Citation Nr: 21075181 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 14-30 976 DATE: December 17, 2021 ORDER The matter of the claim to service connection for hypertension is reopened. The matter of the claim to service connection for a bilateral foot disability, to include corns on the feet, is reopened. The matter of the claim to service connection for a sinus related disability, to include headaches, is reopened. Entitlement to service connection for a bilateral ankle disability, to include arthritis, is denied. Entitlement to service connection for a bilateral knee disability, to include arthritis, is denied. REMANDED Entitlement to service connection for a hernia is remanded. Entitlement to service connection for a bilateral foot disability, to include corns on the feet, is remanded. Entitlement to service connection for a sinus disability, to include headaches, is remanded. Entitlement to service connection for allergic rhinitis is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. Evidence added to the record since the previous final denial is not cumulative of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for hypertension. 2. Evidence added to the record since the previous final denial is not cumulative of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a foot disability. 3. Evidence added to the record since the previous final denial is not cumulative of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a sinus-related disability, to include headaches. 4. The Veteran's bilateral ankle disability was not incurred in or due to his time in service. 5. The Veteran's bilateral knee disability was not incurred in or due to his time in service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a bilateral foot disability, to include corns on the feet. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for a sinus related disability, to include headaches. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The criteria for service connection for a bilateral ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for a bilateral knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1981 to April 1984 as well as service in the Army National Guard from April 1984 to October 1997 and service in the Reserves from October 1997 to July 2004. These matters on appeal from a November 2014 rating decision by a Department of Veterans Affairs (VA) regional office (RO). The Veteran had a hearing before the undersigned Veterans Law Judge in August 2021. A transcript has been associated with the file. New and Material Evidence Claims Rating actions are final and binding based on evidence on file at the time the veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Veteran was denied service connection for his hypertension, foot disability, and sinus disability in a November 2011 rating decision. The Veteran was denied service connection for his sinus headache because treatment records did not show treatment for sinus headaches, but did show treatment for seasonal allergies and migraine headaches. The evidence also did not show the Veteran's sinus headaches were incurred in or due to his time in service. The Veteran was denied service connection for hypertension because while some records indicated treatment for such, the evidence did not show that it was incurred in or due to his time in service or that it manifested within one year of the Veteran's separation from service. The Veteran was denied service connection for corns on his feet because the evidence, while showing treatment for such, did not show that the condition was incurred in or due to his time in service. While the Veteran filed a request for reconsideration of this rating decision which was addressed by VA in a May 2012 correspondence, the Veteran did not perfect an appeal. The Veteran filed a new claim for these conditions in January 2014 and was denied reopening of these claims because the evidence submitted was not new and material. Since the previous final denial, new evidence has been added to the record pertaining to these claims, including medical treatment records, statements by the Veteran, and a hearing transcript. The Board also finds this evidence to be material in that raises a reasonable possibility of substantiating the claims. Therefore, the claims will be reopened. Service Connection Claims Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310. On the question of continuity of symptomatology, evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2014). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C. §§ 101(24), 106, 1110, 1131. The Board notes that pertaining to all of his service connection claims, almost all of the Veteran's service treatment records (STRs) have been deemed unavailable. Therefore, the Board has, when considering whether the claimed disability was incurred during his time in service, taken a broadly sympathetic reading into all of the other evidence of record and does not draw any inference from the fact that the Veteran's STRs are unavailable for review. Bilateral Ankle and Bilateral Knee Claims The Veteran contends he has bilateral ankle and knee disabilities that were incurred in and due to his time in service. In his August 2021 hearing, the Veteran stated he has been diagnosed with arthritis in all of these joints. The Veteran said these conditions began in service jumping on trucks and climbing in them on all fours. The Veteran said this was just from wear and tear from his military occupational specialty (MOS) while in service and that these duties continued into the National Guard and his time in the reserves. The Veteran has been diagnosed with degenerative changes in both ankles. (See e.g. March 2017, February 2020 treatment records.) In February 2016, the Veteran said he fell about five months ago and hurt his knee. The Veteran was treated in September 2017 for knee pain, noting it began symptomatic approximately eight months prior. The Veteran has also been reported to have arthritis in his knees. As noted above, the Veteran's complete STRs are not available for review. However, examinations in January and April 2002, while noting several other problems, do not mention any ongoing knee or ankle problems. The Veteran's record also does not contain medical evidence linking any currently diagnosed ankle and knee problems to the Veteran's time in service. The Board has weighed the Veteran's statements about his experiences in service against both the lack of his STRs and the two examinations of record that do not mention any ongoing chronic knee or ankle conditions. The Board has also considered that there is no other objective evidence in the Veteran's file linking his present conditions with his time in service to a degree necessary for a finding of service connection. The Board also notes the medical treatment records discussed above showing an intervening cause as to what may have caused the Veteran's current knee conditions. Also weighing against the Veteran's claim is the amount of time between his separation from service and the first documented treatment of his ankle and knee conditions. In so noting, the Board recognizes that the mere absence of medical records is not dispositive as to the question of continuity; the lay evidence must be considered as well. See Buchanan v. Nicholson, 451 F.3d at1335. If, however, it is determined based on reliable evidence, that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the Veteran separated from active service in 1984 and from his reserve service in July 2004, at minimum, a decade prior to the first treatments or diagnoses of these two conditions. The Board finds that the evidence in this case lays a foundation for why it is appropriate to rely on the lack of evidence. See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). While the Board has considered what the Veteran has said about his experiences in service and how those experiences caused his current ankle and knee conditions, the Board finds that the inference is too tenuous to either grant service connection or to find that an etiology opinion is warranted. The Board notes the Veteran was not provided a separate examination and opinion as to the current nature and etiology of his claimed conditions by VA. However, VA need not conduct an examination with respect to the claim on appeal, as information and the evidence of record contains sufficient competent medical evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4). Under McLendon v. Nicholson, 20 Vet. App. 76 (2006), VA must provide an examination 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 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 on file for VA to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case as the Veteran is not shown to have suffered his condition while in service and there is no other competent medical evidence suggesting an association to service. The post-service records provide evidence against this claim that tend to show the Veteran's conditions are unrelated to his time in service. The Board acknowledges the Veteran's statements about what happened to him while in service, that he says he has had pain and symptoms of his disabilities since service, and that he continues to seek treatment for many of his conditions. However, while the Veteran is competent to report the symptoms of his disability, he is not competent to opine on matters requiring medical knowledge, such as determining the nature or etiology of his health conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board lends more weight to the objective evidence of record, which, when weighed against the lay evidence of record, tend to show the Veteran's conditions were not incurred in or due to his time in service, including the decades time gap between his separation from service and the first treatments for these conditions, the lack of a medical nexus between his conditions and his time in service, and the fact an intervening examination in April 2002 did not indicate such ongoing problems while mentioning several others. It is important for the Veteran to understand that the most probative medical evidence of record provides evidence against these claims that the Board cannot, unfortunately, ignore, outweighing the Veteran's belief that his conditions are due to his time in service. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). REASONS FOR REMAND Hernia Claim The Veteran contends he has a hernia that was incurred in and due to his time in service. Specifically in his August 2021 hearing, the Veteran said while in service, he was a truck driver and so he would have to change large tires using big jacks and during this time, he could feel the inner part of his thigh aching, but he just had to get his job done. The Veteran said he felt a tearing or pulling sensation on his inner thigh when he was doing physical activity while on active duty and eventually, it started bulging out. The Veteran said sometimes he did go to sick call for it, but nothing was done for it. During his time in the National Guard, the Veteran continued to work with heavy loads and big tires that was stressful. The Veteran noted that he got corrective surgery for a hernia one month after his separation from the reserves in August 2004. The Veteran finally sought treatment because it just got worse and worse. The Veteran had been diagnosed with a hernia. (See e.g. March 2017 treatment records.) This records also indicated the Veteran had surgery on his inguinal hernia in August 2004. (See e.g. March 2015 treatment records.) As discussed above, the Board notes the Veteran's STRs are unavailable for review. However, his military personnel records are available for review. It is noted the Veteran's daily duties included loading or emptying vehicles in convoy or tactical situations. Additionally, one examination, performed while the Veteran was in the Reserves, noted the presence of a hernia. (See April 2002 examination.) Additionally, medical treatment records do confirm the Veteran was treated for a hernia in August 2004, just a month after he finished his time in the Reserves. While it is unclear from the record exactly when the Veteran's hernia began, the Board finds it highly persuasive that the Veteran had surgical intervention for this condition just a month after his separation from his Reserve duty. Thus, while the Board cannot say with exact certainty that the Veteran's hernia was incurred during a period of active service or ACDUTRA, the Board finds there is enough evidence to warrant an etiology examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Bilateral Foot Disability Claim The Board finds a remand is necessary in the Veteran's claim to service connection for a bilateral foot disability, to include corns on his feet. The Board notes the Veteran has been diagnosed with plantar fasciitis in his right foot and arthritis in his feet. In his August 2021 hearing, the Veteran said he had surgery for this condition in 2004, just after he got out of his time in the Reserves. However, those records are not associated with the Veteran's file and no attempts have been made to obtain them. Therefore, a remand is necessary. After obtaining these records, should the evidence so indicate, the Veteran should be afforded an opinion as to etiology of his foot corns. See McLendon, supra. Sinus and Rhinitis Claims The Veteran contends he has headaches and a sinus condition that were incurred in and due to his time in service. The Veteran has been diagnosed with rhinitis. The Veteran has also been diagnosed with headaches (See e.g. March 2017 treatment records.) and headaches are consistently noted on his problem list. (See e.g. June 2016 treatment records.) It is less clear whether the Veteran has a diagnosed chronic sinus disability. In February 2017, the Veteran was seen for sinus drainage which he had for about a year. In February 2020, the Veteran was treated for acute sinusitis. While the Veteran's record does not appear to indicate an ongoing sinusitis problem, the Veteran's contention is that his sinuses are responsible for his headaches. Specifically, in his August 2021 hearing, the Veteran said with his headaches and his sinuses, the weather was much different in Germany and that using a wool blanket irritated his sinuses. The Veteran also said he got sinus headaches. The Veteran said he went to sick call for these conditions while in service but they didn't do anything for him. Again noting the Veteran's STRs are not fully available, the April 2002 examination of record does indicate the Veteran had a sinus condition and headaches. The Board also notes that the question of whether the Veteran's rhinitis disability may have been mis-identified or generalized in the finding of the April 2002 examination that he had a "sinus condition." Therefore, the Board finds there is sufficient evidence to warrant an etiology examination and to determine whether the Veteran's rhinitis was also incurred during his time in service. See McLendon, supra. Hypertension Claim The Veteran contends he has hypertension that was incurred in or due to his time in service. In his August 2021 hearing, the Veteran said he was diagnosed in 1986 or 1987 and that he was told it started earlier while he was in service. The Veteran currently takes medication for hypertension. The Veteran's record indicates he has been diagnosed with benign hypertension. (See e.g. August 2017 treatment records.) Again, the Veteran's complete STRs are unavailable for review. However, an April 2002 examination, performed while the Veteran was part of the Reserves, showed the Veteran did have hypertension. The Board notes the Veteran did not have any time periods between his active duty service, his service in the National Guard, and his time in the Reserves. Therefore, while the Board cannot say with exact certainty that the Veteran's hypertension manifested itself during his active duty service. However, the Board finds there is sufficient evidence to warrant an etiology opinion. Therefore, the matter will be remanded. See McLendon, supra. The matters are REMANDED for the following action: 1. The AOJ should obtain any of the Veteran's outstanding medical records and associate them with the claims file. If possible, the Veteran himself should submit any pertinent evidence regarding the condition at issue in order to expedite the claim. 2. Schedule the Veteran for an appropriate VA examination for his 1) hernia, 2) bilateral foot disability, 3) sinus, including headaches, disability, 4) rhinitis disability, and 5) hypertension. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. For each disability, the examiner should opine as to the following: (a) Whether the Veteran has a currently diagnosed disability. (b) If so, whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's disability was incurred during or due to the Veteran's service. (c) If so, whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's disability is proximately due to any of his service-connected disabilities. (d) If so, whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's disability was aggravated by any of his service-connected disabilities. Note: Aggravation does not mean a permanent worsening. Any incremental worsening constitutes aggravation. The examiner should offer a rationale for any opinion offered. The examiner may not rely solely on the absence of service treatment records (STRs) as the basis of any negative opinion. 3. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, issue to the Veteran and the Veteran's representative a supplemental statement of the case and give an opportunity to respond thereto. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.