Citation Nr: 21072893 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 14-40 986A DATE: December 6, 2021 ORDER Service connection for hypertension is denied. Service connection for right shoulder strain with mild acromioclavicular (AC) degeneration is granted. REMANDED Entitlement to a rating in excess of 20 percent for lumbosacral strain is remanded. Entitlement to an initial rating in excess of 10 percent for left knee arthritis is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Hypertension is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest to a compensable degree within one year of separation from active duty. 2. Resolving all doubt in favor of the Veteran, his currently diagnosed right shoulder strain with mild AC degeneration is related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for residuals of a right shoulder injury have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1970 to December 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in April 2011, August 2012, and May 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board remanded the claims on appeal, as well as a claim for service connection for a bilateral hip disorder. While on remand, a September 2020 rating decision granted service connection for bilateral hip degenerative joint disease. As such represents a full grant of the benefits sought with respect to such issue, it is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The remaining issues now return for further appellate review. In August 2021, the Veteran submitted additional evidence for consideration in his appeal. 38 U.S.C. § 7105(e)(1). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as cardiovascular-renal disease (to include hypertension) and arthritis, are presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.R.F. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for hypertension. The Veteran contends that his current hypertension had its onset during his military service. Specifically, in an October 2018 Board Brief, the Veteran's representative argued that several of the Veteran's in-service blood pressure readings were indicative of hypertension, to include in August 1980, January 1981, and May 1990. The Veteran's service treatment records (STRs) are negative for complaints, treatment, or diagnoses referable to hypertension. In this regard, his STRs reveal a blood pressure reading of 124/86 in April 1970; 158/80, 164/70, 154/60, and 144/64 in August 1980; 152/82 in January 1981; 122/80 in August 1989; 111/60 in September 1989; 110/90 in December 1989; 130/88 in January 1990; 140/80, 138/86, and 116/66 in April 1990; 140/110 in May 1990; 120/34 in August 1990; 160/80 in September 1990; 140/82 in October 1990; and 112/64 and 114/68 in an undated STR. Additionally, the Veteran's April 1970, April 1973, and August 1990 Reports of Medical Examination reflect that clinical evaluation of his heart and vascular system was normal. The Veteran's post-service VA treatment records reflect that in VA Emergency Department Triage Notes from November 17, 2003, August 1, 2005, and July 22, 2007, he reported that he had hypertension; but in Emergency Department Triage Notes from November 25, 2003, and July 21, 2007, he stated that he did not have hypertension. In a December 5, 2003, Primary Care Attending Initial Evaluation Note, the Veteran was reported to have no history of hypertension. In a December 17, 2003, Primary Care Attending Note, the examiner gave an assessment of hypertension. In a September 2005 Primary Care Attending Note, the Veteran's problem list included elevated blood pressure reading without a diagnosis of hypertension. In an October 2005 VA Student Note, the Veteran reported that he was diagnosed with hypertension in 2003. Further, in VA treatment records since October 2007, the Veteran had consistently been reported to have hypertension, and had received treatment and medication for such disorder. In light of the foregoing, the Veteran was afforded a VA examination in February 2019 in connection with his claim. At such time, the examiner noted a diagnosis of hypertension. He further observed the Veteran's current blood pressure readings of 140/80, 134/86, and 140/80. Following a review of the record, an interview with the Veteran, and an examination, the examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support thereof, the examiner reported that there was no evidence of hypertension being diagnosed during the Veteran's active service, nor was there a sequential or periodic recording of consistent blood pressure elevation indicative of a definitive diagnosis of hypertension. Here, he noted that isolated elevated blood pressure readings were not diagnostic of hypertension. The Board affords great probative weight to the February 2019 VA examiner's opinion as such was predicated on an interview and examination of the Veteran, and a full review of the record available at the time of such examination, to include his STRs and post-service records. Moreover, the opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Further, the examiner offered clear conclusions with supporting data, as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Notably, there is no medical opinion to the contrary. The Board has also considered the Veteran's assertions as to the etiology of his hypertension; however, as he is a lay person, he does not have the requisite training and experience necessary to address such a complex medical matter. Specifically, the etiology of such disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of hypertension, such falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran's opinion as to the etiology of his hypertension is not competent evidence and, consequently, is afforded no probative weight. Furthermore, the Board notes that the Veteran has indicated that his hypertension had its onset during his military service. However, his STRs are negative for a diagnosis of hypertension. Moreover, his treatment records reveal that he was not diagnosed with hypertension until approximately 2003; 13 years after discharge from service. Finally, there is no competent evidence relating his complaints of high blood pressure to a diagnosis of hypertension within his first post-service year. Therefore, the Board finds that presumptive service connection for hypertension, to include based on a continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. Based on the foregoing, the Board finds that the Veteran's hypertension is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest to a compensable degree within one year of service discharge. Consequently, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for hypertension. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to service connection for residuals of a right shoulder injury. The Veteran contends that he has had pain on motion and decreased range of motion in his right shoulder since military service. The Veteran's STRs reflect that he was treated for temporary minor problems of right shoulder strain in August 1989 and September 1990. An additional August 1989 STR indicates that the Veteran complained of pain in the right shoulder and arm. Such record notes an assessment of right shoulder tendonitis with diffuse tenderness to palpation. In April 1990, the Veteran complained of pain in the right shoulder; and in October 1990 he stated that his shoulder pain had not improved much. Shortly after his discharge from military service in December 1990, in May 1991, the Veteran filed a VA claim for disability compensation due to right shoulder pain. In this regard, post-service treatment records reveal that, during an August 1993 VA examiner, the Veteran reported that he dislocated his shoulder while playing football in Germany in 1975; and the examiner noted a diagnosis of history of post-traumatic right shoulder arthralgia. Additionally, March 1994 sworn testimony by the Veteran reflects his history of a dislocated right shoulder while playing football in 1986. He also reported a right shoulder sprain in 1989 when his shoulder gave out during physical training. In regard to the relationship between the Veteran's claimed right shoulder disorder and his military service, in February 2019, a VA examiner noted a diagnosis of right shoulder strain with mild AC degeneration and opined that such disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale for the opinion, the examiner explained that there was no evidence of an established shoulder condition and no evidence of recurrent shoulder pain requiring treatment or injury during active service to support the condition. Additionally, the examiner stated that there was no documentation of shoulder pain to be chronic or recurrent or diagnosed after separation from active service or remotely after, and, the Veteran denied having or having had any recurrent shoulder pain upon all entrance and separation examinations, including his retirement from active service. However, the non-documentation of chronic/recurrent shoulder pain during or after active service as described by the February 2019 VA examiner is inconsistent with the record. In this regard, the examiner failed to discuss the April, September, and October 1990 STRs showing treatment for shoulder complaints; the Veteran's report of a right shoulder injury in 1975; and the August 1993 VA examination in which the Veteran was diagnosed with right shoulder arthralgia. Thus, such opinion appears to be based on an inaccurate factual history and its probative weight is diminished. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Furthermore, in contrast to the February 2019 VA examiner's opinion, the Veteran's private physician, Dr. M.W., offered an opinion in August 2021 in which he indicated that he had been treating the Veteran since July 2019. In this regard, he reported that the Veteran had right shoulder arthritis that was secondary to a dislocation of the shoulder playing football in service. Here, Dr. M.W. noted that such was well-documented in the Veteran's history and he continued to have pain with lifting and moving the shoulder with decreased strength, muscle atrophy, and decreased range of motion. Thus, he concluded that the Veteran's right shoulder disorder was highly likely to be from his military service. Notably, Dr. M.W. stated that it was well known in medical literature that injuries early in life resulted in arthritis over time which led to joint and limb dysfunction. While Dr. M.W.'s opinion is succinct, it is rendered by the Veteran's treating family practitioner who is familiar with his relevant medical history. Therefore, the Board resolves all doubt in favor of the Veteran and finds that his currently diagnosed right shoulder strain with mild AC degeneration is related to his military service. Consequently, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 3. Entitlement to a rating in excess of 20 percent for lumbosacral strain. 4. Entitlement to an initial rating in excess of 10 percent for left knee arthritis. During the course of the appeal, the Veteran was afforded VA examinations in August 2010 (back), November 2014 (knee), and February 2019 (back and knee), and submitted private knee and back Disability Benefits Questionnaires (DBQs) in August 2021. Under DeLuca v. Brown and its progeny, a medical examiner must state an opinion on whether pain could significantly limit functional ability; and such determination should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. 8 Vet. App. 202, 206-07 (1995). In this regard, the Board observes that, during the August 2010 VA back examination, the Veteran reported flare-ups that caused functional impairment, to include being able ot hardly walk and limitation of motion of the joint (cannot bend); however, the examiner did not provide a quantitative description of the extent of functional loss. Similarly, during the November 2014 VA knee examination, the Veteran endorsed flare-ups described as difficulty with prolonged standing and walking; however, the examiner did not provide a quantitative description of the extent of functional loss. Finally, while the February 2019 VA back and knee examinations reflect that the Veteran's flare-ups caused functional loss, the examiner reported that there was pain with range of motion testing and additional loss which made it reasonable to assume that there would be additional loss with prolonged use; however, it would be mere speculation to estimate the additional loss. Thus, the Board finds that the aforementioned VA examiners failed to provide opinions that were consistent with VA regulations or the United States Court of Appeals for Veterans Claims (Court) caselaw defining the adequacy of examinations. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Consequently, the Board finds that a remand is necessary in order to obtain a retrospective medical opinion addressing the findings in the August 2010, November 2014, and February 2019 VA examinations pursuant to the Court's holding in Sharp, supra. 5. Entitlement to a TDIU. The Veteran contends that he is unable to work due to his service-connected back disability. Thus, the claim for TDIU is inextricably intertwined with the increased rating claim remanded herein. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009). As such, consideration of the Veteran's TDIU claim must be deferred pending the increased rating claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the matters are REMANDED for the following actions: Forward the record, to include a copy of this Remand, to an appropriate VA clinician so as to obtain a retrospective opinion regarding the findings referable to the Veteran's back and left knee disabilities rendered at the August 2010, November 2014, and February 2019 VA examinations. The need for an examination of the Veteran is left to the discretion of the clinician selected to write the opinion. The examiner is requested to review the August 2010 (back), November 2014 (knee), and February 2019 (back and knee) VA examinations containing the Veteran's reports of functional loss of his back and left knee during flare-ups. He or she should then provide an opinion based on estimates derived from the information as to the additional function and loss of range of motion that may be present during a flare-up, expressed, if possible, in degrees. If the examiner cannot provide an opinion as to additional loss of function or motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable date (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss present during a flare-up elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. A rationale for any opinion offered should be provided. K. STANTON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dawn A. Leung, 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.