Citation Nr: 21006529 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 13-23 387 DATE: February 4, 2021 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for a bilateral foot disability is denied. Entitlement to service connection for a bilateral shoulder disability is denied. Entitlement to service connection for lumbar spine disability is denied. FINDINGS OF FACT 1. The Veteran’s current hypertension is not causally related to an injury, event, or disease in service. 2. The Veteran’s current bilateral foot disability is not causally related to an injury, event, or disease in service. 3. The Veteran’s current bilateral shoulder disability is not causally related to an injury, event, or disease in service. 4. The Veteran’s current lumbar spine disability is not causally related to an injury, event, or disease in service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a bilateral foot disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a bilateral shoulder disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for lumbar spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to September 1967, followed by service in the Army Reserve. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, denying all of the claims currently on appeal. In April 2015, the Board issued a decision which denied service connection for hypertension and remanded all of the other claimed disabilities currently on appeal for further evidentiary development. In June 2015, the Veteran appealed the Board’s decision of entitlement to service connection for hypertension to the United States Court of Appeals for Veterans Claims (Court). In September 2016, the Court issued a Memorandum Decision, which vacated the portion of the Board’s decision that denied entitlement to service connection for hypertension and remanded the matter for further consideration and instructions consistent with the Court’s Memorandum Decision. The Board notes that the Veteran presented testimony before a Veterans Law Judge in November 2014. The Veterans Law Judge who conducted the hearing is no longer employed by the Board. In February 2018, a letter was sent to the Veteran, which offered him the opportunity to elect to appear again for a new Board hearing. The Veteran was provided 30 days from the date of the letter to make his election. Absent any indication of a desire for a new hearing from the Veteran, the Board will proceed with adjudicating the claims. In March 2018, VA received correspondence from the Veteran indicating that he did not wish to appear at another Board hearing. Thus, the Board will proceed with adjudicating the Veteran’s claims. In April 2018, all issues were remanded again for further development, to include obtaining all outstanding private treatment records as well as VA treatment records and VA examinations with opinions. The Board observes that all available treatment records as well as VA examinations and opinions have been obtained. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 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, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). 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). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for hypertension The Veteran has contended that his hypertension is due to his military service. 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. Post-service treatment records document hypertension sometime around 2000. Although the Veteran has a current diagnosis of hypertension, the preponderance of the evidence weighs against finding that such began during service or is otherwise related to an in-service injury, event, or disease. Direct service connection cannot be established where there is no evidence indicating a nexus between a current disability and an in-service injury, event, or disease. The service treatment records (STRs) show no complaints of or treatment for hypertension. On June 1967 service separation examination, the Veteran denied problems with hypertension and blood pressure was 140/80. Although he had a high blood pressure reading upon enlistment, he was not diagnosed as having hypertension. Therefore, he is presumed sound as to the claimed hypertension at enlistment. During the most recent January 2020 VA examination, the Veteran reported a rapid increase at service enlistment and an elevated blood pressure at service separation. He indicated that he had some lab work completed for diabetes in the 70s or 80s when hypertension was diagnosed. He was not placed on medication until 2000. The examiner reviewed the entire claims file, to include private treatment records and VA treatment records, and opined that the Veteran’s hypertension is less likely than not related to his military service. The reasoning was that borderline hypertension systolic with blood pressure 130-139 pre-hypertensive, was documented prior to service. The Veteran had elevated blood pressure at entrance exam; however, hypertension was not diagnosed. Further, although service separation documented elevated blood pressure at 140/80; hypertension was not diagnosed. The examiner indicated that a hypertension diagnosis requires blood pressure readings on three or more separate occasions. The blood pressure during the examination was average at 135/81. The examiner noted that the Veteran does have confirmed hypertension and hyperlipidemia in the medical record. The examiner indicated again that she reviewed all STRs and private treatment records including from 2007 to present. She noted that the Veteran also has documented family history of heart disease, and that his father died of a heart attack at 48. In addition, the examiner noted that the Veteran had lab work that documented elevated cholesterol in 2007 with current obesity. The examiner found that although the Veteran did have elevated blood pressure prior to service and exiting service, and such are predisposing factors for developing of hypertension, she concluded that hypertension did not incur in service as no confirmation nor findings suggest the two readings were consistent hypertension in service. The Board finds that the most recent January 2020 VA medical opinion probative as it was predicated upon a review of the Veteran’s claims file and contains clear conclusions connected to supporting data by a reasoned medical explanation. Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Relevant to service connection on a presumptive basis, as noted, post-service treatment records document treatment for hypertension around 2000, three decades after the Veteran’s separation from active service. As high blood pressure was not seen until several years following the Veteran’s separation from service, service connection on a presumptive basis is also not warranted. The Veteran claims his hypertension is related to service; however, he is not competent to determine that hypertension diagnosed several years post-service is related to service. That determination is a complex etiological question not susceptible to lay analysis. As such, the Board affords little probative value to his statements. The Board finds that the most probative evidence of record shows that there is no nexus between the in-service event and the current hypertension, and therefore the nexus requirement for service connection is not met. Based on the evidence of record, the Board observes that such preponderates against the claim, as such the benefit of the doubt is not warranted. 2. Entitlement to service connection for a bilateral foot disability 3. Entitlement to service connection for a bilateral shoulder disability 4. Entitlement to service connection for lumbar spine disability The Veteran asserts that his bilateral foot, bilateral shoulder, and lumbar spine disabilities are due to his military service. The STRs show no complaints of or treatment for chronic bilateral feet, bilateral shoulder, and lumbar spine disabilities. During June 1967 separation examination, clinical evaluation of the upper and lower extremities; as well as lumbar spine was normal. Post-service treatment records document complaints of and treatment for bilateral foot, bilateral shoulder, and lumbar spine disabilities. In December 2014 correspondence, the Veteran’s private provider indicated that he has been treating the Veteran since the 1990s for his joints and that it is his opinion that these chronic type joint issues have their origin in the Veteran’s service as an artilleryman where heavy ordinance was lifted and moved about constantly. The examiner did not offer any reasoning. In a June 2015 VA opinion, the examiner indicated that the Veteran’s bilateral shoulder disability is not likely to be related to his time in service. The examiner notes the Veteran has a shoulder disorder where his job as an artillery man in the military might have contributed to the development of shoulder arthritis and impingement syndrome. However, the review of the service treatment records fails to show any visits for any shoulder issues. His separation examination also fails to make mention of any conditions or ailments of the shoulder or joints. The examiner also noted that the Veteran’s post-service profession as an auto mechanic puts him at a higher rate for injuries to his shoulders given his prolonged time working with his hands over his head due to use of an elevated hydraulic lift. In a June 2015 VA opinion, the examiner indicated that the Veteran’s lumbar spine disability is unlikely a result of his time in service. He reasoned that there is no documentation of a medical visit for any injuries sustained to his back while in service. His separation examination again fails to show any complaints of back pain or arthritis. The examiner found that the Veteran’s work as an auto mechanic likely put strains on his back that resulted in the acute episode of disc herniation. During a January 2020 VA examination, the examiner diagnosed bilateral acquired pes cavus (claw foot), plantar fasciitis, gout, and degenerative arthritis. The Veteran reported onset was in service when he had trench foot and numbness. He indicated that he was in Germany at the time, and had frostbite, but did not get evaluated at the time. He reported that he sought treatment for gout at a primary care physician, but this physician no longer has records. Following a review of the records, the examiner opined that the current foot conditions were less likely than not related to military service. The examiner reasoned that the Veteran has different conditions in his feet. The pes cavus was identified November 2011 at the VA with medical records. Both entrance and separation examinations are negative for foot trouble or abnormality of the arch, pes cavus or history of gout. The examiner indicated that the Veteran’s description of his numbness would not be related to either condition, or to a possible cold injury that is not shown anywhere in the records. The examiner indicated that the Veteran’s main concern or complaints of numbness in the foot and gout is an inflammatory process at the hallux MTP resulting in redness/warmth. The examiner stated that an increased risk for gout would not be from the Veteran’s service or cold weather exposure; but rather that the Veteran is an obese male that has high blood pressure and elevated uric acid in his blood. During the October 2020 VA examination the examiner diagnosed bilateral shoulder impingement syndrome with osteoarthritis. The Veteran reported the onset from carrying heavy artilleries of 100 pounds on each shoulder while running on uneven roads moving them back and forth as needed. He indicated that he did not report the condition because he did not want to be singled out. The Veteran reports that he is unable to lift his arms above shoulder level, they are numb and have severe pain. He reports treatment with a chiropractor for shoulder pain since leaving service. Following a review of the Veteran’s records the examiner indicated that the current bilateral shoulder disabilities are less likely than not related to the Veteran’s military service. He noted that service treatment records, private evidence, and personal testimony were reviewed to include an August 2016 chiropractor treatment that documents the Veteran was a patient since the 1990s and treated periodically beginning 1973 or 1974. The examiner noted that there was no diagnosis, frequency, or continuity of care found in treatment records from Bucks Family Medicine. Service entrance and separation examinations show normal bilateral shoulders. The examiner further found that the treatment records are silent for any disability of either shoulder during service or within one year following discharge and medical evidence does not establish continuity of care. During October 2020 VA examination the examiner diagnosed degenerative arthritis of the spine with bilateral lower extremity femoral/sciatic nerve radiculopathy. The Veteran reported onset of back condition from carrying 70-pound loads on shoulders on uneven ground bouncing up and down causing intermittent back pain but did not report it. He indicated that his back pain increased around 1968 and he sought treatment with a chiropractor. The Veteran reports that he continues to have constant back pain that radiates into his bilateral lower extremities. Following a review of the Veteran’s records, the examiner indicated that the current low back disability is less likely than not related to the Veteran’s military service. The examiner reasoned that service entrance and separation examinations are normal for upper and lower extremities, spine, and musculoskeletal system. The examiner indicated that he reviewed an August 2016 letter from Dr. D, M., Chiropractic Center, that documents the Veteran has been a patient at his office since 1990s. No diagnosis, frequency or continuity of care was provided. The examiner indicated that all treatment records are silent for the claim of any back condition during service. There were no subjective or objective complaints during service or within one year of service separation. The examiner again noted that the medical evidence does not show continuity of care. It is not in dispute that the Veteran has bilateral feet, bilateral shoulder, or lumbar spine disabilities. What must be resolved is whether his current disabilities are etiologically related to his service. The Board finds that the preponderance of the evidence is against the Veteran’s claims. As noted, the STRs are silent for symptoms of a chronic bilateral feet, bilateral shoulder, and lumbar spine disabilities and post-service treatment records reflect such disabilities around 1990, some 23 years post-service. Further, there is no probative medical evidence that chronic disabilities are related to an in-service event, illness, or injury. The Veteran claims his current disabilities are related to service; however, as a lay person he is not competent to determine the etiology of his bilateral feet, bilateral shoulders, and lumbar spine disabilities. That determination is a complex etiological question not susceptible to lay analysis. As such, the Board affords little probative value to his statements and testimony. The Board finds that the most probative evidence of record, the most recent 2020 VA examination reports and opinions show that there is no nexus between the Veteran’s current disabilities and service, and therefore, the nexus requirement for service connection is not met. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. McPhaull, 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.