Citation Nr: 18147868 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-15 533 DATE: November 6, 2018 ORDER Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a sinus disability, to include allergic rhinitis, is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a headache disability, to include as secondary to an acquired psychiatric disorder, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a right ankle disability which is etiologically related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against a finding that the Veteran has hypertension which manifested to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability are not met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d) (2017). 2. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1977 to April 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal from July 2013 and November 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board has recharacterized the Veteran’s claims for service connection for bipolar disorder, depression and posttraumatic stress disorder (PTSD) as a single claim for service connection for any acquired psychiatric disorder, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Similarly, the Board has recharacterized the Veteran’s claim for service connection for allergic rhinitis more broadly to include any sinus disability. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009). In March 2017, June 2017, August 2017, November 2017, and February 2018, the Veteran’s representative requested a 90 day extension of time to submit additional evidence or argument in support of the appeal. The Board granted these requests in March 2018. As the requested 90 day extensions have now elapsed and the Veteran’s representative has submitted evidence and argument in support the appeal, the Board may proceed with appellate review. As alluded to above, since the recent February 2017 supplemental statement of the case, issued for the appeal herein, in April 2018, the Veteran’s representative submitted additional evidence and argument. In this regard, the Veteran’s substantive appeals for the relevant issues were each filed after February 2, 2013, nonetheless, the Veteran waived review of this evidence by the Agency of Original Jurisdiction (AOJ). See 38 C.F.R. § 1304 (c) (2017). However, the record also reflects VA associated an August 2011 VA treatment record with the record in June 2017; however, this additional evidence is an exact duplicate of prior evidence. Thus, the Board may proceed with appellate review. Finally, a July 2017 rating decision denied entitlement to service connection for a stroke. In August 2017, the Veteran submitted a timely notice of disagreement (NOD) with respect to this denial. The record does not reflect a statement of the case (SOC) has been issued with respect to this claim. Generally, in circumstances where a NOD is filed, but a SOC has not been issued, the Board must remand the claim to the AOJ to direct that an SOC be issued. Manlincon v. West, 12 Vet. App. 238 (1999). However, the Veterans Appeals Control and Locator System (VACOLS) indicates that the RO is already taking action on this issue as it remains in advance certification status. Thus, the Board does not have jurisdiction over this matter, and a remand is not warranted at this time. Service Connection Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). To establish service connection on a direct incurrence basis, the Veteran must show: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement for a current disability is satisfied if the disability is present at any point proximate to the claim, during the claim, or to the appeal period. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2014). If there is no evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, there must be a demonstration of symptoms proximate to, or since, the time the application is filed. Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998). 1. Entitlement to service connection for a right ankle disability The Veteran asserts that service connection is warranted for a right ankle disability; however, the Veteran has not identified a basis for service connection for this disability for the Board to consider. The initial threshold question for the Board is whether the Veteran has a current disability, and if so, whether that disability began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the record does not demonstrate that the Veteran has, or has had, a right ankle disability at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321; 38 C.F.R. § 3.303(a), (d). In this regard, the Veteran has not submitted any medical records dated proximate to, or during, the pendency of the appeal that reflect a diagnosis of a right ankle disability, or complaints thereof. VA sent the Veteran a VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, including in May 2013, so that he could provide authorization for VA to obtain treatment information any healthcare provider. However, the Veteran has not submitted any post-service treatment records pertaining to his reported disability and has not completed and returned a VA Form 21-4142. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA’s duty to assist is not a one-way street). Further, a right ankle disability, or complaints thereof, is not reflected in medical records dated prior to the claim, to include VA treatment records, private treatment records, or records from the Social Security Administration. Further, the evidence of record does not show that any potentially existing right ankle pain amounts to a functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). As noted above, the Veteran has not identified a basis for service connection for this disability for the Board to consider. See Layno v. Brown, 6 Vet. App. 465 (1994). Nonetheless, the Board recognizes that by virtue of the Veteran filing a claim for service connection for a right ankle disability, he believes that he has a right ankle disability that is connected to his active service. It is not shown, however, that the Veteran possesses the medical expertise necessary to be deemed competent to provide a probative opinion on a complex medical matter as a diagnosis related to his right ankle or the etiology of such. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Further, even assuming arguendo that the Veteran does have a current disability related to his right ankle, the second element of a claim for service connection, medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease is not met. A review of the Veteran’s service treatment records reveals no diagnoses related to his right ankle, or symptoms thereof. The Board finds that if the Veteran had experienced right ankle problems while in service, it would have been reasonable for him to have reported it, and sought treatment for it, during service, especially as he sought treatment for other medical conditions; however, the Board reiterates there is no record of any complaints or treatment related to a right ankle disability during service. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). Additionally, while VA has not provided a medical examination to the Veteran for his claim for service connection for a right ankle disability, the standard for VA to provide an examination for this claim has not been satisfied. In this instance, as discussed above, the only evidence of the existence of a current right ankle disability is the Veteran’s bare assertion of such disability. Further, there is no evidence or assertion of an in-service injury, event, or disease. Thus, a VA examination or a medical opinion for this claim is not warranted. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Thus, the most probative evidence fails to demonstrate that it is at least as likely as not that the Veteran has a right ankle disability, nor is there evidence of an evidence or an assertion of an in-service injury, event, or disease of the right ankle. As such, service connection is not warranted. Degmetich, 104 F.3d at 1333. As noted above, entitlement for service-connected disease or injury is specifically limited to cases where such incidents have resulted in a disability, and in the absence of proof of a present disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. In sum, the Veteran has not satisfied the necessary element of a present disability with respect to his claim for service connection for a right ankle disability, or the in-service incurrence element, thus further discussion of the nexus element is unnecessary. Furthermore, based on the reasons and bases discussed, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection is not warranted for a disability of the right ankle. 2. Entitlement to service connection for hypertension The Veteran asserts that service connection is warranted for a hypertension; however, the Veteran has not identified a basis for service connection for this disability for the Board to consider. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131 (West 2002). Certain chronic diseases, to include hypertension, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a) (2017). The question for the Board is whether the Veteran has a current disability of hypertension, and if so, whether it manifested to in service or to a compensable degree within the applicable presumptive period, whether continuity of symptomatology has existed since service or whether it is otherwise related to service. The Board concludes that the Veteran does not have a current diagnosis of hypertension, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1131, 5107(b); Holton, 557 F.3d at 1366; Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321; 38 C.F.R. § 3.303(a), (d). In this regard, the Veteran has not submitted any medical records dated proximate to, or during the pendency of, the appeal that reflect a diagnosis of hypertension, or demonstration otherwise of hypertension. VA sent the Veteran a VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, including in May 2013, so he could provide authorization for VA to obtain treatment information from any healthcare provider. However, the Veteran has not submitted any post-service treatment records dated proximate to, or during, the pendency of this claim pertaining to his reported disability, and has not completed and returned a VA Form 21-4142. See Wood, 1 Vet. App. at 193. Further, the evidence of record does not show that any potentially existing hypertension amounts to a functional impairment of earning capacity. Saunders, supra. As noted above, the Veteran has not identified a basis for service connection for this disability for the Board to consider. See Layno, 6 Vet. App. at 469. Nonetheless, the Board recognizes that by virtue of the Veteran filing a claim for service connection for hypertension, he believes that he has hypertension that is connected to his active service. It is not shown, however, that the Veteran possesses the medical expertise necessary to be deemed competent to provide a probative opinion on a complex medical matter as a diagnosis of hypertension or the etiology of such. See Jandreau, 492 F.3d at 1377. Further, even assuming arguendo that the Veteran does have a current disability of hypertension, the second element of a claim for service connection, medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease is not met. A review of the Veteran’s service treatment records reveals no diagnoses related to hypertension, documentation of elevated blood pressure, or symptoms thereof. The Board finds that if the Veteran had experienced symptoms of hypertension while in service, it would have been reasonable for him to have reported it, and sought treatment for it, during service, especially as he sought treatment for other medical conditions; however, the Board reiterates there is no record of any complaints or treatment related to hypertension. See Buczynski, 24 Vet. App. at 224. Moreover, all the Veteran’s blood pressure readings during service equated to essentially normal blood pressure. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (the term hypertension means the diastolic blood pressure is predominantly 90mm. or greater; and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm). Further, as discussed above, hypertension is a chronic disease under 38 U.S.C. § 1101 (3) and 38 C.F.R. § 3.309 (a); however, the medical evidence of record does not reflect hypertension in service or manifest to a compensable degree within a presumptive period, and continuity of symptomatology is not established. In this regard, medical records dated prior to the claim, consisting of VA treatment records, private medical records and records from the Social Security Administration, specifically those dated July 1985, August 1985, February 1986, December 1986, March 1987, September 1987, January 1989, January 1998, March 1999, June 1999, December 2000 and August 2011, document the Veteran had blood pressure readings which equated to essentially normal blood pressure. Id. Further, although medical records dated prior to the claim, also reflected diastolic blood pressure readings of 90mm, including records dated in February 1987, July 2001 and December 2001, a diagnosis of hypertension was not confirmed by readings taken two or more times on at least three different days as required for VA purposes with respect to these readings, nor do any medical records reflect that a diagnosis of hypertension was endorsed. Further, such records are dated many years after the Veteran’s separation from service in April 1980. Additionally, while VA has not provided a medical examination to the Veteran for his claim for service connection for hypertension, the standard for VA to provide an examination for this claim has not been satisfied. In this instance, as discussed above, the only evidence of the existence of current disability is the Veteran’s bare assertion of such disability. Further, there is there is no evidence or assertion of an in-service injury, event, or disease. Thus, a VA examination or a medical opinion for this claim is not warranted. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4)(i); McLendon, 20 Vet. App.at 81-82. Thus, the most probative evidence fails to demonstrate that it is at least as likely as not that the Veteran has a current disability of hypertension, nor is there evidence of an evidence or assertion of an in-service injury, event, or disease. As such, service connection is not warranted. Degmetich, 104 F.3d at 1333. As noted above, entitlement for service-connected disease or injury is specifically limited to cases where such incidents have resulted in a disability, and in absence of proof of a present disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. In sum, the Veteran has not satisfied the necessary element of a present disability with respect to his claim for service connection for hypertension, or the in-service incurrence element, thus further discussion of additional elements is unnecessary. Furthermore, based on the reasons and bases discussed, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Accordingly, service connection is not warranted for hypertension. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a back disability because no VA examiner has opined whether the Veteran has a current back disability, and if so, whether it is at least as likely as not related to an in-service injury, event, or disease. 2. Entitlement to service connection for a left ankle disability is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a left ankle disability because no VA examiner has opined whether the Veteran has a current left ankle disability, and if so, whether it is at least as likely as not related to an in-service injury, event, or disease. 3. Entitlement to service connection for a sinus disability, to include allergic rhinitis, is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a sinus disability, to include allergic rhinitis, because no VA examiner has opined whether the Veteran has a sinus disability, and if so, whether it is at least as likely as not related to an in-service injury, event, or disease. 4. Entitlement to service connection for an acquired psychiatric disorder The Board cannot make a fully-informed decision on the issue of entitlement to service connection for an acquired psychiatric disorder because the record contains conflicting opinions from the same private examiner regarding the etiology of the Veteran’s major depressive disorder. Specifically, in a March 2015 opinion, a private examiner found, in part, that the Veteran suffered from major depressive disorder more likely than not aggravated by his time in military service; however, in a March 2018 addendum opinion the same examiner conversely found, in part, the Veteran suffered from major depressive disorder that as likely as not began during military service. In this regard, no VA examiner has opined whether the Veteran has a current acquired psychiatric disorder, and if so, whether it is at least as likely as not related to an in-service injury, event, or disease, and the Board finds an examination and opinion is warranted on remand. Further, the record reflects the existence of relevant outstanding private mental health treatment records. Specifically, in a March 2015 private mental disorders disability benefits questionnaire, the private examiner documented, in part, the Veteran saw a private medical doctor yearly and that he took Trazodone and Risperidone, but he felt that these medications did not offer symptom relief. Similarly, a January 2018 private examiner addressed the Veteran’s headaches and documented, in part, the Veteran was currently prescribed Clonazepam for mental health symptoms and that headaches were a known side effect of this medication. However, no mental health records dated during or proximate ot the current claim are of record. A remand is required to allow VA to obtain authorization and request these records.   5. Entitlement to service connection for a headache disability, to include as secondary to an acquired psychiatric disorder The Veteran has claimed service connection for a headache disability as secondary to an acquired psychiatric disorder. See 38 C.F.R. § 3.310 (2017). Thus, this claim is inextricably intertwined with the claim of entitlement to service connection for an acquired psychiatric disorder, which is remanded for additional development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, consideration of this claim must be deferred pending resolution of the action requested below as to the acquired psychiatric disorder. Further, the record reflects the existence of relevant outstanding private health treatment records related to headaches. Specifically, a January 2018 private examiner addressed the Veteran’s headaches and documented that the Veteran’s treatment plan included taking medication for his diagnosed tension headaches and reported, in part, Klonopin helped the headache a little. However, no health records dated during or proximate ot the current claim addressing the Veteran’s headaches are of record. A remand is required to allow VA to obtain authorization and request these records. 6. Entitlement to a TDIU is remanded. The issue of entitlement to a TDIU is intertwined with the service connection claims remanded above, and, as such, will affect whether the Veteran meets the schedular or extraschedular criteria for a TDIU. Thus a remand is warranted for the TDIU claim. Id. The matters are REMANDED for the following actions: 1. Ask the Veteran to again complete a VA Form 21-4142, for records of private healthcare treatment for an acquired psychiatric disorder and headaches, to include those resulting in prescriptions of Trazodone, Risperidone, Clonazepam and Klonopin. Make two requests for the authorized records from any identified medical provider, unless it is clear after the first request that a second request would be futile. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed acquired psychiatric disorder. The examiner must opine whether any identified acquired psychiatric disorder is at least as likely as not related to an in-service injury, event, or disease. Rationale must be provided for the opinion proffered. In rendering the requested rationale, the examiner should also consider the conflicting private opinions dated in March 2015 and March 2018. 3. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any identified headache disorder. The examiner must opine: (a.) Whether any identified headache disorder is at least as likely as not related to an in-service injury, event, or disease. (b.) Whether any identified headache disorder is at least as likely as not proximately due to, or chronically aggravated by, a psychiatric disability. Rationale must be provided for the opinions proffered. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed back disability, left ankle disability and/or sinus disability, to include allergic rhinitis. (a.) The examiner must opine whether any identified back disability, left ankle disability and/or sinus disability, to include allergic rhinitis, is at least as likely as not related to an in-service injury, event, or disease. (b.) Further, if arthritis of the left ankle or back is diagnosed, provide an opinion whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. Rationale must be provided for the opinions proffered. 5. Finally, after undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and   his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Counsel