Citation Nr: 18158329 Decision Date: 12/18/18 Archive Date: 12/14/18 DOCKET NO. 16-49 280 DATE: December 18, 2018 ORDER Entitlement to service connection for a bilateral foot disorder is denied. Entitlement to service connection for gout is denied. Entitlement to service connection for hypertension is denied. REMANDED Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. A chronic foot disorder was not manifest during active service nor was arthritis manifest within one year of service; and, the preponderance of the evidence fails to establish that a present disorder is etiologically related to service. 2. Gout was not manifest during active service nor within one year of service; and, the preponderance of the evidence fails to establish that it is etiologically related to service. 3. Hypertension was not manifest during active service nor within one year of service; and, the preponderance of the evidence fails to establish that it is etiologically related to service, including due to herbicide exposure, or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral foot disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a) (2018). 2. The criteria for entitlement to service connection for gout have not been met. 38 U.S.C. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). 3. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116; 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from June 1968 to January 1972, including combat service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular 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(a) (2018). The term “disability” for VA compensation purposes refers to the functional impairment of earning capacity rather than the underlying cause of the impairment and it is noted that pain alone may be a functional impairment. See Saunders v. Wilkie, 887 F.3d 1356, 1364-68 (Fed. Cir. 2018). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2018). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C. § 1154(b) (2012); 38 C.F.R. § 3.304(d) (2018). This does not, however, create a presumption of service connection for a combat veteran’s alleged disability, and that the veteran is required to meet his evidentiary burden as to service connection such as whether there is a current disability or whether there is a nexus to service which both require competent medical evidence. See Collette v. Brown, 82 F.3d 389, 392 (1996). Certain chronic diseases, including arthritis and hypertension, are also subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2018). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Arthritis, gout, and hypertension are qualifying chronic diseases. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology is applicable. For VA purposes, “hypertension” means that the diastolic blood pressure is predominantly 90 millimeters (mm.) or greater, and “isolated systolic hypertension” means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2018). There are two main types of high blood pressure: primary and secondary high blood pressure: Primary, or essential, high blood pressure that is the most common type of high blood pressure and for most people who get this kind of blood pressure, it develops over time as you get older; and secondary high blood pressure that is caused by another medical condition or use of certain medicines. See https://medlineplus.gov/highbloodpressure.html (Dec. 7, 2018). Veterans diagnosed with an enumerated disease who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Certain disorders, including ischemic heart disease, if manifest to a degree of 10 percent or more for an herbicide exposed veteran may be presumed service connected. 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307, 3.309. The term ischemic heart disease for presumptive service connection purposes under this law does not include hypertension or peripheral manifestations of arteriosclerosis, such as peripheral vascular disease or stroke, or any condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309, Note 2. The National Academy of Sciences (NAS) has reaffirmed its decision to place hypertension in “limited or suggestive evidence of an association” category. This category of association is defined to mean that the “evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence.” Accordingly, VA has determined that the available evidence does not establish a positive association between herbicide exposure and hypertension that would warrant a presumption of service connection. 79 Fed. Reg. 20308-01 (Apr. 11, 2014). Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection. Stefl v. Nicholson, 21 Vet. App. 120 (2007). When a claimed disability is not included as a presumptive disability, direct service connection may nevertheless be established by evidence demonstrating that the disability was in fact incurred during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2018). 1. Entitlement to service connection for a bilateral foot disorder. 2. Entitlement to service connection for gout. 3. Entitlement to service connection for hypertension. The Veteran contends that he has a bilateral foot disorder, gout, and hypertension as a result of service. In correspondence dated in November 2010 he noted treatment for gout arthritis in 1986 and for high blood pressure beginning in 1994. In his March 2013 notice of disagreement he asserted that he had arthritis as a result of his duties as a paratrooper with daily running, climbing, and jumping. He maintained that his service-connected hepatitis C made his arthritis appear as rheumatoid arthritis. He said his arthritic condition had existed since his return from Vietnam. He indicated that he had gout as a result of six months in combat during monsoon season. He believed his high blood pressure (hypertension) was due to exposure herbicide agents and for which he was treated 15 years before he became diabetic. VA records show service connection is established for PTSD, type II diabetes mellitus, and hepatitis C. Service treatment records are negative for complaint, treatment, or diagnosis associated with arthritis, gout, or hypertension. An October 1971 report noted the Veteran complained of injuries incurred in a parachute jump, including left foot strain. Subsequent treatment provided four days later included no additional comments as to a left foot injury. A November 1971 separation examination included normal clinical evaluations of the vascular system and feet. A blood pressure reading of 120/70 was provided. In his November 1971 report of medical history the Veteran denied having or having ever had high or low blood pressure; arthritis, rheumatism, or bursitis; or foot trouble. VA examination in June 2011 noted the Veteran reported having been diagnosed with gout that had existed since 1980 and with hypertension in 1994. He described having constant foot pain that was relieved by rest and Meloxicam. X-ray studies revealed degenerative joint disease to the left and right feet. Uric acid test results were noted to be within normal limits. The examiner found that for the claimed gout condition a diagnosis of bilateral foot degenerative joint disease was warranted. A diagnosis of essential hypertension was also made. The examiner further noted that the Veteran did not have any non-diabetic condition that was aggravated by his diabetes mellitus. A November 2013 medical statement from a VA physician noted the Veteran was actively enrolled for primary care and that he had requested a statement in support of his claims. It was noted that his military service included multiple jumps from aircraft and field duties, and that service treatment records demonstrated a jump-related injury to the back and left foot. It was further noted that his pain had started then and had become progressively worse. Imaging of the left foot revealed degenerative changes to the first metatarsal joint. The physician stated that in some cases history of trauma may stimulate the development of arthritis in the joint later. She stated that the Veteran’s foot arthritis could be related to the previous trauma documented in service treatment records dated in 1971. VA foot examination in August 2016 included a diagnosis of bilateral plantar fasciitis. Despite the Veteran’s report of the onset of foot problems in 1969 after a hard parachute landing, the examiner found the disorder was less likely incurred in or caused by an in-service injury, event, or illness. As rationale for the opinion it was noted that service treatment records documented an acute complaint of left foot pain in October 1971 following a parachute jump, but that there were no further notes to suggest any chronic, ongoing sequelae resulting from the injury. The Veteran’s current plantar fasciitis was found to be likely due to senescent wear and tear over time since discharge from service. Based upon the evidence of record, the Board finds chronic left foot or bilateral foot disorders, gout, and hypertension were not manifest during active service. There is also no evidence that arthritis of the feet, gout, or hypertension were manifest within one year of the Veteran’s discharge from service. Moreover, the preponderance of the evidence fails to establish that the present disorders at issue are etiologically related to service. The Veteran’s statements as to having been treated for gout in the 1980’s are credible. However, there is no indication of a current chronic gout disorder. In fact, uric acid levels were within normal limits on VA examination in February 2012 and the examiner found a diagnosis of gout was not warranted. Although the Veteran contends that he had arthritis symptoms that had continued since service, the Board finds such statements are inconsistent with the overall evidence of record, including his own report of medical history in October 1971. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). The June 2011 and August 2016 VA medical opinions are found to be persuasive that the Veteran’s left foot injury in service was an acute injury that resolved without chronic residual, that a current diagnosis of gout is not warranted, and his hypertension disability is essential hypertension first manifest in 1994 and was not aggravated by his service-connected diabetes mellitus. The opinions are shown to have based upon a substantially correct review the evidence of record and to have adequately considered the lay statements and reported symptom manifestations history of record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Although the November 2013 VA physician found the Veteran’s left foot degenerative joint disease could be related to the previous trauma in service, the opinion is equivocal as to the issue of etiology and warrants a less degree of probative weight. There is no other competent evidence to the contrary as to the matters at issue. Consideration must be given to the Veteran’s personal assertion that he has a present disability as a result of service. Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The pertinent issues in this case, however, fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The claimed disabilities at issues are not conditions that are readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board acknowledges that the Veteran is competent to report observable symptoms, but there is no indication that he is competent to etiologically link any such symptoms to a current diagnosis. He is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in as to such disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the Veteran’s claims. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 30 percent for PTSD is remanded. The Veteran contends that his PTSD warrants a higher rating. In support of his claim he provided copies of private medical reports dated in January 2016 which found his PTSD was an occupational and social impairment with deficiencies in most areas such as work, school, family relationships, judgment, thinking, and/or mood. The examiner also found that his PTSD symptoms had continued through the date of his filing for benefits and that they prevented him from maintaining substantially gainful employment. The Board notes, however, that a February 2012 VA examination found the disorder was best described as an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. VA treatment reports dated in 2015 and 2016 indicate that the Veteran’s PTSD was mild and stable. In light of the conflicting medical evidence of record, the Board finds an additional examination is required for an adequate determination. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD alone. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Douglas, Counsel