again directed the AOJ to schedule the Veteran for a Board hearing. The September 2016 remand again directed the Veteran to make efforts to obtain the Veteran’s service treatment records from his second period of active service and further directed the AOJ to obtain the Veteran’s updated VA treatment records. The June 2018 remand directed the AOJ to obtain an addendum opinion as to the Veteran’s hypertension and provide the Veteran a VA examination to determine the current nature and severity of his degenerative arthritis of the lumbar spine. Pursuant to those remands, the AOJ obtained updated VA treatment records; provided the Veteran a VA examination as to his degenerative arthritis of the lumbar spine in October 2015; scheduled the Veteran for a Board hearing in May 2016; and obtained an adequate VA opinion as to the Veteran’s hypertension in July 2018. The AOJ also made attempts to obtain the Veteran’s service treatment records from his second period of active service, but determined that the records were not available and that further efforts would be futile. It summarized its efforts and findings in a February 2017 memorandum. Finally, the AOJ scheduled the Veteran for a VA examination as to his degenerative arthritis of the lumbar spine in July 2018, but the Veteran did not appear for the examination and has not provided good cause for having missed the examination. When a claimant, without good cause, does not report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). Thus, because good cause has not been shown as to why the Veteran did not attend the VA examination scheduled in July 2018, VA is required to decide the appeal based on the evidence of record. Accordingly, the Board finds that VA at least substantially complied with the February 2015, December 2015, September 2016, and June 2018 Board remands. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Neither the Veteran nor representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. 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). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues decided herein. The Veteran should not assume that evidence that is not explicitly discussed herein has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 1. Entitlement to service connection for hypertension The Veteran contends that his hypertension is secondary to his service-connected posttraumatic stress disorder (PTSD) with major depressive disorder. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In addition, a disability which is proximately due to, the result of, or aggravated beyond its natural progression by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) and (b). Service connection for certain chronic diseases, to include hypertension, may also be established on a presumptive basis by showing that the disease manifested to a compensable degree within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). If not shown as chronic during service or if a diagnosis of chronicity is legitimately questioned, continuity of symptomatology after service is required. 38 C.F.R. § 3.303(b). Continuity of symptoms may establish service connection only for those diseases listed in 38 C.F.R. § 3.309(a). 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The question for the Board is whether the Veteran’s currently diagnosed hypertension is proximately due to or the result of, or was aggravated beyond its natural progress by a service-connected disability, or is otherwise related to an in-service injury, event, or disease. Initially, the Board finds that the evidence does not show that the Veteran’s hypertension had its onset during his active service or within one year of his separation from active service. Specifically, under VA regulations, hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Hypertension is defined as meaning that the diastolic blood pressure is predominantly 90 mm or greater, and isolated systolic hypertension is defined as meaning that the systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. Id. In addition, medical authorities have suggested various thresholds ranging from 140 mm Hg systolic and from 90 mm Hg diastolic to as high as 200 mm Hg systolic and 110 mm Hg diastolic as reflective of hypertension. See Dorland’s Illustrated Medical Dictionary 896 (32nd ed. 2012). The available service treatment records and the medical evidence of record dated within one year of the Veteran’s separation from active service do not show that the Veteran met those definitions, as the blood pressure readings in those records do not reflect systolic pressures that are predominantly 140 mm or greater or diastolic pressures that are predominantly 90 mm or greater. The records also do not reflect that the Veteran was diagnosed with hypertension during service or within one year of separation from active service. There is also no probative evidence of record linking the Veteran’s current hypertension to an in-service injury, event, or disease. As such, the criteria for entitlement to service connection for hypertension on a direct basis and on a presumptive basis under 38 C.F.R. §§ 3.307(a) and 3.309(a) have not been met. With regard to service connection for hypertension as secondary to the Veteran’s service-connected disabilities, the Board has considered the Veteran’s contentions. The likely etiology of hypertension is a complex medical issue that does not lend itself to lay observations. Therefore, the assertions from the Veteran medically linking his hypertension to his service-connected PTSD with major depressive disorder are not considered competent, as he has not been shown to possess the medical training and expertise necessary to render such an opinion. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions). Therefore, to determine whether the Veteran’s service-connected disabilities caused or aggravated his hypertension, the Board turns to the competent medical evidence of record, which in this case is comprised of VA opinions obtained in February 2015 and July 2018. The clinician who provided the February 2015 VA opinion reviewed the record and relevant medical literature, and opined that the Veteran’s hypertension is less likely than not caused by or worsened by his PTSD with major depressive disorder. As a rationale for that opinion, the examiner explained that the Veteran has been diagnosed with essential hypertension and that the Veteran’s medical records indicate multiple etiologies that have contributed to the Veteran’s blood pressure elevation, including weight, aging, and at one time use of methylphenidate for narcolepsy. The clinician provided citations to the medical literature consulted in preparing of the opinion. VA sought another opinion given the February 2015 opinion that use of methylphenidate for narcolepsy, which is one of the Veteran’s service-connected disabilities, may be a factor contributing to the Veteran’s hypertension. The clinician who provided the July 2018 VA opinion reviewed the record and opined that the Veteran’s hypertension is less likely than not proximately due to or the result of the Veteran’s service-connected narcolepsy. As a rationale for that opinion, the clinician explained that hypertension and narcolepsy are separate entities and that the medical literature does not support a conclusive causal medical relationship between methylphenidate and hypertension. The examiner further opined that it is less likely than not that the Veteran’s hypertension has been aggravated by his narcolepsy because the record does not show aggravation or progression of the Veteran’s hypertension from methylphenidate or any other cause. The Board finds the February 2015 and July 2018 VA opinions to be most probative as to a possible etiological link between the Veteran’s hypertension and his service-connected psychiatric disability and/or narcolepsy. The examiners’ opinions were based on the specific facts of this case as presented in the record and relevant medical literature. The July 2018 opinion clarifies that the relevant medical literature does not show that there is a conclusive causal relationship between methylphenidate use and hypertension and that the Veteran’s hypertension has not been aggravated beyond its natural progression by his use of methylphenidate or any other cause. The clinicians provided appropriate rationales for the opinions given that are factually accurate, fully articulated, and soundly reasoned opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Accordingly, the Board accepts the clinicians’ opinions as probative evidence that it is less likely than not that the Veteran’s hypertension is proximately due to, caused by, or aggravated by his service-connected PTSD with major depressive disorder or his service-connected narcolepsy, to include his use of methylphenidate for that condition. The Board observes that the Veteran’s representative argued at the May 2016 Board hearing that entitlement to service connection for hypertension should be granted on a presumptive basis under the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, which allow for compensation for certain disabilities occurring in Persian Gulf veterans. The Board does not dispute that the Veteran is a Persian Gulf veteran, as defined in 38 C.F.R. § 3.317(e). However, there are no provisions in 38 U.S.C. § 1117 or 38 C.F.R. § 3.317 that establish presumptive service connection for hypertension in Persian Gulf veterans. Therefore, entitlement to service connection for hypertension on a presumptive basis under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 is not warranted. In view of the foregoing, the Board concludes that the weight of the probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran’s hypertension had its onset during his active service; that the hypertension may be presumed to have been related to his active service; that the hypertension is otherwise etiologically related to his active service; or that the hypertension is proximately due to, caused by, or aggravated by his service-connected disabilities. Therefore, the preponderance of the evidence is against the claim for entitlement to service connection for hypertension. Because the preponderance of the evidence is 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). 2. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the lumbar spine The Veteran seeks a higher initial rating for degenerative arthritis of the lumbar spine. He testified at the May 2016 Board hearing that his degenerative arthritis of the lumbar spine manifests in pain that radiates down the legs, stiffness, difficulty bending and twisting, and difficulty with standing and walking. He also stated that he has “[a] little bit of tingling in my feet.” The applicable rating period is from January 10, 2009, the effective date for the award of service connection for degenerative arthritis of the lumbar spine, through the present. See 38 C.F.R. § 3.400. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The Veteran’s service-connected degenerative arthritis of the lumbar spine is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242, which pertains to degenerative arthritis of the spine. Diagnostic Code 5242 directs that the disability be rated under the General Rating Formula. Under the General Rating Formula, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Unfavorable ankylosis is defined as “a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.” Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (5). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Turning to the evidence of record, the medical treatment records dated during the relevant period show that the Veteran has reported back pain. However, they do not contain any range-of-motion measurements for the lumbar spine. They also do not show that the Veteran had favorable or unfavorable ankylosis of the thoracolumbar spine at any point during that period. Furthermore, they do not show that the Veteran has been diagnosed with a neurological condition associated with the degenerative arthritis of the lumbar spine. As such, the medical treatment evidence of record does not show that the Veteran was entitled to an initial rating in excess of 10 percent for degenerative arthritis of the lumbar spine at any time during the relevant period. At a July 2010 VA back conditions examination, the Veteran reported that he has limitation in walking due to his spine condition. He can walk 100 yards, which takes him two minutes. He reported symptoms of stiffness, fatigue, decreased motion, and localized pain. He denied any incapacitation during the previous 12 months due to the condition. He did not report any additional functional impairment or limitation of motion during flare-ups. Initial range-of-motion testing revealed forward flexion to 85 degrees with objective evidence of painful motion beginning at 85 degrees. The Veteran had no additional loss of function or range of motion following repetitive-use testing. He had normal muscle strength and reflexes, and he had no atrophy. Sensory testing was also normal, and the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. He also did not have ankylosis. At the October 2015 VA back conditions examination, the Veteran reported that he has persistent back pain and stiffness. Initial range-of-motion testing revealed forward flexion to 70 degrees. The examiner noted that the Veteran showed objective signs of pain during the examination, but determined that the pain does not result in or cause functional loss. The Veteran had no additional loss of function or range of motion following repetitive-use testing. The examiner opined that the pain, weakness, fatigability, or incoordination would limit the Veteran’s functional ability with repeated use over a period of time, but not during flare-ups. However, the examiner estimated that the Veteran would still have forward flexion to 70 degrees with repeated use over time. The Veteran had had normal muscle strength and reflexes, and he had no atrophy. Sensory testing was also normal, and the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy or nerve root involvement. He also did not have ankylosis. Thus, throughout the relevant rating period, the Veteran’s degenerative arthritis of the lumbar spine was manifested by pain and limited motion with forward flexion limited to, at its most severe, 70 degrees. In addition, there is no indication in the record that the Veteran had ankylosis of any portion of the spine. Under Diagnostic Code 5242, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees. A higher rating of 20 percent is not for assignment unless forward flexion of the thoracolumbar spine is limited to 60 degrees or less, and higher ratings of 50 percent and 100 percent are not for assignment unless there is ankylosis of the spine. Thus, the range-of-motion measurements and symptoms of the Veteran’s degenerative arthritis of the lumbar spine recorded during the relevant rating period are consistent with a rating of 10 percent, and no higher, under Diagnostic Code 5242. The Board has considered whether the Veteran was entitled to a higher rating at any time during the relevant period under the criteria set forth in DeLuca. The July 2010 and October 2015 VA examiners found that, following repetitive-use testing, the Veteran did not have additional functional loss due to pain, fatigability, incoordination, pain on movement, or weakness. In addition, although the October 2015 VA examiner opined that the Veteran would have additional functional loss upon repetitive use over time, that examiner also opined that the Veteran would retain the ability to forward flex his lumbar spine to 70 degrees even under such conditions. Thus, although the Veteran experiences pain with motion, such pain has not manifested to a degree that more nearly approximates the criteria for a higher rating under Diagnostic Code 5242 even after repetitive use and upon repetitive use over time. See DeLuca, 8 Vet. App. 202. The Board finds that the Veteran’s complaints of painful motion of the spine did not impair his functioning to a degree such that the criteria for a rating in excess of 10 percent were more closely approximate. See Mitchell, 25 Vet. App. 32. The Board also acknowledges the Veteran’s reports of tingling in the feet. However, as discussed above, the medical treatment records do not show that the Veteran has been diagnosed with a neurological disability associated with the degenerative arthritis of the lumbar spine, and neurological, sensory, and strength testing at the July 2010 and October 2015 VA examinations was normal. There is no indication in the record that the Veteran has a neurological abnormality associated with the degenerative arthritis of the lumbar spine that warrants a separate compensable rating under the diagnostic codes pertaining to such disabilities. See, e.g., 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8620, 8720. The Board again notes that the Veteran was scheduled for a VA examination in July 2018 that would have provided additional information as to the nature and severity of his degenerative arthritis of the lumbar spine, to include further information as to how the Veteran’s pain affects his functioning on active and passive motion, on weight-bearing and nonweight-bearing, during flare-ups, and upon repetitive use over time. However, the Veteran did not appear for that scheduled examination. Therefore, the Veteran’s appeal for a higher initial rating for degenerative arthritis of the lumbar spine must be decided based on the evidence of record. See 38 C.F.R. § 3.655. Neither the Veteran nor his representative has raised any other issues with regard to the rating for the service-connected degenerative arthritis of the lumbar spine, nor have any other such issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). The Board therefore finds that the criteria for an initial rating in excess of 10 percent under Diagnostic Code 5242 have not been met at any time during the relevant period. The preponderance of the evidence is against the assignment of a higher initial rating, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. 49. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. J. Anthony, Counsel