Citation Nr: 1808455	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  16-19 085A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disability, to include adjustment disorder, major depressive disorder (MDD), generalized anxiety disorder (GAD), posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for a chronic disability manifested by sleep impairment.

3.  Entitlement to service connection for bilateral hearing loss.

4.  Entitlement to service connection for tinnitus.

5.  Entitlement to service connection for chronic residuals of a cerebrovascular accident.

6.  Entitlement to service connection for hypertensive heart disease.

7.  Entitlement to service connection for diabetes mellitus type II.

8.  Entitlement to service connection for diabetic peripheral neuropathy of the bilateral upper and lower extremities.

9.  Entitlement to service connection for a chronic bilateral shoulder disability, to include myositis.

10.  Entitlement to service connection for a chronic cervical spine disability, to include myositis of the para-cervical spine muscles.

11.  Entitlement to service connection for a chronic lumbar spine disability, to include degenerative disc disease at L4, L5 and S1, lumbar spondylosis, and myositis of the para-lumbar spine muscles.

12.  Entitlement to service connection for a chronic bilateral hip disability, to include bilateral hip osteoarthritis.

13.  Entitlement to service connection for a chronic bilateral knee disability, to include bilateral knee osteoarthritis and residuals of bilateral stress fracture, medial aspect of proximal tibia.

14.  Entitlement to service connection for a chronic bilateral ankle disability, to include bilateral ankle osteoarthritis.

15.  Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU).


ATTORNEY FOR THE BOARD

P. Olson, Counsel 



INTRODUCTION

The Veteran had active military service from September 1967 to August 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.

The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues of entitlement to service connection for a chronic disability manifested by sleep impairment, bilateral hearing loss, tinnitus, a cerebrovascular accident, diabetes mellitus type II, diabetic peripheral neuropathy of the bilateral upper and lower extremities, a bilateral shoulder disability, a cervical spine disability, a lumbar spine disability, a bilateral hip disability, and a bilateral ankle disability as well as entitlement to a TDIU are  addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  A chronic acquired psychiatric disability was not manifested during service and is not shown to be related to active service.

2.  The Veteran does not have a hypertension or hypertensive heart disease that was manifested during service or within a year of separation from service or that is shown to be related to active service.

3.  A chronic bilateral knee disability was not manifested during service and is not shown to be related to active service; bilateral knee arthritis was not manifested within a year of separation from service.


CONCLUSIONS OF LAW

1.  A chronic acquired psychiatric disability was not incurred in or aggravated by service.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017).

2.  The Veteran does not have hypertension or hypertensive heart disease that was incurred in or aggravated by service, nor may it be presumed to have been incurred in service.  38 U.S.C. §§ 1101, 1110 1112, 11113; 38 C.F.R. §§ 3.303, 3.307, 3.309.

3.  A chronic bilateral knee disability was not incurred in or aggravated by service; bilateral knee arthritis may not be presumed to have been so incurred.  38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminary Matter

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  The requirements of 38 U.S.C. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined.  VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.  There is no evidence that additional records have yet to be requested, or that additional examinations are in order. 

Service Connection

Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  

The primary question that must be addressed is whether an acquired psychiatric disorder, hypertension or hypertensive heart disease, or an injury or disorder of the knees was shown during service and has continued as a chronic disorder.  

The service treatment records are absent complaints, findings or diagnoses of an acquired psychiatric disorder during service.  On the clinical examination for separation from service, the Veteran's psychiatric health was evaluated as normal.  Thus, there is no medical evidence that shows that the Veteran suffered from an acquired psychiatric disorder during service. 

The Veteran's service treatment records indicate that the Veteran presented on October 20, 1967 with complaints of recurrent bilateral knee pain.  On September 18, 1967, the Veteran was seen with complaints that he knees had hurt for six days.  On October 26, 1967, he presented with complaints of pain over the medial aspect of both knees for one month's duration.  After physical examination, including x-rays which revealed changes in both tibial plateaus felt to be consistent with stress fractures.  On October 27, 19, he was admitted to the hospital for definitive care and follow up.  He was sent to physical therapy and provided crutches, and he improved steadily and gradually.  In mid-December 1967, he was given convalescent leave and returned to the hospital.  In January 1968, he was allowed to ambulate without crutches.  Examination in February 1968 revealed full range of motion of both knees with no tenderness.  X-rays showed complete healing of the tibial stress fracture on the right with nearly complete healing of the fracture on the left.  He was discharged from the hospital on February 8, 1968.  Further complaints or findings were not recorded during service.
Despite findings in service of bilateral stress fractures of the tibial plateaus, the Board cannot conclude that a "chronic" bilateral knee disorder was incurred during service.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.   For a showing of chronic disability in service there is required a combination of manifestations sufficient to identify the disorder, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  As noted, subsequent knee findings or diagnoses are not made in service or on the initial post service examination.  In addition, although the Veteran reported knee problems on the Report of Medical History completed in conjunction with his separation examination, the Report of Medical Examination indicated that the Veteran's lower extremities were normal; and the summary of defects and diagnoses did not include any knee diagnoses.
Similarly although the Veteran had a marginally elevated blood pressure reading at his separation examination of 130/90, elevated blood pressure readings, standing alone, cannot provide the diagnosis of hypertension, much less hypertensive heart disease, because VA requires that blood pressure readings must be taken two or more times on at least three different days to support a diagnosis of hypertension.  See 38 C F R § 4.104, Diagnostic Code 7101 (Note 1) (2017).  No such study was made in this case and there is no showing of a finding of hypertension or heart disease in service or in the year thereafter. 

As for statutory presumptions, service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service.  38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303(a), 3.307 and 3.309(a).  Hypertensive heart disease and arthritis can be service-connected on such a basis.  However, there is no competent evidence of hypertensive heart disease or arthritis within the year after the Veteran's discharge from service.  As such, service connection is not warranted under 38 C.F.R. § 3.303(b).  

Alternatively, when a chronic disease is not present during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology.  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b).  

Although a marginally elevated blood pressure reading and bilateral knee fractures were "noted" during service, there is no evidence in the record that the Veteran had symptoms of hypertension, much less hypertensive heart disease, which continued since service.  The Veteran underwent VA examination for evaluation of hypertension in August 1977; however, there is no indication in the report that the Veteran had been experiencing symptoms since service.  Further, although the Veteran reported at his May 2015 VA examination that his knee condition began while on active duty and has persistent, the Board finds his allegations to be of limited probative value.  The file contains an August 1977 VA examination at which time the Veteran voiced no knee complaints and evaluation of the musculoskeletal system demonstrated no abnormal findings.  As such, service connection is not warranted under 38 C.F.R. § 3.303(b).  

When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service.  38 C.F.R. § 3.303(d).  To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999).  

In support of his claim, the Veteran submitted a June 2014 letter from Dr. Mora Quesada.  Although an incorrect name is listed with respect to page 3/5 which lists all the Veteran's medical diagnoses, it does list the correct claims file number.  As such, it appears that the Veteran has been diagnosed as having generalized anxiety disorder, major depression disease, posttraumatic stress disorder, hypertensive cardiovascular disease, and osteoarthritis of the knees.  In addition, in the June 2014 letter, Dr. Mora Quesada, he states, in pertinent part, that the Veteran's cardiovascular, neurological, and metabolic diseases with musculoskeletal and psychiatric disorders are more probably than not secondary to his military service.  

The Veteran underwent VA examination in May 2015 by a clinical psychologist.  After review of the record and examination of the Veteran, the examiner noted that the Veteran's induction physical listed "excessive worry" and "nervous condition" but his separation physical was silent for any mental disorder and condition.  The examiner noted that the Veteran had been diagnosed as having adjustment disorder with depressed mood.  The examiner stated that the Veteran's psychiatric disorder did not exist prior to service and, therefore, was not aggravated beyond its natural progression for an in-service injury, event or illness.

The Veteran underwent VA examination in May 2015 by a physician at which time the Veteran denied ever having a heart condition although he did report having hypertension.  The Veteran also stated that his knee condition began while in service and has persisted.  After review of the record and examination of the Veteran, the examiner found that there was no clinical or objective evidence of a heart condition on evaluation and that the Veteran denied having a heart condition and denied taking any medication for a heart condition.  The examiner opined that the Veteran did not have a diagnosis of a heart condition.  The examiner also noted that the Veteran had been diagnosed as having bilateral stress fracture of the medial aspect of proximal tibia which resolved as well as mild bilateral knee degenerative osteoarthritis.  The examiner noted evidence in the Veteran's service treatment records from September 1967 to July 1969 pertaining to his knee problems.  The examiner opined that the Veteran's current bilateral knee condition was less likely than not related to treatment in 1967.  The examiner noted that the event in 1967 was most likely acute and transient since there was not any evidence of further treatment for any knee condition in a regular fashion thereafter.  The examiner noted that the Veteran's current bilateral knee degenerative osteoarthritis condition, which was also affecting him, was not related neither to trauma but to aging, which was also unrelated to military evaluation in 1967.

The Board notes that there is a difference of opinion among the medical professionals.  In deciding whether the Veteran has an acquired psychiatric disability, a cardiac disability, and a bilateral knee disability that are related to service, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Evans v. West, 12 Vet. App. 22, 30 (1998).  That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another.  Id.

Here, there are legitimate reasons for accepting the VA examiners' unfavorable medical opinions over Dr. Mora Quesada's favorable medical opinion.  With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference.  Indeed, the courts have provided guidance for weighing medical evidence.  They have held, for example, that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).  In addition, an examination that does not take into account the records of prior medical treatment is neither thorough nor fully informed.  Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty.  Bloom v. West, 12 Vet. App. 185, 187 (1999).  Also, a medical opinion is inadequate when unsupported by clinical evidence.  Black v. Brown, 5 Vet. App. 177, 180 (1995).  In sum, the weight to be accorded the various items of medical evidence in this case must be determined by the quality of the evidence and not necessarily by its quantity or source.

In this case, although the favorable statement was prepared by a physician, it is conclusory and provides no rationale.  Accordingly, the private medical opinion is assigned little, if any, probative weight.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weight against contrary opinions.").  In contrast, the VA examiners' opinions were based on a review of the Veteran's documented medical history and physical examination, and a rationale was provided for the opinions.  Thus, the Board gives greater weight to the May 2015 VA examiners' medical opinions.

Accordingly, the Board concludes that the preponderance of the evidence is against the claims for service connection for an acquired psychiatric disability, hypertensive heart disease, and a bilateral knee disability and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application.  
 

ORDER

Entitlement to service connection for an acquired psychiatric disability is denied.

Entitlement to service connection for hypertensive heart disease is denied.

Entitlement to service connection for a chronic bilateral knee disability is denied.


REMAND

The Veteran has not been afforded VA examinations with opinions as to the etiology of the remaining issues on appeal. 
 
In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration.  These four factors are:  (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).  

In this case, in his June 2014 letter, Dr. Mora Quesada diagnosed the Veteran as having tinnitus, bilateral deafness, cerebrovascular accident status post, diabetes mellitus type II, diabetic peripheral neuropathy of the upper and lower limbs, chronic myositis of the para-cervical spine muscles, chronic myositis of the shoulders, degenerative disc disease of the lumbar spine, lumbar spondylosis, chronic myositis of the para-lumbar spine muscles, osteoarthritis of this hips and ankles, and a sleep disorder.  As noted above, Dr. Mora Quesada stated that the Veteran's cardiovascular, neurological, and metabolic diseases with musculoskeletal and psychiatric disorders were more probably than not secondary to his military service.  

Based on this statement, the Board finds that a VA examination and opinion are warranted to determine the exact nature of the disabilities diagnosed by Dr. Mora Quesada and whether any such disability was incurred or aggravated by the Veteran's active military service.

The issues of entitlement to service connection for diabetic peripheral neuropathy of the upper and lower extremities and entitlement to a TDIU are inextricably intertwined with the issue being remanded.  Therefore, these issues must be deferred.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  The Veteran should be requested to indicate if he has received any VA or non-VA medical treatment for any sleep impairment, hearing loss, tinnitus, cerebrovascular accident, diabetes mellitus, peripheral neuropathy of extremities, shoulder disorder, cervical spine disorder, lumbar spine disorder, hip disorder, and ankle disorder that is not evidenced by the current record.  If so, the Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file.  These records should then be obtained and associated with the claims folder.  The Veteran should be advised that he may also submit any evidence or further argument relative to the claim at issue.  All attempts to obtain records should be documented in the claims folder.

2.  The Veteran should be afforded a VA examination.  The examiner is to be provided access to Virtual VA and VBMS and must specify in the report that these records have been reviewed.  All pertinent symptomatology and findings should be reported in detail.  Any indicated diagnostic tests and studies should be accomplished.  

a. The examiner should identify all current chronic sleep disorders and provide an opinion as to whether it is at least as likely as not that any such disorder had its onset in service or is otherwise related to the Veteran's active duty service.  
b. The examiner should provide an opinion as to whether the Veteran has bilateral hearing loss for VA purposes; and if so whether it is at least as likely as not that any such disorder had its onset in service or is otherwise related to the Veteran's active duty service.  
c. The examiner should provide an opinion as to whether the Veteran has tinnitus; and if so whether it is at least as likely as not that any such disorder had its onset in service or is otherwise related to the Veteran's active duty service.  
d. The examiner should identify all current residuals of cerebrovascular accident and provide an opinion as to whether it is at least as likely as not that any such disorder had its onset in service or is otherwise related to the Veteran's active duty service.  
e. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's diabetes mellitus had its onset in service or is otherwise related to the Veteran's active duty service.  
f. The examiner should identify all current chronic bilateral shoulder disorders and provide an opinion as to whether it is at least as likely as not that any such disorder had its onset in service or is otherwise related to the Veteran's active duty service.  
g. The examiner should identify all current chronic cervical spine disorders and provide an opinion as to whether it is at least as likely as not that any such disorder had its onset in service or is otherwise related to the Veteran's active duty service.  
h. The examiner should identify all current chronic lumbar spine disorders and provide an opinion as to whether it is at least as likely as not that any such disorder had its onset in service or is otherwise related to the Veteran's active duty service.  
i. The examiner should identify all current chronic bilateral hip disorders and provide an opinion as to whether it is at least as likely as not that any such disorder had its onset in service or is otherwise related to the Veteran's active duty service.  
j. The examiner should identify all current chronic bilateral ankle disorders and provide an opinion as to whether it is at least as likely as not that any such disorder had its onset in service or is otherwise related to the Veteran's active duty service.

It would be helpful if the examiner would use the following language, as may be appropriate:  "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood).  The term "at least as likely as not" does not mean "within the realm of medical possibility."  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.  The examiner should provide a complete rationale for any opinion provided.

3.  The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address.  It should also be indicated whether any notice that was sent was returned as undeliverable.

4.  After the development requested has been completed, the examination report should be reviewed to ensure that it is in complete compliance with the directives of this REMAND.  If the report is deficient in any manner, corrective procedures should be implemented.  

5.  The case, including the inextricably intertwined issues of entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities and a TDIU should be reviewed on the basis of the additional evidence.  If the benefit sought is not granted in full, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


______________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs