Citation Nr: 21073452 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-17 209A DATE: December 8, 2021 ORDER Entitlement to service connection for hypertension is DENIED. Entitlement to service connection for a left knee disability is DENIED. Entitlement to service connection for a right shoulder disability is DENIED. REMANDED Entitlement to service connection for breathing problems is REMANDED. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran's currently diagnosed hypertension either began during, or was otherwise caused by, his United States Army service. 2. The weight of the evidence is against a finding that a left knee disability to include tricompartmental osteoarthritis either began during, or was otherwise caused by, his United States Army service. 3. The weight of the evidence is against a finding that a right shoulder disability to include osteoarthritis either began during, or was otherwise caused by, his United States Army service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension have not been satisfied. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2020). 2. The criteria for entitlement to service connection for a left knee disability have not been satisfied. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2020). 3. The criteria for entitlement to service connection for a right shoulder disability have not been satisfied. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from January 1992 to April 1995. The certificate of release from active duty (DD214) reflects that Veteran's service included approximately eight combined months of deployment in Somalia and Haiti. Service Connection Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) 1. Entitlement to service connection for hypertension is denied. In January 2012, the Veteran submitted a VA Form 21-526. Thereby, the Veteran initiated claim for service connection for a hypertension disability. Again, generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1167. The Board notes that, for VA compensation purposes, hypertension means that diastolic blood pressure is predominately 90 mmHg or greater; isolated systolic hypertension means that the systolic blood pressure is predominately 160 mmHg or greater with a diastolic blood pressure of less than 90 mmHg. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2020). Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. In March 2012, the Veteran's service treatment records (STRs) were associated with the claims file. After review, the Board notes that the Veteran reported a history of high or low blood pressure during the February 1995 separation examination. However, the military examiner noted that the Veteran had not been prescribed hypertension medication. At separation, the Veteran's systolic pressure was 134, and the diastolic was 80. After deliberate review of the Veteran's STRs, the Board notes that the blood pressure readings do not reflect in-service hypertension (by VA standards) was demonstrated with the requisite systolic and diastolic readings. In September 2013, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured hypertension disorder. At that time, the Veteran reported that he went to the emergency room in 1992, because of a bad headache, and he was given high blood pressure medication. The VA examiner reported the following current blood pressure readings: 180/120. 182/110, and 182/90. The VA examiner opined that any current hypertension was incurred in, or caused by, the Veteran's U.S. Army service. The examiner supplied the following rationale: "(c)laimant was noted to have elevated blood pressure on several sick call visits prior to starting blood pressure medication on active duty." In April 2017, a VA examination report, which addressed the nature and etiology of any currently endured hypertension endured by the Veteran, was associated with the claims file. Therein, after a thorough review of the pertinent evidence in the claims file, a VA examiner relayed that there is no objective evidence that the Veteran met the criteria for a hypertension diagnosis while in the U.S. Army. The examiner also relayed that there was no objective evidence that the Veteran started blood pressure medications during military service, or within one year of separation from the U.S. Army. The examiner noted that the Veteran was first diagnosed with hypertension in February 2012, with a blood pressure of 196/116. The examiner opined that it was less likely than not that the Veteran's current hypertension was caused by, or due to, the lay-reported history of high or low blood pressure during the separation examination. In August 2021, the Veteran supplied sworn testimony to the undersigned Veterans' Law Judge (VLJ). The Veteran testified that civilian treatment was not pursued for the claimed disability (hypertension) until 2012 or 2013, because he could not afford health insurance. The Board observes that the Veteran's government-generated medical treatment records have been associated with the claims file on four occasions, to include those generated at the South Texas Healthcare System (HCS), San Antonio VA Clinic, and Audie L. Murphy Hospital. After review of the medical evidence, the Board notes that the Veteran maintains a current diagnosis for hypertension. Consequently, the Board finds that the first requisite element for service connection has been substantiated. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1167. After deliberate review of the claims file, however, the Board finds that a diagnosis for hypertension is not supported by the evidence during the Veteran's U.S. Army service. The Board notes the September 2013 examiner's report that the Veteran had elevated blood pressure readings, and started blood pressure medication, on active duty. However, this reported history supplied by the Veteran is not consistent with the Veteran's service treatment records which do not document that he was prescribed medication for his blood pressure. The Board has placed greater probative weight on the April 2017 examination report. The examiner reviewed the medical evidence of record including the Veteran's service separation examination noting a reported history of the Veteran being told that he had hypertension and the findings of the September 2013 VA examination. The 2017 examination report contains citation to the Veteran's service treatment records to include the Veteran's self-report of a history of high or low blood pressure at the time of his separation from activity duty and the opinion of the September 2013 VA examiner. After review of the Veteran's service treatment records, the 2017 examiner opined that there was no objective evidence that the Veteran meet the criteria for a diagnosis of hypertension during service citing the Veteran's denial of a history of hypertension or use of medications for his blood pressure in May 1992, June 1994, and February 1995. Consequently, the second and third requisite elements for service connection have not been substantiated. See id. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran's claim for service connection for a hypertension disability. Since the preponderance of the evidence is against this claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran's claim for service connection for a hypertension disability must be denied, because the preponderance of the evidence weighs against his claim. 2. Entitlement to service connection for a left knee disability is denied. In January 2012, the Veteran submitted a VA Form 21-526. Thereby, the Veteran initiated a claim for service connection for a left knee disability. Again, generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1167. In March 2012, the Veteran's STRs were associated with the claims file. After review, the Board observes that the Veteran was seen for left knee pain after a road march in June 1992. The military provider assessed a medial collateral ligament strain and mild patellofemoral tendonitis, and planned the Veteran for ice, Motrin, and 3 days of rest. During the separation examination, in February 1995, the Veteran did not report a "trick" or locked knee. Moreover, the military examiner did not report any significant or interval history at the Veteran's separation examination, to include the left knee. In September 2013, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured left knee disorder. The examiner noted a current diagnosis for left knee osteoarthritis. The Veteran reported that, after 1994, "(h)e took off his shoes and socks due to left knee and ankle swelling. The condition has worsened; constant pressure on knee area and ankle has some swelling at times." The examiner opined that the left knee condition was less likely than not (less than 50 percent probability) incurred in, or caused by, the Veteran's U.S. Army service. The examiner supplied the following rationale: "(t)he claimant had one reported episode of acute left knee pain in June 1992 for which he was given Motrin and rest. There is no further mention of knee pain until his separation in Feb 1995." In April 2019, a report from Medical Support Systems, Inc. was associated with the claims file. After review of the Veteran's x-rays, a provider noted a small degenerative spur at the left superior patella. In July 2019, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured knee and lower leg conditions. The examiner noted a diagnosis for mild, bi-lateral tricompartmental osteoarthritis of the knees. The examiner noted that the STRs were silent for any diagnosed chronic knee disorders / problems during the Veteran's military service. The examiner reported that the STRs and post-service records were silent for any diagnosed knee condition directly after military service for which a nexus could be provided. The examiner opined that it was less likely than not that the Veteran's diagnosed bi-lateral knee osteoarthritis was incurred during active duty service. In August 2021, the Veteran supplied sworn testimony to the undersigned VLJ. The Veteran testified that his left knee started hurting and swelling eight months after separation from service (while he was delivering furniture for work). The Veteran testified that he was diagnosed with a MCL sprain with patellofemoral tendonitis in June 1992. The Veteran testified that civilian treatment was not pursued for the claimed disability (left knee) until 2012 or 2013, because he could not afford health insurance. The Board notes that the Veteran has a current diagnosis for left knee tricompartmental osteoarthritis. The Board also notes that the STRs reflect that the Veteran endured a medial collateral ligament strain and mild patellofemoral tendonitis during service in the U.S. Army. Consequently, the first and second requisite elements for direct service connection have been substantiated by the evidence of record. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1167. However, after deliberate review, the Board now finds that the Veteran's claims file does not contain an etiological link between the current left knee tricompartmental osteoarthritis and the Veteran's U.S. Army service. Consequently, the Board concludes that the third (and final) requisite element has not been substantiated for the Veteran's claim for service connection for a left knee disability. See id. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran's claim for service connection for a left knee disability. Since the preponderance of the evidence is against this claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran's claim for service connection for a left knee disability must be denied, because the preponderance of the evidence weighs against his claim. 3. Entitlement to service connection for a right shoulder disability is denied. In January 2012, the Veteran submitted a VA Form 21-526. Thereby, the Veteran initiated a claim for service connection for a right shoulder disability. Again, generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1167. In March 2012, the Veteran's STRs were associated with the claims file. During the separation examination, in February 1995, the Veteran did not report a "trick" or painful shoulder disorder. At that time, however, the military examiner reported right shoulder pain on use, but there was not in-service trauma identified. In May 2012, a statement from the Veteran was associated with the claims file. Therein, the Veteran relayed that he always endured "stab and go" right shoulder issues after separation from service. In September 2013, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured right shoulder disorder. The examiner noted a current diagnosis for right shoulder osteoarthritis. The examiner opined that the right shoulder diagnosis was less likely than not (less than 50 percent probability) incurred in, or caused by, the Veteran's U.A. Army service. The examiner supplied the following rationale, "(a)lthough claimant described right shoulder complaints on his military separation examination, these claims are not supported by active duty diagnosis or treatment records in attached files." In April 2019, a report from Medical Support Systems, Inc. was associated with the claims file. After review of the Veteran's x-rays, a provider noted a moderate degenerative joint space narrowing at the right acromioclavicular joint. In July 2019, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured shoulder and arm conditions. The examiner noted a diagnosis for bilateral acromioclavicular joint osteoarthritis. The examiner noted that the STRs were silent for any diagnosed chronic shoulder disorders / problems during the Veteran's military service. The examiner reported that the STRs and post-service records were silent for any diagnosed shoulder condition directly after military service for which a nexus could be provided. The examiner opined that it was less likely than not that the Veteran's diagnosed bi-lateral shoulder osteoarthritis was incurred during active duty service. In August 2021, the Veteran supplied sworn testimony to the undersigned VLJ. The Veteran testified that civilian treatment was not pursued for the claimed disability (right shoulder) until 2012 or 2013, because he could not afford health insurance. The Board notes that the Veteran has a current diagnosis for right shoulder osteoarthritis. The Board also notes that the STRs reflect that the Veteran demonstrated right shoulder pain during the separation examination in February 1995. Consequently, the first and second requisite elements for direct service connection have been substantiated by the evidence of record. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1167. However, after deliberate review, the Board now finds that the Veteran's claims file does not contain an etiological link between the current right shoulder osteoarthritis and the Veteran's U.S. Army service. Consequently, the Board concludes that the third (and final) requisite element has not been substantiated for the Veteran's claim for service connection for a right shoulder disability. See id. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran's claim for service connection for a right shoulder disability. Since the preponderance of the evidence is against this claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran's claim for service connection for a right shoulder disability must be denied, because the preponderance of the evidence weighs against his claim. REASONS FOR REMAND Upon review of the record, the Board concludes that further evidentiary development is necessary. A remand is necessary to ensure VA provides the Veteran with appropriate assistance in developing his claim prior to final adjudication. 4. Entitlement to service connection for breathing problems is remanded. In January 2012, the Veteran submitted a VA Form 21-526. Thereby, the Veteran initiated a claim for service connection for breathing problems. Again, generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1167. In March 2012, the Veteran's STRs were associated with the claims file. After review, the Board observes that the Veteran was treated for shortness of breath and wheezing following smoke inhalation in March 1994. The Veteran was released the next day. At release, the Veteran reported that he felt well, and the military medical provider noted no respiratory compromise. In May 2012, a statement from the Veteran was associated with the claims file. Therein, the Veteran relayed that, overseas (in Somalia and Haiti) there was some areas of gas contamination. The Veteran relayed that he currently endured sinusitis, and he could not breath through his nose. In September 2013, a VA examination report, which addressed the nature and etiology of any currently endured breathing problems, was associated with the claim file. The examiner reported that the Veteran had never been diagnosed with a respiratory condition. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in, or caused by, U.S. Army service. The VA examiner supplied the following rationale: "(a)lthough the claimant did have a smoke inhalation episode on 29 Mar 1994 while on active duty, he currently has no examination or lung findings significant for a chronic breathing disorder." In August 2021, the Veteran supplied sworn testimony to the undersigned VLJ. The Veteran testified that he was hospitalized for one day (in March 1994) for smoke inhalation during training exercises. The Veteran testified that civilian treatment was not pursued for the claimed disability (breathing problems) until 2012 or 2013, because he could not afford health insurance. The Board observes that the Veteran's government-generated medical treatment records have been associated with the claims file on four occasions, to include those generated at the South Texas HCS, San Antonio VA clinic, and Audie L. Murphy Hospital. After review of the treatment records, the Board observes that the Veteran's problem list(s) include allergic rhinitis and sinusitis. The Board observes that the September 2013 VA examiner reported that the Veteran had never been diagnosed with a respiratory condition, which is not supported by the evidence in the claims file. As the September 2013 examiner's negative opinion was based on the fact that the Veteran had never been diagnosed with a respiratory condition, the Board finds that it was based on an inaccurate factual premise, which renders the opinion inadequate. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). Accordingly, on remand, an opinion regarding the nature and etiology of the Veteran's current breathing conditions, if any, should be obtained. Barr v. Nicholson, 21 Vet. App. 303, 31 (2007). Consequently, the matter is REMANDED to the agency of original jurisdiction (AOJ) for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA, Federal, or private health care providers. With the Veteran's assistance obtain copies of any pertinent records and add them to the claims file. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c) (2017). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any currently endured breathing problem(s). The claims file should be made available to, and be reviewed by, the examiner, and it should be confirmed that such records were reviewed. The examiner should: For any current breathing problem(s) identified, indicate whether the disability is at least as likely as not (a 50 percent probability or greater) related to the Veteran's U.S. Army service. An explanation for all opinions expressed must be provided. All opinions must take into account the Veteran's own history and contentions. 3. The AOJ must ensure that the examination report requested above is in compliance with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures at once. 4. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claim for service connection for breathing problems. If the benefit sought is not granted, the AOJ must then issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.