Citation Nr: 21072774 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-24 140 DATE: December 6, 2021 ORDER Service connection for hypertension is denied. Service connection for a right knee condition is denied. REMANDED Service connection for a low back condition is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that hypertension is related to an injury incurred during a period of INACUDTRA. 2. The preponderance of the evidence of record is against finding that the Veteran has had a right knee condition at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 101(24), 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 2. The criteria for right knee condition have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army Reserve from January 1979 to January 1987, to include a period of active-duty service from January 1979 to May 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2017. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). In addition, disorders diagnosed after discharge may also still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Active military service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a) and (d). When a claim for service connection is based on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA; or for INACDUTRA, there must be some evidence that the appellant became disabled as a result of an injury (not disease) incurred or aggravated in the line of duty during the period of INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" by virtue of ACDUTRA or INACDUTRA service alone. Id.; see also 38 U.S.C. § 101(2), (24); 38 C.F.R. §§ 3.1 (d), 3.6. Service connection for an enumerated "chronic disease", listed under 38 C.F.R. § 3.309 (a) can also be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 1. Hypertension The Veteran seeks service connection for hypertension. The Veteran's service treatment records are silent for hypertension. At his May 1979 physical, the Veteran's blood pressure was recorded as 100/70 sitting, a normal finding. Medical records show that the Veteran has a current diagnosis of hypertension. The Veteran testified at his Board hearing that his hypertension began during his time in the reserves, but not during his ACDUTRA period. Additionally, given the normal blood pressure reading in May 1979, there is no evidence ot suggested that the Veteran's hypertension began during ACDUTRA. As noted above, any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty is subject to service connection. 38 U.S.C. § 101(21) and (24); 38 C.F.R. § 3.6(a) and (d). Given that the hypertension is a disease and not an injury, service connection for a disease cannot be granted for a period of INACDUTRA as there is no evidence in the record to suggest his hypertension is related to injuries incurred during periods of INACDUTRA. Consequently, service connection for hypertension is denied. 2. Right Knee Condition The Veteran seeks service connection for a right knee condition, which he asserts began during active-duty service when he fell off scaffolding in Wyoming. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran's service treatment records are silent for any knee issues. In a December 2017 private treatment note, the Veteran reported right knee pain and low back pain. However, he did not report an onset date, indicating only that his knee gets stiff and sometimes swells. This is the first instance of knee issues noted in the Veteran's private treatment records. The Board concludes that the Veteran does not have a current diagnosis of a right knee condition and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board has considered Saunders v. Wilkie, in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." 886 F.3d. 1356, 1367-69 (Fed. Cir. 2018). However, there is no evidence to show that any knee pain the Veteran suffers leads to a functional impairment of earning capacity. Private treatment records only show intermittent complaints of knee pain, stiffness, and swelling. The majority of the Veteran's medical records relate to pain in his lower back and lower extremities generally related to his back condition. At his Board hearing, the Veteran testified that his knee often swells and that he has a brace to assist with the swelling. Given the lack of a current disability, the Veteran's claim for service connection for a right knee condition must be denied. Moreover, even if there was a knee disability found to be present there is no showing of a specific knee injury during the Veteran's time in the reserves. REASONS FOR REMAND Service connection for a lower back condition is remanded. Remand is required to obtain a VA examination. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) indicated that there was a four-part test to determine whether an examination was necessary under 38 C.F.R. § 3.159 (c)(4). Id. at 81. Under this test, VA will provide a medical examination or obtain a medical opinion where 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; (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 medical evidence to make a decision on the claim. Id.; see also 38 C.F.R. § 3.159 (c)(4). Private treatment records indicate that the Veteran first reported experiencing back pain in December 2013. He indicated that his back pain occurred after lifting something over 100 pounds at his job. In a December 2017 treatment note, the Veteran reported low back pain as well as right knee pain. He indicated that he has had pain in his lower back since his time in the Army and still gets intermittent pain today. A March 2018 private treatment note shows a diagnosis of lumbar spondylosis, degenerative disc disease of the spine, and bilateral lower extremity radiculitis. The Veteran has testified that he injured his back during a period of active-duty training in Wyoming where he fell two stories and landed on his back. He indicated that he did not seek treatment until he returned home to Houston and was unable to locate the medical records from that visit. The Veteran provided a buddy statement from a fellow soldier who served with him who indicated that he had witnessed the Veteran fall from scaffolding to the ground and that a steel panel fell on top of him while they were on active-duty training in Guemsey, Wyoming. The statement reports that the Veteran complained of his back hurting at the time of the fall but that he did not seek treatment because there was no hospital nearby and since he was returning home soon waited until he returned to home to seek medical treatment. Based on the above, the criteria for McLendon have been met. As a result, the Board cannot make a fully informed decision on the issue of entitlement to service connection for a lower back condition because no VA examination has been performed and no VA examiner has opined whether the Veteran's lower back condition was caused by his in-service injury. Therefore, a VA examination is necessary. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination of his lower back condition. The examiner is asked to provide a response to the following: (Continued on the next page) (1) Is it at least as likely as not (50 percent or greater probability) that the Veteran's current back disability began in or was otherwise caused by his fall from scaffolding in Wyoming as described in the buddy statement that was received in August 2021, and by the Veteran's hearing testimony in June 2021? Why or why not? MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jennifer M. Narvaez, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.