Citation Nr: 18157266 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 10-40 444 DATE: December 12, 2018 ORDER Entitlement to service connection for a left hip disability is denied. Entitlement to an increased rating in excess of 10 percent for hypertension is denied. REMANDED Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to an initial rating in excess of 10 percent for degenerative changes of the lumbosacral spine with right sacroiliac joint dysfunction is remanded. Entitlement to service connection for a bilateral knee disability is remanded. FINDINGS OF FACT 1. A left hip disability, to include left hip arthritis, did not manifest in service, or within one year of separation, and is not otherwise attributable to service. 2. A left hip disability is unrelated (causation or aggravation) to a service-connected disease or injury. 3. The Veteran’s hypertension has been manifested by diastolic blood pressure of predominantly below 110 and by systolic pressure predominantly below 200. CONCLUSIONS OF LAW 1. A left hip disability, to include arthritis, was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. A left hip disability is not proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). 3. The criteria for a rating in excess of 10 percent for hypertension have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7101 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from July 1982 to November 1982 and active duty from April 2002 to May 2005. The Board remanded these matters in September 2014 and May 2016. The remands requested that a hearing be held, that additional VA and private treatment records be obtained, and that an examination be undertaken addressing the nature and etiology of the left hip. Additional VA and private treatment records were obtained. In addition, the Veteran submitted several statements to the effect that he sent to VA all the private medical treatment records that existed. The Veteran had an examination of the left hip, which addressed etiology. The Veteran asked that his hearing request be withdrawn and no hearing occurred. For these reasons, the Board’s prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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 or injury was incurred in service. 38 C.F.R. § 3.303(d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511–12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). Secondary service connection is warranted for disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. 38 C.F.R. § 3.310(b). For certain chronic diseases, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). 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). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Left hip The Veteran initially had left pain starting in March 2007, as explained below, with left hip arthritis identified in November 2016. The Veteran is separately service connected for right sacroiliac dysfunction, claimed as right hip pain, and bilateral pes planus and heel spurs with osteoarthritis. The Board has considered the theories raised either by the Veteran or the evidence of record, to include direct service connection, secondary service connection, and aggravation of a non-service-connected disability due to or the result of a service connected disease or injury. The Veteran has not contended, nor does the evidence of record show, a left hip disability occurred during the Veteran’s period of active duty for training in 1982. Service treatment records are partial and date from September 1981 to April 2005. Most of the medical records are periodic reserve records pre-dating the period of service from April 2002 to May 2005 as well as some dental records. In a letter dated September 2007, VA informed the Veteran of this and requested that the Veteran provide any records in his possession. The Veteran has stated several times in correspondence that he has submitted all the evidence in his possession. See, e.g., August 2017 and May 2018 statements from the Veteran. An October 2007 memorandum, formal finding of the unavailability of service records, determined that complete service medical records were unavailable, after all procedures to obtain service medical records were followed, all efforts to obtain these records exhausted, and further attempts would be futile. There is an individual sick slip and related service medical records dated in April 2004 stating the Veteran should not stand for more than one hour for several weeks due to heel pain and bilateral pes planus. A February 2005 VA treatment note reported the musculoskeletal system and extremities were normal. The Veteran filed a claim for his right foot on an application for compensation in May 2005, which made no mention of a left hip problem. A June 2005 VA podiatry consultation sheet reported heel pain, with no other problems. A June 2005 note from a private doctor, Dr. B. K., reported that the Veteran had pain on ambulation and pain on weight bearing due to plantar fasciitis and heel spurs bilaterally. Dr. B. K. submitted a separate statement noting changed gait due to spurs and that the Veteran developed injury of the achilles tendon and plantar fascia due to structural imbalance inherent in his foot type and gait and that the Veteran had been given custom orthotics. The Veteran filed a claim for a variety of disabilities, including generic joint pain, in November 2005. A March 2007 VA treatment record continued to report only flat feet and calcaneal spurs with feet and heel pain, with extremities showing no other trauma or edema. The comments section to this note only reported bilateral lower feet and heel tenderness to palpation. In a March 2007 statement, the Veteran first alleged a hip disability. VA and private treatment records also first report hip pain in March 2007, but the treatment records are contradictory regarding whether it was bilateral or only affected the right hip. The March 2007 VA treatment record notes pain to his hips bilaterally, progressively having gotten worse over the past couple of months. There are August 2007 and September 2009 VA treatment notes which also report pain was bilateral. VA treatment records from May, July, and December 2007 and August 2008, and a private treatment record from December 2007 state that pain was in the right hip, including after a physical examination in July 2007. A VA examination in April 2008 found full active range of motion in the left hip with the only noted issue being low back pain in straight leg testing, X-rays did not show any signs of degenerative joint disease, and the examiner did not find any issue relevant to the left hip. A September 2012 VA primary care nursing note reported that the Veteran was complaining of bilateral hip pain, worse on left, which the Veteran stated had occurred for the last seven years with progressive worsening. Assessment was musculoskeletal pain. A September 2012 VA treatment note reported left hip showed no significant radiographic findings, with a report showing two views of the left showed no significant degenerative changes, fracture, or dislocation, and other findings were within normal limits. Radiographs of the left hip in November 2016 showed no acute fracture or dislocation, mild joint space, sclerosis, and osteophytosis of the hip joint, with mild degenerative changes in the sacroiliac joint. Surrounding soft tissues were within normal limits. The Veteran had a VA examination in October 2017. As requested, the examiner identified the relevant pathology for the hip pain as left hip osteoarthritis, which was first documented in November 2016, and which X-rays showed was mild at the time of the VA examination. During the examination, ranges of motion and muscle strength testing were normal, with pain noted that did not result in or cause functional loss, and there was no ankylosis. The examiner stated that the Veteran’s pes planus and heel spurs did not cause or aggravate osteoarthritis of the left hip and osteoarthritis was age-and-use related. Therefore, the left hip was not caused or aggravated by the service connected disabilities (heel spurs or bilateral pes planus). The examiner found that a left hip disability was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. A June 2017 private opinion from a Dr. A.S. reported the Veteran had been diagnosed with hip pain, currently suffers from hip pain, and that this hip pain was a result of service in Iraq. Dr. A.S. reported review of records provided by the Veteran and noted that the Veteran has been disabled since 2006 due to his hip. There is ambiguity in the medical evidence of record, including the treatment records. If all the medical evidence is read to be consistent, the left hip pain started several months prior to March 2007 and existed sporadically for several years before becoming constant prior to the Veteran being diagnosed with left hip arthritis in November 2016. Otherwise, the evidence of record could be read as being contradictory, with the treatment documents prior to September 2012 being inconsistent with whether the pain was bilateral or solely on the right side. In any event, there was some evidence of bilateral hip pain starting in March 2007. Additionally, Dr. A.S.’s opinion also may appear at first to be ambiguous regarding which hip the opinion refers to. The word hip is not pluralized in Dr. A.S.’s opinion, therefore it is only referring to one hip. However, given the details of the opinion, it is referring to right hip pain. The opinion cites the fact that the Veteran has been disabled since 2006, which is a reference to a Social Security Administration (SSA) finding. The SSA records regarding disability report that the Veteran had only right hip pain, including on the physical residual functional capacity assessment, not left hip pain. Given the above, this opinion is regarding the right hip, which is service-connected. There are several documents, including a September 2012 VA primary care note and a November 2016 VA radiology note, reporting a history of hip pain dating back to the Veteran’s service. These are transcriptions of the Veteran’s statements, they do not reference any other document or record, report review of medical evidence, or state they are a medical opinion. A mere transcription of lay history, unenhanced by any additional medical comment, does not become competent medical evidence merely because the transcriber is a medical professional. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). As these can only be transcriptions of the Veteran’s statements, they are simply lay history and not medical opinions regarding duration of hip pain. The Veteran has stated that hip pain started in service in 2005 or earlier. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of a disability or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is competent to report pain and when pain started. However, such statements are not credible. Even accepting that the hip pain described in the VA medical evidence was bilateral, the earliest report of hip pain is in March 2007, about two years after service. The March 2007 VA treatment record reported pain was recent, having worsened over a couple of months, and not dating back two years to service. This is supported by a variety of treatment records and other documents prior to March 2007, including treatment records dated in June 2005, which reported heel pain, achilles tendonitis, and heel spurs, but no issues relevant to the left hip. The Veteran filed two claims prior to March 2007, neither of which state the Veteran at that time had a left hip disability, to include a painful hip, which he believed started in service. Therefore, the Veteran’s statements of in-service occurrence and continued pain since are not credible and contradict the other evidence of record. As such, while the Board has considered the Veteran’s lay statements, they do not outweigh the more probative medical evidence. The medical evidence notes pain started several years after service and contains statements and medical findings that the Veteran did not have or allege left hip pain in 2005 or 2006. Regarding whether the Veteran’s left hip disability was caused or aggravated by a service-connected disease or injury, the October 2017 VA examination report identified left hip pain as being attributable to arthritis, which itself was due to age and use, as opposed to being secondary or aggravated by a service connected disease or injury. While the Veteran is competent to report pain – as noted above – the Veteran is not competent to report his service-connected heel spurs or bilateral pes planus caused or aggravated his left hip disability, including left hip arthritis. A causal relationship between heel spurs or bilateral pes planus and a left hip disability is not a factual matter of which a lay person can have firsthand knowledge. The Veteran has not stated upon what basis such a statement has been made and there is no probative evidence showing heel spurs or bilateral pes planus caused the left hip disability. The Board finds that the VA medical opinion and other medical evidence outlined above to be more probative on the matter. The medical professional that provided the VA opinion is competent to provide an opinion on this matter. The examiner had knowledge of the Veteran’s medical history and examined the Veteran, and provided conclusions based on sufficient facts and data. Therefore, this opinion is entitled to significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The VA examiner’s opinion was relatively straight-forward, the Veteran had left hip arthritis due to age and use and, therefore, it was not aggravated or caused by a service-connected disability, to include heel spurs or bilateral pes planus. Furthermore, the evidence establishes that the condition is not a subsequent manifestation of already service connected arthritis in other locations. Rather, it is due to a clearly independent cause, age and use. As such, while the Board has considered the Veteran’s lay statements, they do not outweigh the probative medical opinion. Finally, regarding arthritis, the Veteran has not contended and the evidence does not show that arthritis manifested during service or within one year of service. In addition, the Veteran did not have the characteristic manifestations sufficient to identify the disease entity. There is no competent evidence of left hip arthritis until many years post service. Any assertions to the contrary are not credible and are outweighed by the probative medical evidence and the VA opinion. In short, the probative evidence shows the Veteran’s left hip disability was not caused or aggravated by a service-connected disease or injury, and is not otherwise due to service. As a result, the claim must be denied. The benefit-of-the-doubt doctrine does not apply. Ratings Principles Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is an equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings, however, are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). 2. Hypertension The Veteran filed a claim for an increased rating for hypertension in October 2009. The Veteran’s hypertension has been rated at 10 percent disabling since 2005 under Diagnostic Code 7101. Pursuant to Diagnostic Code 7101, a 20 percent rating is assigned for diastolic pressure that is predominantly 110 or more, or; systolic pressure that is predominantly 200 or more. A 40 percent rating is assigned for diastolic pressure that is predominantly 120 or more. A 60 percent rating is assigned where diastolic pressure is predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. Note (1) following Diagnostic Code 7101 provides that the term “hypertension” means the diastolic blood pressure is predominantly 90 millimeters or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 millimeters or greater with a diastolic blood pressure of less than 90 millimeters. Note (2) provides that hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, is to be evaluated as part of the condition causing it, rather than by a separate evaluation. Note (3) provides that hypertension is to be evaluated separately from hypertensive heart disease and other types of heart disease. 38 C.F.R. § 4.104, Diagnostic Code 7101, Notes. Blood pressure readings in VA treatment records are predominately below 110 for diastolic pressure and below 200 for systolic pressure. From March 2005 to May 2010, the systolic pressure ranged from 136 to 163 and diastolic pressure ranged from 85 to 107, becoming progressively higher. A December 2012 VA nursing note reported that the Veteran’s blood pressure ran around 160s/high 90s at home, and was at 164/102 that day. A December 2013 VA primary care note reported routine check showed diastolic pressure at 101, 111, and 100. The VA records show that the highest diastolic was one reading of 117 in September 2016, however, this is an outlier. The Veteran had routine rechecks at VA and all other diastolic readings were generally below 100 – much less 110 – with the last three readings being 84 in April 2018 and 85 and 80 in January 2018. The highest systolic pressure reading was 181 in May 2015, with several readings in the 170s, for example in November 2015 (178), September 2014 (176), and December 2013 (175). A November 2015 VA treatment note indicated the Veteran had white coat hypertension – having high blood pressure in a medical setting – and reported that the Veteran had systolic pressure in the 120 range at home. In a May 2010 VA examination, the examiner noted the Veteran’s medical history. The Veteran took medication (hydrochlorothiazide) daily. On examination, blood pressure was 154/100, 164/101, and 163/98, with a diagnosis of uncontrolled hypertension. A January 2013 VA examination found three readings all at 140/90. There were no other findings. A June 2017 private treatment note reported the Veteran had hypertensive heart disease with poor ejection fraction, but with no blood pressure readings given. The Veteran has not reported any blood pressure readings higher than the ones given above. Therefore, although there were readings higher than 110 for diastolic blood pressure, the readings were predominately below 110. Systolic blood pressure was predominantly less than 200. As such, the criteria for a higher rating of 20 percent or higher is not warranted. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for hypertension, and the benefit of the doubt doctrine is not applicable. The claim for an increased rating is denied. REASONS FOR REMAND 1. PTSD The Veteran’s representative, in the September 2018 Appellant’s Post-Remand Brief, noted that the Veteran’s last PTSD examination occurred in January 2013 and that it was not an adequate evaluation of the current disability. The Veteran’s VA treatment records dated in March 2014, January 2015, and January 2018 specifically state that the Veteran’s PTSD has worsened and he had possible symptoms not noted in the VA examinations, such as suicidal ideation. A VA examination is necessary to ascertain the current severity of the Veteran’s PTSD. 2. Lumbosacral spine As noted in the prior Board remand, the Veteran filed a substantive appeal for an increased rating for degenerative changes of the lumbosacral spine in September 2010. The remand instructed that a hearing be undertaken. The Veteran withdrew the hearing request in January 2017. The April 2018 SSOC did not address the issue of the spine. In addition, the August 2010 SOC issued lists a VA examination of the lumbosacral spine as having occurred in June 2010. While there were several VA examinations conducted in June 2010, there is not one for the spine of record. It should be obtained. Compared to the description in the SOC, VA treatment records also indicate worsening of the spine disability in the eight years since the last examination. A May 2017 private doctor statement also reported radiculopathy and sciatica. This opinion reported possible connection between these issues and the back disability. The claim is remanded for an examination to address current severity and related problems. 3. Bilateral knee disability The Board, in the prior remand, requested an opinion regarding whether the bilateral knee disability was attributable to a known pathophysiological or etiology, whether it was caused by service-connected bilateral pes planus and heel spurs, whether it was aggravated by service-connected bilateral pes planus and heel spurs, and whether knee disabilities were otherwise related to service. The opinion received, dated in October 2017, reported the Veteran had right knee chondromalacia, aka patellofemoral syndrome or osteoarthritis of the patella, and minimal osteoarthritis of the left knee. The opinion only reported a single line negative response for the aggravation and secondary service connection. In addressing whether the knee disability was otherwise related to service, the examiner reported as his rationale that both disabilities were not seen on service treatment records. The service treatment records for the period from April 2002 to May 2005, are largely unavailable. A new opinion with rationale is necessary to address the prior remand request. The matters are REMANDED for the following action: 1. Obtain and associate with the file the June 2010 VA examination of the lumbosacral spine. 2. Afford the Veteran an appropriate VA examination to determine the current severity of (1) the degenerative changes of the lumbosacral spine and any neurological complications, to include radiculopathy and sciatica, and (2) PTSD. 3. Obtain any outstanding VA treatment records. 4. Obtain an addendum VA opinion regarding the nature and etiology of right knee chondromalacia and left knee osteoarthritis. Whether an additional examination is necessary is left to the examiner’s discretion. A detailed rationale for the opinions must be provided. The examiner should not base his or her opinion solely on the absence of treatment in service records, as these records are incomplete. The examiner is asked to answer the following: (a.) Is it at least as likely as not (a 50 percent probability or greater) that right knee chondromalacia or osteoarthritis of the left knee was caused by the service-connected bilateral pes planus or heel spurs? (b.) If the bilateral pes planus or heel spurs did not cause right knee chondromalacia or osteoarthritis of the left knee, is it at least as likely as not (a 50 percent probability or greater) that the right knee chondromalacia or left knee osteoarthritis were aggravated by bilateral pes planus or heel spurs? If so, please identify the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation. (c.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s right knee chondromalacia and osteoarthritis of the left knee is otherwise related to service? 5. After readjudication of the issues and if the determination remains unfavorable to the Veteran, any SSOC issued must address the claim for a rating in excess of 10 percent for degenerative changes of the lumbosacral spine with right sacroiliac joint dysfunction, the substantive appeal was filed in September 2010, the issue was never certified to the Board, and the matter was not addressed in the most recent SSOC H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Yoffe, Associate Counsel