Citation Nr: 18153625 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 15-44 215 DATE: November 28, 2018 ORDER A higher rating of 10 percent is granted for service-connected hypertension, subject to the laws and regulations governing the payment of monetary awards. New and material evidence having been received, the Veteran’s claim of service connection for psychiatric disability is reopened. Service connection for psychiatric disability is granted. REMANDED The claim for service connection for a back disability is remanded. The claim of entitlement to special monthly compensation based on need for aid and attendance (A&A) or being housebound is remanded. The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The claim of entitlement to a specially adapted automobile or adaptive automobile equipment is remanded. FINDINGS OF FACT 1. Throughout the claim period, the Veteran's diastolic blood pressure was not predominantly 100 or above, and the Veteran's systolic blood pressure was not predominantly 160 or above, but the Veteran had a history of such predominantly elevated diastolic pressure, and Veteran requires antihypertensive medication for control of his hypertension. 2. The Veteran’s psychiatric disability had its onset in service. CONCLUSIONS OF LAW The criteria for a 10 percent rating, but no more, for the Veteran’s hypertension have been met for the entire appeal period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.104, Diagnostic Code 7101 (2017). Psychiatric disability was incurred in service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1978 to June 1982. The Department of Veterans Affairs (VA) is grateful for his service. The Board notes that the Veteran has separately claimed entitlement to service connection for PTSD, major depressive disorder, and generalized anxiety disorder. Although the law does not preclude establishing service connection for a separately diagnosed acquired psychiatric disorders the Board will consider it as one claim. Service connection was psychiatric disability was previously denied. New and material evidence has been received and he low threshold for reopening these claims has thus been met. 38 C.F.R. § 3.156 (a) (2017); Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Claim for a higher rating for hypertension Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran contends that he is entitled to a 10 percent disability for his service-connected hypertension based on his continuously taking antihypertensive medication for treatment of the condition. A 10 percent rating is warranted for hypertension if diastolic pressure is predominantly 100 or more, systolic pressure is predominantly 160 or more, or where the individual with a history of diastolic pressure predominantly 100 or more requires continuous medication for control. A 20 percent rating is assigned for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. The Veteran was afforded a VA hypertension examination in June 2013. At that examination noted hypertension readings were sub-hypertensive at 126/88, 149/81, and 144/91. However, the Veteran was noted to have taken anti-hypertensive medication since service, based on past elevated blood pressure. This is consistent with other medical evidence of record also indicating prescribed ongoing antihypertensive medication. The evidence thus favors entitlement to a 10 percent disability rating based on this medication management controlling the Veteran’s hypertension, due to past elevated diastolic blood pressure. The weight of the evidence is against any interval of hypertensive readings warranting a still higher rating. Accordingly, a 10 percent disability rating, but no more, is warranted for hypertension. The Board has reviewed the entire record and finds that the 10 percent rating assigned by this decision for hypertension reflects the most disabling this disorder has been during the claim period. Thus, the Board concludes that staged ratings for this disorder are not warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection for psychiatric disability The Veteran was separated from service under honorable conditions based on unsuitability, listing “apathy, defective attitude, or inability to expend effort constructively.” At separation, he complained frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, nervous trouble of any sort and periods of unconsciousness. Although service connection was initially denied in May 1983 shortly after separation from service, the competent and credible lay evidence, consistent with the Veteran’s report at discharge, shows that he has had psychiatric problems since that time and the medical evidence is at least in equipoise that the disability had its onset in service. As such, service connection for psychiatric disability is granted. REASONS FOR REMAND 1. The claim for service connection for a back disability is remanded. As the Veteran’s authorized representative has informed in a brief submitted in September 2018, the Veteran contends that his current back disability has its origins in strenuous activities in service, specifically pulling lanyards in artillery duties. Service treatment records do include a notation on the April 1982 separation examination, informing that the Veteran states that his back hurts. However, that separation examination does not address the back further, instead only indicating by check-mark that the Veteran’s spine is normal. The Veteran has competently addressed a history of back symptoms from service, and service records indicate a symptomatic back. He has contended that his back disability is related to his symptomatic back in service. Thus, a link between his current disability and service is indicated, and a VA examination is warranted. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). No examination has been afforded the Veteran for this issue. Hence, remand is warranted for this purpose. 2. Claim for service connection for a left knee disability is remanded. The Veteran was afforded a VA knee examination in June 2013. The examiner reviewed the record and noted that the Veteran had been diagnosed with chondromalacia of the left knee in the late 1970s, an anterior cruciate ligament tear of the left knee in the late 1990s, and left knee arthritis also in the late 1990s. The examiner noted a history of injuries to the knee in service, but also a twisting injury to the knee following service as well as the need for arthroscopic surgery on the knee in the early 1990s. The examiner noted progressively worsening knee symptoms, with the Veteran reporting that he had been told he had arthritis. The Veteran reported that currently he had constant, severe left knee pain. Objectively, the examiner found reduced range of motion, pain with movement, weakened movement, and swelling in the left knee. The June 2013 VA examiner concluded that the service records did not show chronicity of a knee condition, and further concluded, in effect, that the Veteran’s post-service injury to the knee with damage to cartilage resulted in current disability with arthritis in the knee. The examiner opined that it was not at least as likely as not that the Veteran’s left knee disability was related to or caused by service. However, examiner found that the Veteran’s in-service knee condition was not chronic because it was “a limited condition based on the [service treatment records].” Thus, the examiner failed to consider any report by the Veteran of ongoing knee symptoms from service to ascertain whether a chronic or ongoing condition originated in service. The examiner also failed to address explicitly the possibility that documented injury to the knee in service may have led to arthritis in the knee. The examiner also failed to accept the Veteran’s reports of ongoing symptoms as supportive of disability from service. The Board accordingly finds that a new examination for the knee by a different examiner is warranted. The new examiner must explicitly report the Veteran’s self-reported history of his left knee condition from service, and consider that self-report when addressing the likelihood of service origin of any current knee disability. The examiner must consider whether injury to the knee in service led to current knee disability, or whether current disability of the knee originated in service. In so doing, the examiner must consider the Veteran’s self-reported history of injuries, symptoms, and treatment for knee disability, including any history of a symptomatic knee from service. 3–5. The claim of entitlement to special monthly compensation (SMC) based on need for A&A or being housebound is remanded; the claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded; the claim of entitlement to a specially adapted automobile or adaptive automobile equipment is remanded In his January 2014 application for TDIU, the Veteran informed that he could not work due to pain in his back, knees, and feet which impaired prolonged standing and walking. He reports recent past work experiences were as a cook and a laborer. The Veteran’s TDIU claim is thus intertwined with his claims for service connection for knee and back disabilities. Similarly, the Veteran’s claims for SMC and for entitlement to a specially adapted automobile or automobile adaptive equipment are inextricably intertwined with these remanded disability claims. As such, these issues must be remanded. The matters are REMANDED for the following action: 1. Associate any outstanding records. Any unobtained records of psychiatric treatment at the San Antonio, Texas VAMC, and of psychiatric hospitalizations there including in 2002 and 2006 should be obtained. 2. Notify the Veteran and his authorized representative that he may submit lay or medical statements or other evidence supporting his claims. This may include medical or lay evidence linking claimed knee or back disability to service, or supporting work incapacity or a need for aid and attendance or being housebound or need for an adaptive automobile or adaptive equipment due to service-connected disabilities. The Veteran should be provided an appropriate amount of time to submit this evidence. 3. Schedule the Veteran for VA examination. The examiner(s) should not be the examiner who examined the Veteran’s knee in June 2013, to avoid examination bias. For each disability found, the examiner(s) should provide an opinion whether it is at least as likely as not that the disability developed in service or is otherwise causally related to service. For both the back and the knee, the examiner must state the Veteran’s report of history of each disability as related to service and thereafter, and must consider the Veteran’s self-reported history when assessing the likelihood of a disability being related to injury in service, originating in service, or otherwise being causally related to service. For the claimed back disability, the examiner should consider the Veteran’s report of having injured his back pulling lanyards in artillery duties in service, as well as the Veteran’s complaint of back pain at service separation examination. Regarding the left knee claim, the examiner must consider service treatment records of injury to the knee and chondromalacia. The examiner should address the possibility that documented injury to the knee in service led to current disability including arthritis in the knee. The examiner(s) should provide an explanation for all elements of their opinions. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Schechter