Citation Nr: 18161238 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 11-19 032 DATE: December 31, 2018 ORDER Entitlement to service connection for hypertension is granted. Entitlement to service connection for a lumbar spine degenerative arthritis is granted. Entitlement to service connection for residuals of traumatic brain injury (TBI) is denied. Entitlement to service connection for headaches is denied. Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a bilateral ankle disorder is denied. Entitlement to service connection for a cervical spine disorder is denied. REMANDED Entitlement to service connection for a cardiovascular disorder, to include coronary artery disease (CAD) and myocardial infarction (MI) is remanded. Entitlement to an initial evaluation in excess of 10 percent for residuals of shrapnel fragment wounds of the right lower extremity is remanded. FINDINGS OF FACT 1. The Veteran has combat service in the Pacific Theater of Operations during World War II and was awarded the Purple Heart Medal. 2. Medical opinions dated in 1946 and 2009, have linked the Veteran’s hypertension with his military service. 3. A preponderance of the evidence demonstrates that the Veteran’s current lumbar spine degenerative arthritis is etiologically related to his military service. 4. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of chronic headaches or migraines or residuals of TBI. 5. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a left knee disorder. 6. The preponderance of the evidence of record is against finding that the Veteran’s current bilateral ankle disability is related to his military service. 7. The preponderance of the evidence of record is against finding that the Veteran’s current cervical spine disability is related to his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a lumbar spine degenerative arthritis have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for residuals of TBI have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for Entitlement to service connection for headaches have not been met 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for entitlement to service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for entitlement to service connection for bilateral ankle disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 7. The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). The Veteran had active service from August 1943 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Service Connection 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, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. As an organic disease of the nervous system is considered to be a chronic disease for VA compensation purposes. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for hypertension As an initial matter, the Veteran is shown to have hypertension, thus the first element of service connection is met. See i.e. October 2017 VA examination. Service treatment records indicate that on enlistment examination, the Veteran's blood pressure was 150/76. The Veteran was determined to be qualified for enlistment and no cardiovascular diagnoses, including hypertension, were noted on the report. On separation examination in January 1946, the Veteran's blood pressure was 140/72. He was deemed qualified for separation. In an October 1946 letter from a private physician, this physician indicated the Veteran had essential hypertension which was “definitely brought about while in the military service.” The physician expressed the view that the “high blood pressure…might never have developed had he not been under the stress and strain of combat.” No specific blood pressure readings were provided with the statement. Decades later, in October 2009, another private physician submitted an opinion in which he expressed the view that the Veteran had hypertension that had its onset in service. He evidently came to this conclusion based on what he considered to be the elevated systolic blood pressure noted at service separation, together with the finding by the private physician in 1946. The Veteran was examined for VA purposes in March 2017 in connection with this matter. The physician who conducted this examination expressed the view that the Veteran’s hypertension was likely related to his lifestyle, and unrelated to military service. In reaching this conclusion he noted that he had considered the available medical evidence, the Veteran’s reported history and his examination of the Veteran. Significantly, he also noted that the Veteran’s service entrance and exit examinations were not available. As it happens, about the only service treatment records that are available are the Veteran’s service entrance and exit examination reports. As such, it is difficult to conclude that this examiner’s opinion was the product of a thorough evaluation of the record, and therefore his conclusions are not accorded much probative weight. Moreover, although he had an opportunity to offer a clarifying opinion in October 2017, the deficiency regarding the availability of the service entrance and exit examinations was not corrected. Resolving any reasonable doubt in favor of the Veteran, a basis upon which to establish service connection for hypertension has been presented. A reasonable reading of the record shows that hypertension was not diagnosed at entrance into service, yet a treating physician in 1946, diagnosed hypertension within one year after service separation which was related to the Veteran’s military service. Another physician, decades later, likewise considered the Veteran’s hypertension to have been incurred in service. Although a third physician considered the Veteran’s hypertension to be unrelated to service, the report from this physician had such a glaring factual inaccuracy it cannot be accorded much weight. Accordingly, the Board finds that on this record, it is at least as likely as not that the Veteran’s hypertension was incurred in service. 2. Entitlement to service connection for a lumbar spine disorder The Veteran seeks entitlement to service connection to a lumbar spine disorder. The record demonstrates a current diagnosis for degenerative arthritis of the lumbar spine, thus the first element of service connection under Shedden is satisfied. See i.e. September 2010 VA examination (“X-Ray results dated 01/13/2011…severe degenerative changes of the lumbar spine”). Regarding the second element of service connection, an in-service illness or injury, the Board observes that the Veteran had combat service and was awarded the Purple Heart Medal. He has contended that he injured his back when he was strafed by Japanese gunfire, and while his available service treatment records do not reflect any relevant complaints or findings, he requested treatment for “low back pain” during his August 1946 VA medical examination. 38 U.S.C. § 1154 (b) provides that the Secretary 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, and, to that end, shall resolve every reasonable doubt in favor of the Veteran. Section 1154(b) does not create a statutory presumption that a combat Veteran's alleged disease or injury is service connected. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). Rather, it aids the combat Veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service. Given that the Veteran’s combat descriptions are consistent with the time, place and circumstances of his experiences during World War II and support his contention that he suffered back pain following this incident, the second element of service connection is satisfied. See 38 U.S.C. § 1154. Although there is a significant gap in time between the Veteran’s complaints recorded in 1946, and any further documentation of relevant complaints, beginning in 2003, he has endorsed symptoms of ongoing and continuous spinal pain in the lumbar region “from times to time,” that he dates to his combat injury, and severe degenerative changes of the lumbar spine were observed upon X-ray in January 2011. A private medical opinion was received in October 2009, in which the physician concluded that the Veteran’s current back pain and advanced degenerative arthritis was “likely due to wartime trauma.” Noting the Veteran’s ongoing complaints of back pain since service, the examiner identified medical literature which supports the notion that a “blast injury precipitates or accelerates the onset of the degenerative process of the spine.” Although a VA examiner has concluded otherwise, this examiner did not appear to consider the combat injury the Veteran is understood to have sustained. As such, this adverse opinion is accorded little probative weight. In view of the facts of this case, and resolving reasonable doubt in the Veteran’s favor, the evidence is at least in equipoise as to whether his current low back disability (lumbar spine degenerative arthritis) was incurred in and is etiologically related to active service based on continuity of symptomatology and the medical opinions of record. Thus, service connection for lumbar spine degenerative arthritis is warranted. 3. Entitlement to service connection for residuals of traumatic brain injury 4. Entitlement to service connection for headaches The Board finds that entitlement to service connection for TBI and headaches is not warranted. Service treatment records are silent as to documentation of TBI, headaches or associated issues. However, as discussed above the Veteran endured traumatic combat experiences including bilateral leg shrapnel and impact injuries. Within the year of his discharge, (in August 1946), the Veteran requested VA provide treatment for frontal headache complaints, but there was no indication this was considered associated with service. See August 1946 VA Form 7615. Thereafter, medical treatment records are silent as to any complaints as may be associated with traumatic brain injury residuals, to include neurological treatment. The Board acknowledges there are a number of references to headaches in the Veteran's medical records. However, these are found in the Veteran’s cardiological records without any reference to the Veteran’s combat injuries, and are as often as not, complaints of headaches are denied upon historical self-report. See i.e. October 2009 Methodist Hospital cardiology consultation (“occasional headaches”); April 2010 Cardiovascular Consultants note (“no history of sinusitis, frequent headaches or significant dizziness…denies headaches”). There are several etiological opinions of record. Even accepting that the Veteran did suffer a TBI, the favorably medical opinion from October 2009, makes such evidentiary leaps that it is not persuasive. Notably, it asserts the Veteran suffered from “presumptive TBI [with] chronic headaches which occur 3-5 times a week…likely due to wartime trauma.” However, this physician did not interview the Veteran or neurologically test him, providing no basis in this report for the identified symptoms. The medical opinions adverse to the claim, the November 2014 VA examination report and the March 2017 addendum was based on an inspection of the Veteran, with testing that did not reveal any neurological deficit. Further, the Veteran explicitly denied headaches upon interview. Therefore, as the favorable opinion does not account for the absence of symptomatology in the record, including the Veteran’s own denials of headaches, the Board finds the conclusions expressed by the VA examiner to carry greater evidentiary weight, than the October 2009 opinion. In these circumstances, the Board concludes that the Veteran does not have a current diagnosis of headaches or residuals of a TBI, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303 (a), (d). Accordingly, service connection for the claimed disabilities is not warranted. 5. Entitlement to service connection for a left knee disorder The most probative evidence shows that the Veteran does not have a current left knee disorder. Specifically, medical treatment records are silent as to any left knee disorders or even complaints of discomfort, as corroborated upon x-ray in 2011 which found the left knee to be “normal” and as identified upon VA examination in November 2014 and March 2017. In the absence of a current disability, a basis upon which to establish service connection has not been presented. 6. Entitlement to service connection for a cervical spine disorder 7. Entitlement to service connection for a bilateral ankle disorder The Veteran is seeking entitlement to service connection for a cervical spine disorder and bilateral ankle disorder. As an initial matter, the Board finds that the record reflects current cervical spine and bilateral ankle diagnoses, thus the first element of service connection, a current disability, is met. See November 2014 VA examination. The Board is cognizant of the Veteran's contention that he is entitled to service connection under the provisions of 38 U.S.C. § 1154 (b) for injuries sustained in combat. Here, there is no dispute that the Veteran suffered a combat injury in service which would include the possibility of an injury to the neck and ankles due to his description of being “blown” in the air and the documented bilateral leg shrapnel injuries. However, there also must be competent probative nexus evidence linking his current neck and ankle disabilities to an in-service injury. Here, the VA medical examiners found no such relationship and there is no medical opinion of record suggesting otherwise, including the October 2009 report from the private physician who does not provide comment about the Veteran’s neck or ankles. Upon in-person examination and medical record review in November 2014, the VA examiner identified current diagnoses of bilateral ankle and cervical spine sprains and concluded that the medical conditions were not related to service. This opinion was reinforced in a March 2017 addendum. Regarding the Veteran’s ankles, the examiner explained that his current condition was likely due to aging or post-service occupation as the records demonstrated normal findings upon examination as late as 2011, over fifty years since his service treatment records failed to identify any ankle-related complaints. As for the Veteran’s cervical spine, the examiner noted the historical lack of neck complaints by the Veteran in service or thereafter. The examiner further identified the denials of neck trauma in the record, noting that by the Veteran’s own admission he “developed continued neck pain when he had his CABG surgery in 2008.” Although the post-service medical evidence shows that the Veteran has been diagnosed with a cervical spine and bilateral ankle disabilities, no competent medical evidence has been submitted to show that the disabilities are related to military service or any incident therein. Accordingly, service connection for these disabilities is denied. REASONS FOR REMAND 8. Entitlement to service connection for a cardiovascular disorder, to include coronary artery disease (CAD) and myocardial infarction (MI) is remanded. The Veteran is seeking entitlement to service connection for a cardiac disorder, to include CAD and MI. Because the Board has service connected hypertension by way of this decision, an opinion should be sought to determine whether the Veteran’s current cardiac disabilities are caused by the Veteran’s now service-connected hypertension or aggravated (permanently worsened beyond normal progress of the disorder) by the service-connected disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 9. Entitlement to an initial evaluation in excess of 10 percent for residuals of shrapnel fragment wounds of the right lower extremity is remanded. The claims file reflects that in accordance with the February 2016 Board directives, the Veteran was scheduled for a VA examination to assess the current severity of his service-connected shrapnel disability. A March 2017 Report of General Information indicates that the Veteran’s grandson requested a rescheduling of the appointment due to ill-health, but later memoranda indicate an understanding the Veteran was no longer able to travel for any appointments due to his medical condition. Considering this confusion, another effort should be made to provide the Veteran an examination to fulfill the duty to assist. The matters are REMANDED for the following action: 1. The Veteran should be requested to identify any additional records of treatment he wishes VA to consider in connection with his claims. The identified records should be sought. 2. Provide the claims file to an appropriately qualified person to provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent) that any currently present heart disorder is caused by the Veteran's now service-connected hypertension, and if not, whether it is at least as likely as not (i.e., probability of 50 percent) that any currently present heart disorder is aggravated by (i.e., permanently worsened beyond the natural progress) the Veteran's now service-connected hypertension. If it is necessary to examine the Veteran to obtain the requested opinions, that should be arranged. The conclusions expressed should be fully explained. 3. Schedule the Veteran for a VA examination to determine the severity of his right lower extremity shrapnel fragment wound residuals. Following examination of the Veteran and review of the claims file, the examiner should identify all currently present manifestations of the shrapnel fragment wounds to the Veteran's right lower extremity. The examiner should specify the muscle groups involved, if any. For each muscle group involved, the examiner should describe the functional impairment caused by the injury to that muscle group. 4. Upon completion of the above development and any additional development deemed appropriate, readjudicate the issues on appeal. M. E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Colicelli