Citation Nr: 21012104 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-08 606 DATE: March 3, 2021 ORDER Entitlement to service connection for a left ankle disability is denied. Entitlement to a rating in excess of noncompensable prior to December 15, 2017 for hypertension is denied. FINDINGS OF FACT 1. The Veteran’s left ankle disability did not manifest in service or for years following service separation and it is not otherwise related to service. 2. Prior to December 15, 2017, hypertension required continuous use of medication for control, but was not manifested by diastolic pressure predominantly 100 or more, or a history thereof, or systolic pressure predominantly 160 or more.   CONCLUSIONS OF LAW 1. The criteria for service connection for left ankle disability are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. Prior to December 15, 2017, the criteria for a compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1995 to September 1998. He appeals July 2013 (left ankle) and October 2014 (hypertension) rating decisions. He appeared at a Board hearing in September 2018 at which the undersigned Veterans Law Judge clarified the issues on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the Veteran’s claim. These actions complied with any duties owed during a hearing. 38C.F.R.§3.103. In May 2019, the Board issued a decision granting (1) service connection for left knee disability and (2) a rating of 10 percent, but not higher, after December 15, 2017 for hypertension. It remanded the matters of (1) a noncompensable rating prior to December 15, 2017 for hypertension, and service connection for (2) left ankle and (3) cervical spine disabilities. In June 2020, the AOJ effectuated the Board’s grants as to hypertension and the left knee. In October 2020, the AOJ (1) granted service connection for cervical spine disability, and (2) denied a compensable rating for hypertension prior to December 15, 2017 and (3) denied service connection for the left ankle disability. The hypertension and left ankle matters have been returned to the Board for appellate review. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. §§ 1110 (wartime), 1131 (peacetime). In general, 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. 2009). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for a left ankle disability is denied. The Veteran, who filed this claim in February 2012, testified in 2018 that he hurt his left ankle when he slipped and fell a couple of steps while descending a ship ladder in 1996. He easily gets left ankle sprains since that time. His representative noted a June 1996 sick bay report of left ankle pain and swelling. In May 2019, the Board remanded this claim to obtain any outstanding medical records and a medical opinion on whether the Veteran has a disability associated with the left ankle and whether it is at least as likely as not (50 percent or greater probability) related to service. The Board explained that the rationale in a 2016 negative VA medical opinion was contradictory, with the examiner noting both no post-service evidence of treatment for a left ankle disability and treatment in 2003 and 2012. The Board also noted that the examiner failed to mention either a July 2012 VA examination assessment of left ankle sprain or an October 2016 VA examination report note of left ankle lateral collateral ligament sprain (chronic or recurrent). There is current disability of left ankle tendonitis as diagnosed in the September 2020 VA Ankle Conditions Disability Benefits Questionnaire (DBQ). The issue for the Board thus is whether the Veteran’s disability, left ankle tendonitis, began during service or is at least as likely as not related to service. For the reasons that follow, we find that the preponderance of the evidence is against finding that the left ankle disability is related to service. Service treatment records include his July 1998 separation examination reflecting normal clinical evaluation of the feet and lower extremities. He denied foot trouble and lameness as well as broken bones. In June 1996, while stationed aboard the USS Camden, he went to sick bay once complaining of left ankle pain and swelling. He reported he had hit his right leg but did not remember injuring the ankle. The assessment was contusion, left ankle. He was instructed to take Motrin, apply ice packs, have light duty for 5 days, do no prolonged standing (over 30 minutes), elevate the leg and return to the clinic if symptoms worsened. A January 1999 VA general medical examination reflects no complaints as to the ankles and notes no abnormalities with the lower extremities. A September 2001 naval reserve application report of medical history reflects he denied bone or joint deformity, lameness, or foot trouble. VA treatment records reflect left ankle strain in September 2003, reported with tenderness when jogging for the last few months. At the VA ankle examination in July 2012, he reported his left ankle issue began in June 1996 with a left ankle twist that occurred while walking through the ship, and had worsened since. X-ray was negative. The diagnosis was left ankle sprain, the date of diagnosis was listed as July 2012, the day of the exam. At the VA ankle examination in October 2016, the diagnosis was lateral collateral ligament sprain (chronic/recurrent), the date of diagnosis was listed as October 2016, the day of the exam. X-ray was negative. Again, he reported the onset was the 1996 incident. The September 2020 DBQ reflects the examining physician reviewed the record and examined the Veteran. The diagnosis was left ankle tendonitis, the date of diagnosis was listed as September 2020, the day of the exam. Arthritis was noted to not be present based on the 2016 normal X-ray. The September 2020 VA medical opinion DBQ authored by the same physician reflects that the current left ankle disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale was: All relevant records pertaining to the veteran’s diagnosed conditions were reviewed and considered in the formation of this medical opinion. There are not enough complaints of continued ankle pain while in service after his first initial "contusion". In response, for the claimed condition of left ankle tendonitis it is less likely than not incurred in or caused by the claimed in-service injury. EVIDENCE: A review of the Veteran's service treatment records shows a onetime complaint of a left ankle injury on [June 1996] which was diagnosed as a “contusion”. There were no follow up visits for this injury. There was no report of [a] left ankle condition on his history for his separation physical examination on [July 1998], medical examination was normal at that time and the Medical Officer determined that his other joint complaints were minor and occasional. On a [Nov 1998] Retention physical, the Veteran certified that there was “no significant change in my health since my last complete physical examination,” and there were no ankle concerns identified. Furthermore, on [Sep 2001], the Veteran completed an Applicant physical for the US Naval Reserve and reported no medical history of “swollen/painful joints.” Finally, and while the Veteran presented to the VA Urgent Care Clinic on [Sep 2003] with complaints of “wart on left foot for a few months and tenderness left ankle” examination of his ankle was normal and there is no post-service evidence of treatment for a left ankle disability. The VA opinion is detailed and well-supported. Because it is informed by knowledge of the Veteran’s health as evidenced in the report, is not inconsistent with the documented record, and cites to critical facts in the record, the Board finds the VA opinion to be highly credible and probative of the issue of nexus. The Board finds the conclusions as to etiology to be sound as to the unique facts of this case. The examiner’s conclusions are uncontroverted by any other medical opinion evidence of record, and they are unfortunately not favorable to the claim. The examiner considered the Veteran’s theory as to a relationship and provided sound reasons for ultimately rejecting it. The Board accords it substantial probative weight as to the conclusion that the current left ankle disability is not related to service. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular independent medical expert’s opinion for its reasons and bases where the expert has fairly considered the material evidence of record). The opinion is adopted. While the Veteran testified in 2018 that the current left ankle disability is related to his documented June 1996 ankle complaint, as a lay person he is not credible. As noted by the 2020 VA examiner, the Veteran had a normal separation physical examination with no complaints as to the left ankle. This coupled with the lack of reports of left ankle problems in medical records for many years following service suggests there is no relationship between the isolated incident in 1996 in service and initial findings of the current left ankle condition years later. Here, in September 2002, he denied a relevant history. When seen in September 2003, there was a report of post service onset. We find his report for treatment purposes to be far more credible than statements advanced for compensation purposes. Furthermore, the 2003 report is consistent with the in-service and post-service treatment records. Consequently, the Board gives more probative weight to the competent medical evidence, which shows that the disorder first manifested years after service and is unrelated to service. The weight of the evidence is against finding that the current left ankle disability is otherwise related to service. The Veteran’s opinion is outweighed by the opinion of the trained medical examiner in 2020. The weight of the evidence is against concluding that any such disease was incurred in service. 38 C.F.R. § 3.303 (d). The preponderance of the evidence is against finding that a nexus exists between the Veteran’s current left ankle disability and service. 38 U.S.C. § 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings, however, are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. Entitlement to a rating in excess of non compensable prior to December 15, 2017 for hypertension is denied. The Veteran filed this claim in February 2014. At the 2018 hearing, the Veteran’s representative contended that the Veteran met the 10 percent criteria prior to December 15, 2017. He stated that on three occasions ‘on January 7, 1999’ systolic readings were 140 and the diastolic were 100. The Veteran testified that he has generally had quite a difficult time controlling his blood pressure, despite at least two medications. He noted he was relatively young, slim and healthy for what seemed to him like such a high dose of medicines. For the period prior to December 15, 2017, the Veteran’s hypertension has been assigned a noncompensable rating pursuant to DC 7101. 38 C.F.R. § 4.104. Under DC 7101, a 60 percent rating is warranted for hypertension if the diastolic pressure is predominantly 130 or more; a 40 percent rating is assigned if the diastolic pressure is predominantly 120 or more; a 20 percent rating is warranted when the diastolic pressure is predominantly 110 or more or systolic pressure is predominantly 200 or more; and a 10 percent rating is assigned if the diastolic pressure is predominantly 100 or more or systolic pressure is predominantly 160 or more, or minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. Notes to DC 7101 provide that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic pressure of less than 90 mm. Additionally, such direct that hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, should be evaluated as part of the condition causing it rather than by separate evaluation. Finally, hypertension should be evaluated separately from hypertensive heart disease and other types of heart disease. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. See 38 C.F.R. § 4.31. The Veteran underwent VA examinations in October 2014, and all VA and available and identified non-VA treatment records reflecting blood pressure readings and medications have been obtained relevant to the period on appeal. At the October 2014 examination, high blood pressure was noted to have been diagnosed from 2007. He reported that in 2007, he was started on hydrochlorothiazide. He stated he has been on the medication since that time except for some instances when he ran out and failed to refill his medication for a period of time. He had consistently been taking his hydrochlorothiazide (HCTZ) for the last 2-3 years. In June 2014, his blood pressure (BP) was more elevated and lisinopril was added. The examiner reported that he did not have a history of diastolic blood pressure of predominantly 100 or more. The Veteran’s current blood pressure readings were 126/88, 124/90, and 126/90. The examiner indicated that the Veteran’s hypertension did not impact his ability to work. The examiner noted there were no other pertinent physical findings, complications, conditions, signs or symptoms. Treatment records for the period prior to December 15, 2017 are consistent, overall, with this examination in terms of blood pressure readings. First, we note that private treatment records from Dr. B. reflect that the Veteran’s blood pressure had been ‘chronically uncontrolled’ due to ‘non-compliance’, prompting Dr. B. to restart him on HCTZ in January 2014. At that time, the BP reading was 152/115. Dr. B. indicated in March 2014 that the Veteran had not come back for a BP check despite being instructed to follow-up in February 2014. An April 2015 DBQ from a non-VA source reflects there was no functional limitations or other physical findings, and the readings reported included 154/88 in November 2013, 138/89 in May 2014, 137/88 in September 2014, 132/92 in April 2015. Older readings of 140/80 in September 2006 and 162/102 in May 2007 were also reported. It was reported that he had diastolic elevation fluctuating between 90 and 100 intermittently since diagnosis in 2006. Blood pressure readings in the VA treatment records reflect the following: 144/87 in February 2012; 154/98 in November 2013; 159/83 in January 2014; 118/76 in July 2014; 137/88 in September 2014; 132/92 in April 2015; 148/98 in April 2016 and 138/100 in June 2017. His medications list in July 2014 reflects hydrochlorothiazide tab 25 mg one-half tablet by mouth every morning for blood pressure as well as lisinopril tab 10 mg one-half tablet by mouth every day for blood pressure. In September 2014, it was noted that he was there for routine follow up and last seen in May 2014. Hypertension was stable, it was recommended he continue with HCTZ/lisinopril. He reported he was seeing a private primary caregiver and was now consistent with BP meds. It was noted in April 2015 that his medication regimen had been adjusted to improve BP control and he was started on Metoprolol. The diagnosis in April 2016 was essential hypertension. The Veteran underwent a stress test in August 2017. The impression was negative exercise treadmill test for myocardial ischemia. Duke Treadmill score of +11, which correlates with low cardiovascular risk. BP response was normal. Based on the foregoing, the Board finds that a compensable rating for the Veteran’s hypertension is not warranted prior to December 15, 2017 as the evidence shows that, while he requires continuous medication for control, he does not have diastolic pressure predominantly 100 or more, or a history thereof, or systolic pressure predominantly 160 or more during the relevant period. In this regard, multiple readings were well below the readings required to support a 10 percent rating and were consistent with the 2014 VA examination. Also, the VA examiner in 2014 felt there was not a history of diastolic blood pressure of predominantly 100 or more. The record is not indicative of diagnostic blood pressure readings predominately over 100 prior to December 15, 2017. Rather, the evidence shows that the vast majority of such readings during the appeal period have reflected that his diastolic blood pressure was under 100. Furthermore, most of the readings do not show systolic blood pressure over 160. We note Dr. B.’s reading of 152/115 was before the Veteran had restarted his medication in January 2014, and the Veteran was noted to be non-compliant with medication. The Board also acknowledges that the Veteran takes medications for his hypertension, which assists in controlling such disability. However, the use of medications is explicitly contemplated in DC 7101. In this regard, the Court has held that the Board did not err in failing to discount the ameliorative effects of blood pressure medication as the plain language of DC 7101 contemplates the effects of medications. McCarroll v. McDonald, 28 Vet. App. 267, 272-73 (2016). Consequently, an initial compensable rating for hypertension is not warranted. In making its determination in this case, the Board acknowledges the Veteran’s belief that his hypertension is more severe than as reflected by the currently assigned rating since he takes what he thinks is a lot of medication. However, his assertions that a compensable rating is approximated are outweighed by the documented blood pressure readings as noted in the examination and treatment record during the period on appeal. The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran’s service-connected hypertension prior to December 15, 2017; however, the Board finds that his symptomatology was stable throughout that period. Therefore, assigning staged ratings for such disability is not warranted for that period. Thus, the Board finds that a compensable rating for hypertension is not warranted for the period on appeal prior to December 15, 2017. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim. Accordingly, the benefit of the doubt doctrine is not applicable in the instant appeal, and his rating claim must be denied. 38 C.F.R. §§ 4.3, 4.7. As pointed out in the May 2019 Board decision granting a 10 percent rating and no higher for hypertension from December 15, 2017, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. Ap. 366, 369–70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.