Citation Nr: 18154492 Decision Date: 11/30/18 Archive Date: 11/29/18 DOCKET NO. 15-00 129 DATE: November 30, 2018 ORDER Service connection for a left knee disability is denied. Service connection for a right knee disability is denied. Service connection for a left leg soft tissue infection is denied. Service connection for gout is denied. Service connection for a bilateral hip disability is denied. Service connection for an acquired psychiatric disability to include dysthymic disorder is denied. Service connection for hypertension is denied. Service connection for a kidney disability is denied. Service connection for diabetes mellitus is denied. FINDINGS OF FACT 1. A left knee disability did not have its onset in and is not otherwise related to service, and was neither caused nor aggravated by a service-connected disability. 2. A right knee disability did not have its onset in and is not otherwise related to service, and was neither caused nor aggravated by a service-connected disability. 3. A left leg soft tissue infection did not have its onset in and is not otherwise related to service, and was neither caused nor aggravated by a service-connected disability. 4. Gout did not have its onset in and is not otherwise related to service, and was neither caused nor aggravated by a service-connected disability. 5. A bilateral hip disability did not have its onset in and is not otherwise related to service, and was neither caused nor aggravated by a service-connected disability. 6. An acquired psychiatric disability to include dysthymic disorder did not have its onset in and is not otherwise related to service, and was neither caused nor aggravated by a service-connected disability. 7. Hypertension did not have its onset in and is not otherwise related to service, nor did it manifest to a compensable degree within one year of service. 8. A kidney disability did not have its onset in and is not otherwise related to service, and was neither caused nor aggravated by a service-connected disability. 9. Diabetes mellitus did not have its onset in and is not otherwise related to service, nor did it manifest to a compensable degree within one year of service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 2. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310(a). 3. The criteria for service connection for a left leg soft tissue infection are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310(a). 4. The criteria for service connection for gout are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310(a). 5. The criteria for service connection for a bilateral hip disability are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 3.310(a). 6. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310(a). 7. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310(a). 8. The criteria for service connection for a chronic kidney condition are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310(a). 9. The criteria for service connection for type two diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from March 1975 to May 1976. This case is before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. 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 arthritis, hypertension, and diabetes mellitus, 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). 1. Entitlement to Service Connection for a Left Knee Disability The Veteran contends that he has a left knee disability caused by an in-service football injury in service. The Board concludes that the preponderance of the evidence is against finding that the Veteran has a left knee disability that had its onset in service or is otherwise related to service, or that left arthritis manifested to a compensable degree within the initial post separation year. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). Service treatment records (STRs) reflect that the Veteran sustained a left knee injury playing football in 1975. X-ray showed no findings for arthritis. An April 1976 service separation examination reflects normal clinical evaluation of the lower extremities was normal and the Veteran reported that “I am in good health.” On the history part of that exam, the Veteran denied swollen or painful joints, bone/joint deformity, and arthritis/rheumatism/bursitis. Knee pain is first documented many decades after service separation. VA treatment records from July and December 2003 reflect a seven- to eight-year history of gout, beginning with the right elbow and wrist and later involving the knees, ankles, and feet. A December 2003 record reflects an impression of chronic gouty arthritis with secondary degenerative arthritis. Treatment records in March 2005 and July 2009 reveal worsening gout of the knees with emergency room visits for pain, swelling, and loss of mobility. A January 2005 VA treatment note reflects that the Veteran has rheumatoid arthritis. A March 2005 VA treatment note shows bilateral knee pain for 1.5 weeks, which was assessed as related to his gout. Degenerative joint disease of the left knee shown in 2010 resulted in left total knee replacement. The Veteran, although competent to report his injury and symptoms, is not competent to link his disability shown decades after active service to his in-service left knee injury. See Jandreau v. Nicholson, 492 F.3d. 1372 (2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (although it is error to categorically reject a non-expert opinion as to etiology, or nexus, not all questions of nexus are subject to non-expert opinion; whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case). To the extent that the Veteran reports continuity of symptoms since the injury and post service diagnosis/findings for left knee disability, the Board is not persuaded of the statements credibility in view of the normal clinical evaluation on service separation examination in April 1976 and the many decades intervening service and the first documented complaints of symptoms. Therefore, the Veteran’s statements have diminished probative value in this matter. The Board has considered the January 2013 VA medical opinion that bilateral knee disability was due to the Veteran’s in-service injury. Instead of a rationale, the examiner made a general statement that “Abnormal gait dynamics due to injuries can result in arthritis in other weight bearing joints.” The Board finds that the medical opinions has diminished probative value because it is unsupported by a complete medical explanation for the conclusion reached. See Sklar v. Brown, 5 Vet. App. 140 (1993) (the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion). In this regard, the examiner does not cite to any specific history or findings for gait abnormalities and ignored normal service separation examination coupled with the many decades intervening service and the first documented complaints of left knee problems. The examiner did not discuss any medical records or history in support of the conclusion reached. As such, it has diminished probative value. It is noted that the credibility and weight to be attached to medical opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). In this case, the Board assigns greater probative value to the March 2013 and November 2014 VA medical opinions, which are supported by a complete rationale. These opinions concluded that the Veteran’s left knee disability was not related to his in-service left knee injury. The March 2013 examiner opined that the Veteran’s in-service injury was likely acute, since a contemporaneous x-ray was normal and his separation examination was normal. The examiner also noted that the Veteran’s current joint problems were not local, but systemic—namely gout. Therefore, the examiner concluded that it was more likely that the Veteran’s current left knee disability was a manifestation of his gout rather than a residual of his in-service injury. The November 2014 VA medical opinion concurred for similar reasons, noting in addition that STRs revealed no residual symptoms after the initial injury, and no chronic knee condition was noted in the Veteran’s post-service medical records. In addition to the unfavorable VA medical opinions, the Board assigns greater probative value to the normal clinical evaluation on service separation examination in Apri 1976 coupled with the many decades intervening service and the first documented complaints and findings. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact). On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. See 38 U.S.C. § 5107(b). 2. Entitlement to service connection for gout 3. Entitlement to service connection for left leg soft tissue infection. 4. Entitlement to service connection right knee disability 5. Entitlement to service connection for bilateral hip disability 6. Entitlement to service connection for an acquired psychiatric disability to include dysthymic disorder. Issues 2-6. The Veteran contends that his gout, left leg soft tissue infection, right knee disability, bilateral hip disability, and psychiatric disorder are conditions secondary to his left knee disability. See May 2010 Statement in Support of Claim. The Board concludes that the preponderance of the evidence is against the claims for service connection because the claimed disabilities did not have their onset in service and are not otherwise related to service, including left knee injury. Also, arthritis is not shown to a compensable degree within the initial post separation year. Moreover, as the Veteran is not service connected for left knee disability (or any other disability), service connection on a secondary basis is not warranted. STRs reflect no complaints or findings for gout, left leg soft tissue infection, right knee disability, bilateral hip disability, and psychiatric disorder. April 1976 service separation examination reflects normal clinical evaluation for all system (except for a scar on hand) and the Veteran reported “I am in good health.” On the history part of that exam, the Veteran denied swollen or painful joints, bone/joint deformity, arthritis/rheumatism/bursitis, and frequent trouble sleeping, depression/excessive worry, and nervous trouble. The first indication of the claimed disabilities is decades after service. The Veteran, although competent to report his injury and symptoms, is not competent to link his currently shown disabilities, shown decades after active service, to his period of active service, including his in-service left knee injury. See Jandreau supra. Therefore, the Veteran’s statements have diminished probative value in this matter. Competent evidence has not been presented linking the claimed disabilities to an in-service disease, injury or event. Competent evidence has not been presented showing arthritis to a compensable degree within the initial post separation year. Hence, on balance, the weight of the evidence is against the claims for service connection for gout, left leg soft tissue infection, right knee disability, bilateral hip disability, and psychiatric disorder. Accordingly, these claims are denied. There is no doubt to resolve. 38 U.S.C. § 5017(b). 7. Entitlement to Service Connection for Hypertension The Veteran contends that his hypertension had its onset during his active service. The Board concludes that the preponderance of the evidence is against the claim. Hypertension did not have its onset in service and is not otherwise related to service; also, hypertension did it manifest to a compensable degree within one year of service. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. Hypertension is first documented decades after service separation around September 2002. Although STRs reflect elevated blood pressure readings, STRs reflect no diagnosis for hypertension. Moreover, April 1976 service separation examination reflects normal cardiovascular system. March 2013 and November 2014 VA medical opinions further reflect that the Veteran’s hypertension did not have its onset in service. The examiners observed that the Veteran’s blood pressure readings in service did not meet the definition of hypertension for VA purposes. In particular, a five-day course of blood pressure readings taken at the time of the Veteran’s separation examination yielded an average result of ~132/84, within normal limits for VA purposes. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). In a May 2010 statement, the Veteran indicated that he believed his hypertension may be secondary to stress caused by his left knee disability. The Veteran’s report of stress subsequently resulted in a diagnosis of dysthymic disorder. Before that time, a March 2011 VA examiner opined that the Veteran’s hypertension was not secondary to stress, because although stress can cause temporary elevation of blood pressure, it is not likely to cause chronic elevation. The medical opinion is more probative than the Veteran’s unsubstantiated opinion as it was prepared by a skilled, neutral medical professional with consideration of the Veteran’s medical history and review of the claims file. Whereas, the Veteran lacks the requisite medical expertise and the etiology of his condition is not susceptible to lay observation. Because the Veteran has no service connected disabilities, the applicable laws pertaining to secondary service connection are not for application. 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). 8. Entitlement to service connection for a chronic kidney condition. The Veteran claims that his kidney condition was caused by his hypertension. The Board concludes that the preponderance of the evidence is against the claim. A kidney disability did not have its onset in service and is not otherwise related to service. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). Kidney disability is first documented decades after service separation. STRs reflect no complaints or findings for abnormal kidney pathology. An April 1976 service separation examination reflects normal clinical evaluation. The Veteran, although competent to report his symptoms, is not competent to link his currently shown kidney disorder, shown decades after active service, to his period of active service. See Jandreau supra. Therefore, the Veteran’s statements have diminished probative value in this matter. He has not presented a favorable medical opinion to weigh in this matter. Because the Veteran has no service connected disabilities, the applicable laws pertaining to secondary service connection are not for application. 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). 9. Entitlement to Service Connection for Type Two Diabetes Mellitus The Veteran contends that his high blood pressure caused his kidneys to become weak, which caused his diabetes. The Board concludes that the preponderance of the evidence is against the claim. Diabetes mellitus did not have its onset in service and is not otherwise related to service; also, it is not shown to have manifested to a compensable degree within the initial post separation year. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. Diabetes mellitus is first documented decades after service separation. STRs reflect no complaints or findings for diabetes. An April 1976 service separation examination reflects normal clinical evaluation. The Veteran, although competent to report his symptoms, is not competent to link his currently shown diabetes mellitus, shown decades after active service, to his period of active service. See Jandreau supra. Therefore, the Veteran’s statements have no probative value in this matter. He has not presented a favorable medical opinion to weigh in this matter. Because the Veteran has no service connected disabilities, the applicable laws pertaining to secondary service connection are not for application. 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). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Timmerman, Associate Counsel