Citation Nr: 21063496
Decision Date: 10/14/21	Archive Date: 10/14/21

DOCKET NO. 17-29 296
 DATE: October 14, 2021

ORDER

Entitlement to service connection for hyperlipidemia is denied.

Entitlement to service connection for dyslipidemia (abnormal fat disposition) is denied.

Entitlement to service connection for bilateral hearing loss disability is denied.

Entitlement to service connection for a left knee disability is denied. 

Entitlement to service connection for bilateral pes planus is denied.

Entitlement to service connection for a left shoulder disability is denied.

Entitlement to service connection for hypertension is denied.

Entitlement to service connection for glucose intolerance is denied.

Entitlement to service connection for anemia is denied.

Entitlement to service connection for left ventricular hypertrophy is denied.

Entitlement to service connection for fatty liver disease is denied.

Entitlement to service connection for splenomegaly is denied.

Entitlement to service connection for right lower extremity varicose vein is denied.

Entitlement to service connection for right lower extremity venous insufficiency is denied. 

Entitlement to service connection for left lower extremity venous insufficiency is denied.

Entitlement to service connection for right groin muscle strain is denied.

Entitlement to service connection for right lower extremity peripheral neuropathy is denied. 

Entitlement to service connection for left lower extremity peripheral neuropathy is denied.

Entitlement to service connection for Immune/Idiopathic Thrombocytopenia Purpura (ITP) is denied.

REMANDED

Entitlement to service connection for a low back disability is remanded.

Entitlement to service connection for a hernia/gastroesophageal reflux disease (GERD) is remanded.

Entitlement to service connection for a left lower extremity varicose vein is remanded.

Entitlement to service connection for a right shoulder disability is remanded.

Entitlement to service connection for a right knee disability is remanded.

Entitlement to service connection for a cervical spine disability is remanded.

Entitlement to service connection for gout is remanded.

Entitlement to service connection for rheumatoid arthritis is remanded.

FINDINGS OF FACT

1. Hyperlipidemia and dyslipidemia are mere laboratory findings so not ratable disabilities for VA compensation purposes.

2. The most probative (i.e., competent and credible) evidence is against finding that the Veteran has a ratable hearing loss disability for VA compensation purposes or pes planus or left lower extremity venous insufficiency.

3. The Veteran's human immunodeficiency virus (HIV) test in service was not an injury or a disease or tantamount to either.

4. Any contention as to continuity of symptoms of the claimed disabilities since his first period of active service is less than credible and contrary to contemporaneous service treatment records (STRs).

5. The most probative evidence is against finding that the Veteran has hearing loss disability, a left knee disability, a left shoulder disability, hypertension, glucose intolerance, anemia, left ventricular hypertrophy, fatty liver disease, splenomegaly, right lower extremity varicose vein, bilateral lower extremity venous insufficiency, right groin muscle strain, bilateral peripheral neuropathy, and/or ITP that was caused or aggravated by his service or a service-connected disability.

CONCLUSION OF LAW

The criteria are not met for service connection for hyperlipidemia, dyslipidemia (abnormal fat disposition), bilateral hearing loss disability, left knee disability, bilateral pes planus, a left shoulder disability, hypertension, glucose intolerance, anemia, left ventricular hypertrophy, fatty liver, splenomegaly, right lower extremity varicose vein, right lower extremity venous insufficiency, left lower extremity venous insufficiency, right groin muscle strain, bilateral lower extremity peripheral neuropathy, and/or ITP. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 3.317, 3.385.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran had active military service from August 1985 to August 1994 and from May 2007 to May 2008.  He also had periods of service in the reserves.

In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation ("nexus") between the disease or injury in service and the present disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also 38 U.S.C. §§ 1101, 1131; 38 C.F.R. § 3.303.

Certain chronic diseases (including hearing loss, diabetes, and arthritis) will be presumed to have been incurred in service, absent an intervening ("intercurrent") cause, if they were shown as chronic in service or if they manifested to a compensable degree within a year following separation from service, or if they were noted in service (or within the presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

Also, according to 38 C.F.R. § 3.310(a) and (b), service connection may be granted as well on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Active military service includes any period of active duty (AD) or active duty for training (ACDUTRA) during which the Veteran was disabled from disease or injury incurred or aggravated in the line of duty and any period of inactive duty training (INACDUTRA) during which the Veteran was disabled from injury though not also disease  or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C. §§ 101(21), (22), (23), (24), 106, 1110, 38 C.F.R. §§ 3.6(a), (d), 3.303(a). See also Harris v. West, 13 Vet. App. 509, 511 (2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); and Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991).

Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training that each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training.

INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). Basically, this refers to the approximate twelve weekend drills (or 24 days of drill) that each Reservist or National Guardsman must perform each year (each drill day is generally divided into two 4-hour periods). These drills are deemed to be part-time training.

Every Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment into service, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Only such conditions as are recorded in examination reports are to be considered as "noted" for the purpose of this analysis. 38 C.F.R. § 3.304(b).

If a condition is not "noted" upon entrance into service, VA must rebut the presumption of soundness by showing clear and unmistakable evidence that (1) there was a pre-existing condition and (2) that the pre-existing condition was not aggravated during or by the Veteran's service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). See also 38 U.S.C. § 1153.

If a pre-existing disability was noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, only instead a claim for service-connected aggravation of that disability. In that case, 38 U.S.C. § 1153 applies and the burden falls on him, not VA, to establish aggravation. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); 38 C.F.R. § 3.306.

1. Hyperlipidemia

AND

2. Dyslipidemia (abnormal fat disposition)

Hyperlipidemia and dyslipidemia are mere laboratory findings and not actual ratable disabilities for which VA compensation benefits are payable. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (Diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities. Therefore, they are not appropriate entities for the Rating Schedule). The term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. See also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995).  A mere symptom, without a diagnosed or identifiable underlying malady or condition or associated functional impairment of earning capacity, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999).  That said, the Board also is cognizant of the Court's ruling in Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018), that pain alone sometimes can constitute a ratable disability.  But the Court in Saunders cautioned that a Veteran cannot demonstrate service connection simply by asserting subjective pain. Rather, "[t]o establish the presence of a disability, the veteran will need to show that [his or] her pain reaches the level of functional impairment of earning capacity." Id.  Moreover, attribution of the disability to the Veteran's service still is required.

Here, however, there is no competent and credible evidence that the Veteran's hyperlipidemia and/or dyslipidemia cause symptoms reaching the level of functional impairment of his earning capacity. And, while these clinical findings may be risk factors for a disability, they are not in and of themselves a disability for VA compensation purposes. Accordingly, there is no basis for awarding service connection.

3. Bilateral (left and right ear) hearing loss disability

The Veteran's STRs reflect that he had abnormal hearing at some point in service, and that he believed his hearing acuity sometimes decreased (e.g., May 1994 DA Form 4700, Record of Audiological Evaluation); however, upon examination for separation purposes in May 1994, his hearing was within normal limits  including his word recognition, which was excellent.  More importantly, there is no probative finding that he has a current hearing loss disability.  For the purposes of applying the laws administered by VA, impaired hearing will be considered a ratable disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of a present disability there necessarily can be no valid claim). A current disability means a disability shown by competent and credible (i.e., probative) evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). At the very least, the evidence must show that, at some point during the appeal period, the Veteran has the disability for which benefits are being claimed. McClain v. Nicholson, 21 Vet. App. 319 (2007) (a claim for service connection may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests the disability resolved); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McClain on a recent diagnosis even predating the filing of a claim). 

All this is significant because, as concerning this claim, there simply is not any probative evidence of record indicating the Veteran has sufficient hearing loss in either ear to be considered a ratable disability for VA compensation purposes or that he has at any time during the pendency of this claim or even in near proximity to the filing of this claim. 

A June 2013 VA examination report reflects that the Veteran's hearing acuity does not meet the criteria for a VA disability based on the following test results.

		HERTZ		

	500	1000	2000	3000	4000

RIGHT	5	10	10	15	30

LEFT	5	5	10	15	35

His speech recognition ability was 94 percent for each ear using the Maryland CNC speech recognition test.  

Based on those examination findings, the Veteran's hearing loss was insufficient to meet the threshold minimum requirements for a ratable disability for VA compensation purposes according to § 3.385.

The Veteran is competent to attest to factual matters of which he has first-hand knowledge (e.g., experiencing difficulty hearing). However, he is not competent to state he has sufficient hearing loss to be considered an actual ratable hearing loss disability for VA compensation purposes.  Quite simply, not all hearing loss is sufficient to constitute a ratable "disability" for VA compensation purposes. And, here, since there is no competent clinical evidence of record showing the Veteran has a ratable hearing loss disability for VA compensation purposes, meaning satisfying the threshold minimum requirements of 38 C.F.R. § 3.385, service connection is not warranted.

 

AD STRs

STRs are associated with the claims file beyond those that will be discussed, but they do not include any pertinent findings concerning the Veteran's claimed disabilities that significantly expand upon, revise, or contradict the findings discussed in this decision. In adjudicating this appeal, the Board has reviewed all the evidence in his claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that it discuss, certainly not in exhaustive detail, each piece of evidence he submitted or that VA has obtained on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, with respect to a claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board discuss its reasons or bases for rejecting evidence favorable to the claimant).

The Board must assess the credibility and weight of all evidence, so both the lay and medical evidence, to determine its ultimate probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons or bases for rejecting any evidence favorable to the claimant. 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, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether instead a preponderance of the evidence is against the claims, in which case the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran's first period of active service was from August 1985 to August 1994.  During this period, a November 1985 STR reflects a left ankle sprain.

A July 1988 record reflects a high epigastric hernia that is very tender to direct pressure.  The Veteran was advised to have corrective surgery but desired a second opinion.

His July 1988 Report of Medical History for special forces purposes reflects that he specifically denied a painful or trick shoulder, recurrent back pain, foot trouble, lameness, a trick or locked knee, neuritis, and/or paralysis. His corresponding July 1988 Report of Medical Examination reflects that all systems were normal upon evaluation with the exception of condyloma accuminata, a 2x4 cystic area on the chest, and astigmatism.  He was found to be qualified for special forces, airborne, and retention.

A November 1988 STR notes a left ankle sprain.  A December 1988 STR notes a complaint of right knee pain (on the inside of the knee) for one week, but the Veteran denied a history of trauma; he reported that he had been recently skiing.

An April 11, 1990 Report of Medical Examination reflects that all systems were normal upon clinical evaluation. A Report of Medical History dated April 11, 1991 (the Board notes that the examination record is dated 1990 while the apparent corresponding history record is dated 1991) reflects that he had not had a change in his physical condition since his last examination.  He reported that he had, or had previously had, a hernia, but he specifically denied a painful or trick shoulder, recurrent back pain, a trick or locked knee, foot trouble, neuritis, paralysis, and cramps in his legs.

STRs in November 1990 reflect that he had a fall while running, and that he had twisted his left ankle. He was diagnosed with a sprain, and it was placed in a cast; the records are unremarkable for any symptoms other than the left ankle injury incurred while running/falling. 

His March 1993 STRs reflect that in late February 1993, he had injured his ear, and someone had fallen on his right shoulder while playing rugby.  Upon examination, the AC and sternoclaviculare joints were tender.  He was seen for follow up for the ear, but no follow up for the right shoulder was noted in the STRs.

His July 1993 Report of Medical History for over 30-year-old purposes reflects that in addition to the previously noted hernia, he also reported having, or having had, high or low blood pressure, and cramps in the legs.  He again denied a painful or trick shoulder, recurrent back pain, a trick or locked knee, foot trouble, and/or neuritis, paralysis.  It was noted that the hernia was clinically diagnosed in 1988.

His May 1994 Report of Medical History for separation purposes from his first period of active service reflects his statement that he was in "excellent health", but noted numerous symptoms which had, or had previously had, to include a past history of possible hearing loss with a history of a cauliflower ear, a history of possible epigastric hernia in 1988, a history of elevated blood pressure in 1991 for which he was not placed on anti-hypertension medication, a possible small fracture of the left ankle with recurrent sprains, a history of right shoulder pain secondary to a sports injury, and mild/occasional hemorrhoids. He checked the box that he had a trick or locked knee but annotated on the form to reflect it was the ankle. His corresponding Report of Medical Examination also notes occasional symptoms of hemorrhoids, a healed traumatic scar on the right lower back, slightly prominent vein in the left calf, a possible small hernia, and slightly above normal range of fasting blood sugar. 

Reserve STRs and private records

The Veteran separated from service in August 1994 and thereafter, had some Reserve service until May 2007.  During that time, he had physical evaluations for Reserve purposes completed by his civilian primary care provider (Dr. Ruble), who stated that the Veteran had an essentially normal physical examination in 1998 and stated in 2002 and 2005 that the Veteran was in excellent physical condition. 

Ten years after separation from active service, January 2006 correspondence from Dr. Ruble reflects that the Veteran has been diagnosed with essential hypertension (which was controlled by medication), HIV infection, and idiopathic thrombocytopenia.  She stated that she deemed him to "be in overall good health and physical and mental condition".

In a December 2006 Report of Medical History for Reserve Retention purposes, the Veteran reported that he was on medication for hypertension.  He reported recurrent back pain, foot trouble, and knee trouble, but specifically denied numbness or tingling, a painful shoulder, arthritis, rheumatism, or bursitis. He also denied high or low blood sugar, or sugar or protein in the urine.  For foot trouble, he reported having had an ankle injury two to three times on active duty which required a cast of the left ankle.  He reported that it can be painful when ruck-marching or with extended running.  He also reported that the left knee had the "same" problem.  He reported "occasional back pain  active duty."

The next month, a January 2007 Army Memorandum reflects that the Veteran was notified of medical disqualification for service.  He was noted to have idiopathic thrombocytopenia (ITP), a left knee injury, a left ankle injury, and back pain (bilateral sacroiliac joint pain).  

A February 2007 Physical Profile (DA Form 3349) reflects that the Veteran does not meet medical standards, and, among other things, he had chronic low back pain which was assessed as mild bilateral sacroiliac joint arthritis, and essential hypertension.  

Thus, prior to his second period of active service, he had a preexisting disability of hypertension, ITP, and arthritis clearly noted in the military records.

Second period of AD STRs

He had his second period of active-duty service from May 2007 to May 2008. STRs during active duty note complaints, to include of the neck, back, and knee, and note that the Veteran continued on physical profile limiting his required running and marching due to his back, and ankles.  The Veteran did not deploy overseas.

A few months after his separation from his second period of active service, his October 2008 Post-Deployment Health Re-assessment form reflects that the Veteran reported that he had damage to his left ankle, a low back injury and that his back pain is progressively getting worse. He also noted swollen, stiff, or painful joints, back pain, and muscle aches, among other complaints.  He denied frequent indigestion, vomiting, or numbness and tingling in hands or feet had developed during deployment and/or that he was currently experiencing those symptoms.

4. Left Knee

The Board finds that service connection is not warranted because the evidence supports that after his first period of AD and prior to his second period of AD, he had the onset of left knee pain, with no probative evidence that it was incurred while on INACDUTRA or ACDUTRA, and no probative evidence that he had a disability which was worsened beyond its natural progression due to service.

The Veteran's STRs reflect that in December 1988, he sought treatment for right knee symptoms of one week in duration.  The report is unremarkable for left knee complaints.  The Veteran's 1991 and 1993 Reports of Medical History reflect that he specifically denied a trick or locked knee. His May 1994 Report of Medical History for separation purposes reflects his statement that he was in "excellent health", and when checking a box for a knee complaint, he clarified that it was actually an ankle complaint. 

As noted above, the Veteran separated from his first period of active-duty service in August 1994, and between his periods of active-duty service, he had annual physical evaluations completed by his primary care provider (Dr. Ruble), who opined in 1999 that he had a complete physical in June 1999 which was normal.  In a June 2001 examination report, she noted that his spine, pelvis, extremities, and joints were all normal.  In August 2002, she reported that the Veteran is in "excellent physical condition" and only noted his well-controlled hypertension and asymptomatic HIV as his conditions.  In May 2005 correspondence, she again stated that the Veteran was, in her opinion, in "excellent health".  If he had a chronic knee complaint since active duty, it seems entirely reasonable that Dr. Ruble would have noted it.  See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). 

In a December 2006 Report of Medical History for Reserve Retention purposes, the Veteran reported left knee pain from an active-duty injury. The Board notes, however, that it was his right knee, which was injured in service, with subsequent denials of knee complaints.  This 2006 report is more than 12 years after active service separation. The mere report of a complaint during a period of INACDUTRA or ACDUTRA is not sufficient upon which to grant service connection especially given the evidence that he had no shown injury in the STRs and had denied complaints in active service. 

A January 2007 Kamil Orthopedic Group record reflects that the Veteran was seen for his left ankle, but also reported that he "also notes mild intermittent knee and low back pain, most notably at the right sacroiliac region."  Upon examination, there was no deformity noted, no joint effusion, no instability, no tenderness, and the Veteran had full range of motion with no pain.  The Veteran was given a physical profile.

A February Army memorandum (Notification of Medical Disqualification) reflects that the Veteran had a left knee injury.

The Veteran had a second period of active service from May 2007 to May 2008.  During this time, he was on a profile (due to his ankle(s) and low back, and which restricted his running and marching). (He was also on a deployment profile due to low blood platelets).

A May 2010 VA clinical record reflects that the Veteran presented for a Gulf War survey.  Upon examination, he had left ankle pain.  He was assessed with a reported left ankle sprain in 1985, and low back pain since a fall off a tank in 1987, but the report is unremarkable for knee complaints.  He was assessed with "generalized joint pain" and a rheumatology consult was planned.  A June 2010 rheumatology consult reflects that he complained of morning stiffness of the hands, cervical spine, lumbar spine, hips, ankles, and knees.  The impression was arthralgia of unknown etiology.

The Veteran reported to 2013 VA examiner that he injured his right knee while skiing in 1988 and that he still has right knee pain. The report is unremarkable for an alleged left knee in-service injury. He also reported that he started having joint stiffness in 2002 and was later diagnosed with RA (rheumatoid arthritis).  The 2013 VA examination report reflects that bilateral knee x-rays were negative for a disability.  The Veteran was diagnosed with bilateral knee strain.  No medical opinion as to etiology was requested. 

A November 2020 Disability Benefits Questionnaire (DBQ) submitted by the Veteran reflects that he reported having chronic knee pain from physical activity and repetitive trauma sustained during his military career. He said that, while running, he stepped down into a hole, fracturing his ankle, and twisted his knee. The examiner observed the Veteran has moderate-to-severe degenerative joint arthritis of the right knee and mild changes of the left knee.  The examiner further stated that, "[u]pon physical examination and case history of the veteran recounting trauma suffered during this military career it is likely the current condition of the knee was caused by trauma and injury sustained." 

The Board find that service connection for a left knee disability is not warranted.  Although the Veteran has contended a left knee injury in service, any such contention lacks credibility and, therefore, any opinion based on such lacks probative value. Opinions, such as the private 2020 opinion mentioned above (and the 2019 deposition of Dr. Brooks that is associated with the claims file), which are not based on a complete review of the pertinent evidence lack significant probative value. The mere recitation of a Veteran's self-reported lay history does not constitute competent medical evidence of diagnosis or causality. See LeShore v. Brown, 8 Vet. App. 406 (1996). In addition, medical opinions premised upon an unsubstantiated account of a claimant are of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant). In essence, the private opinions lack probative value because they apparently rely mostly, if not entirely, on a history recounted by the Veteran that has not been shown to be true. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) and Coburn v. Nicholson, 19 Vet. App. 427 (2006) (explaining that, while a doctor's independent review of the claims file is not necessarily determinative of the probative value of his/her medical opinion, since, as an example, the Veteran could be a credible historian, this is not true when it conversely is not shown the Veteran is credible in recounting his medical history or when there is indication that evidence not reviewed or considered by the doctor could impact or undermine the examiner's opinion or conclusions if it conversely was considered).

 

With regards to the alleged injury to the knee while twisting the ankle, if such occurred, this reasonably would be for the right knee, not the left knee, as it was the right ankle that was injured. However, even assuming the Veteran is alleging a left knee injury when he twisted his right ankle, his AD STRs for his first period of service are unremarkable for a left knee disability and, importantly, he denied a knee complaint in 1991, 1993, and 1994 and had normal clinical findings.  If he had injured his knee when he injured his ankle, it stands to reason this would have been documented in his STRs  especially since he was seeking treatment referable to a lower extremity.  Moreover, his private physician (Dr. Ruble) referred to the subsequent examinations as normal and/or health as "excellent" in 1999, 2001, 2002, and 2005.  The earliest complaint of knee pain was not until 2006, more than a decade after active service.   See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013). Thereafter, the Veteran had a year of active service but, notably, was excused from running due to non-knee related reasons.  He also had reported that his knee complaints had started in 2002, which would be prior to his second period of service and after his first period of service.

Assuming for the sake of argument the Veteran had a pre-existing knee disability (and not just pain), prior to his second period of service, there still is not competent and credible evidence that his 2007-2008 AD service aggravated, meaning worsened beyond natural progression, any pre-existing disability  especially as he was on a profile excusing him for extended marching and from running.

There is no probative evidence, based on review of the pertinent records and with adequate rationale, indicating it is as likely as not the Veteran has a left knee disability that was caused or aggravated by his service.  Moreover, VA does not have a duty to obtain a clinical opinion in this circumstance because there is no credible evidence of relevant injury in service. Finally, the evidence does not support a finding of arthritis within a year of separation from service. 

In response to claims of entitlement to service connection for a given disability, VA must provide a medical examination and medical opinion when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or a service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006).

Regarding the third factor, the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence suggesting a nexus but that is too equivocal or lacking in specificity to support a decision on the merits or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. 79.

The even higher U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, also has addressed the appropriate standard to be applied in determining whether an examination and opinion are warranted. In two precedent cases, Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010), and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit Court held that, while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, however, a mere conclusory generalized lay statement suggesting a nexus between a current disability and service (as in this case here) would not suffice to meet the standards, as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all Veterans claiming entitlement to service connection, so in contravention of the craftily tailored requirements for requesting an examination and opinion and, instead, simply as a matter of course. Waters, 601 F.3d at 1278-1279.

For these reasons and bases, service connection is not warranted.

 

5. Pes Planus

The evidence is against finding that the Veteran has pes planus (i.e., flat feet) because of his military service  meaning that was caused or aggravated by his service.  His Reports of Medical History and Reports of Medical Examination reflect normal feet and/or that he denied any foot trouble (e.g., July 1988, April 1990/1991, July 1993, May 1994).  His December 2006 Report of Medical History notes foot trouble, but, in explanation, it was elaborated as in actuality left ankle injury.  

A post-service November 2013 VA examination report affirms the examiner found "no evidence" of flat feet.  And, although the Veteran cited receiving a diagnosis of flat feet years earlier, in 2007, he had not been shown to have a current diagnosis of flat feet during the pendency of this claim. Moreover, as the Court has explained, the "connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical evidence.''  Robinette v. Brown, 8 Vet. App. 69, 77 (1995). 

Since the evidence is against a finding of flat feet incurred or aggravated in service, and/or current disability owing to flat feet, service connection is not warranted.

6. Left shoulder

As already discussed, the Veteran's STRs show a right shoulder rugby injury in February 1993 evidenced by tenderness on examination of that shoulder. He subsequently sought follow-up for his ear, which he also had injured in the rugby incident.  As he was seeking initial treatment and then some follow-up treatment for symptoms relating to that rugby injury, it seems reasonable that, if he also had recurrent or chronic left shoulder complaints, he would have at least mentioned them or sought treatment and it would have been noted in his STRs.  Courts have recognized how medical history recounted during evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to, in turn, receive the best or most appropriate medical care. See Rucker v. Brown, 10 Vet. App. 67, 73-74 (1997).

The Veteran subsequently denied a painful shoulder in July 1993, and in May 1994 he conceded he was in excellent health with a "history" of a painful right shoulder, but no then current complaints were noted.  Moreover, no mention was made of a contralateral left shoulder complaint or injury.

The Veteran's December 2006 Report of Medical History for Reserve Retention purposes reflects that he specifically denied shoulder pain. 

Thus, the Board finds that the Veteran did not sustain a left shoulder disability in his first period of AD.

He entered his second period of AD in May 2007.  A March 2008 record reflects that the Veteran reported neck pain bilaterally.  Upon examination, he had spasms of the trapezius muscle of both shoulders. 

In a 2013 VA examination, the Veteran reported that he was treated for his right shoulder in 1993 while in the service and that injury had resolved.  He reported that he then started having bilateral shoulder pains and stiffness since 2002 or 2005.  He denied any injury to his left shoulder. An MRI of the left shoulder revealed tears, a cyst, tendinosis, and degenerative changes.  The Veteran was not on active duty from 2002 to 2005  the time period when he asserts his symptoms began.  Moreover, the 2013 findings are five years after separation from active service, which does not support an incurrence in service.

A 2015 DBQ reflects that the Veteran reported that he had shoulder injuries between 1980-1990 in service during physical training and sporting events; (the Veteran was not in service until 1985).  However, the Veteran had previously denied a left shoulder injury, and none was noted in the STRs.  Thus, a contention as to an injury during his first period of AD is not supported and is less than credible.  Any opinion based on this less-than-credible history lacks probative value.

In a 2020 DBQ, the Veteran asserted that he injured his right shoulder in 2003 when playing sports and he fell; he reported that he was told to ice and rest it.  He stated that around 2013 is when there were tears and a bone spur found.  With regards to the left shoulder, he stated that it "could" also be tied to the sports injury in service.  The examiner provided an opinion of the right shoulder, but not specific to the left shoulder.  Moreover, any opinion based on a sports injury in 2003, when he contends that he injured his right shoulder, would not relate to or concern his left shoulder.

The Board find that service connection for a left shoulder disability is not warranted.  Although the Veteran has stated that he "could" have injured his left shoulder" in a sports injury in service, there is no competent and credible evidence of a left shoulder injury in service, and his contention is speculative and contrary to his denials of shoulder complaints. Moreover, the Veteran was not on active duty in 2003 when he contends that he could have injured it, and he was not on active duty in 2002 or 2005 when he contends symptoms started. Although an injury during a period of INACDUTRA would warrant service connection if it caused a current disability, there is no clinical opinion that any current left shoulder disability may be as likely as not related to the complaint of neck pain with trapezius spasms in 2008 while on AD.  His current diagnoses are with regard to arthritis, a tear, and a strain, and all which manifested many years after 2008.

Finally, the Veteran has alternatively argued that his shoulder disabilities are related to HAART (highly active antiretroviral therapy). However, as noted below in this decision, service connection is not warranted for any disability resulting from HAART.

There is no probative evidence, based on a review of the pertinent records and with adequate rationale, that it is as likely as not that the Veteran has a current left shoulder disability causally related to, or aggravated by, service, to include the complaint of trapezius in 2008.  Moreover, VA does not have a duty to obtain a clinical opinion because there is no credible evidence of an injury, disease, or event in service which may be related to a current disability. Finally, the evidence does not support a finding of arthritis to a compensable degree with a year of separation from service. 

For these reasons and bases, service connection is not warranted.

7. Hypertension AND 8. Glucose intolerance AND 9. Anemia, AND 10. Left ventricular hypertrophy AND 11. Fatty liver, AND 12. splenomegaly

In approximately January 1997, the Veteran was seen for a physical assessment during pre-mobilization for duty in Bosnia/Yugoslavia.  As part of his physical assessment, he was tested for HIV, which resulted in a positive test.  This would have been during a period of Reserve service.  

Between 1997 and 2006, the Veteran was treated by a private clinician, Dr. Ruble (internist and infectious disease treatment provider) and was also part of studies on treating HIV.  In 2006, after years of treatment, clinicians determined that the Veteran did not have HIV and may never have had HIV.  He ceased medical treatment for HIV but contends that his years of treatment caused the claimed disabilities.

The claims file includes March 2010 correspondence from Dr. S. Sood (University of Michigan Division of Hematology and Oncology) who stated that non-alcoholic fatty liver disease (which was noted on CT in 2006), dyslipidemia, and insulin resistance may all be side-effects of long-term HAART used to treat people infected with HIV.

The claims file also includes an October 2014 DBQ in which the examiner opined that anemia, hypertension, left ventricular hypertrophy, dyslipidemia/hyperlipidemia, glucose intolerance and fatty infiltrations of the liver are known complications of HAART, and are at least as likely as not caused by HAART.  

In a March 2019 deposition, Dr. Brooks indicated his opinion that the Veteran's anemia, fatty liver disease, and splenomegaly (enlarged spleen) were related to medication to treat HIV.

The Board does not dispute that HAART may, as likely as not, cause some disabilities; however, importantly, service connection is not warranted for these disabilities because the Veteran did not incur an injury during a period of INACDUTRA or an injury or disease during a period of ACDUTRA or AD.  

The Board also does not dispute that the military took fluid samples to test for HIV; however, taking a blood (or other fluid) sample is not an injury. Moreover, assuming arguendo that the Veteran was informed of his HIV test results during a period of INACDUTRA or ACDUTRA in 1997, the mere notification to him of his test results is not an injury.  Also, notably, his test results were confirmed by clinicians while he was not in service.

Essentially, he was provided with a laboratory finding that he was positive for HIV based on testing for pre-mobilization, and he, thereafter, obtained additional testing and treatment in the civilian sector and while not on INACDUTRA or ACDUTRA.  

In May 1998 and July 1999 correspondence (Bon Secour Internal Medicine), Dr. Ruble, who had been treating the Veteran since June 1997, stated that the Veteran has asymptomatic HIV infection.  In August 2002 and May 2005 correspondence, Dr. Ruble again noted that the Veteran was asymptomatic for HIV infection, his CD4 counts are within normal range and he has undetectable HIV RNA levels.  Laboratory records note "inconclusive for HIV-1 antibodies" and "possibly infected" in December 2003, January 2004, April 2005, and December 2005.

September 2006 correspondence from Dr. S. Peel (Walter Reed Army Institute of Research) reflects her belief that the Veteran's "original laboratory diagnosis of HIV-1 infection in February 1997 was falsely positive owing, in large part, to the presence of cross-reacting antibodies that confounded accurate HIV-1 serodiagnosis."  In providing her opinion, Dr. Peel considered the 1997 clinical findings and 2006 clinical findings, but she did not address numerous laboratory findings between 1997 and August 2006 reflecting possible infection.

In an April 2009 memorandum, Dr. O'Connell (Walter Reed Division of Retrovirology) noted that between 2001 and 2008, the Veteran was tested using various methodologies in nine different laboratories, and that 15 of 18 results were indicative of reactivity against HIV antigens.  Dr. O'Connell also reported that he had spoken with laboratory staff at those laboratories which interpreted the findings differently than other laboratories and found that using "consistent interpretation would make nearly all of [the Veteran]'s WB [Western Blot] positive by interpretive criteria", with one of the Veteran's 17 findings demonstrating p31 reactivity, which would be indication of a true infection.  The Board finds Dr. O'Connell's opinion to be the most complete and probative of those associated with the claims file because he cited to numerous laboratory findings, the dates of each test, the results of each test, and the laboratory that completed the testing.  

Dr. O'Connell found that the Veteran "has a long history of HIV EIA reactivity, Western blot positivity, but without complete Western blot banding that is typical for actual HIV infections, and virus is only extremely rarely detected using nucleic acid techniques."  Dr. O'Connell gave five possible explanations: 1) that the Veteran never had HIV, but he tested positive due to cross-reactive antibody production such as due to an autoimmune process, an infection with a pathogen other than HIV in the past, or due to an endogenous retrovirus other than HIV; 2) that the Veteran never had HIV, but he had received an experimental vaccine, which the Veteran denied, thus making this explanation extremely unlikely; 3) the Veteran had HIV, but he had an effective immune response (which is exceedingly rare) or an aborted infection; 4) the Veteran has HIV which accounts for the seroreactivity, but the virus cannot be detected using nucleic acid tests because of effective and persistent cell mediated immune response which suppresses viral replication.  Patients with this profile are known as 'elite controllers' in that the patient has serologic evidence of an infection but no detectable viral RNA in his plasma; or 5) HIV is present in his body, which accounts for the seroreactivity, and the virus is replicating his body, but its sequence is so unusual that none of the several nucleic acid tests are able to detect them.  

Dr. O'Connell concluded as follows:

Given the numerous explanations that might fit his HIV testing profile, [the Veteran's] HIV status cannot be determined at the present time.  What is clear is that his CD4 counts do not support immune suppression as would be typical for most individuals who had been infected with HIV for at least 12 years.

In March 2010 correspondence, Dr. Ebright (VA Medical Center), stated that it is "most probable that [the Veteran] is a very rare patient who has falsely positive HIV serology."

In July 2011 correspondence, the Veteran's private physician, Dr. Ruble, stated that the Veteran's 1997 initial first positive test was seemingly confirmed by a second test.  According to Dr. Ruble, these initial tests were interpreted and reported as positive by laboratory personnel when an "indeterminate" designation would have been appropriate. She further indicated that despite normal CD4 count and undetectable viral load, she initiated ART (antiretroviral therapy) in keeping with the prevailing standard of care at the time. She also stated that the Veteran developed zidovudine-induced anemia necessitating a change in medication, and he was subsequently enrolled in a study in 1999 through the Detroit Medical Center (DMC); over the next several years, he had normal CD4 counts and undetectable levels of HIV-RNA, and two tests results which may have represented false positive values.  Because of his CD4 counts in the normal range, his undetectable quantitative RNA assays, and evolving recommendations in regard to ART, his medication was discontinued. The possibility that he was an elite controller was entertained. After discontinuing medication, the Veteran developed thrombocytopenia and was diagnosed with ITP, confirmed by bone marrow analysis.  ART was reinstituted under the premise that his ITP might represent symptomatic HIV disease, thus warranting treatment.   After several months, his ART was again discontinued.  Dr. Ruble stated that in the mid-2000s, she began to question the Veteran's HIV serostatus, and initially surmised that the most likely explanation for his lack of disease progression was that he was an elite controller. Two tests came back with indeterminate results, and she then used another facility for testing, which provided negative results.  She considered whether his initial "positive" result was a false positive perhaps due to an underlying autoimmune disease, or that he had managed to eradicate his HIV infection.  The Veteran was referred to the DMC, which had several years previously enrolled in the Veteran in a study which had required repeat serologic testing for HIV to confirm seropositive as a requirement for entry.  Dr. Ruble noted that the Veteran had tested positive on "multiple occasions" and was now testing indeterminate or negative, depending upon which test kit and/or laboratory facility was used.  

Dr. Ruble stated that the initial semiologic testing for Reserve purposes "set into motion a chain of events" and had the Veteran not been tested in the Army, he would not have been advised to otherwise get tested for HIV in a civilian medical office.  However, Dr. Ruble admitted that the Veteran testified positive on multiple occasions to include as a prerequisite to joining a study in 1999, two years after the initial positive 1997 test result for Reserve purposes.  Moreover, she has not alleged or indicated that any treatment was during a period of INACDUTRA, ACDUTRA, or active duty, or that his years of treatment were the direct result of his 1997 testing, but, rather, she has supported that his initial testing for Reserve purposes led to further testing over the years.   

In a 2012 memorandum, Dr. Tolbert stated that based on available medical literature there are many complications (impairment of glucose metabolism, dyslipidemia, and abnormal cervical fat deposition) associated with the treatment which the Veteran received for HIV.

In July 2013 correspondence, Dr. Ruble stated that the Veteran had been diagnosed with metabolic syndrome, and that "in theory" his antiretroviral therapy may have played a role, it is also possible that he is genetically predisposed and has merely reached the general age at which symptoms tend to manifest.

The claims file also includes a deposition of the Veteran and Dr. Brooks taken in March 2019, in which Dr. Brooks noted that HAART has rather significant side-effects.  He also stated that in his opinion the Veteran incurred some type of infection while on active duty, and that the cross-reactivity between the antibodies related to that infection and the ELISA and Western blood test led to his false positive results, and that there probably was an immunologic cross-reactivity as opposed to just mixing up samples. Dr. Brooks provided no adequate rationale that the Veteran "incurred some type of infection while on active duty", especially considering that the Veteran was not on active duty in 1997.

The claims file includes an October 2014 DBQ in which the examiner opined that anemia, hypertension, left ventricular hypertrophy, dyslipidemia/hyperlipidemia, glucose intolerance and fatty infiltrates of the liver are known complications of HAART, and at least as likely as not caused by HAART.

Essentially, the Veteran was first diagnosed as HIV positive due to testing while in the Reserves; however, thereafter, he was again tested in the civilian sector which also determined that he was likely to be HIV positive as he was accepted into a study and treated by both his primary care physician and as part of a Detroit study.  It has also been indicated that he is likely a rare individual who has "falsely positive HIV serology."  There is no probative evidence that his active duty or Reserve service has caused him to be one of these rare individuals. Notably, he had not been in active duty for more than two years at the time when he tested positive in 1997.

Moreover, there is no evidence to support that he has a current disability which was the result of initial test in service versus the additional ones he had after, including under the direction of his private medical care provider.

While the Board may be sympathetic to the Veteran's situation, he ultimately does not have disability owing to a disease or injury incurred in or aggravated by his active military service because a positive HIV test is a mere laboratory finding. Even if he never had HIV (and the evidence still is not conclusive as to the exact reason why he has tested positive), he cannot have a disability from something that, for all intents and purposes, never existed.  As he did not have an injury in service, the treatment, however well intentioned, and which was not initiated in service, or obtained during service, cannot result in a service-connected disability. Even assuming for the sake of argument that he had some treatment while on INACDUTRA or INACDUTRA (which has not been shown by the clinical records), there is not probative evidence that that treatment, rather than his years of private treatment, caused a claimed disability. 

The Board has also considered whether the Veteran's disabilities were as likely as not incurred during his active service but finds that they were not. 

The Veteran has reported that he was diagnosed with hypertension in 1998, approximately four years after separation from his first period of active service, and that his hypertension is the result of HAART.  His STRs during his initial period of active service (1985-1994) are unremarkable for hypertension with the exception of his July 1993 and May 1994 Report of Medical History which reflect his statement that he had, or had previously had high or low blood pressure, and the May 1994 elaboration that he previously had an elevated blood pressure in 1991, but he had not been placed on medication.  His corresponding Reports of Medical Examination reflects a blood pressure of 100/60 (July 1993) and 120/80 (May 1994).  A prior July 1988 Report of Medical Examination notes a blood pressure reading of 118/82.

An MEB/PEB (Medical Evaluation Board/Physical Evaluation Board) record reflects that the Veteran was originally diagnosed with hypertension in 1998.  It was noted that the hypertension was diagnosed in the first two years of taking HIV medications, and that hypertension is one of the many common side-effects of HIV medications. 

An October 2014 VA examination report reflects that, per review of clinical records and medical literature, it is the examiner's opinion that the Veteran's hypertension is a known complication of HAART therapy and is at least as likely as not caused by the HAART. 

Thus, the evidence does not support that his hypertension arose in service or manifested to a compensable degree within a year of separation from service. 

The Board also notes that the Veteran's May 1994 Report of Medical History for separation purposes reflects his fasting blood sugar is "slightly above normal range at this clinic".  It was noted that he was informed on how to reduce the chances of developing diabetes mellitus and it was recommended to have annual fasting blood sugar testing. 

Glucose intolerance is a laboratory finding. Assuming it is also a disability, the Veteran was not diagnosed with glucose intolerance in service, but merely with one laboratory finding of a slightly elevated level.  (July 1988 and July 1993 Reports reflect that upon testing, his urine was negative for sugar.) Thereafter, he was not diagnosed with glucose intolerance until 2010, or more than 15 years after his first period of service, and two years after his second period of service.  Finally, glucose intolerance has been shown to be a side effect of HAART (see, e.g., March 2012 Dr. Ruble correspondence.) There is no probative opinion that he has glucose intolerance, diabetes, or another disability, which was as likely as not incurred in service.

 

With regards to his spleen, a slight prominence of the spleen was noted in 2006, which is many years after his first period of active service, and prior to his second period of active service.  An October 2014 DBQ reflects the opinion of the examiner that the splenomegaly is more likely secondary to ITP, for which the Veteran is not in receipt of service connection, than his HAART.  Dr. Brooks has indicated that the splenomegaly is due to HAART.

A Veteran seeking compensation must show the existence of a present disability and that there is a causal relationship between the present disability, and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty.  "Resulting from" requires actual causality.   In the present case, the mere laboratory finding based on fluids obtaining during Reserve service did not cause the Veteran's subsequent disabilities.  The Board acknowledges that based on the January/February 1997 test results, and/or further testing, the Veteran chose to have treatment for many years, which then likely caused disabilities.  However, that does not alter the fact that his 1997 laboratory findings are not a disease or injury and that they did not cause a disability.  

The Board has considered the 2012 Army memorandum that the Veteran's HIV test was in the line of duty; however, his subsequent disabilities cannot be found to be in the line of duty because he did not incur them during a period of active duty or ACDUTRA.

His disabilities were not caused by the laboratory findings, but were likely caused by events unrelated to service, to include long-term treatment which he obtained after consultation with his private physicians and not during a period of active duty, INACDUTRA, or ACDUTRA.  Thus, service connection for the claimed disabilities is not warranted.

13. Right Varicose Vein AND 14. Right Lower Extremity Venous Insufficiency

The Veteran's STRs are unremarkable for a varicose vein in the right lower extremity. Notably, his 1994 Report of Medical Examination for separation purposes reflects that the Veteran had a prominent vein in the left calf.  Thus, the Board finds that if he had a varicose vein in the right extremity, it would have been noted.  

The Veteran's second period of AD (May 2007 to May 2008) is unremarkable for a varicose vein or venous insufficiency of the right lower extremity.

A post-service October 2008 Concentra Medical Center (Vision Examination Record) record reflects that the Veteran reported a varicose vein in the "leg", but it does not note whether it was in both legs or the right leg.  

A June 2011 Beaumont Hospitals Royal Oak Vascular Services record reflects that the Veteran had swelling of the limb which precipitated a bilateral lower extremity venous duplex.  The report reflects significant venous insufficiency in the right femoral vein.  This is more than two years after the Veteran's last period of active service.  

Dr. Brooks stated in his 2019 deposition that varicose veins are due to venous insufficiency, so there is an "overlap" between the two conditions.  However, the Veteran did not have either disability in service for the right lower extremity, and the probative evidence does not support that it is as likely as not that either condition is causally related to, or was aggravated by, active service.  Dr. Brooks did not offer evidence that he had personally examined the Veteran's right lower extremity and found a varicose vein, and he provided no opinion with adequate rationale as to a causal relationship of venous insufficiency to service, especially as the Veteran did not have a right varicose vein in service.

The Veteran contends that he believes the disabilities are due to medication which he took (e.g., HAART), but he is not competent to provide such an etiology opinion, and importantly, his HAART was not due to a service-connected disability.

The most probative evidence is against a finding that the Veteran had a right extremity varicose vein, or venous insufficiency in service or related to service.

15. Left Lower Extremity Venous Insufficiency

A June 1, 2011 Beaumont Hospitals Royal Oak Vascular Services record reflects "[n]o evidence is seen of any significant venous insufficiency in the left lower extremity.  The claims file does not include a competent and credible diagnosis of left lower extremity venous insufficiency.  As the evidence is against a finding of left lower extremity venous insufficiency, service connection is not warranted. 

July 2013 correspondence from Dr. Ruble reflects that in 2011, the Veteran had "self-limited unexplained bilateral lower extremity edema" which was "likely secondary to amlodipine", and that after the amlodipine was discontinued, the edema resolved in 2002-2005.

Dr. Brooks did not offer evidence that he had personally examined the Veteran's left lower extremity, that he had tested the Veteran for venous insufficiency, or that he had clinical test results to support a diagnosis. He provided no opinion with adequate rationale as to a causal relationship to service

A cornerstone requirement for service connection is a current disability.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability means a disability shown by competent and credible (i.e., probative) evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). The Board find that the diagnostic testing, which was objective, is more probative than lay statement (or statement not based on diagnostic testing) as to whether the Veteran has venous insufficiency.  As the most probative evidence is against a finding of left lower extremity venous insufficiency, service connection is not warranted.

16. Right groin muscle strain

The Veteran's STRs are unremarkable for chronic complaints of the groin, or an injury to the groin.  In addition, as noted above, his May 1994 Report of Medical History reveals his statement that he was then currently in "excellent health", despite a history of some disabilities; the report is unremarkable for complaints referable to the groin. STRs from his second period of active service are also unremarkable for chronic groin complaints or an injury to the groin, and his 2008 post-deployment health assessment is unremarkable for complaints specific to the groin, despite noting other complaints.

More than a year after separation from his second period of AD, a December 2009 private record reflects that the Veteran had a sharp pain in the groin; it also notes blood in the semen. An earlier July 2009 private record (for refill of medication and health physical) is unremarkable for groin symptoms.  Thus, the Board can reasonably find that the Veteran's groin symptom(s) began in approximately 2009, or more than a year after service. 

A June 2013 VA examination report reflects that the Veteran reported that he has groin pain or a pulling sensation in the right groin.  He denied any fall, injury, or medication to treat it.  He reported that he has had the pain since service, but it has been intermittent with remissions.  He was diagnosed with a right groin muscle strain.  An etiology opinion was not requested.

Service connection for a right groin disability, to include a strain, is not warranted.  There is no probative evidence that the Veteran has a disability which is as likely as not causally related to, or aggravated by, service.  His contention as to an onset in service lacks credibility given the lack of clinical records noting complaints, his opinion that his health was excellent in 1994, his private examiner's statement that his health was excellent, the limited need for physical exercise during his second period of active duty due to profiles, and the earliest evidence of record more than a year after separation from his second period of service. 

17. Right lower extremity peripheral neuropathy AND 18. Left lower extremity peripheral neuropathy

A June 2013 examination report reflects that the although the Veteran had subjective symptoms of peripheral neuropathy of the lower extremities, there was no objective evidence of the claimed disabilities upon examination.  The Board notes that the examination included sensation examination (vibration, position sense, pinprick, light touch, and dysesthesias) as well as a detailed motor examination, and reflex examination.

The Board find that the examination, which was objective and by a clinician, is more probative than lay statement as to whether the Veteran has peripheral neuropathy.  As he does not have a disability of peripheral neuropathy, service connection is not warranted. 

 

Again, the Board is cognizant of the Court's ruling in Saunders v. Wilkie 886 F.3d 1356, 1368 (Fed. Cir. 2018); however, in this case, any subjective reports of symptoms are not severe enough to reach the level of functional impairment of earning capacity. The Board bases its finding on the examination reports and clinical records.  

Dr. Brooks testified in a March 2019 deposition that there was "some sort" of preliminary diagnosis in the military chart before retirement but the military did not "fully work that up", and that there is "certainly the annotation about numbness and tingling within the context of being on AZT and other antiretrovirals is certainly significant."  However, importantly, the Veteran does not have a diagnosis of peripheral neuropathy, he had a normal examination for peripheral neuropathy in 2013 (many years after his last period of AD) and he was not taking AZT or other antiretrovirals on AD.  Thus, Dr. Brooks' opinion is not probative of the issue.  (In addition, while he indicated that any peripheral neuropathy may be related to a back disability, again, the Veteran does not have peripheral neuropathy.)

As he does not have a diagnosis of peripheral neuropathy with a probative opinion that it is as likely as not related to service, service connection is not warranted.

19. Immune/ ITP

A May 2004 private (Bon Secours) record reflects a clinical indication of thrombocytopenia. A June 2010 VA clinical record reflects that the Veteran had a diagnosis of ITP in 2006 with a nosebleed.  December 2010 private correspondence (Newland Medical, Dr. I. Shah-Reddy) reflects that the Veteran reported that ITP was originally diagnosed in 2003.  2010 correspondence from Dr. Sood reflects that the Veteran was first noticed to have ITP in 2004.  In a March 2019 deposition, the Veteran stated that in approximately 2001-2002, he started to notice a significant drop in his platelet counts.  He contends that he has been told that it is "medically-induced".  Regardless of the exact date, the evidence reflects that the diagnosis of ITP was several years after his first period of active service, and several years prior to his second period of active service.

 

In January 2006, Dr. Ruble stated that the Veteran has been diagnosed with idiopathic thrombocytopenia.  January 2007 correspondence from Dr. J. Johnson reflects that the Veteran carries a clinical diagnosis of ITP which is asymptomatic, and which has never required therapy; as to etiology, Dr. Johnson stated that the Veteran's evaluation for antiphospholipid antibodies or evidence of another autoimmune process was negative, and that laboratory studies from childhood were unavailable to determine if it may be a congenital thrombocytopenia. 

February 2007 records note that the Veteran has Von Willebrand Disease (Platelet Type or Type B); Von Willebrand is a congenital disease.  Thus, it would not warrant service connection because not only was it not incurred in active service or ACDUTRA, but congenital diseases are not diseases or injuries within the meaning of applicable VA legislation. 38 C.F.R. § 3.303. 

An October 2014 DBQ reflects that the Veteran's ITP is considered idiopathic and was diagnosed after a bone marrow biopsy.  The examiner found that the biopsy showed focal lymphoid aggregates of unknown significance consistent with an autoimmune process and found it less likely as not that his ITP was related to HAART.  The examiner was not asked to provide an etiology opinion or discuss the Veteran's service.

Dr. Brooks stated in his March 2019 deposition that the Veteran's chronic thrombocytopenia is consistent with an autoimmune etiology.  He contends that the Veteran most likely incurred some type of infection (likely viral) while on "active" duty which was the reason for "cross-contamination" in 1997 and the positive HIV test.  The Board notes however, that the Veteran was not on active duty in 1997, and that any disease during a period of INACDUTRA would not warrant service connection.   Thus, even if the Veteran had ITP in 1997, this does not mean that he had it many years before when on active duty.  The Board also finds that the most probative evidence does not support the onset of ITP until approximately 2004, more than nine years after his first period of AD.  Dr. Ruble, the Veteran's treating provider stated in July 2011 correspondence that the Veteran discontinued his HIV medication in 2004, and "later that same year, [he] developed thrombocytopenia and was eventually diagnosed with ITP, confirmed by bone marrow analysis."  

 

The Board finds that Dr. Ruble's information as to onset is more probative and credible than Dr. Brooks, who was not the Veteran's treating provider and has not offered an adequate rationale based on clinical records to support an earlier onset.

As ITP was not incurred during a period of active service, to include ACDUTRA, and has not been shown to be as likely as not causally related to, or aggravated by, a service-connected disability, service connection is not warranted. 

Conclusion

The Board certainly appreciates the Veteran's honorable service; however, for the reasons and bases discussed, service connection is not warranted for the claimed disabilities.

The Board finds that the STRs and private clinical records closer in time to his first period of AD are more credible than lay statements made many years after separation.  In addition, clinical opinions which are not based on a complete review of pertinent medical evidence and without an adequate supporting rationale, lack significant probative value.  As noted above, the mere fact that an examiner bases an opinion on a history that has been provided by the Veteran, rather than, as an example, additionally on independent review of the claims file, does not automatically invalidate the opinion because the Veteran could be providing a credible history. However, if it shown the history is not credible or that evidence, if considered (but that was not), would affect the examiner's conclusion, then the basis of the opinion is undermined, and it consequently has less probative value or weight. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v. Nicholson, 19 Vet. App. 427 (2006).

In Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of a claimed disability, even where not corroborated by contemporaneous medical evidence such as actual treatment records. In other words, the mere absence of evidence does not necessarily equate to unfavorable evidence. There are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). See also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias...."). 

In this case at hand, the claims file includes numerous clinical records after separation from the Veteran's first period of AD; however, these clinical records are either unremarkable for complaints of his claimed disabilities or do not show chronicity since separation from AD.

When a clinical opinion is requested by VA, the opinion must be adequate; however, VA does not have a duty to obtain clinical opinion except when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 

In the above noted claims for which VA has not obtained a clinical opinion, the Board finds it is not necessary.  This is because the Veteran has not provided credible evidence of an injury in service, and/or a competent current diagnosis, and/or an opinion that he may have a disability causally related to service. 

The Veteran has not been shown to have the experience, training, or education necessary to give a probative opinion regarding the origins of his claimed disabilities. This determination is beyond his lay competence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The determination of whether lay versus medical evidence is needed to support a claim is predicated on the type of condition being claimed in terms of whether complex or, instead, simple. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).

The Board also acknowledges that the Veteran had service in Southwest Asia during the Persian Gulf War (his first period of AD); but he has not been shown to as likely as not have a disability warranting presumptive service connection under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317.

There also is no probative evidence that it is as likely as not the Veteran has one of the claimed disabilities as secondary to (again, meaning caused or aggravated by) a service-connected disability. 38 C.F.R. § 3.310.

Finally, while the Veteran is competent to report some symptoms, the Board finds that contentions as to an onset of symptoms in service, with continuity of symptoms to now (or during the pendency of his claims), are not credible.  The record contains numerous STRs and private medical records which reflect normal pertinent findings, a lack of complaints, and/or denial of pertinent symptoms in service, and between AD and the onset of post-service symptoms. 

In making such a credibility finding, the Board is not finding that the Veteran has any intent to deceive.  Rather, he may be simply mistaken in his recollections due to the fallibility of human memory for events that occurred many years ago.  The most probative evidence is also against a finding that any of the claimed disabilities was a pre-existing disability which was aggravated (worsened) beyond its natural progression by service.

For these reasons and bases, service connection is not warranted. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

REASONS FOR REMAND

20. Low Back Disability

The Veteran contends that in 1987, he fell off a tank, landed on the ground, and injured his low back (see June 2013, October 2015, and November 2020 examination/DBQ reports).  The Board finds that his contention is not supported by the clinical records contemporaneous to his first period of AD, and that the record, as a whole, supports that he did not have a back injury in his first period of service.

The Veteran's STRs are unremarkable for back complaints during his first period of AD.  Notably, in July 1988, when completing a Report of Medical History for special forces/airborne purposes, he denied recurrent back pain.  (This would have been approximately a year after his alleged 1987 injury). He also denied recurrent back pain and/or had normal examinations in April 1990/1991, July 1993, and May 1994.  His entire first period of AD is unremarkable for low back pain and reflects his denial of recurrent pain, and his statement upon separation that he was in "excellent health".  The Board finds that if the Veteran had chronic or recurrent back complaints since 1987, he would have reported it at some point over the next seven years, rather than specifically deny it on more than one occasion, especially as he reported other complaints.

The Veteran separated from AD in August 1994 and thereafter, had some Reserve service until May 2007.  During that time, he had annual physical evaluations completed by his primary care provider who referred to his examinations as normal and/or his health as "excellent" in 1999, 2001, 2002, 2005.  The earliest complaint of back pain is in December 2006. 

 

In a December 2006 Report of Medical History for Reserve Retention purposes, the Veteran reported "occasional back pain  active duty".  However, although the Veteran reported that the back pain began in active duty, the clinical records contemporaneous to AD do not support this.  Moreover, the complaint of back pain is more than 12 years after separation from AD. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  See also Horn v. Shinseki, 25 Vet. App. 231, 239 (2012).

A January 2007 medical record for service purposes reflects that the Veteran had back pain which was noted to be questionable bilateral sacroiliac joint pain. 

A January 30, 2007 Kamil Orthopedic Group record reflects that the Veteran reported mild intermittent low back pain, most notable at the right sacroiliac region.  It was noted that upon x-ray, the Veteran had minimal arthritis in the S1 joints.  He was assessed with sacroiliac arthritis, with a notation that he may need to alter his 2.5 mile run to a walk and may need to limit the number of hours he may march consecutively.  It was further noted, in pertinent part, that he "will likely develop more symptoms as he gets older".

A February 2007 Memorandum (Notification of Medical Disqualification) reflects that the Veteran had "back pain: bilateral sacroiliac joint pain".  A DA Form 3349 (Physical Profile Form) reflects that the Veteran does not meet retention standards for a variety of reasons, and notes that he has chronic low back pain which is further noted to be mild bilateral sacroiliac joint arthritis.

The Veteran then entered his second period of AD in May 2007.  Thus, prior to entering AD, he had complaints of back pain and a diagnosis of arthritis.  Because arthritis was noted when he entered service, he is not entitled to the presumption of soundness when beginning that service. Crowe v. Brown, 7 Vet. App. 238, 245 (1994). See also Quirin v. Shinseki, 22 Vet. App. 390, 394, 396 (2009). If, as here, a pre-existing disability was noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, only instead a claim for service-connected aggravation of that disability. 

 

In that case, 38 U.S.C. § 1153 applies and the burden falls on him, not VA, to establish aggravation. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); 38 C.F.R. § 3.306.

A pre-existing injury or disease will be considered to have been aggravated by service when 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 progression of the disease. 38 U.S.C. § 1153.  

The Board acknowledges the Veteran's complaints of some problems with his lower back while on his second period of AD (e.g., August and December 2007) and a November 2007 diagnosis of mild degenerative spondylosis with associated L5-S1 discogenic disease.  However, temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. 

A December 2007 record reflects that he had back pain recently exacerbated a couple of weeks ago if he sleeps "wrong", sits "wrong" or does heavy lifting.  He reported to the right SI joint.  A February 2008 STR reflects right lower back pain at the sacroiliac joint.  A June 2008 record reflects an assessment of muscle strain.

The Board finds that a clinical opinion may be useful to the Board in adjudicating the Veteran's claim and determining whether it is as likely as not that his pre-existing back disability was worsened beyond its natural progression by service. Notably, during this second period of AD, the Veteran was on a profile due, in part, to his back, and thus, had limited physical activity, and also notably, his private examiner had stated before the Veteran's AD, that the Veteran "will likely develop more symptoms as he gets older".

21. Hernia/GERD

An in-service July 1988 surgery consultation sheet reflects that "[the Veteran] has a tender mass on the upper midline epigastric area.  Our clinical impression is of a high epigastric hernia."  Although, surgery was recommended, the Veteran requested a second opinion, which was obtained three days later.  It was noted that the Veteran had epigastric pain for two years which is gradually worsening.  He reported pain increases with weight lifting, and bending over, and that he has increasing gas. He was assessed with high epigastric tenderness on palpation and mild diastasis noted.

The Veteran's April 1990/1991 and July 1993 Reports of Medical History reflect he reported that he had, or had previously had, a hernia, but he specifically denied frequent indigestion or stomach trouble.  His Veteran's May 1994 Report of Medical History for separation purposes reflects a "history of possible epigastric hernia (1988)", and he again denied frequent indigestion or stomach trouble.

A June 1999 and an August 2002 private physical examination report both reflect that he did not have a hernia.

His December 2006 Report of Medical History reflects that he denied frequent indigestion or heartburn, and denied stomach, liver, or intestinal trouble or an ulcer. He also denied a hernia.

A May 2007 private physical examination report reflects that he did not have a hernia.

Several months after he had separated from his second period of AD, the Veteran completed his October 2008 Post-Deployment Health Re-assessment form in which he denied frequent indigestion or vomiting.

Five years later, a 2013 VA examination report reflect that the Veteran reported a epigastric hernia/dyspepsia since 1988.  The Veteran reported that he started having heartburn and epigastric pain and had a diagnosis of possible esophageal/epigastric hernia.  He reported that he gets heartburn off and on but denied taking continuous medication.  Upon physical examination, the Veteran did not have a hernia, there was no palpable mass, he had normal bowel sounds, there was no abdominal guarding, but he had mild epigastric tenderness.  It was noted that June 6, 2013 upper GI studies revealed a small hiatal hernia with minimal GE reflux. 

Based on the foregoing, the Board finds that an opinion should be obtained as to whether the "small hiatal hernia" found upon a study in June 2013 is causally related to the "high epigastric hernia" found upon examination in 1988.  

22. Left Varicose Vein

The Veteran's May 1994 Report of Medical Examination for separation purposes reflects that he had a "slightly prominent vein in calf in left" but does not diagnose a varicose vein.  In addition, the evidence is unclear as to whether the Veteran has a current left lower extremity varicose vein.  Thus, the Board find that he should be scheduled for an examination.

23. Right Shoulder

A March 1993 STR reflects that in late February 1993, the Veteran reported that someone had fallen on his right shoulder while playing rugby.  Upon examination, the AC and sternoclaviculare joints were tender.  No follow-up treatment was sought or provided, and in his July 1993 Report of Medical History, he denied a painful or trick shoulder.  His May 1994 Report of Medical History for separation purposes reflects his statement that he was in "excellent health" but noted a history of right shoulder pain secondary to a sports injury.  His upper extremities were noted to be normal upon evaluation. 

The Veteran's private records between his periods of AD are unremarkable for right shoulder complaints and note that he was in normal or excellent physical condition.  

In a December 2006 Report of Medical History for Reserve Retention purposes, the Veteran reported several complaints, but denied a painful shoulder. 

A March 2008 STR notes that the Veteran reported neck pain bilaterally in the trapezius.  He was noted to have spasms of the trapezius muscles of both shoulders. 

Five years latera, a June 2013 radiology record reflects mild rotator cuff tendinosis, moderate hypertrophic degenerative changes of the AC joint, moderate degenerative changes of the glenoid fossa with a large osteophyte, and findings which might represent early impingement syndrome.  It appears that Dr. Lawrence Dell was the physician who ordered the radiology studies.  The study does not reflect how long the Veteran had been having pain and what if anything precipitated the pain; thus, records from Dr. Dell may be useful to the Board in adjudicating the claim, and VA should attempt to obtain them. 

An October 2015 DBQ submitted by the Veteran that he reported that he had shoulder injures between 1980-1990 while in service during physical training and sporting events and has bilateral tears in both shoulder joints. The Board acknowledges the one shoulder injury in 1993, but any contention as to recurrent injuries or chronic symptoms is than credible given the several denials of a painful shoulder in service. 

Dr. Brooks testified in the March 2019 deposition that the Veteran's shoulder disabilities are likely caused by "trauma associated" with the Veteran's military career. Given the one shoulder injury in service, and Dr. Brooks opinion, the Board finds that a VA opinion should be obtained; however, the examiner should not consider any facts that the Board has found to be less than credible (such as a contention of chronic pain since his first period of AD).

24. Right Knee

A December 1988 STR notes a complaint of right knee pain on the inside of the knee for one week; the Veteran denied a history of trauma but reported that he had been recently skiing. Upon examination, he did not have edema, but had mild tenderness.  He was provided Motrin, heat, rest, and no PT (physical training) for three weeks.  There are no subsequent STRs reflecting chronic complaints for the remaining five years of AD.

Although the Veteran may now contend that he has had right knee pain since that incident, the Board finds that any such contention is less than credible given the record as a whole.  There are no follow-up records noting that the Veteran had continued complaints of the right knee in the remaining five years of service.  Also, importantly, he denied lameness and/or a trick or locked knee in April 1990/1991, July 1993, and May 1994. Subsequent private reords during his Reserve service are unremarkable for knee complaints and note that he was in excellent condition. 

In December 2006, prior to his second period of AD, he reported "left" knee trouble, but did not report right knee trouble. A January 2007 Army Memorandum reflects that the Veteran was notified of medical disqualification for service.  He was noted to have a left knee injury. 

A June VA examination 2013 x-ray of the knee was negative.  The Veteran was diagnosed with bilateral knee strain.

In his March 2019 deposition, Dr. Brooks testified that in his opinion the Veteran's knee disability was related to service.  Dr. Brooks did not provide an adequate rationale, especially given the Veteran's limited physical activity in service due to profiles.  Nevertheless, the Board finds that VA should obtain a clinical opinion as the Veteran had a knee disability in service.

25. Cervical spine disability

The Veteran's STRs from his first period of AD are unremarkable for a cervical disability.

At a 2013 VA examination, the Veteran reported that in 1987, he fell off a tank and started having low back pain; the report is unremarkable for cervical spine complaints due to falling off the tank.  Rather, the Veteran reported that the onset of his neck pain was in 2007 to 2008.  He denied any specific injury.  Upon examination, his had full flexion and extension, but decreased lateral flexion and lateral rotation.  An x-ray revealed minimal degenerative changes in the spine with minimal degenerative disc disease C5-C6.  This is approximately five years after separation from service.

In an October 2015 DBQ and a November 2020 DBQ, the Veteran contended that in 1987, he fell and injured his neck.  The Board find that this contention is less than credible given the 2013 report, as well as the numerous medical evaluations after 1987 which reflect a normal spine, are unremarkable for neck complaints, and note that he was in "excellent" health.  Any clinical opinion based on an injury from a fall in 1987 lacks probative value as it is based on a less than credible history.

Thus, the Board will focus on whether the Veteran has a cervical spine disability causally related to his second period of active service from May 2007 to May 2008. 

A March 2008 STR reflects that the Veteran reported neck pain.  Upon examination, he had spasms of the trapezius muscles of both shoulders.  He was assessed with nonallopathic lesions of the cervical spine.  An April 2008 STR reflects neck pain; upon examination, he was noted to have a large neck, but no tenderness of the neck and the neck demonstrated no decrease in suppleness.

Dr.  Brooks indicated that the Veteran has a cervical spine disability which warrants service connection; however, he did not provide sufficient rationale with citation to pertinent medical records.  Nevertheless, the Board finds, in giving the benefit to the Veteran, that it meets the threshold for VA to obtain a VA clinical opinion.  Any opinion should not consider a fall in service, and with regard to the Veteran's second period of service, should consider that the Veteran was on profile limiting some duties, and had a March 2008 complaint of the neck, and diagnosis of cervical nonallopathic lesions. 

26. Gout AND

27. Rheumatoid Arthritis (RA)

During the Veteran's second period of AD, he sought treatment, in March 2008, for his right ankle; the March 2008 STR reflects the "most likely" diagnosis of gout and that a definitive diagnosis would require a joint aspiration which is not feasible since the joint involved is not very swollen or accessible.  It was noted that he had been seen in the ER and treated for gout with prednisone and indomethacin.  

Post-service, an October 2008 Concentra Medical Centers Vision Examination record reflects that the Veteran denied ever having had rheumatism.

A post-service June 2010 VA rheumatology consult reflects that the Veteran reported a history of stiffness of the joints in the morning. Laboratory testing for a rheumatoid factor revealed that none was found.  In addition, the testing for uric acid revealed that "none found".  

An October 2010 private record reflects that the Veteran had an indication of gout; upon radiology testing, a calcified achilles tendonitis of the right ankle was identified.

A November 2010 private record notes gout in right foot, with a history of gout for 2.5 months.  A November 2012 DA Form 7349 (Initial Medical Review  Annual Medical Certificate) reflects that Veteran was taking Allopurinol as a gout preventative.

A VA clinical record notes a rheumatoid factor of 10.8 on February 17, 2011; however, it does not state whether this is normal or indicative of RA.

A July 2013 VA examination report reflects a diagnosis of RA and gouty arthritis; however, this appears to be based on the Veteran's self-reported history of having been diagnosed in 2002.

The Board finds that the Veteran should be scheduled for a VA examination, with laboratory testing, to determine whether it is as likely as not that he has gout and/or rheumatoid arthritis, and if so, whether it is as likely as not causally related to his second period of AD.  Any opinion should include consideration of the Veteran's various pertinent laboratory results and physical examination results between 2007 and present.

Accordingly, these remaining claims are REMANDED for the following action:

1. Ask the Veteran to complete a VA Form 21-4142 for Dr. Lawrence Dell for right shoulder complaints in 2013 and for all treatment providers for his spine (cervical and thoracolumbar), also for all treatment providers for his gout and/or rheumatoid arthritis from 2000 to 2008, and for all treatment providers for his right knee from 2008 to the present.  If he provides this necessary authorization, obtain these additional records. Document all requests for these records, as well as all responses, in the claims file and appropriately notify him and his representative if unable to obtain these additional records.

2. Obtain a clinical opinion as to whether it is as likely as not (50 percent or greater probability) that the Veteran's pre-existing back disability (arthritis in S1 joints manifested by low back pain noted in January 2007) was worsened beyond its natural progression by subsequent service. The examiner should consider the pertinent evidence, especially:  a) the January 2007 private record (Kamil Orthopedic Group) of minimal arthritis in the S1 joints, and clinician's opinion that the Veteran will likely develop more symptoms as he gets older"; and b) the November 2007 L-Spine x-ray which reflected mild degenerative spondylosis with associated L5-S1 discogenic disease. 

Any rationale must discuss the natural progression of the Veteran's disability versus a worsening due to his service (which was with limited physical activity due to a profile based on his pre-existing disability) and consider his second period of active duty was May 2007 to May 2008. 

Temporary or intermittent flare-ups during service are not a worsening for VA purposes  unless the underlying condition, as contrasted with symptoms, is worsened.  

If adequate opinion and rationale cannot be provided without actual examination of the Veteran, schedule him for an examination, but this is left to the reviewing clinician's discretion.

3. Obtain a clinical opinion as to whether it is as likely as not (50 percent or greater probability) that the June 6, 2013 finding of small hiatal hernia with minimal GE reflux is causally related to a July 1988 clinical impression of a high epigastric hernia. The clinician should consider the pertinent evidence of record, to include: a) the Veteran's May 1994 Report of Medical History/Examination; b) his December 2006 Report of Medical History, and c) his October 2008 Post-deployment health assessment report.

If adequate opinion and rationale cannot be provided without actual examination of the Veteran, schedule him for an examination, but this is left to the reviewing clinician's discretion.

4. Schedule the Veteran for an examination to determine whether he has a varicose vein of the left calf, and if so whether it is as likely as not (50 percent or greater probability) due to the slightly prominent vein the left calf noted on his May 1994 Report of Medical Examination.

5. Obtain a clinical opinion as to whether it is as likely as not (50 percent or greater probability) that the Veteran has a right shoulder disability causally related to his March 1993 complaint of right shoulder pain or his March 2008 complaint of neck pain into the trapezius.  

The clinician should consider the pertinent evidence of record to include: a) the March 1993 STR noting tenderness; b) the July 1988 Report of Medical history in which he denied a painful or trick shoulder and corresponding Medical Examination Report which notes normal findings; c) the April 1990/1991 Report of Medical History and Report of Medical Examination in which he denied a painful or trick shoulder and notes normal findings; d) the May 1994 Report of Medical History which reflects that he was in excellent health and notes a history of right shoulder pain secondary to a sports injury and the corresponding Report of Medical Examination noting normal findings; e) the 2002 and 2005 private (Dr. Ruble) findings that the Veteran was in excellent physical condition; f) the December 2006 Report of Medical History in which the Veteran denied a painful or trick shoulder; g) a March 2008 STR in which the Veteran reported neck pain and was noted to have spasms of the trapezius muscles; and h) the June 2013 radiology record noting mild rotator cuff tendinosis, moderate hypertrophic degenerative changes of the AC joint, moderate degenerative changes of the glenoid fossa with a large osteophyte, and findings which might represent early impingement syndrome, and the Veteran's statement that his 1993 right shoulder injury had resolved, and he started having shoulder pains and stiffness in 2002-2005.

In rendering an opinion, the clinician should not consider that the Veteran has had continuity of pain since 1993 as this has been found by the Board to not be credible.  Rather, the clinician should opine as to whether it is as likely as not (50 percent or greater probability) that his injury in 1993 or the complaint in 2008 would manifest in the disabilities noted upon radiology examination in 2013.  

6. Obtain a clinical opinion as to whether it is as likely as not (50 percent or greater probability) that the Veteran's June 2013 diagnosis of a right knee strain is causally related to his December 1988 complaint of pain.  In rendering a decision, the clinician should consider the pertinent evidence of record, to include: a) the Veteran's denials of lameness and/or a trick or locked knee, and b) normal examinations in April 1990/1991, July 1993, and May 1994 (see Reports of Medical History and Examination). 

 

In rendering an opinion, the examiner should not consider continuity of symptoms since 1988 as this has been found to not be credible.  Rather, the examiner should consider whether it is as likely as not that the Veteran's injury in 1988 would manifest in a strain in 2013, or any subsequent identified disability. 

7. Obtain a clinical opinion as to whether it is as likely as not (50 percent or greater probability) that the Veteran's 2013 x-ray findings of minimal degenerative disc disease at C5-C6 are causally related to his March and April 2008 complaints of neck pain into the trapezius. The clinician should consider the severity of the Veteran's disability in 2013 and whether it is indictive of an onset five years earlier.

8. Schedule the Veteran for an examination to determine whether he has gout, rheumatoid arthritis, or both.  

A.	The clinician should discuss, to the extent possible, the difference between gout, gouty arthritis, and rheumatoid arthritis, and which disability or disabilities the Veteran as likely as not has.  

B.	Thereafter, obtain an opinion as to whether it is as likely as not (50 percent or greater probability) that he has gout and/or rheumatoid arthritis causally related to his service from May 2007 to May 2008.  The clinician should consider the pertinent evidence of record to include: a) a March 2008 STR noting a most likely diagnosis of gout; b) a post service October 2008 Concentra Medical Centers record reflecting that the Veteran denied rheumatism; c) a post service June 2010 VA rheumatism consult record noting no rheumatoid factor was found and no uric acid was found; d) an October 2010 private record reflecting an indication of gout and that upon radiology testing, the Veteran had calcified achilles tendonitis of the right ankle; e) a November 2010 private record noting right foot gout; f) a November 2012 DA Form 7349 which notes that the Veteran takes Allopurinol as a gout preventative; and g) a February 2011 VA record showing a rheumatoid factor of 10.8.

If adequate opinion and rationale cannot be provided without actual examination of the Veteran, schedule him for an examination, but this is left to the reviewing clinician's discretion.

 

 

KEITH W. ALLEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Wishard

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.