Citation Nr: 19106916 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 17-25 149 DATE: January 29, 2019 ORDER Service connection for a right hand disability is denied. Service connection for hypertension is denied. Service connection for posttraumatic stress disorder (PTSD) and major depressive disorder (MDD) is granted. REMANDED The claim of entitlement to service connection for bilateral hearing loss is remanded. The claim of entitlement to service connection for tinnitus is remanded. The claim of entitlement to service connection for a respiratory disability, claimed as asthma and pulmonary nodule, is remanded. FINDINGS OF FACT 1. Degenerative joint disease of the right hand did not manifest in service or to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; the disability is not otherwise etiologically related to an in-service injury or disease. 2. The evidence clearly and unmistakably demonstrates that hypertension existed prior to entrance onto active service and was not aggravated by such service. 3. PTSD and MDD are related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hand disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a) (2017). 2. Regarding hypertension, the presumption of soundness on enlistment has been rebutted. 38 U.S.C. § 1111 (2012). 3. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1111, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2017). 4. The criteria for service connection for PTSD and MDD have been met. 38 U.S.C. §§ 1110, 1154(b) (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. 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. 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 the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service incurrence or aggravation of arthritis may be presumed to have been incurred or aggravated if the disability is manifested to a compensable degree within one year of the Veteran’s discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. A decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Service connection for a right hand disability The Veteran seeks service connection for a right hand disability. Service treatment records are negative for any diagnosis, complaint, or abnormal finding indicating a disability of the right hand. In his September 2011 application for benefits, the Veteran did not identify the date of onset of his claimed right hand disability or treatment for it. The report of a March 2014 private X-ray indicates that there was no acute fracture. There were osteophytes a the first carpometacarpal joint and the scaphotrapezial joint. The impression was degenerative joint disease. The Board concludes that, while the record contains a diagnosis of degenerative joint disease of the right hand, as indicated by the evidence cited, arthritis did not manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. To the extent that the Veteran asserts that he has a right hand disability that is related to service, the Board observes that he may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and that his assertions in that regard are entitled to some probative weight. He is competent to report incidents and symptoms in service and symptoms since then. He is not, however, competent to render an opinion as to the cause or etiology of the current diagnosis because he does not have the requisite medical knowledge or training, and because this matter is beyond the ability of a lay person to observe. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran’s service. While the record demonstrates a diagnosis of degenerative joint disease of the right hand, it does not contain reliable evidence which relates this claimed disability to any incident of service. For these reasons, the Board concludes that the claim of entitlement to service connection for a right hand disability must be denied, as the preponderance of the evidence is against the claim. The doctrine of reasonable doubt is not applicable in the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service connection for a hypertension VA law provides that a Veteran is presumed to be in sound condition, except for defects, infirmities, or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected. See Bagley v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term “noted” denotes “only such conditions as are recorded in examination reports,” 38 C.F.R. § 3.104(b), and that “history of preservice existence of conditions recorded at the time of examination does not constitute an aggravation of such conditions.” Id. at (b)(1). The law further provides that the burden to show no aggravation of a preexisting disease or disorder during service is an onerous one that lies with the Government. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). VA’s General Counsel determined that VA must show by clear and unmistakable evidence that there was a preexisting disease or disorder and that it was not aggravated during service. See VAOPGCPREC 3-03 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. Id. The Board must follow the precedent opinions of the General Counsel of VA. 38 U.S.C. § 7104(b). Also pertinent is the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), the Federal Circuit stated that a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for the disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. In that case § 1153 applies and the burden falls on the Veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under § 1153 arises, the burden shifts to the Government to show a lack of aggravation by establishing “that the increase in disability is due to the natural progress of the disease.” 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen 19 F.3d at 1417. If the presumption of aggravation under Section 1153 arises, the burden shifts to the Government to show a lack of aggravation by establishing “that the increase in disability is due to the natural progress of the disease.” 38 U.S.C.A. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417. In general, a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a) (2017). Service treatment records indicate that on pre-induction examination in February 1969, the Veteran reported a history of high blood pressure. He indicated that he had been assessed with hypertension in high school, and also endorsed a family history. Clinical examination revealed normal lungs and chest, heart, and vascular system. A date stamped entry in the notes section of the examination report indicates that a letter was received from a private doctor pertaining to high blood pressure resulted in a P1 profile. An undated consultation report indicates the Veteran’s report of having high blood pressure for six years, and notes that on induction examination his blood pressure was 152/98. The impression was high blood pressure by history. An April 1969 entry into the notes section of the pre-induction examination report indicates that the Veteran was fit for duty. The summary of defects and diagnoses indicated hypertension and a history of elevated blood pressure. On separation examination in March 1970, the Veteran denied high or low blood pressure, and palpitation or pounding heart. His lungs and chest, heart, and vascular system were normal on clinical examination. His blood pressure was 118/72. The examiner did not make any notation in the summary of defects and diagnoses, and determined that the Veteran was qualified for separation. On VA examination in June 2013, the diagnosis was hypertension. The Veteran’s history was reviewed. He reported that he did not recall any problems with elevated blood pressures during service, but a year or two following service he was told that his blood pressures were a bit high. He denied ever having been placed on medication, and denied history of heart disease or stroke. The examiner concluded that hypertension clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond natural progression by an in-service injury, event, or illness. She noted the Veteran’s report of hypertension in high school and a blood pressure of 152/98 on examination, as well as the hand-written notation of hypertension. She indicated that on separation examination in March 1970, the Veteran’s blood pressure was 118/72. She concluded that it was evident that the Veteran had a history of elevated blood pressures before service, and his blood pressure on entry was elevated. She pointed out that on discharge, it was normal. She additionally indicated that the Veteran had never required medication, and that elevated blood pressure had remained mild, showed that it had remained stable over many years. Thus, she concluded that hypertension was not aggravated beyond normal progression during service. A July 2013 report from the Veteran’s private physician indicates that he had hypertension controlled by lifestyle modifications. He noted that there was a possibility that the condition could be service related, but that he did not have evidence for that. The Board has carefully reviewed the evidence of record and finds that the hypertension clearly and unmistakably existed prior to entrance onto active service. The Court has held that, as a matter of law, the presumption of soundness is rebutted by clear and unmistakable evidence consisting of the Veteran’s own admission of a preservice history of medical problems during in-service clinical examinations. Doran v. Brown, 6 Vet. App. 283, 286 (1994). Here, the Veteran reported a history of elevated blood pressures on pre-induction examination. Moreover, following consultation and blood testing, the examining physician at that time indicated a diagnosis of hypertension. This constitutes clear and unmistakable evidence that the disability preexisted service. Nevertheless, the Board must also consider whether there was clear and unmistakable evidence that hypertension was not aggravated by service. In this regard, the Board notes that service treatment records are silent with respect to treatment for hypertension. The VA examiner interviewed the Veteran and reviewed the record, to include the service treatment records, and ultimately concluded that there was no increase in the severity of hypertension during service. There is no indication that the VA examiner was not fully aware of the Veteran’s history or that she misstated any relevant fact. This leads to the conclusion that there was no aggravation of hypertension during service. To the extent that the Veteran asserts that his preexisting hypertension was aggravated beyond normal progression by service, the Board observes that he may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and his assertions in that regard are entitled to some probative weight. He is not, however, competent to render an opinion as to whether any symptoms experienced during service represented a permanent worsening of the preexisting hypertension because he does not have the requisite medical knowledge or training, and because this matter is beyond the ability of a lay person to observe. The Board has considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim. Thus, that doctrine is not applicable. 38 U.S.C.A § 5107 (b); 38 C.F.R. § 3.102. 3. Service connection for PTSD and MDD The requirements for establishing service connection for PTSD are more specific than those for establishing service connection for other psychiatric disabilities. To establish service connection for PTSD, the evidence must satisfy three basic elements: 1) medical evidence diagnosing PTSD; 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Having carefully reviewed the record, the Board has determined that service connection for PTSD and MDD is warranted. In reaching this conclusion, the Board notes that in September 2018, a private psychiatrist diagnosed these disorders and related both PTSD and MDD to service. She recited a detailed history and discussed the Veteran’s stressors, both those reported on interview and those previously reported as documented in the record. She noted that the Veteran’s wife had written that his behavior was remarkably changed on his return from Korea. This provider opined that it was at least as likely as not that the Veteran’s psychiatric symptom presentation emerged in prodromal form with the onset of anxiety, hypervigilance, depressed mood, and social isolation during service. As there is an informed clinical opinion indicating that PTSD and MDD are related to events in service, the Board concludes that service connection is in order. REASONS FOR REMAND 1. Service connection for bilateral hearing loss 2. Service connection for tinnitus The Veteran asserts that he has hearing loss and tinnitus that are related to noise exposure during service. Both he and his wife have stated that he experienced hearing difficulty in the years following service. The report of a June 2013 VA examination does not reflect that a history was elicited from the Veteran. Following examination, the clinician concluded that hearing loss and tinnitus were not related to service. She reasoned that hearing acuity was within normal limits at the time of separation. There is no indication that she considered the Veteran’s statements regarding the onset of his hearing loss, or to the type of noise exposure he experienced during service. An additional examination is necessary to address the Veteran’s contentions. 3. Service connection for a respiratory disability The Veteran seeks service connection for a respiratory disability. The record reflects that he has been diagnosed with asthma, a pulmonary nodule, and bronchiectasis. In a September 2011 statement, the Veteran indicated that stress caused his asthma to worsen. Considering the grant of service connection for PTSD and MDD, the Board finds that the Veteran should be afforded an examination to determine whether his psychiatric symptoms aggravate his diagnosed asthma. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of his hearing loss and tinnitus. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. The examination must include a notation that this record review took place. A complete history should be elicited from the Veteran, to include the type of noise exposure he experienced during service. After the record review and examination of the Veteran, the VA clinician is asked to provide an opinion regarding whether it is at least as likely as not that bilateral hearing loss and tinnitus were incurred in, or are otherwise related, to active service. In rendering this opinion, the clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Schedule the Veteran for an examination to determine whether his claimed respiratory disability is related to his psychiatric symptoms. The claims file must be made available to the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. Following review of the record and examination of the Veteran, the examiner should provide an opinion with respect to the following questions: Is it at least as likely as not that any diagnosed respiratory disability, including asthma, is related to the Veteran’s active duty service? Is it at least as likely as not that any diagnosed respiratory disability, including asthma, is caused OR aggravated (worsened beyond normal progression) by the Veteran’s service-connected psychiatric disorders? In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Barone, Counsel