Citation Nr: 18116864 Decision Date: 07/09/18 Archive Date: 07/09/18 DOCKET NO. 14-29 719 DATE: July 9, 2018 ORDER Entitlement to service connection for right shoulder impingement syndrome is granted. Entitlement to service connection for degenerative disc disease of the thoracolumbar spine is denied. Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for obstructive sleep apnea is granted. Entitlement to a compensable evaluation for hypertension is denied. FINDINGS OF FACT 1. The Veteran’s right shoulder impingement syndrome was caused or aggravated by his service-connected left shoulder disability. 2. The Veteran’s degenerative disc disease of the thoracolumbar spine is not etiologically related to his active service and cannot be presumed to be etiologically related thereto. 3. The veteran’s left knee disorder is not etiologically related to his active service and cannot be presumed to be etiologically related thereto. 4. The Veteran incurred tinnitus during active service. 5. The Veteran incurred obstructive sleep apnea during active service. 6. The Veteran’s diastolic pressure is not predominately 100 or more, his systolic pressure is not predominately 160 or more, and the Veteran does not have a history of diastolic pressure predominately 100 or more or systolic pressure of 160 or more that requires continuous medication for control. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right shoulder impingement syndrome have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.310(a) (2017). 2. The criteria for entitlement to service connection for degenerative disc disease of the thoracolumbar spine have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria for entitlement to service connection for a left knee disorder have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 4. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 5. The criteria for entitlement to service connection for obstructive sleep apnea have been satisfied. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 6. The criteria for a compensable rating for service-connected hypertension have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.104, Diagnostic Code 7101 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from January 1988 to December 1991. The Veteran’s Certificate of Release or Discharge from Active Service (DD 214) identified the Veteran’s military occupational specialty (MOS) as an Abrams armor crewman. The Veteran testified before the undersigned Veterans Law Judge in a May 2017 Video Conference Board hearing. A transcript of that hearing is of record. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Before addressing the merits of the Veteran’s claims, the Board notes that it has thoroughly reviewed all the evidence in the claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380–81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume the Board overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active duty service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303. Generally, to establish service connection, 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 current disability and the in-service disease or injury (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a presumptive basis for certain chronic diseases if the disability manifested to a compensable degree within the applicable presumptive period following a veteran’s separation from active service. 38 U.S.C. §§ 1110, 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection for a recognized chronic disease can also be established through continuity of symptomology. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For chronic diseases shown as such in active service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been shown in active service there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished for merely isolated findings. Id. 1. Entitlement to Service Connection for a Right Shoulder Disorder The Veteran contends that a right shoulder disorder is related to the duties he performed as an Abrams armor crewman. Specifically, he contends that the lifting of supplies, to include cannon rounds, caused his current right shoulder disorder. The Veteran also contends that his right shoulder disorder is secondary to his service-connected left shoulder disability. Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2017). Secondary service connection may be established for a disorder that is caused or aggravated by a service-connected disability. Id. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 447–48 (1995). To establish secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 511 (1998); Allen, 7 Vet. App. at. 448. The criteria for secondary service connection are satisfied here. The first and second elements are met. The Veteran has a current diagnosis of right shoulder impingement syndrome with bursitis, and he is service-connected for a left shoulder disability. With respect to the third element requiring a nexus between the current right shoulder disorder and the service connected left shoulder disability, the record includes an October 2017 positive nexus opinion from Dr. C.N.B. He concluded that the Veteran’s compensating for his left shoulder disability more likely than not caused his right shoulder disorder. According to Dr. C.N.B., the Veteran’s treatment records do not support an alternative etiology for the Veteran’s right shoulder condition. While the Veteran did not complain of a current right shoulder disorder until September 2009—approximately eighteen years after his separation from active service—Dr. C.N.B. noted that such a time lag between injury and current pathology is consistent with known medical principles and the natural history of the Veteran’s right shoulder disorder. The Board concludes that Dr. C.N.B.’s opinion is probative. It is based on an accurate medical history and provides an explanation that contains clear conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A June 2014 VA examination report does not address secondary service connection as thoroughly as Dr. C.N.B.’s opinion and is therefore less probative Considering the foregoing, entitlement to service connection for right shoulder impingement syndrome is granted. 2. Entitlement to Service Connection for A Thoracolumbar Spine Disorder The Veteran contends that his service as an Abrams armor crewman caused his degenerative disc disease of the thoracolumbar spine. The Veteran does not recall a specific injury during active service, and he did not seek treatment for a thoracolumbar spine injury during active service. Rather, the Veteran describes low back soreness from sitting in a tank gunner seat, sleeping on the tank’s hard surface while in the field, and the physical strain of exiting and entering a tank. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran has a current diagnosis of degenerative disc disease and intervertebral disc syndrome (IVDS) of the thoracolumbar spine, and evidence shows that he served as an Abrams armor crewman. However, the preponderance of the evidence weighs against finding that the Veteran’s diagnosed disorders of the thoracolumbar spine began during service or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a), (d); Holton, 557 F.3d at 1366. The record contains conflicting medical opinions regarding whether the Veteran’s degenerative disc disease of the thoracolumbar spine and IVDS are at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s service as an Abrams armor crewman. The June 2014 VA examiner opined that it was not. The rationale was that the Veteran’s complaints of low back pain did not begin until the late 2000s, more than a decade after the Veteran’s separation from active service. The VA examiner was unable to link the Veteran’s current complaints with degenerative changes to the Veteran’s active service because the Veteran did not injure or receive treatment for low back pain while he was on active service. The VA examiner concluded that the Veteran’s current complaints are of a recent onset and unrelated to the Veteran’s active service. The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez, 22 Vet. App. at 304. Dr. C.N.B. opined that it was. The rationale was that the Veteran incurred a “serious spine injury in service as documented in post service records” due to lifting heavy equipment and ammunition. The service treatment records do not document such a serious injury, and the Veteran reported to the VA examiner that he did not recall a specific back injury. Based on a review of the evidence, Dr. C.N.B.’s opinion appears to be based on an in-service injury that did not occur Because Dr. C.N.B.’s opinion is based on a faulty factual basis, the Board gives more probative weight to the June 2014 VA examiner’s opinion. While the Veteran is competent to describe his low back pain and stiffness during service and his current symptomatology, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge that the Veteran does not possess. See Jandreau, 492 F.3d at 1377 n.4. Consequently, the Board gives more probative weight to the June 2014 VA examiner’s opinion. Degenerative disc disease is a chronic condition for VA purposes. See 38 C.F.R. §§3.307, 3.309. However, the Veteran’s degenerative disc disease was not diagnosed until many years after his separation from active service and well outside the one-year presumptive period; presumption of service connection under 38 C.F.R. § 3.309(a) is not warranted. Because the weight of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Service connection for a low back disorder, to included degenerative disc disease and IVDS, is therefore denied. 3. Entitlement to Service Connection for a Left Knee Disorder Again, the Veteran contends that his service as an Abrams armor crewman, specifically the physical strain from entering and exiting the tank as well as the physical demands within the tank, caused a left knee disorder. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran has a current diagnosis of left knee degenerative joint disease, and the Veteran testified that his service as an Abrams armored crewman injured his left knee. However, the Board concludes that the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of left knee degenerative joint disease began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a), (d); Holton, 557 F.3d at 1366. The record contains conflicting medical opinions regarding whether the Veteran’s left knee degenerative joint disease is at least as likely as not related to an in-service injury, event, or disease, including his service as an Abrams armored crewman and the physical demands of climbing into and out of the tank. The June 2014 VA examiner opined that it was not. The rationale was that the Veteran’s degenerative joint disease is the consequence of a 1995 acute meniscal tear that resulted in arthroscopic surgery with partial meniscectomy and debridement. The VA examiner concluded that the Veteran’s current complaints and objective findings are associated with this post active service meniscal injury, which has now progressed to posttraumatic degenerative changes in his left knee. The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez, 22 Vet. App. at 304. Private practitioner Dr. C.N.B. opined that it was. This opinion is, however, less probative than the VA examiner’s opinion. Dr. C.N.B. states, among other things, that there is no other explanation for the etiology of the Veteran’s left knee degenerative joint disease other than his service as an Abrams armor crewman. The record belies this rationale. As addressed by the VA examiner in June 2014, the Veteran suffered a meniscal tear in 1995. Dr. C.N.B. does not address this in his opinion. Accordingly, the Board concludes that the VA examiner’s opinion is entitled to more probative weight insofar as it is based on a more thorough review and discussion of the Veteran’s medical history. While the Veteran believes his left knee degenerative joint disease is related to his service on an Abrams tank, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires medical knowledge that the Veteran does not possess. See Jandreau, 492 F.3d at 1377 n.4. Consequently, the Board gives more probative weight to the June 2014 VA examiner’s opinion. Degenerative joint disease may be service connected on a presumptive basis; however, the Veteran’s left knee disorder was diagnosed long after the one-year presumptive period and is due to an intercurrent cause that is unrelated to the Veteran’s active service. Thus, presumption of service connection under 38 C.F.R. § 3.309(a) is not warranted. Because the weight of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Service connection for a left knee disorder is therefore denied. 4. Entitlement to Service Connection for Tinnitus The Veteran is entitled to service connection for tinnitus. A June 2014 VA medical examination notes a current diagnosis for tinnitus, satisfying the first requirement for service connection. The Veteran’s service as an Abrams armor crewman caused the Veteran’s ears to ring while he was on active duty, satisfying the second element of service connection. With respect to the third element, the Veteran testified that tinnitus symptoms have continued since his separation from active service. Because tinnitus is an organic disease of the nervous system, see 38 C.F.R. 3.309(a); Fountain, 27 Vet. App. at 271–72, the Veteran’s testimony regarding the persistence of ringing in his ears satisfies the third element of service connection. See 38 C.F.R. §§ 3.303(b); Walker, 708 F.3d at 1338. In light of the foregoing, entitlement to service connection for tinnitus is granted. 5. Entitlement to Service Connection for Obstructive Sleep Apnea Consistent with the Veteran’s contentions, the Board concludes that the Veteran has a current diagnosis of obstructive sleep apnea and that his obstructive sleep apnea began during the Veteran’s active service. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a); Holton, 557 F.3d at 1366. February 1997 private treatment records established a diagnosis of obstructive sleep apnea. A November 2011 letter from Dr. G.B.R. opines that “the likelihood is high” that the Veteran had sleep apnea during active service. The record is also replete with statements from the Veteran’s family and veterans who served alongside him while he was on active duty that thoroughly document lay-observable symptoms of sleep problems/symptoms during the Veteran’s active service. The Board concludes that Dr. G.B.R.’s letter and lay statements are competent, credible, and probative evidence that Veteran incurred obstructive sleep apnea during active service. The Board also notes a September 2017 opinion from Dr. C.N.B. that relies on those lay statements to find a positive nexus between the Veteran’s active service and his obstructive sleep apnea. In light of the foregoing, entitlement to service connection for obstructive sleep apnea is granted. Consideration was given to a negative nexus opinion from a June 2014 VA medical examination. However, the Board concludes this opinion is of little probative value. The examiner did not consider or address statements in the record that described the Veteran’s objectively observable symptoms while he was on active service. 6. Entitlement to a Compensable Evaluation for Hypertension The Veteran contends that he is entitled to a compensable evaluation for his service-connected hypertension. In his May 2017 hearing, the Veteran argued that he has a history of blood pressure measurements with diastolic pressure predominately of 100 or more prior to starting medication, and that his diastolic pressure would exceed 100 if he stopped taking his medication, which his physician has advised him not to do. Under that Diagnostic Code 7101, a 10 percent evaluation is assigned for diastolic pressure predominantly 100 or for an individual with a history of diastolic pressure predominantly100 or more who requires constant medication for control. In his May 2017 testimony and November 2011 notice of disagreement, the Veteran contends that he has a history of diastolic pressure predominately 100 or more. A specific reference was made to a blood pressure reading of 140/100, which had been recorded during a 1997 sleep study. A single isolated blood pressure reading does not necessarily support the finding that the Veteran had a history of diastolic pressure predominantly more than 100 or systolic pressure predominately more than 160. However, more importantly, while 38 C.F.R. 4.1 directs that each disability be viewed in relation to its history, that single reading predates the Veteran’s October 2010 claim by more than a decade. It does not represent the current level of disability, which would be no earlier than one year prior to the date of claim. See generally, 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). Blood pressure measurements contemporaneous with the Veteran’s claim do not satisfy the requirements for a compensable rating. A September 2008 sleep study documented blood pressure of 124/78. Private treatment records from January 2009 to July 2011 document diastolic readings ranging between 64 and 90 and systolic readings ranging between 150 and 124. Thus, the medical evidence shows that the Veteran does not have a history of diastolic blood pressure predominantly 100 or higher or a history of systolic blood pressure predominantly 160 or higher. The Veteran testified that his blood pressure is well-controlled on medication and does not meet the rating criteria for a compensable evaluation; however, he contends that he would have diastolic pressure in excess of 100 absent medication. This argument is unavailing. The Veteran has been prescribed medicine to treat his hypertension; however, a higher rating may not be assigned based solely on the fact that the Veteran uses medication to treat his symptoms. Cf. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) (“Absent a clear statement [in the diagnostic code] setting out whether or how the Board should address the effects of medication...the Board may not deny entitlement to a higher disability rating on the basis of relief provided by medication.”). Moreover, Diagnostic Code 7101 specifically contemplates the use of medication to control hypertension, and in McCarroll v. McDonald, 28 Vet. App. 267 (2016), the U.S. Court of Appeals for Veterans Claims specifically held that the Board did not err in failing to discount the ameliorative effects of blood pressure medication as the plain language of Diagnostic Code 7101 contemplates the effects of medications. Because the weight of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Entitlement to a compensable evaluation for hypertension is therefore denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Douglas M. Humphrey, Associate Counsel