Citation Nr: 21001918 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 10-44 385A DATE: January 12, 2021 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for a low back disorder is denied. REMANDED Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s hypertension was incurred in or caused by service. 2. The Veteran’s in-service complaints involving his low back were attributed to a kidney condition, and there is no competent and probative evidence that his current disorder affecting the low back onset in service or within one year of the Veteran’s September 1979 discharge from active duty service, or that it is causally related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1975 to September 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board issued a decision in November 2017 that remanded the claim for service connection for hypertension and denied the other claims. The Veteran appealed the Board's November 2017 decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2018 Joint Motion for Partial Remand (JMPR), the parties requested that the Court vacate the November 2017 Board decision that denied entitlement to service connection for disorders of the left shoulder, low back and both knees. In a September 2018 Order, the Court granted the Joint Motion. This matter was last before the Board in August 2019, when it was remanded for further development. The record reflects that the Veteran recently received a letter indicating that he could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, the Veteran does not have a pending hearing request. He provided testimony in a hearing with the undersigned Veterans Law Judge in September 2017. A transcript of that hearing is of record and has been considered as evidence in this decision. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during active service and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for hypertension The Veteran asserts his hypertension is related to service. At the September 2017 Board hearing, he stated that he feels that the fluctuations of blood pressure readings in service were the onset of his hypertension. Upon review of the record, the Board finds the most probative evidence is against the claim. Service treatment records reveal blood pressure readings in July 1975, October 1977, January 1978 and September 1979 of 104/54, 136/100, 120/94 and 106/80, respectively. An April 1986 Army Reserve Enlistment examination shows the Veteran denied having low or high blood pressure. A diastolic blood pressure reading of 120/60 was recorded. In March 2009, the Veteran reported that he had been told he had high blood pressure but did not take medication for it. In October 2009, the Veteran was diagnosed and prescribed with antihypertensive medication. While the Veteran did have elevated blood pressure noted on two occasions in service, hypertension was not diagnosed during service or within one year following discharge from service; thus, competent evidence linking the Veteran’s current hypertension to service is needed to substantiate the claim. However, the most probative evidence of record addressing this question is against the claim. In January 2018, a VA examiner opined that the Veteran’s hypertension is less likely as not (less than 50/50 probability) arose in service or is etiologically related to active duty service. The examiner provided the rationale that even though the Veteran’s service treatment record progress notes in October 1977 documented “high blood pressure”, the Veteran did not meet the diagnostic criteria for hypertension to include elevated blood pressure readings two or more times on three separate occasions. The examiner noted that the records documented one elevated blood pressure reading on two separate occasions. Additionally, the examiner noted that the Veteran was first diagnosed with hypertension in March 2000 and started taking medication in March 2009, which was approximately 30 years after discharge. In December 2019, the Veteran was afforded another VA examination. The examiner diagnosed hypertension and opined that the condition is less likely as not (less than 50/50 probability) arose in service or is etiologically related to active duty service. The examiner provided the rationale that isolated elevated blood pressures in the face of pain, acute illness, or anxiety has never been considered to meet the diagnostic criteria for chronic hypertension regardless of the era in question. The examiner explained that isolated elevated blood pressures in the face of pain or acute illness or anxiety is a normal physiologic response to these conditions. The examiner noted that the documented blood pressure readings in the Veteran’s service treatment records were documented in the face of pain or acute illness. As such, the examiner concluded that the Veteran’s current hypertension was less likely than not related to active duty service. There is no competent medical opinion to the contrary. While the Veteran believes his hypertension began during service, as a lay person, he has not been shown to have the specialized training sufficient to render such an opinion, as the diagnosis and etiology of hypertension are matters not capable of lay observation and require medical expertise to determine. Therefore, the opinion of the Veteran as to the onset or etiology of his current hypertension is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d at 1376-77 (Fed. Cir. 2007) (noting lay person’s general competence to testify as to symptoms but not to medical diagnosis). The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran’s lay assertions. In sum, the Board concludes that the most probative evidence of record is against the claim, and service connection is denied. In reaching the above conclusion, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 2. Entitlement to service connection for a low back disorder The Veteran contends that his current back condition is related to service. As an initial matter, the Board notes that the Veteran has been diagnosed during the course of the appeal with lumbar spondylosis. Accordingly, the first criterion for establishing service connection has been met. The question becomes whether the condition is related to service. The Veteran was seen in service with a complaint of pain on the right side of his lower back in July 1978, at which time he reported similar issues in family members with kidney problems. The Veteran was initially assessed with resolving muscle strain but was later assessed with a possible mild case of kidney problems. As there is no competent evidence of arthritis in the Veteran’s back in service or within one year following his September 1979 discharge from active duty service, competent evidence linking the current condition with service is required to establish service connection. However, no such evidence exists. While the Board acknowledges that no medical examination or opinion was obtained in this case concerning the claim, it finds that no examination or opinion is needed because there is no evidence of in-service occurrence of a back disability, as the Veteran’s in-service back complaints were ultimately attributed to a kidney condition. Moreover, there is no credible evidence of continuous symptoms involving the Veteran’s back since active duty service, as evidenced in his denial of recurrent back pain at the time of his April 1986 Reserve enlistment examination. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination because it would "eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations in virtually every veteran's disability case"). In accordance with the JMPR directives, treatment records from June 2002 to include x-ray reports and VistA imaging scanned documents were obtained. In July 2011, the Veteran reported low back pain. September 2012 x-ray findings of the lumbosacral spine revealed there was a very slight scoliosis that was probably positional. The pedicles were intact as were the transverse processes. There was evidence of partial sacralization of L5. No vertebral body compression could be seen. No sclerotic lesion could be seen in any of the vertebral bodies. No lytic lesion could be seen. There was a question of slight narrowing of L5-S1 disc space. There was vascular calcification. The articular facets were in normal alignment. The spinous processes were intact. There was no fracture, no spondylolisthesis and no significant abnormality seen. While the Veteran believes that his current low back problem is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d at 1376-77. In this regard, the diagnosis and etiology of low back disabilities are matters not capable of lay observation and require medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his current low back problem is not competent medical evidence.   In sum, a chronic low back disability was not shown in service or for many years thereafter, and there is no competent and credible evidence suggesting the current back disability is related to service. Accordingly, the preponderance of the evidence is against the claim, and service connection for a low back disability is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right knee disorder is remanded 2. Entitlement to service connection for a left knee disorder is remanded 3. Entitlement to service connection for a left shoulder disorder is remanded. The Veteran essentially contends that he developed disorders of his left shoulder, left and right knees as a result of rigorous activities during active duty service in the Infantry. In May 2014, the Veteran told a VA podiatrist that he had “knee problems ever since the 70’s when he came back from overseas. During the September 2017 Board hearing, he testified that he has not experienced any post-service shoulder or knee injury. A June 2011 x-ray of the right knee shows early degenerative change medially and soft tissue swelling. A January 2018 x-ray of the left knee shows mild left knee arthritis. Upon review of the record, the Board finds that a medical opinion concerning the knees is warranted. In December 2019, a VA examiner opined that it less likely than not that this Veteran's current left shoulder mild degenerative joint disease arose during service or is otherwise related to service. However, the Board finds that an addendum opinion is needed. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his bilateral knee and left shoulder disorders. After securing any necessary releases, the agency of original jurisdiction (AOJ) should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran and his representative should be notified of such. 2. Obtain an addendum opinion concerning the Veteran’s left shoulder claim. If a new examination is deemed necessary to respond to the question presented, one should be scheduled. After review of the claims file, the examiner should opine whether it is at least as likely as not that the Veteran’s current left shoulder disorder is related to his military service, to include whether it is a delayed post-traumatic residual of in-service physically rigorous activities. The examiner should explain why or why not. 3. After records development is completed, the Veteran should be afforded a VA knee examination to determine the nature of claimed knee disabilities and to obtain an opinion as to whether such is possibly related to service. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted and the results reported. After review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current disability of the knee is related to service. The examiner should explain why or why not, to include whether it is a delayed post-traumatic residual of in-service physically rigorous activities. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Asare, 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.