Citation Nr: 18154001 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 18-07 650 DATE: November 29, 2018 ORDER Entitlement to service connection for hypertension is granted. Entitlement to service connection for a bilateral knee disorder, diagnosed as arthritis status-post total knee replacements, is granted. REMANDED Entitlement to service connection for type II diabetes mellitus is remanded. FINDINGS OF FACT 1. The Veteran’s hypertension was shown in service, and there have been subsequent manifestations during the appeal period. 2. The Veteran’s bilateral knee arthritis status-post total knee replacements was caused or aggravated by his service-connected left ankle disability. CONCLUSIONS OF LAW 1. Hypertension was incurred in active service. 38 U.S.C. §§ 1101, 1112, 1131, 1137 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 2. Bilateral knee arthritis status-post total knee replacements is proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C. § 1101, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1975 to May 1978 and from May 1978 to March 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision. The Board notes that the Veteran’s claims for service connection for bilateral knee disorders were previously considered and denied by the Agency of Original Jurisdiction (AOJ) in a December 2013 rating decision. However, the RO received additional relevant service personnel records in February 2015. Therefore, 38 C.F.R. § 3.156(c) applies, the December 2013 rating decision is not final, and the claim will be reconsidered on the merits. See 38 C.F.R. § 3.156(c) (new and material evidence-service department records). Service Connection Given the favorable disposition to grant the Veteran’s claims for service connection for hypertension and bilateral knee disorders, the Board finds that all notification and development actions needed to fairly adjudicate this aspect of the appeal have been accomplished. There is no prejudice to the Veteran. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2017). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis and hypertension, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), with an enumerated “chronic disease” such as hypertension shown in service (or within the presumptive period under § 3.307), subsequent manifestations of the same disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity of symptomatology. Id. Service connection may also be granted where a disability is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). I. Hypertension As an initial matter, in this decision, all blood pressure measurements are noted in units of pressure in millimeters of mercury (mmHg). For VA compensation purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 or greater; and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with diastolic blood pressure less than 90. In addition, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for hypertension. The Veteran’s October 1975 enlistment examination showed a normal clinical evaluation of all relevant body systems, and his blood pressure was recorded as 108/74. In February 1977, the Veteran was diagnosed with labile hypertension. On February 8, 1977, the Veteran’s morning blood pressure was recorded as 130/92, 140/88, 140/90. His afternoon blood pressure was recorded as 140/92, 140/100, and 140/80. On the following day, the Veteran’s blood pressure was recorded as 138/90, 142/90, and 132/86. On February 10, 1977, his blood pressure was recoded as 134/94, 140/96; and 130/78. Thereafter, an April 1977 service treatment record noted that the Veteran’s serial blood pressure measurements revealed persistent mild hypertension. In an August 1981 record, the Veteran reported that he recently re-started prescription medication for his high blood pressure, and his blood pressure was recorded as 168/100. At that time, a military physician indicated that the Veteran’s blood pressure was not well controlled and prescribed him additional prescription medication. On his February 1983 report of medical history at his separation from service, the Veteran reported having a history of high blood pressure, and a military physician noted an assessment of hypertension. The Veteran’s service treatment records show that he was diagnosed with hypertension and that he required medication to control his disorder. The records also documented systolic blood pressure measurements that were predominantly 90 or greater and confirmed by readings taken on at least three different days, which satisfies the requirements for a diagnosis of hypertension for VA purposes. 38 C.F.R. § 4.104, Diagnostic Code 7101. Therefore, the Board finds that hypertension was shown in service. The post-service medical records also note diagnoses of hypertension and ongoing treatment with prescription medication. See, e.g., VA medical records dated in December 2009, May 2010, October 2012, August 2014, and March 2015. Based on the foregoing, the Board finds that hypertension was shown in service and that there have been subsequent manifestations of the same chronic disease during the appeal period. The evidence does not indicate that the Veteran’s hypertension is attributable to intercurrent causes. Therefore, the Board finds that service connection for hypertension may be presumed under 38 C.F.R. § 3.309(a). Accordingly, service connection is for hypertension is warranted. II. Bilateral knee disorder In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection for a bilateral knee disorder is warranted. The Veteran has contended that his bilateral knee disorders are secondary to his service-connected ankle disabilities. Specifically, he has asserted that he injured his knees in a June 2006 fall that was caused by his left ankle instability. He has also reported that he sustained left knee ligament injuries during his military service. The Veteran’s October 1975 enlistment examination showed a normal clinical evaluation of the lower extremities. In an April 1976 treatment record, the Veteran reported having knee problems that had their onset in March 1976 when he fell down steps. In an April 1978 treatment record, the Veteran reported that he injured his knee playing basketball, and it was noted that he sustained a “direct blow” to his right medial knee. However, an April 1978 radiology report noted no significant right knee abnormalities. In June 1978, the Veteran complained of right lower leg pain. At that time, a physician provided an assessment of a possible muscle strain, and a radiology report noted no significant abnormalities. In a December 1978 record, a physician indicated that there was a question of a right fibula fracture, but subsequent records noted that x-ray findings were negative for fractures. In December 1982, the Veteran reported having bilateral knee pain related to jumping off of a truck. He also reported having pain in his knee cap and leg in January 1983. Thereafter, the Veteran’s February 1983 separation examination showed a normal clinical evaluation of the lower extremities, but also noted a history of a left ankle fracture and permanent pain with running. The post-service medical records note that the Veteran sustained an injury to his left knee during a fall in June 2006. In a June 2006 private medical record, the Veteran reported that he was walking on rocks when his left foot gave out and caused him to twist his left knee. It was noted that MRI findings showed evidence of a left knee complex tear of the posterior horn medial meniscus, medial degenerative changes, and a medial collateral ligament strain. In September 2006, the Veteran underwent an arthroscopy for his left knee. In an August 2006 private medical record, Dr. L.R. (initials used to protect privacy) stated that the Veteran’s need for a left knee arthroscopy was directly related to the injury he sustained when he twisted his knee at work in June 2006. A December 2006 private treatment record noted an impression of a right knee torn medial meniscus. Thereafter, in January 2007, the Veteran underwent an arthroscopy for his right knee. In a February 2007 private treatment record, Dr. L.R. stated that it appeared the Veteran’s right knee symptoms occurred after favoring his left knee. In so finding, he noted that the Veteran did not have any problems with his right knee prior to his left knee problems. In a July 2009 private medical record, Dr. L.R. stated that treatment with injections for pain was directly related to the Veteran’s right and left knee posttraumatic degenerative arthritis from his injury in June 2006. In an October 2011 private medical record, Dr. L.R. noted that the Veteran underwent a total right knee replacement for posttraumatic degenerative arthritis secondary to his June 2006 injury. Thereafter, in February 2013, the Veteran underwent a total left knee replacement. In a September 2013 private medical record, Dr. L.R. diagnosed the Veteran with status-post right and left total knee replacements for post traumatic degenerative arthritis. Dr. L.R. noted that the Veteran reported having a history of left knee and ankle ligament injuries during his military service. He opined that the Veteran’s left ankle may have contributed to some of his problems. During a December 2013 VA examination, the Veteran reported that he injured his knees trying to avoid falling from his ankle twisting. The examiner diagnosed the Veteran with bilateral knee osteoarthritis status-post total knee replacements. He opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In so finding, he stated that a 1978 x-ray of the Veteran’s right knee, tibula, and fibula was negative. The examiner noted that a 1983 service treatment record indicated that the Veteran complained of bilateral knee and shin pain, but he stated that there was no documentation of a chronic disorder until the post-service work injury in 2006. In a September 2017 private medical opinion, Dr. D.M. opined that it was at least as likely as not that the Veteran’s left and right knee conditions developed secondary to his service-connected left ankle disability. In so finding, Dr. D.M. concluded that it was at least as likely as not that the Veteran’s left ankle disability with instability caused him to fall in June 2006; the Veteran injured his right and left knees during the fall; the Veteran’s subsequent need for surgical intervention was the direct result of the June 2006 injury; the Veteran’s bilateral meniscus tears were the direct cause of his eventual need for bilateral total knee replacements; and the Veteran’s total knee replacements were a direct result of his June 2006 work injury. In rendering his opinion, Dr. D.M. considered the Veteran’s service treatment records documenting treatment for ankle injuries, as well as an April 1978 x-ray report that noted a history of a right knee problem secondary to an injury. Dr. D.M. also provided a detailed review of the Veteran’s medical history and post-service private treatment records. In addition, he referenced medical literature regarding the functions of the meniscus and traumatic arthritis. Moreover, in support of his opinion, Dr. D.M. stated that it was apparent that rotational and torsional forces were applied to the Veteran’s knee during his June 2006 fall. He explained that the Veteran’s attempt to backpedal as he fell backwards would be a classic mechanism of terror in the posterior horn region. Dr. D.M. concluded that, without any question, the Veteran tore the posterior horn regions of the medial meniscus of both knees secondary to a classic mechanism needed to tear such regions. Dr. D.M. further opined that, once the Veteran tore his meniscus, there was the inevitable result of accelerated traumatic arthritis of both knees. Thereafter, he stated that the combination of the Veteran’s excessive weight and the essential absence of the entire medial meniscus resulted in acceleration of traumatic arthritis. In fact, at the time of the Veteran’s arthroscopic surgeries both of his knees revealed damage to the articular surfaces that may have occurred secondary to the shear force across his knee joint when he twisted his knee attempting not to fall. The Board finds that the private medical opinion from Dr. D.M. is highly probative on this matter. Dr. D.M. considered the Veteran’s medical history, provided a medical opinion with supporting rationale, and relied on his own knowledge, training, and expertise. His medical opinion is also consistent with the evidence of record. Moreover, there are no contrary medical opinions of record regarding secondary service connection. The Board does acknowledge that a December 2013 VA examiner provided a negative nexus opinion regarding the Veteran’s bilateral knee disorders. However, the examiner’s supporting rationale relied largely on the lack of post-service documented medical evidence of chronic knee pain. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Therefore, the opinion has limited probative value. Moreover, the examiner did not provide an opinion as to whether the Veteran’s bilateral knee disorders are secondary to his service-connected ankle disabilities. Based on the foregoing, and resolving any reasonable doubt in favor of the Veteran, the Board concludes that service connection for bilateral knee arthritis status-post total knee replacements is granted. REASONS FOR REMAND Regarding the claim for service connection for type II diabetes mellitus, the Veteran has not been afforded a VA examination. A May 2010 VA primary care record noted that the Veteran was borderline diabetic and that he reported gaining weight as a result of his knee injuries. An April 2014 VA medical record also noted that the Veteran was unable to exercise due to his knee disorders. Subsequent VA medical records note diagnoses of type II diabetes mellitus. Therefore, the Board finds that an opinion is needed to obtain a VA medical opinion as to whether the Veteran’s obesity was an “intermediate step” between his type II diabetes mellitus and service-connected disabilities. The Board also notes that a September 2017 private medical opinion indicated that the Veteran receives disability benefits from the Social Security Administration (SSA). It is unclear whether these records may be relevant to the claim on appeal. Therefore, the Agency of Original Jurisdiction (AOJ) should attempt to obtain any available records from the SSA. The matter is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his type II diabetes mellitus that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. The AOJ should obtain a copy of any decision to grant or deny SSA benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file should be properly documented as to the unavailability of those records. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any type II diabetes mellitus that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should state whether it is at least as likely as not that any current type II diabetes mellitus manifested in or is otherwise causally or etiologically related to the Veteran’s military service. In addition, the examiner should address whether the Veteran’s obesity was an intermediate step between his service-connected bilateral ankle and knee disabilities and any current diabetes mellitus. In so doing, the examiner should state whether it is at least as likely as not that the Veteran’s service-connected ankle and knee disabilities caused him to become obese or gain weight. If so, the examiner should provide an opinion as to whether the obesity was a substantial factor in causing the Veteran’s diabetes mellitus. He or she should also provide an opinion as to whether the Veteran’s diabetes mellitus would not have occurred or worsened but for the weight gain caused by his service-connected bilateral ankle and knee disabilities. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. The AOJ should review the examination report to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Wulff, Associate Counsel