Citation Nr: 18148175 Decision Date: 11/08/18 Archive Date: 11/06/18 DOCKET NO. 16-32 321 DATE: November 8, 2018 ORDER Entitlement to service connection for a left forearm disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for hypertension is denied. FINDINGS OF FACT 1. The Veteran does not have a left forearm disability. 2. The Veteran’s right knee disability was not incurred in or aggravated by active duty service. 3. The Veteran’s hypertension was not incurred in or aggravated by active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right forearm disability have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 3. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1974 to September 1978 and from March 1981 to June 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction over the case now resides with the Atlanta, Georgia RO. The Board notes that the Veteran submitted a notice of disagreement (NOD) in November 2017 with respect to his claim for a total disability rating based on individual unemployability (TDIU) and an NOD in August 2018 with respect to his claim for tinnitus. The record reflects that the RO has acknowledged the NODs and is actively processing the NODs. The Board consequently will not take further action on those claims at this time. Compare Manlincon v. West, 12 Vet. App. 238 (1999). VA has certain notice and assistance duties when presented with a claim. See 38 U.S.C. § § 5103, 5103A. With respect to the claims of service connection for a right knee disability and hypertension, VA satisfied its duty to notify in a letter dated in July 2011. The Veteran’s claim for a left forearm disability stems from a fully developed claim submitted in January 2014. The Veteran’s signature on his claim, submitted via VA Form 21-526EZ, indicates that he received VCAA notice. See 38 U.S.C. § 5103; 38 C.F.R. § 3.159(b). Concerning the duty to assist, the Board notes that some of the Veteran’s service treatment records (STRs) are not associated with the claims file. However, the record reflects that VA has made reasonable efforts to obtain these records and further search efforts would be futile. All relevant and pertinent VA and private post-service medical treatment records identified by the Veteran are associated with the claims file. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran was afforded a VA examination for his knees and lower legs in May 2014. He has not had VA examinations for a left forearm disability or hypertension. However, the Board finds that examinations are not necessary because the record does not establish the in-service presence of an associated event, injury or disease. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Accordingly, VA’s duties to notify and assist are met. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The term “active military, naval, or air service” includes active duty, and “any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training.” 38 U.S.C. § 101(24) (2012); 38 C.F.R. § 3.6(a) (2018). Active duty for training (ACDUTRA) is defined, in part, as “full-time duty under sections 316, 502, 503, 504, or 505 of title 32 U.S. Code or the prior corresponding provisions of law.” 38 U.S.C. § 101(22) (2012); 38 C.F.R. § 3.6(c) (2018). The term inactive duty training (INACDUTRA) is defined, in part, as duty, other than full-time duty, under sections 316, 502, 503, 504, or 505 of title 32 U.S. Code or the prior corresponding provisions of law. 38 U.S.C. § 101(23) (2012); 38 C.F.R. § 3.6(d) (2018). Thus, regarding the Veteran’s service in the National Guard, service connection may only be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or for an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106, 1110, 1131; 38 C.F.R. §§ 3.6, 3.303, 3.304. With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). However, § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). 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). A lay person is competent to report observable symptomatology of an injury or illness. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). In order to be competent, the individual must have personal knowledge, derived from his or her own observations. Layno v. Brown, 6 Vet. App. 465, 471 (1994). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See id. at 469. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for deciding whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Left forearm disability A review of the Veteran’s STRs indicates one note regarding the left forearm under the heading of a sensitivity test in June 1981, and as such, the Veteran was on ACDUTRA. Post-service medical treatment records are silent for any complaints relating to his left forearm until January 2012. A September 2013 treatment note indicates that the Veteran experienced left elbow pain and had trouble extending his left arm. Neither the Veteran’s STRs nor his post-service medical treatment records provide any diagnosis of a disability relating to his left forearm. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). To the extent that the Veteran complains that he has symptoms of left forearm or elbow pain, VA does not generally grant service connection for symptoms alone, without an identified basis for those symptoms. VA needs to identify a “disability,” not symptoms of a disability, or treatment. Accordingly, service connection cannot be granted for symptoms of a disability, standing alone. The treatment records, overall, provide highly probative evidence against this claim. While the Veteran is competent to report symptoms he experienced, he is not medically qualified to provide a diagnosis in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board concludes that the Veteran does not have a current diagnosis of a left forearm disability and has not had one at any time during the pendency of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In the absence of a current disability that accounts for the Veteran’s claimed left forearm pain and limited flexion, further analysis is not necessary. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 2. Right knee disability The Veteran’s STRs from his periods of active service are silent for any complaints, treatment, or diagnosis related to his right knee. The only complaint noted in the Veteran’s STRs is in his June 1985 National Guard records, indicating that his right knee occasionally aches and swells. Post-service treatment records indicate that the Veteran consistently reported left knee pain, but he only began reporting right knee pain in late 2013, at which time, he denied any injury to his right knee. VA treatment records provide a diagnosis of degenerative joint disease of the right knee. The Veteran underwent VA knee examinations for his service connected left knee in March 2013 and May 2014. At the Veteran’s March 2013 examination, he reported that while stationed in Germany during active duty between 1975 and 1977, he had his left knee drained two or three times, but he indicated that he could not remember the specific details of the occasions. At his May 2014 VA examination, the Veteran reported that he had effusions drained from both knees during his time on active duty. The VA examiner noted that there was evidence of degenerative disease in both knees, significantly worse in the left knee. In a June 2016 private medical treatment record, the Veteran indicated that he had ongoing right knee pain and received a diagnosis of unilateral primary osteoarthritis in his right knee. The Veteran’s DD 214 reflects that he was stationed in Germany from November 1976 to May 1977, but STRs from this period are not available. The Veteran’s active duty STRs prior to November 1976 are available, however, and do not indicate either knee was drained. Given that the Veteran specifically indicated that he could not remember the details regarding his knee treatment while on active duty deployment in Germany and he indicated initially that he received treatment for his left knee and then later indicated he received treatment for both knees, the Board finds the Veteran an unreliable historian as to whether treatment during this time was for the left knee or bilateral knees. Thus, as there is no other evidence supporting the Veteran’s assertion that his right knee disability began during active service, the Board finds that direct service connection for the Veteran’s right knee disability is not warranted. Although the Veteran’s STRs indicate complaints of right knee pain, this was during his National Guard service, and as such, an in-service injury must be demonstrated. 38 U.S.C. §§ 101(24), 106, 1110, 1131; 38 C.F.R. §§ 3.6, 3.303. Since the Veteran does not claim, and the record does not indicate, any in-service injury, the second element for establishing service connection is not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. As the preponderance of the evidence is against service connection, the benefit of the doubt doctrine does not apply, and the claim of service connection for a right knee disability is denied. 38 C.F.R. §§ 3.102, 3.303. 3. Hypertension The law provides that every veteran shall be taken 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 the examination, acceptance, and 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. §§ 1110, 1111 (2012). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (2018). When no pre-existing condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both pre-existing and not aggravated by service. Conversely, if a pre-existing disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. See Wagner, 370 F. 3d at 1094-1096. In that case, the presumption of aggravation under 38 U.S.C. § 1153 applies and the burden shifts to the government to show a lack of aggravation by establishing “that the increase in disability is due to the natural progress of the disease.” 38 U.S.C. §1153; see also 38 C.F.R. § 3.306 (2006); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); Wagner, 370 F. 3d at 1096 (Fed. Cir. 2004). The Veteran’s dental STRs note that he received treatment for high blood pressure prior to service; however, the Veteran’s entrance examination was negative for any indications that the Veteran suffered from high blood pressure or hypertension. Therefore, the presumption of soundness applies. As such, after resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran did not have a pre-existing disability pertaining to high blood pressure at his enlistment into service in September 1974. For VA compensation purposes, the term “hypertension” means that the diastolic blood pressure is predominantly 90 mm. or greater, or systolic blood pressure is predominantly 160 or more. 38 C.F.R. § 4.104, DC 7101 n.1 (2018). A diagnosis of hypertension “must be confirmed by readings two or more times on at least three different days.” Id. The requirement of multiple blood pressure readings to be taken over multiple days as specified in Note (1) of DC 7101 applies to confirming the existence of hypertension. Gill v. Shinseki, 26 Vet. App. 386, 391 (2013). The Veteran’s entrance and separation examinations and in-service STRs are negative for any complaints, treatment or diagnosis related to high blood pressure or hypertension. Upon entrance, the Veteran’s blood pressure reading was 120/78. The Veteran indicated that he went to sick hall for symptoms of hypertension. A review of the records indicates the presence of “sick slips” for migraine headaches and a rash, not for any symptoms related to hypertension. The Veteran’s National Guard STRs include several medical evaluations, which indicate the Veteran was in good health and not currently on any medications. An October 1980 evaluation provided a blood pressure reading of 120/80; a June 1985 evaluation indicates that Veteran had high or low blood pressure, but did not provide a blood pressure reading; an April 1987 evaluation provided a blood pressure reading of 118/62; and a June 1987 evaluation indicated that the Veteran had high blood pressure while on active duty or in hot weather, and the evaluation provided a blood pressure reading of 116/68. Post-service medical treatment records also included blood pressure readings. An April 2013 treatment record includes a blood pressure reading of 109/73. In a March 2014 treatment record, the Veteran had a blood pressure reading of 122/82 and reported he had high blood pressure for 30 years. A February 2016 treatment record included a blood pressure reading of 137/83. May and November 2016 treatment records provided blood pressure readings of 100/62 and 94/58 respectively. A March 2018 treatment record noted a blood pressure reading of 121/78. The post-service treatment records list hypertension as a medical problem for the Veteran. The evidence does not indicate that the Veteran had any complaints, treatment, or diagnosis related to hypertension while in active service. Moreover, the Veteran’s blood pressure readings during or proximately following his periods of active service do not indicate the Veteran had hypertension at that time. Based on the evidence of record, the Veteran’s hypertension symptoms began in the mid-1980s, several years after his periods of active service. As such, the Veteran’s hypertension was not incurred in active service and entitlement to service connection for hypertension is not warranted. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Hite, Associate Counsel