Citation Nr: 21010062 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 18-50 210 DATE: February 24, 2021 ORDER Entitlement to service connection for right knee degenerative arthritis is granted. Entitlement to service connection for left knee degenerative arthritis is granted. Entitlement to service connection for right hip degenerative arthritis is granted. Entitlement to service connection for left hip degenerative arthritis is granted. Entitlement to service connection for right foot hammertoes is granted. Entitlement to service connection for left foot hammertoes is granted. Entitlement to service connection for a right foot disability is granted. Entitlement to service connection for a left foot disability is granted. Entitlement to service connection for right bundle branch block disability is granted. Entitlement to service connection for gout is denied. Entitlement to service connection for high cholesterol is denied. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his bilateral knee and hip degenerative arthritis onset during active service. 2. Resolving reasonable doubt in the Veteran’s favor, his bilateral hammertoes and foot disorders onset during active service. 3. The Veteran’s right bundle branch block began during active service. 4. The preponderance of the evidence of record is against finding that the Veteran has had gout at any time during or approximate to the pendency of the claim. 5. Hyperlipidemia (high cholesterol) is not a disability for which service-connected compensation may be considered. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee degenerative arthritis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for left knee degenerative arthritis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for right hip degenerative arthritis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for left hip degenerative arthritis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for right foot hammertoes are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for left foot hammertoes are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for service connection for right foot disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 8. The criteria for service connection for left foot disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 9. The criteria for service connection for right bundle branch block are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 10. The criteria for service connection for gout are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 11. The criteria for entitlement to service connection for high cholesterol have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1988 to March 1998. The record also shows the Veteran completed inactive duty for training (INACDUTRA) in the Army National Guard from November 1954 to January 1988. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. The Board observes that in this case, some of the Veteran’s service treatment records are unavailable. The record shows attempts were made in May 2014 by the RO to obtain all of the Veteran’s records. Specifically, it does not appear most of the medical records from the Veteran’s more than 30 years in the National Guard are within the claims file, and only a portion of his active duty service treatment notes are available for review. In a case such as this, where some service treatment records are unavailable, there is a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). “Active military, naval, and air service” includes active duty, any period of active duty for training during which the Veteran was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training during which the Veteran was disabled or died from an injury incurred or aggravated in the line of duty. 38 C.F.R. § 3.6 (a) (emphasis added). “Active duty” is defined as: (1) full-time duty in the Armed Forces, other than active duty for training; (2) active duty for training (ACDUTRA) (e.g., the approximately two weeks per year of training conducted by Reservists and National Guard members); (3) full-time duty performed by Reservists for training purposes (e.g., when some Reservists sign on for extended periods of service); (4) full-time duty performed by National Guard members of any state; and (5) inactive duty training (INACDUTRA) (e.g., the regular monthly weekend drills conducted by Reservists and National Guard members). 38 C.F.R. § 3.6. 1. Entitlement to service connection for right knee degenerative arthritis 2. Entitlement to service connection for left knee degenerative arthritis 3. Entitlement to service connection for right hip degenerative arthritis 4. Entitlement to service connection for left hip degenerative arthritis The Veteran asserts he is entitled to service connection for bilateral knee and bilateral hip disabilities. Alternatively, he contends that his knee and hip disabilities are secondary to his service-connected back disability. The Board concludes that the Veteran has current disabilities of the knees and hips that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). April 2018 VA examination reports show the Veteran has a current diagnosis of degenerative arthritis of the knees and hips based on X-ray images. Thus, the question becomes whether the current disabilities are related to service. On this question there is probative evidence in favor of and against the claim. The evidence against the claim includes April 2018 VA medical opinions. The examiner opined that the Veteran’s knee and hip conditions are less likely than not incurred in or caused by his military service. As rationale, the examiner stated that osteoarthritis is the most common form of arthritis of the knees and hips, it develops slowly while worsening over time, and that it is a “wear-and-tear” type of arthritis that occurs most often in people of 50 years of age and older. The examiner concluded that there was no evidence of current, chronic and continuous treatment and care. The Board notes that the examiner did not consider the Veteran’s four decades of service, nor were the Veteran’s lay statements regarding in-service bilateral knee and hip pain addressed. The evidence in favor of the claim includes service treatment records showing the Veteran was placed on a limited physical profile in October 1989 due to degenerative joint disease of the back and neck. An August 1997 report of medical history shows the Veteran indicated he had arthritis and swollen/painful joints. The report also includes a notation from a military physician regarding the Veteran’s chronic bilateral knee pain. Additionally, the Veteran testified at the January 2021 Board hearing that during service, he was frequently involved in activities that required knee and hip bending. He described having to climb on and off military vehicles, participate in field exercises, and load and unload heavy equipment. The Veteran is competent to report having knee and hip problems since service and the Board finds that his account of having problems since service is credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current arthritis of the bilateral knees and hips are related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for degenerative arthritis of the bilateral knees and bilateral hips is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 5. Entitlement to service connection for right foot hammertoes 6. Entitlement to service connection for left foot hammertoes 7. Entitlement to service connection for a right foot disability 8. Entitlement to service connection for a left foot disability The Veteran contends he is entitled to service connection for bilateral hammertoes and bilateral foot disabilities. The Board concludes that the Veteran has current disabilities that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). April 2018 VA examination reports show the Veteran has current diagnoses of right and left hammertoes, as well as bilateral pes planus (flat feet), right foot hallux valgus, and left foot degenerative arthritis. The Board has considered the probative evidence of record in favor of and against the claim to determine whether the current disability is related to service. The evidence against the claim includes April 2018 VA medical opinions. The VA examiner opined that the Veteran’s claimed foot conditions are less likely than not incurred in or caused by his military service. As rationale, the examiner stated there is no evidence of current, continuous, or chronicity of care. The Board notes the examiner failed to address or consider the impact of the Veteran’s extensive military history on his diagnosed conditions, service medical records noting foot problems, or his lay reports of in-service foot pain. The evidence in favor of the claim includes an August 1997 service medical history report showing the Veteran indicated that he had foot trouble. The report also includes a notation from a military physician stating the Veteran complained of plantar surface pain at the metatarsal phalangeal joint (MTPJ). Medical records from June and July of 2013 show the Veteran continued to have foot problems, as he sought treatment from an orthopedic specialist and was fitted for custom foot orthotics. He was noted to have an altered gait as a result of his bilateral foot conditions. The Veteran also testified at the Board hearing that he has had difficulty with his feet since service. The Veteran is competent to report having foot problems since service. See Layno, 6 Vet. App. at 470. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current hammertoes and bilateral foot conditions arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for right and left hammertoes, and bilateral foot disabilities is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 9. Entitlement to service connection for right bundle-branch block The Veteran contends he is entitled to service connection for a heart disability. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran has a current diagnosis of right bundle branch block, as noted on an April 2018 VA examination report. January 1996 medical records show that the Veteran was diagnosed with right bundle branch block. At that time, he also experienced atrial fibrillation but has not had any recurrences. The April 2018 VA examiner opined that the claimed heart conditions are less likely than not incurred in or caused by service. As rationale, the examiner stated that there is no documentation of the Veteran having atrial fibrillation in over 15 years. The examiner also stated that the Veteran has a diagnosis of right bundle branch block with no etiology. Lastly, the examiner concluded there is no evidence of chronicity of care. As the record shows, right bundle branch block onset in January 1996 while the Veteran was in active service. Current medical records show the Veteran has a current diagnosis of right bundle branch block. Accordingly, the Board finds that the Veteran is entitled to service connection for right bundle branch block. 10. Entitlement to service connection for gout The Veteran asserts that he is entitled to service connection for gout. The Board concludes that the preponderance of the evidence is against finding that the Veteran has a current diagnosis of gout. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service treatment records are silent for treatment for or diagnosis of gout. On a January 2013 health questionnaire, gout was not selected as a condition the Veteran currently had or had within the past year. Orthopedic treatment notes from June 2013 indicate the Veteran reported having a history of gout, and he was prescribed medication for gout flares. However, at each of the Veteran’s VA examinations in May 2014 and April 2018, the Veteran was not found to have a diagnosis of gout. Additional private medical records and VA treatment notes also fail to show a diagnosis of gout or that the Veteran was on medication to treat the condition. The Board acknowledges that the June 2013 orthopedic physician listed gout as one of the Veteran’s conditions associated with his feet. However, this assessment appears to be based on the Veteran’s self-reported medical history, which is inconsistent with all other VA and private treatment records that fail to show a diagnosis of gout. While the Veteran believes he has a current diagnosis of gout, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Therefore, entitlement to service connection for gout must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 11. Entitlement to service connection for high cholesterol is denied. The Veteran also seeks service connection for high cholesterol. Hyperlipidemia, also referred to as high cholesterol, is a general term for elevated concentrations of any or all of the lipids in the plasma, including hypertriglyceridemia, hypercholesterolemia, etc. Dorland’s Illustrated Medical Dictionary 891 (32nd ed. 2012). Hyperlipidemia and elevated cholesterol are laboratory findings and are not disabilities in and of themselves for which VA compensation benefits are payable. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities. They are, therefore, not appropriate entities for the rating schedule). There is no case law to the contrary. See Neary v. Shinseki, No. 11-1407, 2012 WL 3641438 (Vet. App. Aug. 24, 2012) (declining to address argument that hyperlipidemia is not a disability but a laboratory finding that manifests itself only in laboratory test results and finding Board’s reasons and bases adequate). See also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). In this case, although the Veteran’s medical treatment records reflect that he has hyperlipidemia, given the above definitions and position of VA with regard to the nature of hyperlipidemia and elevated cholesterol, the Board finds that the condition for which the Veteran is claiming service connection is a laboratory finding that manifests itself only in laboratory test results and thus is not a disability for which service connection can be granted. As such, the claim for entitlement to service connection for a high cholesterol disability must be denied. REASONS FOR REMAND 1. Entitlement to hypertension is remanded. The Veteran asserts that he is entitled to service connection for high blood pressure. Based on a review of the available service treatment records, it does not appear that the Veteran was officially diagnosed with hypertension during service. However, it is unclear if the Veteran’s blood pressure was a factor regarding his January 1996 atrial fibrillation and right bundle branch block. Post-service record show that in December 2000, he may have had high blood pressure, and a physician’s note directed that a follow-up assessment should be made based on lab findings. Medical records from 2008 show the Veteran had a diagnosis of hypertension, but because of a gap in the medical records, it is unclear exactly when the Veteran was diagnosed. More recent VA treatment notes and the April 2018 VA examination report show the Veteran has a current diagnosis of hypertension. The April 2018 VA examiner provided a negative nexus opinion due to his inability to determine the date of the Veteran’s hypertension diagnosis. The Board finds remand is required to obtain a new VA medical opinion to address whether high blood pressure is related to the Veteran’s 1996 atrial fibrillation and right bundle branch block, or in the alternative, whether the Veteran’s hypertension is secondary to or aggravated by his now service-connected right bundle branch block. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA medical records. 2. Provide the Veteran’s claims file to an appropriate VA physician for file review and opinions regarding the etiology and course of the Veteran’s hypertension. Ask the reviewer to provide the following opinions: (a.) Whether it is at least as likely as not that the Veteran’s hypertension onset during or is related to service, to include January 1996 diagnoses of atrial fibrillation and right bundle branch block. (b.) Whether it is at least as likely as not that the Veteran’s hypertension is aggravated by his service-connected right bundle branch block. 3. All opinions expressed must be accompanied by a complete rationale. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Miller, 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.