Citation Nr: 18156943
Decision Date: 12/11/18	Archive Date: 12/11/18

DOCKET NO. 17-05 886
DATE:	December 11, 2018
ORDER
1. Entitlement to service connection for left foot hallux rigidus is granted.
2. Entitlement to a compensable initial rating for hypertension (HTN) is denied.
REMANDED
Entitlement to service connection for a left knee disability is remanded.
Entitlement to service connection for residuals of an aneurysm is remanded.
Entitlement to service connection for scars is remanded.
Entitlement to service connection for a traumatic brain injury (TBI) and residuals is remanded.
Entitlement to a compensable initial rating for degenerative joint disease of the right first metatarsal phalangeal joint status post total joint replacement with a metal prosthesis, claimed as right foot degenerative disease, is remanded.
Entitlement to a compensable initial rating for lumbar disc degeneration is remanded.
Entitlement to a 10 percent evaluation based on multiple, noncompensable, service-connected disabilities is remanded.
FINDINGS OF FACT
1. The Veteran has left foot hallux rigidus that had its onset in service.
2. The Veteran’s service-connected HTN requires the regular use of prescribed medication; symptoms have not more nearly approximated predominant diastolic blood pressure of 100 or more, or a predominant systolic blood pressure of 160 or more.
CONCLUSIONS OF LAW
1. The criteria for service connection for left foot hallux rigidus have been met.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.
2. The criteria for a compensable rating for service-connected HTN have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from September 1986 to October 2009.
These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).
Service Connection
Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two.  Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018).  Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).
In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”).
“Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”)).
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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990)
1. Entitlement to service connection for a left foot disability
The Veteran contends that he has a left foot disability related to service.
Service treatment records (STRs) in May 2004 reflect early stages of degenerative disease in the left foot and a diagnosis of left foot hallux rigidus.
An October 2013 VA examination report documents that the Veteran underwent surgery for right hallux rigidus in 2004, and that his was having mild symptoms in his left foot similar to those he had in the right foot prior to surgery. The examiner noted that the Veteran’s left metatarsophalangeal joint (MTP) had limited range of motion, and passive flexion and extension elicited mild discomfort. X-rays showed mild hallux rigidus.
Based on the evidence of record, the Board finds that service connection for left hallux rigidus is warranted. As an initial matter, the above evidence reflects that Veteran meets the first and second prongs for service connection as to current disability and in-service disease.
While there is no medical opinion linking the Veteran’s current left hallux rigidus to his in-service hallux rigidus, the Board notes that the Veteran’s symptoms and diagnosis have been continuous since service. Thus, the evidence reflects that left hallux rigidus manifested in service and persisted since that time. In consideration of the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for left hallux rigidus have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”).


Increased Rating
2. Entitlement to a compensable initial rating for HTN 
Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3.
The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999).
The Veteran’s hypertension has been assigned a noncompensable evaluation under 38 C.F.R. § 4.104, DC 7101. Under that DC, a 10 percent evaluation is warranted where diastolic blood pressure is predominantly 100 or more, or systolic blood pressure is predominantly 160 or more, or when an individual with a history of diastolic blood pressure predominantly 100 or more requires continuous medication for control. A 20 percent evaluation is warranted where diastolic blood pressure is predominantly 110 or more, or systolic blood pressure is predominantly 200 or more. A 40 percent evaluation is warranted where diastolic pressure is predominantly 120 or more, and a 60 percent evaluation is warranted where diastolic blood pressure is predominantly 130 or more. 38 C.F.R. § 4.104.
Post-service treatment records in June 2011 reflect a blood pressure reading of 126/76. In a September 2013 VA examination report, the Veteran’s blood pressure reading was 130/70, and the examiner noted that the Veteran had been on medication since 2004 and very rarely had diastolic blood pressure elevation predominantly of 100 or more.  
For the following reasons, a compensable rating is not warranted. While the Veteran is on continuous medication to control his hypertension, the evidence of record does not demonstrate any findings of diastolic pressure of 100 or more, or systolic pressure of 160 or more. See McCarroll v. McDonald, 28 Vet. App. 276 -77 (2016) (Board may properly consider ameliorative effects of blood pressure medication). As such, the criteria for a 10 percent, or higher, evaluation are not met at any time during the appeal period. 
The Board notes that the Veteran contends that his examination was inadequate because it was conducted in Spain, and the examiners were Spanish-speaking and there was a language barrier between them. However, the rating criteria for HTN rely solely on the numerical values of blood pressure readings, and does not rely on any spoken communication between the Veteran and the examiners. Therefore, the Board does not find that the September 2013 VA examination was inadequate as it pertains to the claim for increased rating for HTN.
The Board has considered the Veteran’s claim for increased rating for HTN disability and decided entitlement based on the evidence.  The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).
REASONS FOR REMAND
1. Entitlement to service connection for a left knee disability is remanded.
The Veteran contends that he has a left knee disability that was incurred in service.
STRs in January 2007 reflect left knee pain for one week while running. In February 2007, the Veteran continued to experience left knee pain while jogging and with extremes of motion and twisting. There was some catching on the medial area of the knee with straightening, some swelling at the medial joint line, and pain with palpation. The examiner assessed internal derangement of the knee medial meniscus.
An October 2013 VA examination report found normal range of motion of the knee with no pain, no meniscus injuries and no swelling. The examiner did not provide an opinion.
The Board finds that a remand is required to obtain a medical opinion in regard to the Veteran’s claim for a left knee disability. While the October 2013 VA examiner found that there was normal range of motion of the left knee, he did not address whether the Veteran had a diagnosis or the Veteran’s statements that he continued to experience left knee pain.  Significantly, the Court has held that a compensable rating is warranted for joint pain pursuant to 38 C.F.R. § 4.59 for orthopedic disabilities rated under diagnostic codes containing a compensable rating.  Sowers v. McDonald, 27 Vet. App. 472, 480 (2016); Petitti v. McDonald, 27 Vet. App. 415, 428-29 (2015).
Thus, a new VA examination is necessary to address the nature and etiology of any left knee disability. See Barr v. Nicholson, 21 Vet. App. 30 (2007) (holding that once VA undertakes the effort to provide an examination or obtain medical opinion, it must ensure that one is provided or obtained that is adequate for the determination being made).
2. Entitlement to service connection for residuals of an aneurysm and TBI is remanded.
The Veteran contends that he has residuals of an aneurysm and/or TBI that was incurred during service.
STRs in March 1994 reflect that the Veteran had a head injury on February 21, 1994, while playing baseball. He had a concussion with loss of consciousness for approximately three to five minutes, but he had no neurological deficit since then. The specialist found that he now had an aneurysm of the anterior branch of the right superficial temporal artery, which would require ligation of the artery to prevent progressive enlargement of the aneurysm. In January 2007, the Veteran complained of constant headaches that had been ongoing for three weeks, with no change in behavior, or loss of functional motor or sensation. A February 2007 magnetic resonance imaging (MRI) of the head was unremarkable, and computerized tomography (CT) of the head was normal. 
A September 2013 TBI VA examination documents no TBI or residuals of TBI. The examiner noted the Veteran’s February 1994 in-service head injury with superficial temporary artery aneurysm, which was removed surgically. However, he noted that after this procedure, the Veteran’s only residual was occasional pain when he touched the scar in this area.
In his December 2016 substantive appeal, the Veteran explained that his VA examinations were conducted in Madrid, Spain, by Spanish-speaking physicians. He stated that the language barrier did not allow the examiners to fully comprehend his explanations of his medical issues. He requested to have a new VA examination in the United States so he could fully explain his medical conditions. As such, the Board finds that a remand for a new VA examination conducted in the United States is necessary to properly address the nature and etiology of the Veteran’s claims. Barr, 21 Vet. App. at 30.
3. Entitlement to service connection for scars is remanded.
The Veteran contends that he has scars that were incurred in or due to service.
STRs reflect a left ankle scar in July 1986 and a left knee scar in August 1987.
A post-service September 2013 VA examination report documents a scar on the Veteran’s temple from his in-service superficial temporary artery aneurysm. In October 2013, a VA examiner noted a scar on the Veteran’s right shoulder from an in-service surgery.
However, the Board notes that the Veteran has not been afforded a VA examination for his scars, and that it is not clear how many scars the Veteran has and whether any scar is related to service or a service-connected disability. As such, a remand for a VA examination to address the nature and etiology of the Veteran’s scars is necessary. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).
4. Entitlement to a compensable initial rating for degenerative joint disease of the right first metatarsal phalangeal joint status post total joint replacement with a metal prosthesis, claimed as right foot degenerative disease is remanded.
The Veteran’s right foot disability is currently rated as noncompensable.
The Board notes that the Veteran was provided a VA examination for his right foot in September 2013.  The examiner noted that the Veteran underwent surgery for hallux rigidus, total joint replacement right MTP joint, with good outcome. He noted there were no symptoms due to hallux rigidus, but that the Veteran had limited but painless range of motion in the right foot. 
The Board finds the VA examination to be inadequate because it does not include range of motion findings for passive range of motion, nor specified whether the results were weight-bearing or nonweight-bearing.  See Correia v. McDonald, 28 Vet. App. 158 (2016).  Further, the VA examiner “failed to ascertain adequate information—i.e., frequency, duration, characteristics, severity, or functional loss—regarding his flares by alternative means” and then “estimate the Veteran’s functional loss due to flares based on all the evidence of record—including the Veteran’s lay information.”  Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017).  As noted by the Court in Sharp, such findings are contemplated by the VA Clinician’s Guide.  As such, a new VA examination is necessary to properly assess the severity of the Veteran’s right knee disability as pertaining to the Veteran’s functional limitations and additional limitation of motion due to flare-ups.
5. Entitlement to a compensable initial rating for lumbar disc degeneration is remanded.
The Veteran’s lumbar disc degeneration is currently rated as noncompensable.
The Board notes that the Veteran was provided a VA examination for his lumbar spine in September 2013.  The examiner noted range of motion of flexion to 80 degrees, with pain at 60 degrees; no additional limitation in range of motion due to repetitive use; and tenderness under firm pressure at the lumbar spine. There was normal muscle strength testing, deep tendon reflex, and sensory examination. The examiner found no radiculopathy, albeit the Veteran experienced mild intermittent pain in the bilateral lower extremity. There were no other neurological symptoms and no IVDS. 
The Board finds the VA examination to be inadequate because it does not include range of motion findings for passive range of motion, nor specified whether the results were weight-bearing or nonweight-bearing.  See Correia, 28 Vet. App. at 158.  Further, the VA examiner “failed to ascertain adequate information—i.e., frequency, duration, characteristics, severity, or functional loss—regarding his flares by alternative means” and then “estimate the Veteran’s functional loss due to flares based on all the evidence of record—including the Veteran’s lay information.”  Sharp, 29 Vet. App. 26, 33.  As such, a new VA examination is necessary to properly assess the severity of the Veteran’s right knee disability as pertaining to the Veteran’s functional limitations and additional limitation of motion due to flare-ups.
6. Entitlement to a 10 percent evaluation based on multiple, noncompensable, service-connected disabilities is remanded.
The Board notes that the decision herein remanded for additional development the Veteran’s claims for service connection for left knee disability, aneurysm, TBI, and scars; as well as increased ratings for a right foot disability and lumbar spine disability, which may impact adjudication of the claim for entitlement to a 10 percent evaluation based on multiple noncompensable service-connected disabilities.  Consequently, these claims are inextricably intertwined.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).  Thus, adjudication of the claim must be remanded as well.
The matters are REMANDED for the following action:
1. Schedule the Veteran for a VA examination addressing the nature and etiology of his left knee disability.  The examiner should be provided with the Veteran’s claims file, including a copy of this REMAND.
The examiner should address whether any left knee disability is at least as likely as not (i.e., a 50 percent or greater probability) related to or incurred in service, to include his in-service diagnosis of internal derangement of the knee medial meniscus.
The examiner must provide a complete rationale upon which his or her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion.
2. Schedule the Veteran for a VA examination addressing the nature and etiology of his residuals of an aneurysm and/or TBI.  The examiner should be provided with the Veteran’s claims file, including a copy of this REMAND.
The examiner should address whether any residuals of an aneurysm and/or TBI is at least as likely as not (i.e., a 50 percent or greater probability) related to or incurred in service, to include his in-service February 1994 head injury and subsequent aneurysm of the anterior branch of the right superficial temporal artery.
The examiner must provide a complete rationale upon which his or her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion.
3. Schedule the Veteran for a VA examination addressing the nature and etiology of his scars.  The examiner should be provided with the Veteran’s claims file, including a copy of this REMAND.
The examiner should address whether any scar is at least as likely as not (i.e., a 50 percent or greater probability) related to or incurred in service, or due to or aggravated by his service-connected disabilities.
The examiner must provide a complete rationale upon which his or her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion.
4. Schedule the Veteran for a VA examination to determine the current severity of his right foot disability. The Veteran’s VA claims file and a copy of this Remand should be made available to, and should be reviewed by the examiner. All indicated tests and studies should be performed and findings reported in detail.  
The examiner should conduct the examination in accordance with the current disability benefits questionnaire, to include range of motion testing (expressed in degrees) in active motion, passive motion, weight-bearing, and nonweight-bearing consistent with 38 C.F.R. § 4.59 as interpreted in Correia, as well as the degree at which pain begins.
In addition, the examiner must address any additional functional impairment or limitation of motion due to flare-ups, even if the Veteran is not currently experiencing a flare-up. The examiner must ascertain adequate information—i.e., frequency, duration, characteristics, severity, or functional loss—regarding his flares by alternative means, such as the medical treatment records and the Veteran’s lay statements.  Such findings are consistent with the VA Clinician’s Guide.
5. Schedule the Veteran for a VA examination to determine the current severity of his lumbosacral spine disability. The Veteran’s VA claims file and a copy of this Remand should be made available to, and should be reviewed by the examiner. All indicated tests and studies should be performed and findings reported in detail.  
The examiner should conduct the examination in accordance with the current disability benefits questionnaire, to include range of motion testing (expressed in degrees) in active motion, passive motion, weight-bearing, and nonweight-bearing consistent with 38 C.F.R. § 4.59 as interpreted in Correia, as well as the degree at which pain begins.

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In addition, the examiner must address any additional functional impairment or limitation of motion due to flare-ups, even if the Veteran is not currently experiencing a flare-up. The examiner must ascertain adequate information—i.e., frequency, duration, characteristics, severity, or functional loss—regarding his flares by alternative means, such as the medical treatment records and the Veteran’s lay statements.  Such findings are consistent with the VA Clinician’s Guide.
 
Jonathan Hager
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	L. Leifert, Associate Counsel