Citation Nr: 18156746 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-59 439 DATE: December 11, 2018 ORDER Entitlement to service connection for a back condition is granted. Entitlement to service connection for hypertension, claimed as high blood pressure, is denied. REMANDED Issue of entitlement to service connection for left knee arthritis, claimed as bilateral knees, is remanded. Issue of entitlement to service connection for right knee arthritis, claimed as bilateral knees is remanded. Issue of entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. Resolving any reasonable doubt in the Veteran’s favor, the evidence supports that the Veteran’s current back condition was incurred in or is otherwise related to service. 2. The preponderance of the evidence is against finding hypertension, claimed as high blood pressure, was incurred in or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back condition are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2017). 2. The criteria for entitlement to service connection for hypertension, claimed as high blood pressure, are not met. 38 U.S.C. §§ 1110, 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to November 1971. This appeal to the Board of Veterans’ Appeals (Board) arose from a May 2012 rating decision issued by the Department of Veterans Affairs (VA). See January 2013 Notice of Disagreement (NOD); October 2016 Statement of the Case (SOC); November 2016 Substantive Appeal (VA Form 9). Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for a veteran who served for at least 90 days during a period of war or after December 31, 1946, certain chronic diseases, such as the Veteran’s back condition, that manifest to a compensable degree within one year after discharge from active duty, shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such diseases during the period of service. See 38 U.S.C. §§ 1101(3), 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, if a chronic disease listed at 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a) is noted during service or the presumptive period, but not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a back condition. The Veteran asserts that he injured his back in service from jumping out of planes in Vietnam and while playing basketball. See September 2011 VA Form 21-4138; November 2016 Form 9. The Board finds the Veteran has a current disability of a back condition, diagnosed as degenerative arthritis, and the evidence supports he injured his back playing basketball during service. See December 1967 Service treatment records; December 2011 VA examination; September 2011 VA Form 21-4138. The question remaining for the Board is whether the Veteran’s current back condition manifested in service, or if there is otherwise a medical link between the Veteran’s current back condition and service. Resolving any reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s current back condition was incurred in service. Service treatment records show the Veteran was treated for low back pain in service. See December 1967 Service treatment record. The Veteran was hospitalized for eight days due to a sudden onset of back pain while playing basketball and stated that he could not stand because of weakness in his right leg. Id. He also related to prior back trouble during service. Id. Back x-rays showed no significant abnormality and the Veteran’s walking ability improved, but a mild limitation of forward flexion was still noted on discharge from the hospital. Id. The evidence shows the Veteran did not seek treatment for his back again until injury at work in 1979, in which a private treatment provider diagnosed a lumbar disc problem. See March 1988 Private treatment records. The Veteran injured his back again in March 1988 and imaging evidence showed degenerative disc disease and disc herniation in his lumbar spine. Id. The medical treatment evidence for the Veteran’s in service back injury discussed above is consistent with the Veteran’s assertions that he had back problems due jumping out of planes and then later experience an acute back injury from playing basketball. While the evidence does not show the Veteran sought treatment for his back again until 1979, a lay statement from Veteran’s spouse indicates that she has observed the Veteran having back problems that caused him to crawl to the bathroom and prevent him from doing certain things. See March 1988 Private treatment record; September 2011 VA Form 21-4138. The Board finds the Veteran’s spouse’s statement credible and probative as she was married to the Veteran while he was in service, so had the opportunity to observe his back symptoms at that time. See Military Personnel Record, received June 2011. Her statement is also consistent with the Veteran’s assertions and the service treatment records. The Board acknowledges that the December 2011 VA examiner opined it could not be determined without resorting to speculation as to whether the Veteran’s current back condition is at least as likely as not related to service. See December 2011 VA examination. The VA examiner’s rationale is that, while the evidence shows a December 1967 in service back injury, during his February 1988 back injury, he related to having back problems since 1979 and did not mention his in service injury. See id. Because of this, the VA examiner opined that it would be speculation to say whether the Veteran’s current back condition is due to his in service back injury in 1967 or his post service injury in 1979. See id. The VA examiner is a qualified medical professional, but the Board finds the opinion less probative as it is neither a negative or positive medical nexus opinion. In addition, the VA examiner’s opinion does not indicate how the Veteran’s lay statement about having back problems from jumping out of planes prior to his 1967 back injury was considered. On the balance, the Board finds that the evidence raises a reasonable doubt as to whether the Veteran’s current disability of a back condition had its onset in service or due to an injury or event after service. As noted by the December 2011 VA examiner, there is evidence suggesting that his current back condition is due to injuries after separation from service. However, the lay statements and service treatment records weigh in favor of the Veteran’s claim as they point toward a finding that the initial onset of the Veteran’s back condition was of service origin and identify a continuity of symptomatology. In resolving reasonable doubt in the Veteran’s favor, the Board finds that the evidence is in at least relative equipoise and, therefore, supports finding the Veteran’s current disability of a back condition was incurred in service. 2. Entitlement to service connection for hypertension, claimed as high blood pressure. The Veteran asserts that his hypertension, claimed as high blood pressure, began in July 2003. See June 2011 VA Form 21-526. The Board finds that hypertension is a current disability. See June 2010 Private treatment record. Here, the question for the Board is whether the Veteran’s hypertension was incurred in or is otherwise related to service. The Board finds that the preponderance of the evidence is against finding that the Veteran’s hypertension was incurred in or is otherwise related to service. The Veteran asserts in his claim that his hypertension began in July 2003, which is more than 30 years after he separated from service. See November 1971 DD Form 214; June 2011 VA Form 21-526. This is consistent with the Veteran’s service treatment records showing no treatment or complaint about high blood pressure. The earliest evidence for a hypertension diagnosis is in October 2005. See October 2005 Private treatment record. As the lay and medical evidence is against finding an in service incurrence or aggravation of the Veteran’s hypertension, claimed as high blood pressure, the Board finds that service connection is not warranted. REASONS FOR REMAND 1. Issue of entitlement to service connection for left and right knee arthritis is remanded. The Board cannot make a fully-informed decision on the issue of service connection for the Veteran’s left or right knee arthritis because no VA examiner has opined whether the Veteran’s current left or right knee arthritis was at least as likely as not incurred in or related to the Veteran’s lay statements he injured his knees in service jumping out of planes and helicopters with 50 to 60 pounds of equipment and running for miles in combat boots. See September 2011 VA Form 21-4138; November 2016 Form 9. The Board finds that the Veteran has a current disability of left and right knee arthritis. See December 2011 VA examination. The Board also finds that the Veteran’s statements about jumping out of planes and helicopters, and running for miles, is consistent with his military occupational speciality as an infantryman and the place, type, and circumstances of his service. See November 1968 and Novemer 1971 DD Form 214. The Veteran was afforded a January 2012 VA examination to determine if there is a medical nexus between his current left and right knee arthritis and service, but the Board finds the VA examiner’s opinion needs clarification. The VA examiner opined that the Veteran’s current knee condition is less likely than not related to service and cited the lack of service medical records about a knee injury or condition as the only rationale. See December 2011 VA examination. It is unclear how the Veteran’s lay statements about injuring his knees from jumping out of planes and helicopters and running for miles was considered. Moreover, lay statements cannot be found as not credible merely because it is unaccompanied by contemporaneous medical evidence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board, thus, finds a remand is needed for a more detailed rationale that specifically considers the Veteran’s lay statements. 2. Issue of entitlement to service connection for PTSD is remanded. The Board cannot make a fully informed decision on the issue of service connection for PTSD because no VA examiner has opined on whether the Veteran’s symptoms meet the criteria for PTSD under the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V). The December 2011 VA examiner opined that there is no diagnosis of PTSD as the Veteran’s symptoms do not meet the diagnostic criteria for PTSD under the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). However, as the Veteran’s claim was pending before the Agency of Original Jurisdiction (AOJ) after August 2, 2014. See October 2016 SOC. Therefore, whether the Veteran’s symptoms meet the criteria for PTSD in the DSM-V must also be considered. See Fed. Reg. 14, 308 (Mar. 19, 2015). The Board, thus, finds that remand is needed to evaluate whether the Veteran has a current disability of PTSD under the criteria in the DSM-IV and DSM-V. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the provider(s) of any evaluations and/or treatment received for mental health symptoms, to specifically include PTSD, and provide authorizations for VA to obtain records of any such private treatment. Obtain complete clinical records of all pertinent evaluations and treatment (records of which are not already associated with the claims file) from the providers identified. If any records sought are unavailable, the reason for their unavailability must be noted in the claims file. If a provider does not respond to VA’s request for the identified records sought, the Veteran must be so notified and reminded that it is ultimately his responsibility to ensure that private treatment records are received. 2. Obtain an addendum opinion from an appropriate medical professional to determine the nature and cause of the Veteran’s left and right knee arthritis. If the medical professional determines that it is necessary, schedule the Veteran for a VA examination regarding the etiology of his left and right knee arthritis. The medical professional should respond to the following: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s left or right knee arthritis began in (or is otherwise related to) the Veteran’s military service? The examiner should consider and discuss the Veteran’s lay testimony and assertions regarding any pertinent complaints and symptoms. The examiner should specifically consider the Veteran’s statements that he injured his knees from jumping out of planes and helicopters, and from running miles in combat boots. A detailed explanation (rationale) is requested, including citing to supporting clinical data (and/or medical literature), as appropriate. If his left or right knee arthritis is deemed to be unrelated to service, the examiner should, if possible, identify the cause(s) considered more likely and explained why that is so. 3. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD). The examiner should consider the Veteran’s symptoms for the entire period on appeal, from June 2011 to present, and under the criteria in DSM IV and DSM V. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in service stressor. If the Veteran is diagnosed with a personality disorder and PTSD - The examiner must opine whether the PTSD was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the Veteran’s lay statements that he was fired on by snipers, being pinned down next to a person who was shot, and having grenades so close to him he could feel the percussion of the blast. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lin, Associate Counsel