Citation Nr: 21007828 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 20-18 021 DATE: February 10, 2021 ORDER Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for hypertension (high blood pressure) is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss prior to December 27, 2019, and in excess of 20 percent thereafter, is remanded. FINDINGS OF FACT 1. The most probative evidence establishes that the appellant does not have a right ankle disability which was incurred in or is otherwise causally related to his active service; arthritis was not manifest to a compensable degree within one year of separation and continuity of symptomatology is not established. 2. The most probative evidence establishes that the appellant does not have a left ankle disability which was incurred in or is otherwise causally related to his active service; and arthritis was not manifest to a compensable degree within one year of separation and continuity of symptomatology is not established. 3. The most probative evidence establishes that the appellant does not have a right knee disability which was incurred in or is otherwise causally related to his active service; and arthritis was not manifest to a compensable degree within one year of separation and continuity of symptomatology is not established. 4. The most probative evidence establishes that the appellant does not have a left knee disability which was incurred in or is otherwise causally related to his active service; and arthritis was not manifest to a compensable degree within one year of separation and continuity of symptomatology is not established. 5. The most probative evidence establishes that hypertension did not manifest in service or to a compensable degree within one year of separation, continuity of symptomatology is not established, and the current hypertension is not otherwise causally related to the appellant’s active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303, 3.304, 3.307, 3.309. 4. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303, 3.304, 3.307, 3.309. 5. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the U.S. Army from July 1967 to June 1969. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, awarded entitlement to service connection for bilateral sensorineural hearing loss and assigned an initial 10 percent evaluation, effective November 20, 2017, and denied entitlement to service connection for high blood pressure, bilateral ankle disabilities, and bilateral knee disabilities. The appellant filed a timely Notice of Disagreement (NOD), received in July 2018. A Statement of the Case (SOC) was issued in February 2020. A timely substantive appeal was received in April 2020. A February 2020 rating decision, in pertinent part, awarded a 20 percent rating for bilateral hearing loss, effective December 27, 2019. Although a higher rating was granted, the issue remains in appellate status, as the maximum schedular rating was not assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The appellant agreed to, and was afforded, a tele-hearing before the undersigned Veterans Law Judge in July 2020. A transcript is of record. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. “To establish a right to compensation for a present disability, a Veteran must show: ‘(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’—the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis and cardiovascular-renal diseases including hypertension, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for a right ankle disability is denied. 2. Entitlement to service connection for a left ankle disability is denied. 3. Entitlement to service connection for a right knee disability is denied. 4. Entitlement to service connection for a left knee disability is denied. The appellant contends that he developed bilateral knee and ankle disabilities from repeated strenuous activities in the Army, including running with a heavy backpack and low-crawling. Service treatment records reveal that the appellant fell on his left shoulder in September 1967 and was placed on profile for pain over the AC joint. He received treatment in April 1969 for jamming his left fourth finger while playing basketball. He was also seen for eye complaints including a foreign body in the eye, venereal disease (VD), cough with chest pain. However, service treatment records are negative for complaints or observations regarding the knees or ankles, or indeed the lower extremities, aside from flatfoot being noted on entry. The appellant’s February 1969 separation examination was essentially normal. Indeed, the lower extremities were examined and found to be normal. Blood pressure measured 124/74. The appellant was found to be qualified for separation. On the accompanying Report of Medical History, the appellant reported that he was in good health and denied having, or having had, high or low blood pressure, foot trouble, trick or locked knee, lameness, deformity, arthritis, rheumatism, dizziness or fainting spells, or frequent or severe headaches. He endorsed having, or having had, eye trouble and VD. Also of record is an October 1972 quadrennial Report of Medical Examination from the appellant’s subsequent Army Reserve service. The examination itself was essentially normal. In particular, the lower extremities were examined and found to be essentially normal. Blood pressure measured 130/86. He was found to be qualified for “quad.” On the accompanying Report of Medical History, the appellant did not describe his overall health, but he denied having, or having had, high or low blood pressure, foot trouble, trick or locked knee, lameness, deformity, arthritis, rheumatism, dizziness or fainting spells, or frequent or severe headaches. Post-service VA records reveal that the appellant sought, and obtained, VA treatment for syphilis and prostatitis including in October and December 1969. A December 1969 memorandum rating for hospital treatment purposes denied service connection for genitourinary condition, noting that in-service syphilis had been cured and there were no residuals at separation. Service records were negative for gonococcal urethritis or prostatitis, and there was no evidence that the appellant currently had prostatitis. While the appellant has reported that he received treatment at the Washington, D.C., VA Medical Center from 1969, it has been determined that additional records from this facility, for the period 1969 to 2002, do not exist and that further attempts to obtain such would be futile. See April 2018 VA Form 27-0820. Further, the Board emphasizes that of record is an October 1972 Report of Medical Examination and Report of Medical History which provide both objective and subjective reports regarding the appellant’s health in the years following separation from active service. VA medical records indicate that the appellant received emergency treatment for hypertension and an upper respiratory infection in January 2002. He reported that he had had borderline high blood pressure in the past. A February 2002 letter from the VA Primary Care Clinic states that the appellant had been under medical treatment at the VA Medical Center since January 6, 2002, and was being treated for hypertension. It was noted that the appellant had responded well to a minimal amount of anti-hypertensive medication. The VA physician opined that this minimal dosage should not cause imminent risk of syncopal episode or other symptoms that would cause impairment, if the medication was taken as prescribed. The appellant was seen at the VA Medical Center for complaints of right knee pain in May 2003. Imaging studies revealed mild degenerative joint disease. The knee was painful and swollen. Although the appellant had had a fluid aspiration performed at a private facility, he did not remember what the diagnosis had been. In February 2005, the appellant was assessed with, inter alia, hypertension, controlled, and right flank pain of questionable etiology but likely muscular. The appellant complained of left knee pain in August 2006. The pain was at the medial aspect of the left knee, intermittent, and had been present for a few months. He denied trauma. In April 2008, the appellant reported left knee pain with ambulation, which had begun about a month prior. A June 2010 X-ray confirmed degenerative joint disease of the left knee. The appellant reported good results from Lodine. A left knee injection was performed in June 2011 and it was noted that the appellant’s left knee pain had been present for five years. During his July 2020 hearing before the undersigned, the appellant testified that, while on active duty, he experienced knee and ankle pain from participating in strenuous activities. He went to the Px for medication, but never went to sick call. The appellant also reported that he had been going to the Irving Street VA Hospital in Washington, D.C., since 1969. Applying the facts to the criteria set forth above, the Board finds that the preponderance of the evidence is against the award of service connection for right ankle, left ankle, right knee, or left knee disabilities. There is no indication, nor is it contended, that arthritis of either knee or ankle was noted during active duty, manifest to a compensable degree within one year of separation, or that the appellant had continuous knee or ankle symptoms since service. Thus, service connection on a presumptive basis is not for application. 38 C.F.R. §§ 3.307, 3.309. The Board does not dispute the appellant’s genuine belief that his current bilateral knee arthritis, and bilateral ankle disabilities, or ankle symptoms which cause a functional impairment in earning capacity, are the result of his repeated strenuous activities while on active duty, and have continued since such time. However, the Board affords greater probative weight to the appellant’s essentially normal lower extremity examinations at the time of separation from active service in February 1969 and approximately three years later, in October 1972, while serving in the Army reserve. The appellant himself denied having, or having had, lower extremity complaints at such time. The appellant himself reported in the course of medical treatment at the VA Medical Center that his left knee pain began in 2006 and denied trauma. Further, the Board notes that the appellant sought treatment for claimed syphilis and prostatitis from VA following separation in 1969. The Board finds that had the appellant been suffering from knee and ankle pain at that time, he would have likely reported it when seeking VA treatment in October 1969. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder (citing Fed. R. Evid. 803 (7))); see AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). In any event, regardless of whether the appellant would have been expected to complain about musculoskeletal symptoms when seeking treatment for genitourinary problems, the appellant’s normal February 1969 and October 1972 examinations, and his own denials of pertinent complaints or symptoms at such times, are of greater probative value than the appellant’s remote recollections made decades after the fact. While the appellant’s attorney has argued that the appellant should be afforded examinations in connection with the claim, see McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Board finds that there is no indication, aside from the appellant’s lay contentions made decades after the fact and in connection with a claim for monetary benefits, that any current knee or ankle disability was incurred in, or is otherwise causally related, to an in-service event, injury, or disease, including strenuous activities. The appellant is competent to report symptoms and observations because this requires only personal knowledge as it comes through an individual’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The appellant in this case, however, is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the appellant in this case, who has not been shown by the evidence of record to have medical training or skills. A mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that VA medical opinions regarding service connection are not necessary to decide the claims. Rather, there is sufficient medical evidence upon which to base a decision. See Locklear v. Nicholson, 20 Vet. App. 410 (2006). Again, the Board does not dispute the appellant’s genuine belief that he has current bilateral knee and ankle disabilities which are the result of his active service. Rather, the evidence delineated above is more probative than the appellant’s current contentions, made decades after the fact. In sum, the most probative evidence establishes that the appellant does not have a right ankle, left ankle, right knee, or left knee disability which was incurred in or is otherwise causally related to his active service. As the evidence preponderates against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 5. Entitlement to service connection for hypertension (high blood pressure) is denied. The appellant contends that high blood pressure manifested in service and that a doctor told him that his reports of headaches and dizziness in service and following separation could be indicia of high blood pressure. Service treatment records reveal that the appellant fell on his left shoulder in September 1967 and was placed on profile for pain over the AC joint. He received treatment in April 1969 for jamming his left fourth finger while playing basketball. He was also seen for eye complaints including a foreign body in the eye, venereal disease (VD), cough with chest pain. However, service treatment records are negative for complaints or observations regarding elevated blood pressure or hypertension. The appellant’s blood pressure was 120/68 at the time of his entry onto active duty. See August 1966 Report of Medical Examination. The appellant’s February 1969 separation examination was essentially normal, including the vascular system. Blood pressure measured 124/74. The appellant was found to be qualified for separation. On the accompanying Report of Medical History, the appellant reported that he was in good health and denied having, or having had, high or low blood pressure. Also of record is an October 1972 quadrennial Report of Medical Examination from the appellant’s subsequent Army Reserve service. The examination itself was essentially normal. In particular, blood pressure measured 130/86. He was found to be qualified for “quad.” On the accompanying Report of Medical History, the appellant did not describe his overall health, but he denied having, or having had, high or low blood pressure. Post-service VA records reveal that the appellant sought, and obtained, VA treatment for syphilis and prostatitis including in October and December 1969. A December 1969 memorandum rating for hospital treatment purposes denied service connection for genitourinary condition, noting that in-service syphilis had been cured and there were no residuals at separation. Service records were negative for gonococcal urethritis or prostatitis, and there was no evidence that the appellant currently had prostatitis. While the appellant has reported that he received treatment at the Washington, D.C., VA Medical Center from 1969, it has been determined that additional records from this facility, for the period 1969 to 2002, do not exist and that further attempts to obtain such would be futile. See April 2018 VA Form 27-0820. Further, the Board emphasizes that of record is an October 1972 Report of Medical Examination and Report of Medical History which provide both objective and subjective reports regarding the appellant’s health in the years following separation from active service. VA medical records indicate that the appellant received emergency treatment for hypertension and an upper respiratory infection in January 2002. He reported that he had had borderline high blood pressure in the past. A February 2002 letter from the VA Primary Care Clinic states that the appellant had been under medical treatment at the VA Medical Center since January 6, 2002, and was being treated for hypertension. It was noted that the appellant had responded well to a minimal amount of anti-hypertensive medication. The VA physician opined that this minimal dosage should not cause imminent risk of syncopal episode or other symptoms that would cause impairment, if the medication was taken as prescribed. During his July 2020 hearing before the undersigned, the appellant reported that he had been going to the Irving Street VA Hospital in Washington, D.C., since 1969. He testified that he had first been diagnosed with hypertension in 1977. The appellant could not recall whether he had elevated blood pressure readings while on active duty. However, he experienced headaches and dizziness, including at discharge, and that a doctor told him that headaches and dizziness could be possible signs of high blood pressure. The appellant indicated that the initial hypertension diagnosis occurred in the context of an employment physical in the 1970s. Applying the facts to the criteria set forth above, the Board finds that the preponderance of the evidence is against the award of service connection for hypertension. There is no clinical indication that hypertension was present during active duty, nor is there any indication that hypertension manifest to a compensable degree within one year of separation, or that hypertension has been present since service. Thus, service connection on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307, 3.309. The Board does not dispute the appellant’s genuine belief that his current hypertension is the result of his active service, and has continued since such time. However, the Board affords greater probative weight to the appellant’s essentially normal blood pressure readings at the time of separation from active service in February 1969 and approximately three years later, in October 1972, while serving in the Army reserve. While the appellant is competent to report that a doctor told him that the appellant’s reported headaches and dizziness in service and following separation could be indicia of high blood pressure, the Board affords greater probative weight to his denials of having, or having had, high blood pressure, as well as his denials of dizziness or fainting spells and frequent or severe headaches, at the times of his February 1969 separation examination and his October 1972 Army Reserve quadrennial examination regarding whether he had headaches or dizziness during service or immediately thereafter. Further, with respect to the appellant’s reports of what a doctor told him, a claimant’s lay statements relating what a medical professional told him, filtered as they are through a layperson’s sensibilities, are too attenuated and inherently unreliable to constitute probative evidence to support a claim. See e.g. Warren v. Brown, 6 Vet. App. 4 (1993). Additionally, it is well established that medical opinions that are inconclusive in nature do not provide a sufficient basis upon which to support a claim. See e.g. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding doctor’s opinion that “it is possible” and “it is within the realm of medical possibility” too speculative to establish medical nexus); Goss v. Brown, 9 Vet. App. 109, 114 (1996) (using the words “could not rule out” was too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that a physician’s statement that a service-connected disorder “may or may not” have prevented medical personnel from averting a Veteran’s death was not sufficient). While the appellant’s attorney has argued that the appellant should be afforded an examination in connection with the claim, see McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Board finds that there is no indication, aside from the appellant’s lay contentions made decades after the fact and in connection with a claim for monetary benefits, that his current hypertension was incurred in, or is otherwise causally related, to an in-service event, injury, or disease. The appellant is competent to report symptoms and observations because this requires only personal knowledge as it comes through an individual’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The appellant in this case, however, is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the appellant in this case, who has not been shown by the evidence of record to have medical training or skills. A mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that a VA medical opinion regarding service connection is not necessary to decide the claims. Rather, there is sufficient medical evidence upon which to base a decision. See Locklear v. Nicholson, 20 Vet. App. 410 (2006). Again, the Board does not dispute the appellant’s genuine belief that his hypertension is the result of his active service. Rather, the evidence delineated above is more probative than the appellant’s current contentions, made decades after the fact. In sum, the most probative evidence establishes that the appellant’s hypertension was not incurred in or otherwise causally related to his active service; and did was not manifest to a compensable degree within one year of separation. As the evidence preponderates against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss prior to December 27, 2019, and a rating in excess of 20 percent thereafter, is remanded. During the July 2020 hearing before the undersigned, the appellant testified that his hearing acuity had worsened since his most recent contracted audiological examination in December 2019, particularly in his left ear. Thus, the Board finds that the appellant should be afforded a new examination to assess the severity and manifestations of his service-connected bilateral hearing loss. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The matter is REMANDED for the following action: Afford the appellant a VA medical examination to ascertain the current severity of his service-connected bilateral hearing loss. Access to the appellant’s VA claims file should be made available to the examiner for review in connection with the examination. All necessary tests should be conducted and all findings reported in detail. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Behlen, 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.