Citation Nr: 19151996 Decision Date: 07/03/19 Archive Date: 07/03/19 DOCKET NO. 16-21 252 DATE: July 3, 2019 ORDER Entitlement to service connection for vision loss is denied. Entitlement to service connection for lumbar spine condition, claimed as lower back disc problem is denied. Entitlement to service connection for bilateral knee pain is denied. Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for bilateral shoulder tendonitis is remanded. FINDINGS OF FACT 1. The evidence of record does not establish that the Veteran has vision loss. 2. The preponderance of the evidence does not support that the Veteran’s lumbar spine condition, claimed as lower back disc problem was incurred in service. 3. The preponderance of the evidence does not support that the Veteran’s bilateral knee pain was incurred in service. 4. The preponderance of the evidence does not support that the Veteran’s hypertension was incurred in service or manifested to a compensable degree within one year of discharge from active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for vision loss have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for lumbar spine condition, claimed as lower back disc problem have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for bilateral knee pain have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for hypertension have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1976 to July 1992. 1. Duty to Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C. § 5103A; 38 C.F.R. 3.159 (c), (d). This duty to assist contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that the VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (c)(4). Under the duty to assist, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service or with another service-connected disability. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159 (c)(4). The requirements to secure a VA examination are a low bar. The Veteran’s representative alleges that the VA provided inadequate examinations, contending that the examiners failed to provide definitive opinions with discernable rationale. Review of the record shows the Veteran has not undergone VA examinations for any of the claimed conditions. With regard to the Veteran’s claims of entitlement to service connection for lower back disc problems, bilateral knee pain, vision loss and hypertension, the Board finds that VA does not have a duty to obtain an examination/opinion. The Veteran has not presented evidence of a diagnoses or recurrent symptoms for vision loss. While the Veteran has presented evidence of either diagnoses or recurrent symptoms for the remaining conditions, there is no evidence of treatment or complaints for these conditions in service, nor is there evidence of an in-service incurrence or any indication in the record of a relationship between these conditions and the Veteran’s service. The Veteran asserts, without more, that all these conditions started while on active duty and continued to deteriorate while he was in the Reserves. This statement is too vague to suggest an in-service event or injury. The only evidence of a possible connection between the claimed conditions and service are the Veteran’s own conclusory statements, and these statements are not sufficient to trigger VA’s obligation to obtain and examination or opinion. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed.Cir. 2010) (conclusory lay assertion of nexus is insufficient to entitle claimant to provision of VA medical examination). In addition, the representative argues that the VA made no effort to secure the Veteran’s service treatment records (STRs). Review of the Veteran’s file shows that the VA made as many requests as were necessary to obtain the Veteran’s STRs. In October 2009 and April 2010 limited STRs were associated with the file. Additional efforts to obtain the Veteran’s STRs were made in November 2011. On April 14, 2012, a formal finding of unavailability was associated with the file in reference to the Veteran’s STRs from November 15, 1976 to July 10, 1992. The examiner provides no specific example of how VA has overlooked information in the record that could result in obtaining the Veteran’s STRs. Thus, the Board has reviewed the evidence of record and concludes that there is no outstanding evidence with respect to the Veteran’s claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. The Veteran has not raised any other 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). In light of the foregoing, the Board finds that VA’s duties to notify and assist have been satisfied, and, thus, appellate review may proceed without prejudice to the Veteran. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a) (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). In addition, for veterans who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 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, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309 (a)). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Vision loss The Veteran contends that he currently has vision loss, which he asserts is related to his active service. Review of the record does not indicate a diagnosis or recurrent symptoms of vision loss. In August 2002, the Veteran selected “changes in vision” on a pre-printed form as a significant problem since his last visit to his primary care physician. This is the only notation pertaining to vision in the Veteran’s medical records. The Veteran has not provided any lay testimony as to symptoms of vision loss. Lacking a current diagnosis for vision loss, the Veteran does not meet the cornerstone element of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, an assessment of the remaining elements is not necessary, and service connection for vision loss is not warranted. Thus, the claim of entitlement to service connection for vision loss is denied because there is no current disability. 3. Bilateral knee pain, lumbar spine condition, hypertension VA treatment records establish diagnoses or treatment for symptoms related to the Veteran’s claims of entitlement to service connection for bilateral knee pain, multiple lumbar spine conditions claimed as lower back disc problems, and hypertension. As to in-service incurrence, the record reflects that the Veteran’s service treatment records (STRs) for his period of service from November 1976 to July 1992 are missing and by no fault of the Veteran. When there is evidence that a veteran’s service records have been lost or destroyed, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant in developing a claim, and to explain its findings and conclusions. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board notes that the limited service treatment records are associated with the file and do not show evidence of complaints or treatment for these conditions or injury related to these conditions. The Veteran separated from active duty in July 1992. The Veteran’s Reserve STRs offer some illumination as to the Veteran’s conditions following service. In October 1998, the Veteran underwent a physical exam for the Army Reserves. The fields for trick or locked knee, heart trouble, and high or low blood pressure are negative. Notably, the Veteran did indicate recurrent back pain or back injury in October 1998. However, the physician’s notes indicate that the Veteran suffered a ruptured disc in 1996 requiring no meds. At the October 1998 Reserves examination, the Veteran had blood pressure reading of 141/97. The physician noted that the Veteran had an essentially normal physical examination, but his diastolic blood pressure was “borderline”. The records do not contain a date for the Veteran’s official hypertension diagnosis. To be compensable, hypertension must result in diastolic pressure predominantly 100 or more; or, systolic pressure predominantly 160 or more. Consequently, there is no evidence that the Veteran’s hypertension manifested to a compensable degree within one year of discharge from active duty service. The Veteran’s post-service treatment records contain mostly vague statements such as “for years” or “for several weeks” regarding the onset, duration, and course of the Veteran’s reported symptoms. Where specific notations of onset or duration are made, they contradict in-service incurrence. For instance, the first notation of a low back injury is contained in an MRI report from July 1995 and shows probable disc herniation at L4-5. As noted, the Veteran suffered a ruptured disc in 1996. In July 2011, the Veteran was seen at the VA for low back pain. The Veteran reported that he had been having problems with his back for the past 5-10 years, which puts onset well after service separation. Similarly, a VA primary care consult from July 2011 reveals the Veteran reported chronic intermittent knee pain for the past 8 years, again putting onset well after separation from service. None of the notations for back or pain date back to service. Likewise, the lay evidence of record does not establish an in-service incurrence. In July 2011, the Veteran’s wife averred that her husband developed back pains and knee pains that he did not have prior to serving during the Gulf War from 1990-1991. She does not mention hypertension. In a February 2013 notice of disagreement, the Veteran states that, “the above conditions started while on active duty and continued to deteriorate while [he] was in the Reserves.” Both statements are too vague to suggest an in-service event or injury. Moreover, although the Veteran’s wife’s statement suggests the Veteran’s knee and back pain had their onset during service, her statement is directly contradicted by her husband’s statements during treatment. There is no additional evidence of record to indicate or suggest an in-service event, injury or illness relating to bilateral knee pain, a lumbar spine condition, or hypertension. Thus, the claims must fail for lack of an in-service incurrence, and discussion of a nexus is not warranted. Accordingly, the criteria for service connection for these conditions has not been established, and the preponderance of the evidence is against these claims. Entitlement to service connection for bilateral knee pain, multiple lumbar spine conditions claimed as lower back disc problems, and hypertension, is denied. REASONS FOR REMAND 1. Entitlement to service connection for bilateral shoulder tendonitis is remanded. The Veteran has not been afforded a VA examination in connection with his service connection claim for bilateral shoulder tendonitis. The Veteran has established the first element of service connection as he has a diagnosis of bilateral shoulder tendonitis. The Veteran’s service treatment records speak to a basketball injury and show treatment for shoulder pain in August 1987 and March 1990. Therefore, an in-service incurrence has been established. As the Board lacks sufficient medical evidence to render a decision on the question of nexus, a VA examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated his bilateral shoulder tendonitis. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. 2. Thereafter, the Veteran should be provided with a VA examination in connection with his service connection claim for bilateral shoulder tendonitis. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The Veteran is competent to attest to matters of which he has first-hand knowledge, including events that occurred during service and observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s bilateral shoulder disabilities manifested during service or are otherwise related to service. 3. After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the issues remaining on appeal. If any benefit sought is not granted, the Veteran should be furnished with a SSOC and afforded an opportunity to respond before the record is returned to the Board for further review. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Sherman Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.