Citation Nr: 18152621 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-51 749 DATE: November 23, 2018 ORDER Service connection for tinnitus is denied. Service connection for hypertension is denied. REMANDED Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee joint osteoarthritis, is remanded. Entitlement to an initial rating in excess of 10 percent for right knee disability is remanded. FINDINGS OF FACT 1. The record of evidence does not establish a nexus between the Veteran’s current tinnitus and his period of service. 2. Hypertension is not shown in service or within the initial post separation year; and it is not otherwise related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from January 1988 to December 1998. Service Connection Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). For explicitly recognized chronic diseases (38 C.F.R. § 3.309(a)), service incurrence or aggravation may be established under 38 C.F.R. § 3.303(b) by demonstrating continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For tinnitus, the disability is considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period service. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). Except as provided in 38 C.F.R. § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. This includes any increase in disability (aggravation). Service connection can be granted for disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a veteran’s non- service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen, supra. 1. Tinnitus The Veteran contends that his tinnitus is due to his period of active service. The Board concludes that the preponderance of the evidence is against the claim. The disability is not shown in service and it not otherwise linked to an in-service injury, disease, or event. 38 U.S.C. §§ 1110, 1112, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309. As an initial matter, the Board notes that the Veteran’s military occupational specialty as a food service specialist is listed in the M21-1 as involving a low probability of exposure to hazardous noise. See M21-1, III.iv.4.D.1.b. Service treatment record reflect no complaints or findings for ringing ears. A March 1994 periodic exam showed normal clinical evaluation. Tinnitus complaints are first documented on the Veteran’s VA disability compensation application in June 2015. A July 2015 VA examination report reflects a diagnosis for tinnitus, but the Veteran self-reported that it tinnitus began “a couple of years ago.” The examiner determined that it was less likely than not that the Veteran’s tinnitus was caused by or the result of military noise exposure. The examiner explained that the Veteran had separated from the military 17 years earlier and there was no evidence of delayed onset tinnitus. It was further noted that tinnitus is most often a symptom of hearing loss (though sometimes linked to other causes), but if a nexus between hearing loss and military service cannot not be established, it is difficult to link tinnitus to service. Therefore, the examiner concluded that the Veteran’s tinnitus was less likely than not related to his period of service. The Board accepts that the Veteran is competent to report his symptoms, the onset of those symptoms, and treatment. Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also Falzone v. Brown, 8 Vet. App. 398, 405 (1995). To the extent that the Veteran reported to VA in October 2016 that he had tinnitus in service in an attempt to bolster his claim for benefits, the Board finds that his statement is not credible in view of his report of recent onset of symptoms at his July 2015 VA examination coupled with the STRs, which reflect normal clinical findings in 1994, and the lengthy period of time intervening active service and the first documented complaints. Therefore, the Board finds that the Veteran’s lay statements have little probative value. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. 38 U.S.C. § 5107(b). 2. Hypertension The Veteran contends that his currently diagnosed hypertension is related to his period of active service. The Board concludes that the preponderance of the evidence is against the claim. Hypertension is not shown in service or within the initial post separation year, and it not otherwise linked to service, to include any elevated blood pressure readings. 38 U.S.C. §§ 1110, 1112, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309. STRs show that in June 1992, the Veteran was seen for elevated blood pressure of 142/90. The treatment note requested 5-day serial blood pressure checks, but there is no evidence of such checks in the Veteran’s STRs. An August 2016 VA examination reflects a diagnosis of hypertension per the Veteran, but the original date of diagnosis was unknown. Available post service private medical records show a past medical history for hypertension, but no diagnosis or treatment thereof. An August 2016 VA medical opinion reflects that the Veteran’s reported hypertension was less likely than related to service, including the elevated blood pressure readings noted in June 1992. The examiner noted that various other blood pressure readings in the service treatment records were within the normal range, and a March 1994 retention examination showed a reading of 138/72. The examiner explained that there was not enough evidence to support an in-service diagnosis of hypertension based upon a single reading of 142/90, and that hypertension should be diagnosed with serial readings on different days. In addition, the examiner was unable to determine what stressors the Veteran was experiencing at the time of the elevated blood pressure reading, such as pain or physical activity. As such, the examiner opined that the Veteran’s current hypertension was not related to his military service. The Board acknowledges the Veteran’s belief that he has hypertension related to service because of the elevated blood pressure reading noted therein. However, while the Veteran is competent to report his symptoms and treatment, the etiology of hypertension involves complex medical matters beyond the knowledge of a layman and it is not susceptible to lay observation. See Layno at 469 (1994); Jandreau v. Nicholson, 492 F.3d. 1372 (2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Therefore, the Veteran’s opinion that hypertension is related to service has little probative value. The Board assigns greater probative value to the August 2016 VA medical opinion because the it was based on a review of the claims file and the conclusion reached is explained. See Monzingo v. Shinseki, 26 Vet. App. 97 (2012) (examination reports are adequate when they sufficiently inform the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion). The Veteran has not provided a favorable medical opinion to weigh in this matter. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND 3. Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee joint osteoarthritis. The record reflects that a left knee disability is not shown in service and arthritis did not manifest within one year of discharge. However, as to the question of secondary service connection, the Board finds that recent medical opinion is inadequate because it does not address aggravation of nonservice-connection disability by service-connected right knee. STRs reflect treatment for right knee pain and chondromalacia. However, STRs reflect no complaints or findings for abnormal left knee pathology. A March 1994 service examination reflects normal clinical evaluation. The first documented findings for abnormal left knee pathology are in September 2014, more than a decade after separation from active service. Post-service, private treatment records show the Veteran was diagnosed with bilateral knee osteoarthritis in September 2014. The Veteran reported that he had bilateral knee pain for years and it began in the military. He also stated that his right knee was worse than his left, and his knees would buckle and lock up. A July 2015 VA examination report shows, by history, that the Veteran worked on his feet as a cook in the military and participated in other activities such as running and jumping. The examiner noted that there was no evidence of a left knee condition during service or thereafter, until 2014. It was further noted that the Veteran had other risk factors for developing osteoarthritis of the knee such as aging, obesity, and occupation. Based on the foregoing, the examiner opined that the Veteran’s left knee condition was less likely than not caused by his military service, including the chondromalacia and chronic knee pain noted during service. An August 2016 VA medical opinion reflects that that the Veteran’s left knee disability was less likely than not proximately due to or the result of service-connected right knee joint osteoarthritis. Citing medical literature, the examiner explained that the Veteran had other risk factors for developing osteoarthritis including obesity, an occupation that places repetitive stress on joints, and older age. It was noted that there was no evidence of a left knee condition until 2014. The question of aggravation was not clearly addressed. As such, remand is necessary. 38 C.F.R. § 3.159(c). 4. Entitlement to a rating in excess of 10 percent for right knee disability. The Veteran seeks a higher initial rating for service-connected right knee joint osteoarthritis. A rating of 10 percent is effective from June 10, 2014. In his October 2016 substantive appeal, the Veteran claimed that his right knee condition had deteriorated, and his pain and range of motion had worsened. The Veteran was afforded an initial VA DBQ examination for his right knee disability in July 2015, and the examination was adequate for rating purposes at that time. However, this examination is unduly remote, as it is over 3 years old. The Board is unable to determine the current severity of the Veteran’s service-connected right limitation of extension, and concludes that a remand is needed to afford the Veteran an opportunity to undergo an updated VA examination to assess the current nature, extent, and severity of this disability and to obtain any outstanding VA treatment records. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (noting that an examination too remote for rating purposes cannot be considered “contemporaneous”); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also 38 C.F.R. § 3.159(c)(2) (2017); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, the Veteran should also be offered the opportunity to submit any private treatment records in support of his claim. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran’s claims file. The Veteran should also be offered the opportunity to submit any private treatment records in support of his claim. 2. Schedule the Veteran for an examination to determine the current severity of his service-connected right knee disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right knee disability alone and discuss the effect of the Veteran’s right knee disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s left knee disability is at least as likely as not proximately due to service-connected right knee disability or aggravated beyond its natural progression by service-connected right knee disability. 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Freeman, Associate Counsel