Citation Nr: 1808528 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 09-18 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a left knee disability. 4. Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for residuals of excision of a hematoma and a scar as a result of VA surgery in August 2011. 5. Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1968. This matter comes to the Board of Veterans' Appeals on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2015, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Records show that the Veteran was subsequently scheduled for another Board hearing in February 2016, but that he withdrew this hearing request in February 2016 asserting that he already testified on the issues in September 2015. This matter was previously before the Board in December 2015 and July 2016 at which times the case was remanded in fulfillment with due process and evidentiary requirements. The matter is once again before the Board. In a VA Memorandum dated in May 2017, the Agency of Original Jurisdiction (AOJ) identified additional issues that had been raised by the record, but had not yet been adjudicated by the AOJ. The Board brought these issues to the attention of the AOJ in July 2016. These issues, which include entitlement to service connection for high cholesterol, entitlement to compensation benefits under 38 U.S.C.A. § 1151 for VA treatment causing colitis, and a claim to reopen service connection for a skin disability, are once more referred to the AOJ for appropriate action. The issues of entitlement to service connection for hypertension, for compensation benefits under the provisions of 38 U.S.C.A. § 1151 for residuals of excision of a hematoma and scar due to surgery performed in August 2011, and for entitlement to a TDIU are being remanded and are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. A right knee disability was not manifest during service or within one year of separation and is not attributable to service or to a service connected disease or injury. 2. A left knee disability was not manifest during service or within one year of separation and is not attributable to service or to a service connected disease or injury. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). 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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may 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 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 arthritis is 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 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for disability proximately due to or the result of a service-connected disability and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Further, effective October 10, 2006, 38 C.F.R. § 3.310 was amended to codify the Court's holding in Allen, which relates to secondary service connection on the basis of aggravation of a nonservice-connected disorder by a service-connected disability. See 38 C.F.R. § 3.310 (b). The amendment essentially requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. Here, as the Veteran's claim was filed after October 10, 2006, the amended regulation applies. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). II. Facts and Discussion The Veteran is claiming service connection for right and left knee disabilities on both a direct and secondary basis. Regarding service connection on a direct basis, the Veteran testified in September 2015 that he injured his left knee in service by falling off of a ladder. He said that he saw a doctor in service and was told that he had pulled a muscle. He said that his leg was wrapped at that time. His service treatment records do not show findings or complaints with respect the right or left legs or knees and his September 1968 separation examination report shows a normal clinical examination of the lower extremities. The Veteran testified in September 2015 that he continued to experience knee pain after service and self treated his knee symptoms until approximately 2003 or 2004 when he sought medical attention. The earliest medical evidence on file showing treatment for the knees is in October 2008. It was at this time that the Veteran reported having left knee pain for approximately one month which worsened with ambulation. He underwent a left knee magnetic imaging resonance in November 2008 to rule out a meniscal tear. Results revealed mild degenerative changes. The earliest diagnosis of arthritis/degenerative joint disease of the knees is noted on a May 2014 private medical record from Dr. Soliman. This record contains the Veteran's report that he had recently been told that he had arthritis in both knees. A June 2014 VA outpatient record contains the Veteran's complaints of right knee pain. X-rays performed at that time revealed mild degenerative narrowing of the medial joint spaces. While the exact date that the Veteran was initially diagnosed as having degenerative joint disease of the right and left knees is not entirely clear, it is clear that the diagnosis was made years, even decades, after service. As noted, the Veteran testified that he did even not even seek medical attention for his knees until 2003 or 2004. Thus, as arthritis of the right and/or left knees was not "noted" during service and there is nothing to suggest that there were characteristic manifestations sufficient to identify the arthritis disease process during service, service connection under 38 C.F.R. § 3.303 (b) in regard to chronicity is not warranted. Similarly, the law as it applies to presumptive disabilities, including arthritis, is not applicable since arthritis was not manifest within one year of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). To the extent the Veteran asserts that he had continuing or ongoing problems with his right and left knees since service, namely pain, these statements are not found to be credible for the purpose of establishing a continuity of symptomatology since service for arthritis. 38 C.F.R. § 3.303 (b); Layno v. Brown, 6 Vet. App. 465 (1994); see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997). First, the Veteran was found to have a normal clinical evaluation of the lower extremities at his September 1968 separation examination and there is no indication from this record or any other service treatment record of knee problems. Second, his assertions regarding continuity of symptoms are inconsistent with his report at the VA outpatient clinic in October 2008 that he had had left knee pain for approximately one month. Third, while a gap in treatment is not determinative in resolving a question of nexus, it is a factor to consider. See Maxson v. Gober, 230 F.3d 1330, 1331 (Fed. Cir. 2000). Accordingly, service connection under 38 C.F.R. § 3.303 (b) in regard to continuity of symptomatology is not warranted. With respect to establishing service connection on a direct basis under 38 C.F.R. § 3.303 (d), the medical nexus evidence militates against the claim. In this regard, a VA examiner opined in April 2017 that the Veteran's right and left knee conditions, diagnosed as degenerative arthritis, was less as likely as not incurred in or caused by service or causally or etiologically related to service. He noted the absence of knee complaints in service and the absence of documented complaints for over 40 years after service. He went on to reason that if the Veteran had sustained a significant injury while on active duty, his degenerative joint disease would have been more significant than the finding decades after service of mild degenerative narrowing of the medial joint spaces. As this opinion is based on an examination of the Veteran, review of his claims file and medical history, and is supported by sound medical reasoning, it is afforded substantial probative weight. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and has sound reasoning for the conclusion). Moreover, there is no contrary medical opinion on file. As far as establishing service connection for degenerative joint disease of the right and left knees on a secondary basis under 38 C.F.R. § 3.310, to include by aggravation, the evidence likewise militates against the claim. In this regard, the April 2017 VA examiner reported that per medical literature up until that point, she could find nothing that demonstrated a causal relationship between the Veteran's knee degenerative arthritis and his service-connected valvular heart disease, tinnitus, posttraumatic stress disorder (PTSD) or hearing impairment. He said that therefore there could be no aggravation as there was no causal relationship. In addition, a VA examiner opined in May 2017 that it was not likely that any knee disability was caused by or aggravated by the Veteran's service-connected valvular heart disease, tinnitus, hearing loss and PTSD beyond its natural progression since such disabilities were "entirely unrelated conditions". There is no contrary medical opinion on file. The Board has also considered the Veteran's statements regarding his belief that he has right and left knee degenerative joint disease as a result of service or his service-connected disabilities. As a lay person, he is competent to relate symptoms that may be associated with his right and left knee disabilities; however, he does not have the requisite medical knowledge, training, or experience to be able to attribute such symptoms to specific diagnoses or discuss the etiology of such diagnoses. At the very least, the Veteran's assertions as to a nexus between the claimed degenerative joint disease of the right and left knees and service or his service-connected disabilities are outweighed by the VA medical opinions discussed above. In light of the above, the Board finds that the preponderance of the evidence weighs against a finding of service connection for disabilities of the right and left knees, diagnosed as degenerative joint disease, to include as secondary to his service-connected disabilities. As such, the benefit of the doubt doctrine is not for application and the claims must be denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for left knee disability is denied. REMAND Hypertension The Veteran and his representative assert that there is a relationship between PTSD and increased blood pressure and they have provided medical literature to support this assertion. A VA examiner attempted to address this matter in April 2017 by opining that PTSD and valvular heart disease could be loosely associated with the Veteran's hypertension as PTSD is frequently associated with anxiety and depression and could worsen hypertension. He went on to state that "therefore, it would be mere speculation to say the Veteran's hypertension was not caused by or aggravated by his service connection disabilities". While there is no question that the examiner provides a link between the Veteran's PTSD and hypertension, the extent of this link is unclear. That is, it is unclear whether the examiner is relating on a secondary basis the Veteran's hypertension to his service-connected PTSD by an "at least as likely as not" standard. That is, whether it is at least as likely as not (a 50% or greater probability) that the Veteran's hypertension is the result of, proximately related to, or aggravated by his service-connected PTSD. 38 C.F.R. § 3.310; Allen, supra. Accordingly, the April 2017 VA examiner should be asked to provide an addendum opinion or, if unavailable, afford the Veteran a new examination. 38 U.S.C.A. § 5107A (d). Entitlement to Compensation Benefits under 38 U.S.C.A. § 1151 for Residuals of Surgery Performed in August 2011 The Veteran asserts that that he is entitled to compensation pursuant to 38 U.S.C.A. § 1151 for additional disability, claimed as left leg hematoma, left leg scar and functional loss due to the scar, manifested by MRSA (methicillin-resistant staphylococcus aureus) infection contracted following left femoral bypass surgery in August 2011. As a result of the MRSA, he underwent left leg incision, drainage and hematoma evacuation in September 2011. He claims that the August 2011 surgery was not performed correctly and that the hospital room that he stayed in was dirty and that his sheets were not changed regularly. In view of this evidence, the Board remanded this matter in December 2015 and July 2016 in order to afford the Veteran an examination and obtain a new medical opinion. 38 U.S.C.A. § 5103A (d). This still has to be accomplished. TDIU As resolution of the claim for compensation benefits under 38 U.S.C.A. § 1151 and the claim for service connection for hypertension may impact the claim for TDIU, the Board will defer adjudication of the TDIU claim at this time. This is especially so in light of evidence that the AOJ received in August 2017 stating that the Veteran is unable to work due to the left leg vein replacement. Accordingly, the case is REMANDED for the following action: 1. Return the claims file, including a copy of this REMAND, to the April 2017 VA examiner, if available, to obtain an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's hypertension was caused or aggravated by a service-connected disability, including his service-connected PTSD. If another examination is found necessary in order to obtain the opinion, then one should be scheduled. Aggravation is defined as a permanent worsening beyond the natural progression of the disability. The examiner must provide explanatory rationale for his/her opinion, if necessary citing to specific evidence in the file supporting it. 2. Schedule the Veteran for an appropriate VA examination to assess any additional disability related to the surgical procedures that he underwent in August 2011 and September 2011. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. The examiner should specifically address the following questions: (A) Is it at least as likely as likely as not (50 percent probability or greater) that the Veteran incurred additional disability, to include, but not necessarily limited to, MRSA, cellulitis, scar, functional loss due to scar, as a result of VA medical care in August 2011 and September 2011, including left femoral bypass surgery, evacuation of the left lower extremity, and an unclean hospital room/bed. (B) If additional disability or disabilities exist, is it at least as likely as not (50 percent or greater) that the proximate cause of such disability or disabilities was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA? In determining whether the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, please discuss if VA failed to exercise the degree of care that would be expected of a reasonable health care provider. (C) If additional disability or disabilities exist, is it at least as likely as not (50 percent or greater) that such was due to an event not reasonably foreseeable by a reasonable heath care provider? A report of the opinion should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues of entitlement to service connection for hypertension, for compensation benefits under § 1151, and for entitlement to a TDIU. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental SOC and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant and his representative have 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs