Citation Nr: 18153937 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 17-33 254 DATE: November 28, 2018 ORDER Service connection for right knee osteoarthritis is denied. Service connection for hypertension is denied. FINDINGS OF FACT 1. Right knee osteoarthritis was not present during active service or within one year of discharge; the most probative evidence is against a finding that right knee osteoarthritis had onset in service or is otherwise related thereto. 2. High blood pressure was noted at service entrance; there was no aggravation of high blood pressure or hypertension as a result of active service. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee osteoarthritis have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for hypertension have not been satisfied. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1973 to December 1979. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Department of Veterans Affairs (VA) has established certain rules and presumptions for chronic diseases, such as arthritis and hypertension. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. Id. In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 1. Service connection for right knee osteoarthritis In March 2013, the Veteran filed a claim for service connection for a right knee condition. Service treatment records (STRs) indicate injury to the left knee in 1975 and complaints of cramps in the bilateral legs when running. No complaints specifically regarding the right knee appear in the STRs and the knees were noted to be normal upon separation from service in 1979. Available VA treatment records dated between April 1997 and December 2014 indicate an initial complaint of knee pain in February 2012. At that time, the Veteran stated he had been on pain medications for about 2 years. The Veteran underwent an x-ray of the right knee in April 2012. No specific injury was indicated and moderate degenerative narrowing with small joint effusion was identified. In March 2014, the Veteran underwent a VA examination. Right knee osteoarthritis was noted as having been diagnosed in 2012. The Veteran could not recall any specific injury to the right knee, but stated he was evaluated in sick bay and prescribed an elastic knee brace and pain medication. It was also indicated that in October 2010, he had been in an automobile accident in which his right knee hit against the dash board. He denied current problems with the left knee. The examiner noted that a right knee condition was not corroborated as having occurred during military service as no mention was made of right knee injury in the STRs. To the question of whether the Veteran’s current knee condition was related to in-service treatment for knee pain, the examiner noted that upon examination, the Veteran had a normal left knee examination for his age and that the military findings regarding the left knee in 1975 were inconsistent with current clinical findings of a normal left knee. In July 2014, the Veteran submitted a private medical record demonstrating that the Veteran continued to complain of right knee pain. Images showed advanced arthritis with medial joint space narrowing. Dr. J.J. opined that he “suspect[ed] the changes seen are chronic in nature and from activities or injury while in the military.” No rationale was provided to support his opinion. In February 2016, the RO sought an addendum opinion regarding whether the Veteran’s bilateral knee arthritis was related to service. The examiner opined that the service records did not document chronic on-going treatment for arthritis. The Veteran was seen briefly for pain which is a distinct and separate diagnosis and a left knee x-ray in service was normal. In his June 2017 Form 9, the Veteran argued that he was told by his doctors that his right knee needs to be surgically replaced and he now uses a cane to assist with everyday tasks. He indicated doctors told him that the condition of his knee was “aggravated and a result of [his] military service and the strenuous requirements required in performance of [his] duties.” Upon careful review of the lay and medical evidence, the Board finds that, although the Veteran currently has osteoarthritis in his right knee, the record does not support a finding of in-service onset of arthritis or the manifestation of any right knee condition that could be considered chronic during service. Acute left knee treatment appears in the STRs, but no complaints regarding the right knee appear in the record prior to April 2012, a period of over 30 years after separation from service. The Board has considered the statement by Dr. J.J. that he suspects the condition of the Veteran’s knee was due to activities or injury while in the military. Such statement was made without a rationale and without review of the claims file which does not show injury to or complaints regarding the right knee in service or for decades thereafter. A medical opinion without sufficient rationale in order for the Board to evaluate the merits of the claim lacks probative value and weight and does not, by itself, support the grant of service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Board has considered the Veteran’s lay statements that he believes his current right knee condition is the result of his years in the military. The Board notes that a veteran, as a layperson, is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). While the Veteran may be competent to report symptoms of a knee condition, he is not competent to provide a medical nexus opinion regarding etiology, as that is a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran has not been shown to be other than a layperson without the appropriate medical training and expertise, he is not competent to render a probative (i.e., persuasive) opinion on a medical matter such as whether a current knee condition is related to activities in service or had onset in service. See Bostain v. West, 11 Vet. App. 124, 127 (1998); Routen v. Brown, 10 Vet. App. 183, 186 (1997) (“a layperson is generally not capable of opining on matters requiring medical knowledge”). Notably, while at his VA examination the Veteran recalled having in-service treatment for his knee, service records show the treatment was for the left knee and not the right knee. Without competent evidence showing an onset of arthritis or other chronic knee condition in service or within the year period following service or competent evidence linking the Veteran’s current knee disabilities to service, the Board must find that the criteria required to establish service connection are not met and service connection must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b). 2. Service connection for hypertension Generally, a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304(b). Such conditions are considered to be pre-existing. The presumption of soundness can be rebutted where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by service. 38 C.F.R. § 3.304(b). When a pre-existing disorder is noted on entry, a veteran has the burden of showing that it is at least as likely as not that the disorder increased in severity during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). If a veteran meets that burden and shows that an increase in severity occurred, the burden then shifts to VA to show whether such increase is clearly and unmistakably due to the natural progression of the pre-existing disability rather than due to service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 235 (2012); C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). In March 2013, the Veteran filed a claim for service connection for hypertension. For VA purposes, hypertension is defined as diastolic blood pressure predominately 90 mm or greater, and isolated systolic hypertension is defined as systolic blood pressure predominately 160 mm or greater, with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, Note 1. A diagnosis of hypertension requires 2 or more readings on at least 3 different days. Id. A compensable rating for hypertension under DC 7101 requires diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. In the Veteran’s service treatment records STRs, the January 1973 enlistment examination lists two blood pressure readings of 190/80 in the notes section and 134/70 in the notes section as well as in the box where blood pressure was to be officially recorded. It was not specifically indicated that the Veteran had diagnosed hypertension upon entrance into service; however, the Veteran does not deny that he had high blood pressure prior to service that was first identified in 1968 and other STRs indicate he had been initially denied entrance into the Army based on high blood pressure readings. STRs contain additional blood pressure readings as follows: 130/92 in May 1973, 136/72 in November 1975, 130/70 in February 1977, 130/80 in August 1977, 120/80 in June 1978 and 122/82 in September 1979 prior to separation from service. On the Veteran’s September 1979 Report of Medical History, he indicated he did not know whether he had high or low blood pressure and that he was not taking any medications. The STRs do not contain indication of a diagnosis of hypertension or treatment for high blood pressure. It is somewhat unclear when hypertension was first diagnosed; however, there is no evidence of a diagnosis of hypertension within one year of separation from military service. In this regard, a private medical record from November 1986 indicates a history of hypertension which was treated with medication. A private medical record from November 1988 notes the Veteran’s report of a hypertension diagnosis in July. An April 1997 VA treatment record indicates that the Veteran had a history of hypertension for nearly 5 years. In April 2017, the Veteran underwent a VA examination in connection with his claim for service connection. It was indicated he was taking numerous medications to control his hypertension. The Veteran indicated he completed a physical in 1968 and was told his blood pressure was high. He was kept in a hotel and returned for 3 consecutive days to check his blood pressure. He was not allowed to join the Army at the time due to high blood pressure readings. The examiner opined that the hypertension clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service event, injury, or disease. The examiner explained that hypertension can progress to coronary artery disease, aneurysms or heart failure which happens if blood pressure is uncontrolled. He stated the Veteran’s hypertension was under adequate control and there was no evidence to support aggravation of hypertension beyond its natural progression. In his June 2017 Form 9, the Veteran indicated his hypertension was borderline on his first physical for the draft in 1968 and once he did enlist, his medical records showed his blood pressure continued to be a problem. He indicated he was now taking several different medications to control it and he had also been diagnosed with an atrial fibrillation heart condition. As noted, when a pre-existing disorder is noted on entry, a veteran has the burden of showing that it is at least as likely as not that the disorder increased in severity during service. Here, elevated blood pressure reading appears on the Veteran’s entrance examination report. The Board finds that pre-existing high blood pressure was noted on entrance and that the Veteran has not met the burden of showing that it is at least as likely as not that pre-existing high blood pressure increased in severity during service. The reading of 122/82 on the Veteran’s September 1979 separation examination and the indication on the accompanying Report of Medical History that he was not taking any medications does not demonstrate that high blood pressure had worsened between entry into service and separation. Even if it could be argued that some blood pressure readings were higher than others throughout the Veteran’s active duty period, this does not necessarily represent aggravation. Precedential case law indicates that if a disorder worsens during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance, the disorder has not been aggravated by service, and that temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition itself, as contrasted with mere symptoms, has worsened. Verdon v. Brown, 8 Vet. App. 529 (1996); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993). In this case, blood pressure was not in the hypertensive range at the time of separation, medication was not dispensed for high blood pressure during service, and a diagnosis of hypertension was not rendered. Moreover, the VA examiner opined that there was clearly and unmistakably no aggravation of the condition as a result of service. The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the in-service blood pressure readings and the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. (Continued on the next page) In summary, the Veteran’s high blood pressure preexisted service and was not aggravated by service, hypertension was not diagnosed during service or in the year following service, and hypertension is not otherwise shown to be related to military service. Thus, the claim for service connection for hypertension must be denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Boyd Iwanowski, Counsel